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Per Curiam.
Appellant Anthony Hampton, by and through his attorney Clint Miller, has filed the instant motion for belated appeal from the denial of his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Hampton pleaded guilty to one count of aggravated robbery and one count of theft of property and was sentenced to a term of forty-five years’ imprisonment. Hampton subsequently sought and was denied postconviction relief in Pulaski County Circuit Court. Hampton appealed the denial of his petition, and this court, in an unpublished opinion, reversed and remanded the circuit court’s order. In remanding the matter, this court ordered the circuit court to enter written findings of fact and conclusions of law as required by Rule 37.3. The circuit court subsequently entered an order again denying Hampton’s request for Rule 37 relief on June 6, 2007.
Hampton filed the instant motion on October 3, 2008, therein requesting leave to file a belated appeal. In support of his motion, Hampton has attached an affidavit averring that he never received notice that the circuit court had denied his petition on June 6 and that he never received a copy of that order. The State has not filed a response.
This court addressed an almost identical situation as the present one in Rutledge v. State, 355 Ark. 499, 139 S.W.3d 518 (2003) (per curiam), and granted the motion for belated appeal because good cause was established for doing so. There, the appellant averred that he never received notice of the denial of his petition for postconviction relief, and the State was unable to demonstrate that the appellant received prompt notice of the court’s order. In the present case, the State has not responded and thus has not demonstrated that the circuit clerk promptly notified Hampton of the court’s order. Accordingly, Hampton has demonstrated good cause for his failure to file a timely notice of appeal, and we grant his motion for belated appeal.
Motion granted. | [
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Annabelle Clinton Imber, Justice.
Attorney Eddie Christian, Jr., appeals from an order of the Washington County Circuit Court finding him in contempt for intentionally and willfully violating a prior order barring all discovery. Christian alleges two points of error on appeal: 1) the circuit court’s prior order did not prohibit new discovery after the filing of an amended complaint; and 2) the circuit court exhibited both the appearance of bias and actual bias. Because this appeal involves the discipline of attorneys-at-law, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(5) (2008). We find no error and affirm.
On April 24, 2007, Christian filed a complaint in the Washington County Circuit Court on behalf of his client, John David Terry. The named defendants were John A. White, in his capacity as Chancellor of the University of Arkansas, Fayetteville, and B. Alan Sugg, in his capacity as President of the University of Arkansas System. The complaint sought a writ of mandamus and alleged claims for breach of contract, breach of fiduciary duty, and misuse of public funds, or illegal exaction. The gravamen of Terry’s complaint was that White had failed to conduct a proper investigation into allegations of a harassing email campaign against a student-athlete.
On the same day as the filing of the complaint, Christian issued subpoenas duces tecum to several individuals, scheduling depositions and seeking such evidence as email correspondence, computer hard drives, and cellular phone records. In compliance with Rule 30(b)(1) of the Arkansas Rules of Civil Procedure, Christian also issued notices of those depositions to White and Sugg. On May 9, 2007, following the filing of various objections and motions to quash by the individuals subpoenaed, the circuit court held a telephone conference with counsel. At that time, counsel for White and Sugg indicated an intent to file a motion to dismiss on the grounds of sovereign immunity. On account of this plan to seek summary dismissal of the complaint, White and Sugg requested a stay of discovery. The parties thus agreed to a delay in ruling on the objections and motions to quash until such time as the defendants filed their motion to dismiss and the court conducted a hearing on all pending motions, including any dispositive motions filed by the defendants. The order encompassing the rulings from the telephone conference, entered May 24, 2007, directed that no person or entity already subpoenaed should respond or produce documents prior to June 8, 2007. The order also instructed Christian to include on any subpoenas or notices issued language instructing the recipient not to respond or produce documents prior to June 8, 2007.
White and Sugg filed their motion to dismiss on May 17, 2007. The circuit court held a hearing on the motion on June 4, 2007, and dismissed Terry’s breach-of-contract and breach-of-fiduciary-duty claims with prejudice on the grounds' of sovereign immunity. The court also ruled that Terry’s illegal-exaction and mandamus claims were dismissed without prejudice for failure to state facts upon which relief could be granted, pursuant to Arkansas Rule of Civil Procedure 12(b)(6). Terry was granted a period of twenty days in which to refile the illegal-exaction and mandamus claims. The circuit court’s order of dismissal, entered June 26, 2007, contained the following paragraph:
In light of the dismissal of the Complaint, no discovery shall be conducted and all outstanding discovery initiated prior to June 4, 2007, is stayed indefinitely pending any further Orders of this Court. However, any person or entities that have been subpoenaed and/or noticed for depositions and/or production of documents in this proceeding will remain under their respective notice or subpoena duces tecum until further notice of the Court. With regard to any outstanding discovery, Plaintiff s counsel is hereby directed to provide written notice to each recipient of any subpoena or discovery request that all discovery is stayed in this matter indefinitely and that no witness is to produce any documents, appear for deposition, or otherwise respond to any discovery requests or demands pending any further Orders by this Court.
Terry filed an amended complaint on June 25, 2007, re-pleading the illegal-exaction and mandamus claims. White and Sugg moved to dismiss the amended complaint on July 16, 2007. On July 30, 2007, Christian issued a subpoena to the Director of the Arkansas Department of Finance and Administration (DF&A), the workplace of Sherri Darby, one of the previously subpoenaed witnesses. The subpoena instructed the Director to appear for deposition and to produce all emails received by or sent from Darby’s email address referring to the University of Arkansas football program. By way of this subpoena, Christian obtained from the DF&A a compact disc containing more than 800 emails received by or sent from Darby’s email address. Christian issued three more subpoenas on August 8, 2007, to employers of two other witnesses and to the DF&A again, expanding the scope of the evidence sought. Christian failed to provide notices of depositions to opposing counsel in accordance with Arkansas Rule of Civil Procedure 30(b)(1). He released the evidence obtained to the Arkansas Democrat-Gazette and various other individuals. Opposing counsel and counsel for the subpoenaed witnesses were apparently unaware of these four subpoenas until the information was reported in the newspaper.
Darby filed a motion for contempt against Terry and Christian on August 13, 2007, alleging violations of the court’s May 24 and June 26 orders. In a telephone conference held the following day, the court stated that it had intended to stay all discovery. In an effort to maintain the status quo until the motion for contempt could be heard on its merits, the court entered an order dated August 16, 2007, barring all discovery absent further orders of the court and requiring Christian to notify all other counsel of all outstanding subpoenas and of the identities of all individuals or entities to whom evidence had been released. The court also ordered Christian to notify all recipients of subpoenas and inform them that they should not respond until ordered to do so by the court. Additionally, Christian was prohibited from sharing information received as a result of the subpoenas and was ordered to notify all individuals or entities with whom he had already shared information and instruct them not to further disseminate it. On August 17, 2007, White and Sugg filed their own motion for contempt.
Also on August 17, 2007, the court held a hearing on White and Sugg’s motion to dismiss the amended complaint. The court granted the motion to dismiss in accordance with Arkansas Rule of Civil Procedure 12(b)(6), finding that Terry had again failed to allege facts sufficient to state a claim for illegal exaction or mandamus. In an order entered September 7, 2007, the court awarded $1,000 in attorney’s fees in favor of White and Sugg, finding that Terry’s complaints failed to present a justiciable issue of fact or law, and released all individuals and entities subpoenaed. On September 5, 2007, the court held a hearing on the motions for contempt, at which it found Christian to be in civil contempt of court for intentionally and willfully violating the court’s June 26 order barring all discovery. The order of contempt was entered on October 25, 2007. Christian filed a timely notice of appeal.
For his first point on appeal, Christian contends that the circuit court’s order finding him in contempt must be reversed due to the lack of clarity in the court’s prior order barring discovery. Specifically, he argues that the June 26 order barring discovery involved two separate issues: outstanding discovery, which had been initiated prior to the June 4 hearing, and new discovery, which had yet to be initiated at the time of the hearing. Christian asserts that outstanding discovery was stayed pending the motions to quash, while new discovery was barred because of the dismissal of the complaint. The crux of Christian’s argument is that the filing of the amended complaint revived the action and therefore lifted the bar on new discovery. White and Sugg, along with Darby, who has also filed a brief in this appeal, point out that the June 26 order barring discovery was filed one day after the amended complaint was filed, indicating that the circuit court intended for the bar to remain in spite of the filing of the amended complaint.
Our standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. Omni Holding & Dev. Corp. v. C.A.G. Invs., Inc., 370 Ark. 220, 230, 258 S.W.3d 374, 381 (2007). This court has held that willful disobedience of a valid order of a court is contemptuous behavior. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 450, 156 S.W.3d 228, 235 (2004). However, before one can be held in contempt for violating the court’s order, the order must be definite in its terms and clear as to what duties it imposes. Id. Christian argues that the circuit court’s June 26 order was unclear in regard to new discovery. He asserts that the phrase “[i]n light of the dismissal of the Complaint” indicated that discovery could be resumed if an amended complaint were filed within twenty days. Christian attempts to demonstrate this lack of clarity by arguing that counsel present at the June 4 hearing understood the court’s ruling to be that discovery was stayed for twenty days.
First, we note that the paragraph at issue in the June 26 order contains no mention of twenty days. The fifth paragraph of the order granted Terry a period of twenty days from the date of the hearing, through and including June 25, 2007, in which to file an amended complaint repleading the illegal-exaction and mandamus claims. The seventh paragraph then ruled that, “[i]n light of the dismissal of the Complaint, no discovery shall be conducted and all outstanding discovery initiated prior to June 4, 2007, is stayed indefinitely pending any further Orders of this Court.” We find Christian’s contention that the twenty days was also somehow relevant to discovery to be wholly unavailing. The circuit court’s order clearly stayed all outstanding discovery and barred all future discovery.
As Christian points out, the transcript of the June 4 hearing was attached to and incorporated into the June 26 order. He argues that comments made at the hearing establish the lack of clarity of the discovery ruling. However, the paragraph incorporating the transcript reads as follows: “The reasons and grounds for the Court’s dismissal of each count of Plaintiffs Complaint are detailed in the transcript of the Court’s ruling from the bench on June 4, 2007, which is attached hereto and incorporated into this Order.” In other words, the comments made from the bench were incorporated only insofar as they related to the dismissal of the complaint. In any event, we hold that the court’s comments at the June 4 hearing are consistent with its ruling barring all discovery and, in fact, contradict Christian’s argument regarding lack of clarity.
As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Magness v. McEntire, 305 Ark. 503, 506, 808 S.W.2d 783, 784 (1991). We have followed this general rule in stating that judgments should be reviewed by looking to the judgment itself, pleadings, and any evidence presented. Id. Moreover, while we look to the language in which an order is couched, we also look to whether the evidence supports the ruling. Id. at 506, 808 S.W.2d at 784-85 (quoting Ark. State Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 607, 804 S.W.2d 692, 694 (1991)). The circuit court in the instant case made its intentions clear in the June 4 hearing with the following statement, which was made in reference to the May 24 order ruling that no recipient of a subpoena should respond before the motion to dismiss could be heard:
[D]idn’t we put in there that nobody would be required to produce anything until after June the 4th, something like that? I guess we need to put in this order that that deadline is extended because, of course, if you do plead over again, then you may have another motion to dismiss by the defendants, so I would assume we just need to put that action is stayed until further orders of the Court indefinitely.
(Emphasis added.) This language demonstrates the court’s clear intent with regard to discovery. Christian’s argument to the contrary is meritless.
The court’s comment quoted above also indicates that the June 26 order was intended to parallel the May 24 order. Both orders stayed discovery in anticipation of the filing of a dispositive motion to dismiss by White and Sugg. In both instances, the court intended to maintain the status quo until such motion to dismiss could be heard. As such, the purpose and terms of the circuit court’s June 26 stay of discovery could not have been more clear.
We hold that the June 26 order was definite in its terms and clear as to what duties it imposed. The order itself and the circuit court’s comments plainly demonstrate that the order was intended to constitute a complete bar on all discovery. Therefore, we reject Christian’s argument regarding lack of clarity.
For his second point on appeal, Christian alleges that the circuit court exhibited both the appearance of bias and actual bias. Flowever, he failed to make an objection on this basis or move for the circuit judge’s recusal. The argument allegingjudicial bias is not preserved when there is not an objection based on the bias of the judge or a motion for the trial judge to recuse. Middleton v. Lockhart, 364 Ark. 32, 37, 216 S.W.3d 98, 101 (2005). Christian’s bias argument is not preserved for appellate review; accordingly, we are precluded from addressing it.
Affirmed.
Wills, J., not participating.
Christian sought this evidence first by way of a Freedom of Information Act request. Upon being informed by the Department of Finance and Administration that the records would not be released pursuant to the request, Christian issued the subpoena.
This order is the subject of a related appeal, Terry v. White, 374 Ark. 387, 288 S.W.3d 199 (2008).
Darby failed to file a motion to intervene in this court. | [
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Robert L. Brown, Justice.
The municipality of Helena-West Helena, Arkansas, and Mayor J.F. Valley, Chief Executive Officer of Helena-West Helena (collectively “City”), appeal the issuance of a writ of mandamus by the circuit court. We reverse the issuance of the writ and dismiss.
On July 6, 2007, Johnny Weaver, former mayor of the City of West Helena, filed a petition for a writ of mandamus and declaratory judgment with the Phillips County Circuit Court asking the circuit court to issue a writ of mandamus requiring the City of Helena-West Helena to pay retirement benefits to Weaver and requesting an immediate hearing on the issue. The City answered on July 26, 2007, and denied any wrongdoing. The City also asserted several affirmative defenses, including the defense that Weaver’s claims were not ripe for adjudication. On August 2, 2007, a notice of hearing was filed, notifying the parties that a hearing had been scheduled for the following day, August 3. During the hearing, the City asserted that it did not have adequate notice to prepare. The circuit court agreed, and a second hearing was scheduled for August 9, 2007.
On August 7, 2007, the City moved to dismiss the petition and contended that Weaver had failed to state a claim upon which relief could be granted. Particularly, the City argued that the city ordinance relied on by Weaver, Ordinance 4B enacted by the West Helena City Council in 2005, was invalid and unconstitutional because it contradicted an Arkansas statute, Arkansas Code Annotated § 24-12-123. In addition, the City argued that the issue was not ripe for consideration because Weaver had not reached the age of sixty, the minimum age, absent a city ordinance to the contrary, for a mayor to receive retirement benefits under § 24-12-123. During the August 9 hearing, the City also continued to maintain that Ordinance 4B was invalid and in conflict with state law and that Weaver’s claims were not ripe for consideration.
On November 8, 2007, the circuit court entered an order in which it issued a writ of mandamus and ordered the City to pay retirement benefits to Weaver. The circuit court specifically ruled that Ordinance 4B was valid and effective. The circuit court further found that the ordinance was not repealed by the merger of the cities of Helena and West Helena and ruled that because the Attorney General had not been notified of the City’s constitutional challenge to Ordinance 4B, as required by statute, the circuit court must give “full faith and credit” to the ordinance. The circuit court ruled, in addition, that pursuant to § 24-12-123 and Ordinance 4B, Weaver was presumed to meet the statutory minimum service requirements for receiving benefits, and, thus, Weaver had “an established right to receive retirement benefits.” The circuit court concluded that it was the General Assembly’s intent to issue retirement benefits to retired officials like Weaver and to prevent unfairness to an elected official who was forced out of office due to the merger of two or more cities.
The City filed a timely notice of appeal and brief in this case. No appellate brief was filed in this court on behalf of Weaver.
The City first contends that the circuit court erred by granting Weaver’s petition for a writ of mandamus because the ordinance relied upon by Weaver is in direct conflict with a state statute. The City insists that it is unconstitutional for a municipality to enact an ordinance contrary to a state statute, and the portions of any ordinance that conflict with a statute are void and have no effect. The City specifically claims that Ordinance 4B, which the circuit court relied upon in its order, is void because it contradicts § 24-12-123, which dictates when a mayor of a city of the first class is entitled to retirement benefits and also how a mayor’s additional previous service as an elected official or employee of the city may be counted towards a mayor’s service for purposes of qualifying for retirement benefits. The City concludes that Weaver has not satisfied the criteria to obtain retirement benefits under § 24-12-123 and that because Ordinance 4B conflicts with this section, the ordinance is invalid and should not have been relied upon by the circuit court to issue the writ of mandamus. Again, there is no response brief by Weaver.
Our standard of review for issues of statutory construction is well settled:
We review issues of statutory construction de novo. It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. The basic rule of statutory construction is to give effect to the intent of the General Assembly. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language____We will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error....
Sykes v. Williams, 373 Ark. 236, 240, 283 S.W.3d 209, 213-14 (2008) (internal citations omitted).
Section 24-12-123 dictates the criteria that must be met in order for a mayor of a city of the first class to receive retirement benefits upon his or her retirement as mayor. The relevant subsections of that statute provide:
(a)(1)(A) In all cities of the first class in this state, any person who shall serve as mayor of the city for a period of not less than ten (10) years, upon reaching the age sixty (60), or any person who shall serve as mayor of the city for a period of not less than twenty (20) years, without regard to age, shall be entitled to retire at an annual retirement benefit during the remainder of the person’s natural fife, payable at the rate of one-half (Vz) of the salary payable to the mayor at the time of retirement.
(B) The governing body of the city may provide by ordinance that any person who has served as mayor for a period of not less than ten (10) years may retire upon reaching the age fifty-five (55) with the benefits provided under this section.
(3) However, a mayor who has served as an elected official or employee of that city prior to or after the person’s service as mayor shall count his or her service as an elected official or employee of that city towards the mayor’s retirement as follows:
(A)(i) At the rate of one (1) year of a mayor’s retirement for each two (2) years served as an elected official or an employee of that city up to a maximum of an additional (2) years’ credit towards a mayor’s retirement benefit;
(ii) If authorized by a city ordinance, at the rate of one (1) year of a mayor’s retirement benefit for each two (2) years served as an elected official or an employee of that city up to a maximum of three (3) additional years’ credit towards a mayor’s retirement benefit if the person has not fewer than twenty (20) years of mayor’s credit and is at least fifty-two (52) years of age; or
(iii) If authorized by a city ordinance, at the rate of one (1) year of a mayor’s retirement benefit for each two (2) years served as an elected official or an employee of that city up to a maximum of four (4) additional years’ credit towards a mayor’s retirement benefit if the person has not fewer than twenty (20) years of mayor’s credit and is at least fifty-four (54) years of age; and
(B) Service as an elected official or as an employee of the city that is also covered under another retirement plan offered by the city or that is covered by another benefit provided for by law shall not be applied towards the mayor’s retirement benefits provided for under this section.
Ark. Code Ann. § 24-12-123(a)(l) and (a)(3) (Supp. 2007).
In 2005, the General Assembly enacted additional legislation to allow a mayor who is forced from office before reaching ten years of service due to the merger of two or more cities to meet the ten-year minimum service requirement. That statute reads:
(b)(1) Any mayor who is forced from office because of a merger of two (2) or more municipalities under this subchapter is presumed to meet the minimum service period under § 24-12-123.
(2) If the mayor who is forced from office has less than ten (10) years of actual service as mayor, then he or she is entitled to a prorated retirement benefit in an amount equal to the percentage of the mayor’s actual amount of service divided by the minimum ten (10) years of service required under § 24-12-123.
Ark. Code Ann. § 14-40-1208(b) (Supp. 2007).
Weaver served as the mayor of West Helena for a period of seven years, and he conceded to the circuit court that he had not yet reached the age of sixty at that time. Weaver argued, however, and the circuit court agreed, that he was entitled to retirement benefits pursuant to Ordinance 4B, which was enacted by the West Helena City Council in 2005. That ordinance provides:
SECTION 1: Any Mayor who is forced from office because of a merger of two (2) or more municipalities is presumed to meet the minimum service period under 24-12-123.
SECTION 2: If the Mayor who is forced from office has at least ten (10) years of actual service as Mayor or who has served in another capacity with the same city may apply all years served in that previous capacity toward the retirement if approved by the Council. Then he or she is entitled to a monthly sum equal to (34) of the monthly salary received by he or she [sic] during the last proceeding year of service. The retirement pay shall be paid by the city from its general fund.
Weaver contended before the circuit court that pursuant to this ordinance, he was authorized to add his prior twenty-one years of service as a firefighter for the City of West Helena to his years of service as mayor, which, under Ark. Code Ann. § 24-12-123(a)(1)(A), would entitle him to retirement benefits regardless of his age. The City, on the other hand, argued to the circuit court and now argues to this court that Section 2 of Ordinance 4B is in direct conflict with § 24-12-123 (a) (3), which dictates how a mayor’s previous service as an elected official or city employee may be credited towards his or her retirement. As such, the City claims that Section 2 of Ordinance 4B is invalid and that Weaver is not currently entitled to retirement benefits under the statutes.
Article 12, § 4 of the Arkansas Constitution reads that “[n]o municipal corporation shall be authorized to pass any laws contrary to the general laws of the state ....” Indeed, this court has said that “[mjunicipal corporations are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution.” White County v. Cities of Judsonia, Kensett, and Pangburn, 369 Ark. 151, 155, 251 S.W.3d 275, 279 (2007). City ordinances that are in conflict with state statutes are void under the Arkansas Constitution. See Calabria v. City of Fayetteville, 277 Ark. 489, 644 S.W.2d 249 (1982) (remanding case and instructing circuit court to disregard portions of ordinance that conflict with state statute); City of Piggott v. Eblen, 236 Ark. 390, 366 S.W.2d 192 (1963) (state statutes are paramount and supreme and preempt city ordinances); Shipley Baking Co. v. City of Hartford, 182 Ark. 503, 31 S.W.2d 944 (1930) (city ordinances inconsistent with state statutes are of no effect unless specifically authorized by the legislature); City of Morrilton v. Comes, 75 Ark. 458, 87 S.W. 1024 (1905) (citing Article 12, § 4 of the Arkansas Constitution and holding that ordinances contrary to state statutes are void).
In the case at hand, § 24-12-123 (a) (3) controls the manner in which a mayor’s previous years of service as a former elected official or employee of the city may be added to his or her years of service as a mayor for retirement benefit purposes. More specifically, § 24-12-123 (a) (3) (A) provides the formula to be used in calculating the proper number of years to be credited. Pursuant to § 24-12-123(a)(3)(A)(i), two years is the maximum number of years that may be credited towards a mayor’s retirement benefit absent a city ordinance to the contrary. Subsections (a)(3)(A)(ii) and (a)(3)(A)(iii) allow a city council, by ordinance, to credit three or four years of service towards the mayor’s retirement benefit, if the mayor has at least twenty years of mayor’s credit and meets certain age requirements. Section 24-12-123(a)(3)(B) specifically states that previous years of service may not be credited if that service is covered under another retirement plan. By comparison, Section 2 of Ordinance 4B provides that a mayor may apply all years of previous service towards his or her retirement benefit. Hence, it is obvious that Section 2 of Ordinance 4B is in direct conflict with both §§ 24-12-123(a)(3)(A) and 24-12-123 (a)(3)(B).
Weaver conceded to the circuit court that he is currently receiving retirement benefits based on his service as a firefighter, and under § 24-12-123 (a)(3)(B), those years of service may not be credited towards his retirement benefits as mayor. In addition, § 14-40-1208(b)(l) does not help Weaver even if we assume that § 14-40-1208(b)(l) amends § 24-12-123(a) regarding minimum years of service. The reason is that he has yet to reach the age of sixty, which is also required by § 24-12-123(a), and the Helena-West Helena City Council has not enacted an ordinance that would allow a former mayor to receive retirement benefits at the age of fifty-five, as permitted by § 24-12-123(a)(l)(B).
In sum, Ordinance 4B cannot override the requirements of § 24-12-123 because Article 12, § 4 of the Arkansas Constitution states that municipal corporations shall not be authorized to pass laws contrary to the general laws of the state. Based on this analysis, we hold that the circuit court erred in finding that Weaver was currently entitled to retirement benefits and by granting Weaver’s petition for a writ of mandamus. For this reason, we reverse the issuance of the writ of mandamus and dismiss the case.
Because we reverse on this ground, it is unnecessary for this court to address the City’s remaining points for reversal.
Reversed and Dismissed.
He indicated that he was fifty-six at the time of the hearing on August 9,2007.
Weaver argued to the circuit court that the City should not be able to challenge the constitutionality or validity of its own legislation. However, the issue is not before this court, as Weaver has failed to file an appellate brief and raise the issue on appeal. | [
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Per Curiam.
Petitioner Clarence D. Kelly petitions this court to stay proceedings Mississippi County Circuit Court; to issue a writ of certiorari quashing the recusal orders ofjudge Ralph Wilson, Judge Barbara Halsey, and Judge Cindy Thyer; to issue writs of mandamus directing Judges Halsey and Thyer to reconsider their recusals; and to issue a writ of certiorari, or in the alternative, a writ of prohibition preventing Judge David Burnett from conducting the trial scheduled October 13, 2008. Petitioner asserts that it is a violation of the court’s administrative plan for Judge Burnett to preside over this case.
Kelly is charged with capital murder in the Blytheville Division of Mississippi County Circuit Court, where Judges Wilson, Halsey, and Thyer ordinarily hear criminal cases. First, Judge Ralph Wilson recused on August 5, 2009. Thereafter, Judges Halsey and Thyer recused on August 13, 2008. Judge Wilson, the administrative judge, then appointed Judge Burnett to Kelly’s case.
In a case cited by Petitioner, we have said that “the disqualification of a judge generally deprives him of the authority to perform any judicial act or to perform any act calling for an exercise of judicial discretion in connection with the pending cause, except to select another judge or to make a transfer of the case in accordance with the law.” Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). Administrative Order 14(2)(c)(2) provides that “cases may be reassigned by the administrative judge as necessity requires.”
Under Bolden, neither Judge Halsey nor Judge Thyer may reconsider, as a recusal ends their jurisdiction. However, after his own recusal, Judge Wilson may perform, in his role as an administrative judge, the ministerial act of assigning another judge to the case.
Under Administrative Order 14(2)(c)(2), “a circuit judge to whom a case is assigned shall accept that case unless he or she is disqualified or the interests of justice require that the case not be heard by that judge.” Kelly argues that the administrative plan has been violated, but points only to a proposed solution of requiring a judge who has recused to, in effect, set aside an order of recusal, which is in direct conflict with Administrative Order 14.
Petitioner does not argue that Judge Burnett is wholly without jurisdiction; and rightfully so, as Judge Burnett clearly does have jurisdiction. Therefore, as all of the judges who ordinarily preside over criminal cases have recused, there is no apparent reason why Judge Burnett should not proceed to trial.
Motion for stay denied.
Motion for writ of mandamus denied.
Motion for writ of certiorari denied. | [
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Donald L. Corbin, Justice.
Appellants, Warren Wholesale Co., Inc., Glidewell Distributing Co., Inc., Ritchie Grocer Co., Inc., Northwest Tobacco & Candy Co., Douglas Companies, Inc., Merritt Wholesale Distributor, Inc., and Warehouse Distributing Co., Inc., appeal the June 11, 2007 order of the Pulaski County Circuit Court declaring ultra vires and unconstitutional certain portions of a cost and minimum price rule promulgated by the Arkansas Tobacco Control Board (the Board) as section 15 of the Rules and Regulations of the Board. Together with this appeal, we also consider the motion of Appellees, McLane Company, Inc. d/b/a McLane Southwest and McLane Southern, Inc., to take judicial notice and to dismiss appeal. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(b)(6) as an appeal presenting a substantial question of law concerning the construction of an act of the General Assembly and a regulation of an administrative agency. We dismiss the appeal.
This case began in Benton County when Appellees, who are out-of-state companies licensed to sell wholesale cigarettes in Arkansas, filed a complaint against the Board and its director for declaratory judgment pursuant to the Arkansas Administrative Procedure Act, specifically Arkansas Code Annotated section 25-15-207 (Repl. 2002), to determine the validity of section 15. Appellees also sought an injunction to prevent the Board and its director from enforcing any provision of section 15 or any cost standard that prescribes methods to determine cost that are different or contrary to the standards and methods of accounting referred to at Arkansas Code Annotated section 4-75-702(5)(A) (Supp. 2007) in the Unfair Cigarette Sales Act. The case was transferred to Pulaski County, and Appellants, who are Arkansas companies licensed to sell wholesale cigarettes in Arkansas, were allowed to intervene.
The circuit court held a two-day bench trial in October 2006 and entered an order on June 11, 2007, declaring certain portions of section 15 ultra vires of the Unfair Cigarette Sales Act and in violation of due process. Appellants filed this appeal from that order, although the Board did not.
While this appeal was pending, the Board did, however, initiate the rulemaking process to consider alternatives to the challenged section 15. The Board ultimately promulgated a completely new version of section 15 in May 2008 while this appeal was still pending and repealed the version of section 15 that was challenged in this declaratory-judgment action below. Appellees filed a motion asking this court to take judicial notice of the new section 15 and dismiss Appellants’ appeal as moot.
This court has historically and consistently taken judicial notice of rules and regulations promulgated by administrative agencies. Ark. Alcoholic Beverage Control Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992); Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967); State v. Martin, 134 Ark. 420, 204 S.W.2d 622 (1918). The Board filed with the Secretary of State a new section 15, which became effective May 22, 2008. The new section 15 replaces in its entirety the section 15 at issue in this case.
In support of their argument to dismiss this appeal as moot, Appellees rely on Weiss v. Chavers, 357 Ark. 607, 184 S.W.3d 437 (2004), and Morgan v. Sparks, 258 Ark. 273, 523 S.W.2d 926 (1975), for the proposition that this court will not pass on the validity of laws and regulations that were repealed during the pendency of the litigation challenging those same laws and regulations. This court relied on Morgan and stated in Chavers that when a statute is constitutionally challenged on appeal and the General Assembly repeals that statute while the appeal is pending, the appeal is rendered moot. This court has also held that a negotiated settlement agreement reached during the pendency of an appeal renders the appeal moot. City of Pine Bluff v. Jones, 370 Ark. 173, 258 S.W.3d 361 (2007). The principles of mootness involved in these cases concerning statutes and settlement agreements are likewise applicable to an agency regulation that is repealed while the appeal challenging the regulation is pending. We therefore conclude that when the Board repealed the version of section 15 that was the subject of the challenge below, the appeal of the trial court’s ruling on that same section 15 was rendered moot.
As a general rule, appellate courts of this state will not review issues that are moot. Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007) (citing Ball v. Phillips County Election Comm’n, 364 Ark. 574, 222 S.W.3d 205 (2006)). To do so would be to render advisory opinions, which this court will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. This, court has recognized two exceptions to the mootness doctrine. Id. The first exception involves issues that are capable of repetition, but that evade review. Id. The second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id.
Appellants respond that this case is not moot because the language that is the crux of this litigation is found in the statute, the Unfair Cigarette Sales Act, not in the regulation that was repealed. Appellants contend that the central issue presented here is the meaning of the phrase “standards and methods of accounting” as found in section 4-75-702(5)(A). Appellants also contend that the circuit court’s interpretation of this phrase essentially stripped the Board of its authority to determine the level of “proof satisfactory to the Board” mandated by section 4-75-702(5) (B). While there was indeed evidence presented below concerning methods of accounting and discussion concerning proof to the Board, the fact remains that this suit is a facial challenge to an agency regulation, and the challenged regulation no longer exists. Thus, despite Appellants’ arguments to the contrary, any construing of statutes that is required in this case has to be done in the context of the challenged regulation. Since the challenged regulation no longer exists, we are void of a context in which to construe the statute, and the appeal is moot.
Alternatively, Appellants contend that this appeal presents issues of substantial public interest that are likely to arise in future litigation. Appellants rely on Gray v. Mitchell, which states that “ ‘[wjhere considerations of public interest or prevention of future litigation are present,’ this court may, at its discretion, ‘elect to settle an issue, even though moot.’ ” 373 Ark. 560, 572, 285 S.W.3d 222, 233 (2008) (quoting Owens v. Taylor, 299 Ark. 373, 374, 772 S.W.2d 596, 597 (1989)). Appellants refer to the history of litigation between the parties to this appeal as an indication that there will be future litigation on this subject.
The new section 15 altered the procedures, requirements, and standards applicable when a wholesaler seeks Board approval to sell cigarettes below the statutorily presumed minimum price. The changes are such that, even if we were inclined to view this case as presenting a discretionary exception to the mootness doctrine, we would only be speculating as to the positions the parties would take and the ruling the trial court would make. This court does not engage in speculation, and does not render advisory opinions. Honeycutt, 371 Ark. 545, 268 S.W.3d 875. Assuming for the sake of argument that we could somehow overcome the speculation hurdle, we are not convinced that we could “settle the issue” and actually achieve the objective of preventing future litigation. As Appellants have observed, these parties have been litigating issues relating to a wholesaler’s cost for over ten years.
In summary, the agency regulation being challenged below was repealed while this appeal was pending. Appellees initiated this case with a complaint seeking both a declaration that section 15 was invalid and an injunction restraining the Board’s enforcement of section 15. The section 15 being challenged in this case is no longer in effect. There is therefore no longer a controversy between the parties, and this appeal is moot. We therefore grant Appellees’ motion to dismiss the appeal.
We are mindful of Appellants’ claim that other issues raised in this appeal are not rendered moot by the repeal and replacement of section 15. Appellants refer specifically to the following two directives in the circuit court’s order, which they claim went beyond Appellees’ facial challenge to the regulation and exceeded the circuit court’s jurisdiction:
The Board and the Director also are enjoined from enforcing or applying any “cost” standard against McLane that is higher than its cost of cigarettes and of doing business as determined from evidence of the standards and methods of accounting it regularly employs, which is the standard provided by Ark. Code Ann. § 4-75-702(5) (A).
... McLane is entitled to a determination of its actual cost of doing business as evidenced by the standards and methods of accounting that it regularly employs.
Appellants give the above-quoted directives an overly broad reading. The trial court was simply ordering the Board to use only the cost standard found in the statute and not those found in the now-repealed section 15. We read the foregoing directives as implicitly requiring that Appellees follow the requisite statutory and regulatory procedures for obtaining such a determination found in the then-existing regulation 15. Therefore, Appellants’ arguments concerning exhaustion of remedies and separation of powers are tied to the repealed regulation and are therefore likewise rendered moot by the repeal of the challenged regulation.
Appellees’ motion to dismiss the appeal is granted. The case is remanded for entry of a decree stating that the grounds upon which the trial court relied for entering the declaratory judgment and injunction have become moot by the repeal of the challenged section 15. See Morgan, 258 Ark. 273, 523 S.W.2d 926.
Appeal dismissed.
Glaze, J., not participating.
McLane S., Inc. v. Davis, 366 Ark. 164, 233 S.W.3d 674 (2006); McLane Co. v. Davis, 353 Ark. 539, 110 S.W.3d 251 (2003); McLane Co. v. Davis, 342 Ark. 655, 33 S.W.3d 473 (2000); McLane Co. v. Weiss, 332 Ark. 284, 965 S.W.2d 109 (1998); McLane S., Inc. v. Davis, 80 Ark.App. 30, 90 S.W.3d 16 (2002). | [
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Jim Hannah, Chief Justice.
Appellant Michael David Koster appeals his convictions for possession of methamphetamine and possession of drug paraphernalia. Koster was sentenced to three years’ imprisonment on each count to be served concurrently. Koster raises several points for reversal, contending that the circuit court erred (1) in denying his motion to dismiss, where after jeopardy attached, a mistrial was declared sua sponte, without the consent of Koster, and absent evidence a mistrial was manifestly necessary; (2) in denying his posttrial motion to dismiss the conviction for possession of a controlled substance, because it is a lesser-included offense of possession of drug paraphernalia; (3) in denying his motion to suppress evidence obtained as a result of his unlawful arrest; (4) in denying his motion to suppress statements that were not only tainted by his unlawful arrest, but which were admitted absent evidence of a valid waiver; and (5) in denying his motion to continue after allowing the State to dismiss two counts in the information, effectively amending the information, which was a surprise that prejudiced the defense. We affirm the circuit court.
Mistrial
Koster first contends that double jeopardy barred the State from trying him a second time after the circuit court declared a mistrial during his first trial. Koster states that the circuit court sua sponte declared a mistrial without his consent and absent evidence a mistrial was manifestly necessary. The State contends that the circuit court was within its discretion to declare a mistrial based on overruling necessity due to a sequence of events initiated by defense counsel, so double jeopardy did not preclude him from being retried.
This court reviews a circuit court’s denial of a motion to dismiss on double jeopardy grounds de novo. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007). When the analysis presents itself as a mixed question of law and fact, the factual determinations made by the circuit court are given due deference and are not reversed unless clearly erroneous. See Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). However, the ultimate decision by the circuit court that the defendant’s protection against double jeopardy was not violated is reviewed de novo, with no deference given to the circuit court’s determination. Id.
Koster was charged with a number of criminal offenses in addition to the two offenses for which he was convicted, including drug-related crimes, domestic-abuse crimes, and criminal use of a prohibited weapon. With regard to the latter offense, the State alleged that Koster possessed a bomb, in violation of Ark. Code Ann. § 5-73-104(a)(l) (Repl. 2005). The device was discovered when officers were searching Koster’s place of business, Green Forest Body Shop, after going there to question him about a domestic disturbance. Chief John Bailey of the Green Forest Police Department described the device as a cylinder six to seven inches long and two to three inches in diameter, wrapped in black electrical tape, with a fuse.
Roster’s first jury trial began on September 27, 2005. Green Forest Police Officer Verlin Griggs testified that he found the device when he opened a drawer of a toolbox in Roster’s shop. Griggs testified that, later, he was blocking traffic approximately two blocks away when the “bomb went off,” and that he “felt the repercussion from the bomb on my back.” Bailey testified that the blast felt like a “shock wave” that traveled through his body, and he stated that the blast broke windows in Roster’s building, caused marks on the wall, and charred the asphalt where the device had been detonated.
Drew Deason, a senior bomb technician for the Springdale Police Department, was called to the scene after the device was found. Deason described the device as being “very unstable,” noting that it was powerful as “a stick of dynamite, if not a little more.” He testified that, hypothetically, if such a device were to go off in the middle of the courtroom, it would cause, “extreme, severe bodily injury, if not death” to those located in close proximity and that the “windows and walls [of the courtroom] could possibly be blown out from the blast-over pressure.” A videotape of the detonation was played for the judge and jury, and Deason testified that the detonation caused a “considerable” fireball.
After the State rested, Roster called his friend, Scott Tucker, to testify. Roster’s attorney at trial and on appeal, Cindy Baker, produced an explosive device and showed it to Tucker. Tucker described the device as similar to the one he had seen in Roster’s shop in Roster’s toolbox. Tucker stated that Roster purchased the devices on July 4, 2002, and that one of them had been lying “in the top of [Roster’s] toolbox for at least a year.”
Later, during Tucker’s testimony, the trial judge asked Baker to hand him the device. After inspecting the device, the judge stated that he could not tell if it had been disarmed. Baker asked Tucker if it had been disarmed, and Tucker replied, “I couldn’t tell you.” The judge then determined that the device he was holding had not been disarmed, and he requested that the bailiff remove it from the courthouse. After a discussion at the bench concerning Baker’s bringing the device into the courthouse, the bailiff stated: “Mr. Gordon is calling the bomb expert back. He recommends the courthouse be cleared.” The device, according to the bailiff, was on the curb in front of the courthouse. The judge stated he was not going to clear the courtroom, and Baker resumed questioning Tucker. Subsequently, during Tucker’s direct testimony, the bailiff informed the judge that, upon the advice of Mr. Rogers, the courthouse was being evacuated. After discussing the matter with counsel, the judge recessed until the next morning.
When court resumed the following day, Baker informed the court that she had filed a motion to dismiss the counts against Koster. The basis of the motion was that, by detonating the device she had brought into the courtroom, the State had destroyed exculpatory evidence in that the device would allow the jury to see that the explosive was a legal item and that Koster did not violate the law by possessing it. The motion further asserted that, contrary to the State’s contention that the device was a “homemade bomb,” the device was a “legal, commercially available firecracker,” purchased from a local fireworks dealer. The motion averred that the State acted in bad faith when the officers destroyed the explosive and that the exculpatory nature of the evidence required dismissal of all of the counts against him. In addition, the motion also requested individual voir dire of the jurors because outside the courthouse, after court was adjourned the previous day, some members of the jury had seen the police activity concerning the explosive device.
Over Koster’s objection, the judge construed Koster’s motion to dismiss as one for a mistrial. The judge disagreed with Koster’s argument that the destruction of exculpatory evidence required dismissal of the charges and noted that he was not convinced that the device was exculpatory. The judge further stated that he had heard no evidence that the device had been destroyed. The judge noted that, without seeking permission to do so, Baker had brought a live, explosive device into the courtroom. Accordingly, the judge determined that Baker’s actions had resulted in a delay of the case and that the trial could not be completed in the time the court had allotted for it. Both the prosecutor and Baker acknowledged that, on the previous day, some of the jurors had watched the police activity concerning the explosive device. The judge then ruled that “the actions of the defendant have resulted in a situation where the proceedings in this case are unalterably compromised,” and he declared a mistrial.
The judge dismissed the jury, explaining that he was declaring a mistrial for three reasons:
The first reason is that, yesterday, there occurred an introduction into the courtroom of an explosive device without adequate safeguards and without prior permission from the Court, which caused an unnecessary delay in these proceedings, and the trial cannot be completed within the time allowed the Court for this case, and the Court’s docket next week provides no opening for which this case could be readily heard.
Secondly, the State and defense agree that several members of the jury panel watched police activity outside of the courtroom concerning the explosive device. I do not have information as to whether or not all of you observed the explosion or the proceedings of the police or not, and if some of you did observe them and some — in any event, it appears that members of the jury have information about this case or that may concern this case which may influence your decision and have evidence outside of the courtroom, or that you have obtained outside of the courtroom.
The third reason is that the defendant has filed a motion to dismiss in this case in regard to the preservation of evidence. There is no way that the Court can act on the facts and allegations alleged in the motion without further delaying this case. The Court is, therefore, treating the motion to dismiss as a motion for a mistrial filed by the defendant. The Court, therefore, does declare a mistrial, and you are excused.
On November 7, 2005, Koster filed a motion to dismiss, alleging, inter alia, that double jeopardy barred retrial because the mistrial was declared over his objection and there was no overruling necessity for the court to stop the trial. The circuit court denied the motion at a hearing held November 21, 2005, and made the following findings:
[T]he Court . . . held that this was a matter of over-riding necessity. It is my belief that the over-riding necessity perhaps even occurred as early as the time Ms. Baker took the device out of the — out of the sack, or whatever it was she had it in, and laid it on the witness stand, in full view of the jury. No party made any motions, at that time, but then the jury observed the Court’s reaction to the device.
The jury saw the Court ask — and heard the Court ask Ms. Baker what the device was. The jury heard Ms. Baker’s response. The Court ordered the bailiff to remove the device from the courtroom. The jury saw me do that. After the device was removed from the courtroom, the jury was present when the bailiff returned to the Court on at least two occasions. And it is believed, by me, to be outside of the hearing of the jury, observed the bailiff whispering to us. And then, on the second occasion, the jury was instructed — at some point in that proceeding, in that interval, the jury was instructed to disregard seeing the device.
At that point, the proceedings were recessed. The regular jury instruction for recesses was read to the jury. The jury was taken out of the courtroom. What they had seen was a round, cylindrical device, photographs of which have been admitted in the history of this case. A round cylindrical device approximately six inches long by an inch in circumference, and — or an inch in diameter, rather, and with a fuse coming out of one end. Out of the side of one end. It appeared to be an explosive device.
After hearing reports from the State and the defense that the State had — or that the State had — or that jurors had been observed watching the attempted destruction of the device, the Court, on it[s] own motion, declared a mistrial for the reason that members of the jury received information, outside of the courtroom, from which they could have received misleading information and/or would have made them witnesses, themselves, to this case.
Both the Fifth Amendment to the United States Constitution and article 2, § 8 of the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty for the same offense. See Williams, supra. The Double Jeopardy Clause protects criminal defendants from: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” Hughes v. State, 347 Ark. 696, 702, 66 S.W.3d 645, 648 (2002).
“A former prosecution is an affirmative defense to a subsequent prosecution for the same offense ... [if] [t]he former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn . . . unless the termination was justified by overruling necessity.” Ark. Code Ann. § 5-1-112(3) (Repl. 2006) (emphasis added). The “overruling necessity” requirement in the statute comports with the federal standard of “manifest necessity,” as articulated in Arizona v. Washington, 434 U.S. 497, 505 (1978):
Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant.
(Footnote omitted.)
The United States Supreme Court has noted that “a criminal trial is, even in the best of circumstances, a complicated affair to manage.” United States v. Jorn, 400 U.S. 470, 479 (1971). “[A] mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Id. at 480. Accordingly, the Court has, “for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial.” Id. This court, too, has recognized the difficulty of categorizing cases involving claims of double jeopardy and the resulting inadequacy of expounding any standard formula for guidance. See, e.g., Jones v. State, 288 Ark. 162, 702 S.W.2d 799 (1986) (citing Arizona v. Washington, supra; Illinois v. Somerville, 410 U.S. 598 (1973)). To that end, each case must turn largely on its facts. Jones, supra (citing Arizona v. Washington, supra; Illinois v. Somerville, supra). We have stated that the State bears the burden of proving a manifest necessity, which is a circumstance that is “forceful and compelling” and is “in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.” Williams, supra (citing Jones, supra, and Cody v. State, 237 Ark. 15, 371 S.W.2d 143 (1963)). It is within the circuit court’s discretion to determine whether there is an “overruling necessity” that requires the grant of a mistrial, and we will not disturb that ruling absent an abuse of discretion. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991)).
Koster contends that the circuit court erred in declaring a mistrial because any error could have been corrected by curative relief and because there were alternatives to declaring a mistrial. He states:
[Koster offered] an availability to mitigate the harm caused to the Defense in the trial. Koster offered the alternative of allowing the Court to enter an Order requiring the turn over of photographs, recordings, or pictures of the item [the explosive device] to be turned [over] to the Defense for evaluation and potential use. Further, Koster requested that all parties be allowed to voir dire the jury as to any potential evidence that may have been received, so that prejudicial effect, if any, could be determined. Finally, Koster offered to “work around” the provision of the items being sought, by taking witnesses out of order, until the items could be viewed and a determination of legal sufficiency for use made by the defense.
The State contends that the trial judge was presented with an “unprecedented situation” that originated with the defense, and, based on his súperior position to observe the jury’s observation of his own reaction when Baker first produced the device, along with the judge’s detailed and reasoned explanation for granting the mistrial, the trial judge did not abuse his discretion by finding that there was overruling necessity for terminating the trial. We agree.
The circuit court reasoned that there was no basis to dismiss the case against Koster and, as such, it considered Koster’s motion to dismiss as one for a mistrial, based on the relief the motion sought. The circuit court declared a mistrial the following day, after it learned that jurors had watched the activities outside of the courthouse. It is apparent that the circuit court was concerned that the impact of seeing those activities outside of the courtroom had tainted the jury so that an admonition to disregard those observations would not cure the problem. Therefore, the circuit court declared a mistrial sua sponte, over the objections of both the State and the defense, based on the overruling necessity because the jury had been exposed to matters outside of the courtroom that could affect its judgment with regard to at least one of the charges — criminal use of a prohibited weapon — Koster was facing. The circuit court did not abuse its discretion in finding that there was an overruling necessity for terminating the trial. Therefore, the Double Jeopardy Clause did not preclude the State from bringing Koster to trial a second time.
Koster also contends that the circuit court erred by not allowing him to present evidence at his second trial concerning his affirmative defense of double jeopardy. He contends that, because Ark. Code Ann. § 5-1-112 (Repl. 2006) states that a subsequent prosecution for the same offense is an “affirmative defense,” the circuit court erred by refusing to allow him to present to the jury at his second trial evidence about the circumstances that resulted in the mistrial at his first trial. The circuit court ruled that the defense was one “of law and not a defense of fact,” and that Koster could not present evidence to the jury concerning the mistrial, given that the declaration of a mistrial is discretionary with the trial judge. In effect, Koster wanted the second jury to decide, as a question of fact, if the trial judge had abused his discretion by declaring the mistrial at his first trial. The circuit court has wide discretion in granting or denying a motion for mistrial, and, absent an abuse of that discretion, the circuit court’s decision will not be disturbed on appeal. See, e.g., Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). The State correctly points out that Koster’s argument, if successful, would allow a jury to usurp this court’s function by deciding whether there was an abuse of discretion as a question of fact, rather than requiring the issue to be reviewed on appeal as a matter of law. It is not the jury’s function to decide if the circuit court made an error; that is the function of the appellate court. The circuit court did not err in refusing to allow Koster to present to the jury at his second trial evidence about the circumstances that resulted in the mistrial during the first trial.
Lesser-Included Offenses
Koster was convicted of both possession of methamphetamine and possession of drug paraphernalia. He claims that the circuit court erred in denying his posttrial motion to dismiss the conviction for possession of methamphetamine because it is a lesser-included offense of possession of drug paraphernalia. Thus, he claims that his being sentenced for both crimes is a double-jeopardy violation.
Pursuant to Ark. Code Ann. § 5-1-110(b) (Repl. 2006), an offense is a lesser-included offense of another if the offense:
(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;
(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
(3) Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the offense’s commission.
. Koster asserts that felony possession of drug paraphernalia required proof of all of the elements of possession of a controlled substance, as evidenced by the jury’s query in this case. During deliberations, the jury sent out the following questions: “What is the difference between the two charges, drug paraphernalia and possession of a controlled substance? Please clarify. Can he be guilty of one and not guilty of the other?” The jury was brought back into the courtroom, and the circuit court reread the jury instructions to the jury. The jury then retired to continue deliberations.
Arkansas Code Annotated § 5-64-401 (c)(1) (Repl. 2006) makes it “unlawful for any person to possess a controlled substance,” except in certain circumstances that are inapplicable in the instant case. Arkansas Code Annotated § 5-64-403(c)(l)(A)(i) (Repl. 2006) provides that it is
unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
The plain language of the statutes shows that possession of a controlled substance does not require the simultaneous possession of paraphernalia, and possession of paraphernalia does not require the simultaneous possession of a controlled substance. Because the elements of the two offenses can be completely exclusive of each other, neither offense is included in the other.
Still, Koster suggests that, in cases where the drug is found in a container, possession of the drug is included in the possession of the container. In this case, various items of drug paraphernalia were admitted, including a Carmex jar that contained methamphetamine. Koster contends that the questions submitted by the jury during its deliberations, asking if a person could be guilty of one of the offenses but not the other suggests that it did not believe he possessed any paraphernalia other than the Carmex jar, even though other items of drug-related paraphernalia, such as tin-foil aluminum boats and pipes, were found in Koster’s shop.
We find no merit in Koster’s argument. First, there is nothing in the statutes defining the offenses that make an exception for Koster’s suggested “container” scenario. Further, regardless of what prompted the jury to ask those questions during the course of its deliberations, at the end of its deliberations, it convicted him of both offenses. In sum, Koster has failed to demonstrate that possession of methamphetamine is a lesser-included offense of possession of drug paraphernalia. The circuit court did not err by sentencing him for both offenses.
Motion to Suppress Evidence
Koster asserts that the circuit court erred in denying his motion to suppress evidence as a result of his unlawful arrest. In reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Sheridan v. State, 368 Ark. 510, 247 S.W.3d 481 (2007). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. See Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id.
Officer Shannon Hill of the Green Forest Police Department was dispatched to Koster’s residence on October 17, 2003, based on a report of a domestic disturbance. Hill testified that, at the Koster home, he took statements from neighbors and Koster’s wife, Laura. Hill learned that Koster hit Laura, threw candles and dishes at her and their small child, and threatened Laura. Hill also learned that Koster shook Laura and left marks on her. Hill and another officer were subsequently sent to Koster’s shop to arrest Koster on charges related to the domestic incident. Hill spoke to Koster, asked him what had happened, and told him that he was under arrest based on the domestic disturbance at the Koster home. While talking to Koster at the shop, Hill noticed some “tin-foil boats” containing a residue, and based on his training in detecting narcotics, he believed it was the residue of methamphetamine. Hill testified that he then asked Koster for consent to search. Hill noted that he read the form to Koster and informed Koster that he did not have to give consent to search. According to Hill, Koster read the form himself and then filled out and signed the form, granting consent. Hill stated that Koster was kept at the shop during the search, was allowed to watch the search, and was told he could stop the search at any time. The search resulted in the seizure of drug-related items, including pipes; pieces of tin foil containing residue; marijuana; seeds; and methamphetamine in a Carmex jar, as well as an explosive device.
Green Forest Police Department Sergeant Brad Handley testified that, at Koster’s house, he learned that Koster had thrown some plates at Laura and that he had thrown a large candle at her while she was holding a child. Handley testified that, as soon as Hill arrested Koster at the shop, Handley read Koster his Miranda rights.
Koster and Laura both testified at the suppression hearing and disputed the majority of the officers’ testimony. Laura testified that Koster never struck her and that the police were just supposed to go down to the shop and talk to him. Koster testified that, at the time he signed the consent form, the police had already begun the search at the shop. Koster said the only reason he signed the form is because he did not want the police to “tear my shop up.” Koster further stated that he was not told that he had a right to refuse the search or that he had the right to stop the search at any time.
The circuit court 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. See Harper v. State, 359 Ark. 142, 194 S.W.3d 730 (2004). Here, the circuit court obviously believed the testimony of the officers over that offered by Koster and Laura.
Koster also claims that he was illegally arrested, in violation of Arkansas Rule of Criminal Procedure 4.1 (2003), because officers had no probable cause to arrest him. Officers may make a warrantless arrest if they have “reasonable cause to believe that such person has committed acts which constitute a crime under the laws of this state and which constitute domestic abuse as defined by law against a family or household member.” Ark. R. Crim. P. 4.1(a)(iv). Rule 4.1(c) provides that “[a]n arrest shall not be deemed to have been made on insufficient cause . . . solely on the ground that the officer ... is unable to determine the particular offense which may have been committed.” Rule 4.1(d) states that “[a] warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.” Here, Hill was dispatched to the Koster home after police received a domestic-disturbance call. Hill arrested Koster after learning from Laura and the neighbors that Koster had thrown dishes and candles at Laura and their child, had shaken Laura, leaving marks on her, and threatened her. Based on that information, Hill had reasonable cause to believe that Koster had committed an offense involving the domestic abuse of his wife and child, even if he did not articulate the specific offense.
Rule 4.1(a)(iv) provides that the arrest must be made within four hours of the alleged abuse if no physical injury occurred, or within twelve hours if physical injury was involved. Laura testified that she called the police some time after 1:00 p.m. Hill testified that he was dispatched at approximately 3:20 p.m., and that Koster was arrested thirty to forty-five minutes later. Thus, there is no issue that the arrest was delayed beyond the time limits under Rule 4.1(a)(iv). Based on the foregoing, there is no merit to Roster’s argument that his arrest was invalid pursuant to Ark. R. Crim. P. 4.1.
Koster also suggests that police officers entered his shop in violation of his Fourth Amendment right against unreasonable searches and seizures. We disagree. As the State points out, the officers observed tin-foil boats in plain view in Koster’s shop, a commercial business establishment open to the public. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Therefore, the officers were legally entitled to be there when they saw the tin-foil boats. Koster fails to demonstrate that the officers conducted an illegal search on his shop. Consequently, there is no merit to Koster’s argument that the evidence must be suppressed as fruit of the poisonous tree. Where the tree is not “poisonous,” neither is the fruit. See Tryon, supra.
Motion to Suppress Statements
Koster contends that statements he gave to the police should be suppressed because there is no evidence that he waived his Miranda rights and because the State did not call witnesses who may have been present during his statements. Koster refers to two statements he made to police. The first occurred when a police dog alerted in Koster’s shop, and Koster told the police that there was methamphetamine in a Carmex jar. The other statement occurred when Koster told the police that the substance in the Carmex jar was crystal methamphetamine and that he would not use “homemade crap.”
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. Harper, supra. In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Id.
Handley testified at the suppression hearing that he Mirandized Koster after Hill placed Koster under arrest. Koster appears to contend that Handley’s testimony alone does not prove that he was Mirandized. The credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and the court defers to the superior position of the trial judge in matters of credibility. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). Moreover, Koster does not argue that either of his statements was the result of interrogation or coercion by the police. A defendant may waive an invocation of his or her right to silence. See Whitaker v. State, 348 Ark. 90, 71 S.W.3d 567 (2002). Specifically, choosing to speak with law enforcement officers following a statement that attempts to invoke the right to remain silent may waive that right by implication. See Young v. State, 373 Ark. 41, 281 S.W.3d 255 (2008).
Here, Koster does not claim that he invoked his right to remain silent. Nor does he assert that he was coerced into making statements. The record reflects that, after Koster was Mirandized, he made the two statements at issue. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnotes omitted). Koster does not contend that any such activity occurred here.
Koster also argues that the State violated the material-witness rule by not producing at the suppression hearing all officers who may have been present when he made the statements. Koster is precluded from raising this issue on appeal because he did not raise the issue before the circuit court. Issues not raised at trial will not be addressed for the first time on appeal. See, e.g., Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). We hold that the circuit court did not err in denying Koster’s motion to suppress statements he made to the police.
Motion for Continuance
Koster contends that he was prejudiced when the circuit court refused to grant a continuance when the State dismissed certain counts against him on the morning of trial due to the unavailability of key witnesses. He asserts that the dismissal of those charges “amended” the information and changed the way he prepared to defend the case against him. The standard of review for alleged error resulting from the denial of a continuance is abuse of discretion. Hickman v. State, 372 Ark. 438, Til S.W.3d 217 (2008). Absent a showing of prejudice by the defendant, we will not reverse the decision of the circuit court. Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). When a motion to continue is based on a lack of time to prepare, we will consider the totality of the circumstances. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).
The record reveals that on the morning of Roster’s second trial, the prosecutor moved to dismiss counts four and five of the information, misdemeanor assault of a household member and terroristic threatening. The prosecutor explained that, with the passage of time since the crimes occurred, Laura Koster had left the state and another witness to those events was no longer capable of testifying. Koster argued that, had he known he would not face those counts, he would have subpoenaed Laura to testify about the drug-related charges, because she could provide testimony about who, other than Koster, had access to the shop. Koster explained that, when he faced the terroristic threatening and assault charges, he “had no interest in subpoenaing [Laura] for trial, as she would be a material element for the State . . . and without her, the State could not meet their burden of proof beyond a reasonable doubt.” The circuit court ultimately denied a continuance, but allowed Koster to attempt to subpoena the witnesses that he had previously failed to subpoena.
The State disputes Roster’s basic premise that the dismissal of criminal charges constitutes an amendment to the information and points out that Koster has cited no cases that have ever held that to be the case. We agree. However, even if we were to construe the dismissal of charges to be an amendment to the information, a defendant cannot complain about an amendment when, as here, the changes made are wholly to his advantage. E.g., Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977). The State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. DeAsis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005).
Koster knew all along of the offenses with which he was charged. The State did not seek to amend the information to change the nature or degree of any of the crimes with which he was charged. Koster was on notice from the outset of all the crimes at issue, and it was his responsibility to prepare to defend himself against those charges, including by subpoenaing any witnesses that he believed would offer testimony pertinent to any of those charges. Defense counsel made a strategic decision not to subpoena certain witnesses because their testimony might be unfavorable to the defense in some ways, although helpful in other ways. We hold that the circuit court did not abuse its discretion in denying Koster a continuance.
Affirmed.
It is not clear from the record whether the bomb expert, presumably Deason, or Mr. Gordon, who is not identified in the record, recommended that the courthouse be cleared.
The prosecuting attorney in this case was Tony Rogers, who was in the courtroom during Tucker’s testimony. It is not clear from the record whether the “Mr. Rogers” who recommended the evacuation was, in fact, the prosecutor or someone else named Rogers who may have been in a position to know what was occurring outside of the courthouse, or if the bailiff merely misstated the name of the person who had ordered the evacuation.
In his brief, Koster cites Hill’s testimony that he arrived at Koster’s shop at approximately 7:30 to 7:45 p.m. to arrest him for domestic-abuse charges. Koster neglected to refer to the remainder of that testimony, where Hill explained that his report, which reflected the time of 7:30 to 7:45 p.m., contained a typographical error. This testimony, while not abstracted by Koster, is contained in, the record. We remind Koster that his abstract “should consist of an impartial condensation ... of... material parts of the testimony of the witnesses ... as are necessary to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R. 4-2(a)(5) (emphasis added). | [
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Jim Gunter, Justice,
dissenting. Petitioner was found guilty of three counts of capital murder on February 9, 1996, and received a sentence of death. On July 14,1997, this court denied most of petitioner’s claims on direct appeal but remanded the case to the trial court to determine whether his confession was given after a knowing and intelligent waiver of rights. See Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). The trial court subsequendy denied petitioner’s motion to suppress his confession, and this court upheld that ruling. See Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). On February 15, 2000, petitioner filed a petition for relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure; amended petitions were also filed in 2003 and 2004. The trial court held a Rule 37 hearing and denied postconviction relief on July 13, 2004, and this court affirmed that ruling on February 9, 2006. In September 2006, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. Petitioner has now filed in this court an application for permission to have counsel appointed on behalf of petitioner, asking that four attorneys, one Arkansas attorney and three attorneys from the Federal Community Defender Office in the Eastern District of Pennsylvania, be allowed to represent him in another Rule 37 petition recently filed in the Jefferson County Circuit Court.
I first note that while petitioner claims to be pursuing a second Rule 37 petition in the circuit court, we have no record of a motion before this court, pursuant to Arkansas Supreme Court Rule 5-3 (d), asking us to recall our mandate in this case and reopen petitioner’s postconviction proceedings. This court has stated that we will recall a mandate and reopen a case only under “extraor dinary circumstances,” which are not addressed or even alleged by petitioner in the instant case. Absent these extraordinary circumstances, this court has consistently upheld the rule that a petitioner is limited to one petition for postconviction relief unless the first petition was specifically denied without prejudice to allow the filing of a second petition. See Swopes v. State, 338 Ark. 217, 992 S.W.2d 109 (1999) (holding defendant’s request for postconviction relief was barred by his previous attempt to proceed under Rule 37); McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997) (affirming the trial court’s refusal to address issues raised in a second petition for relief because a second postconviction petition was precluded by Rule 37.2). I would therefore decline to appoint any attorney to pursue a second Rule 37 petition when extraordinary circumstances warranting such action have not been demonstrated.
Second, I address petitioner’s attempt to have three attorneys from the Federal Community Defender Office, appointed by the U.S. District Court for the Eastern District of Arkansas to represent petitioner in connection with his federal habeas corpus proceedings, also appointed to represent him in proceedings before our state courts. In Hill v. State, 363 Ark. 480, 215 S.W.3d 589 (2005), this court addressed the question of whether a federal public defender had the authority to represent defendants in capital cases in state courts. In reaching a decision, this court relied on the analysis in In re Lindsey, 875 F.2d 1502 (11th Cir. 1989), in which the court examined 21 U.S.C. § 848(q)(8), which requires an appointed attorney to represent the defendant “throughout every subsequent stage of available judicial proceedings,” and 18 U.S.C. § 3006A(c), which provides that a person shall be represented “at every stage of the proceedings . . . including ancillary matters appropriate to the proceedings.” The Lindsey court declined to read either statutory provision so broadly as to encompass state postconviction relief. The Eighth Circuit later adopted this reasoning as well. See Hill v. Lockhart, 992 F.2d 801 (8th Cir. 1993). This court found the above analysis persuasive and concluded that “the reference to ancillary matters in § 3006A(c) is to federal proceedings” and “the federal court appointment of the FPD [Federal Public Defender] for indigent capital defendants in federal habeas corpus matters does not carry over to state proceedings.” 363 Ark. at 486, 215 S.W.3d at 593. I would therefore hold that, assuming a second Rule 37 petition were allowed in the instant case, the federal attorneys appointed to represent petitioner in his federal habeas corpus action would not be the proper parties to represent him.
I am aware that the Hill v. State opinion also states that “should qualified FPD attorneys wish appointment to represent capital defendants, who are agreeable to that appointment, in matters involving exhaustion of state remedies, we foresee no encumbrance to such appointments.” 363 Ark. at 487, 215 S.W.3d at 594. Justice Glaze, concurring in part and dissenting in part from the majority opinion, expressed his confusion at the above sentiment and noted that nowhere in Rule 37.5 does it permit federal district courts to appoint federal public defenders to represent capital defendants in this state’s courts or proceedings. However, even if the above language were read to allow the possibility of this court, not the district court, appointing federal public defenders to represent capital defendants in state proceedings, I would again turn to the analysis in Lindsey:
Acceptance of Lindsey’s view of a state prisoner’s rights under subsection 848(q) would have the practical effect of supplanting state-court systems for the appointment of counsel in collateral review cases. Adherence to petitioner’s view would encourage state prisoners to ignore, as Lindsey has here, the proper sequence, developed from concerns for federalism, for seeking collateral relief from state-court judgments in death-penalty cases. Like Lindsey, other state inmates, for no reason other than to gain the assistance of federally appointed counsel and experts throughout all stages of collateral review (both state and federal), would ignore the exhaustion requirement and, before seeking state remedies, futilely file for federal habeas relief. Only after procuring a federally appointed lawyer would state inmates have an incentive to set upon the right track in pursuit of state remedies.
Lindsey, 875 F.2d at 1506-07.
In addition, our decision allowing three Philadelphia lawyers to appear in circuit court amounts to micro-management, imposing on the circuit court the three pro hac vice attorneys in addition to the well-qualified Arkansas attorney. By our action here we have re-written Rule 37.5. which authorizes the circuit court to “appoint pro hac vice an attorney who is not licensed to practice in Arkansas.” Ark. R. Crim. P. 37.5(c)(2) (2008) (emphasis added).
Finally, the petition before us points out that a Rule 37 petition has been filed in circuit court. We previously affirmed one direct appeal and also affirmed the denial of postconviction relief. While the stated reason that petitioner is seeking a second Rule 37 hearing is that “none of [his] Rule 37 pleadings were ever verified” by petitioner, Justice Imber’s opinion points to his “notarized signature” in his previous pro se petition. See Rankin v. State, 365 Ark. 255, 257, 227 S.W.3d 924, 926 (2006). And again, I note that petitioner has made no argument that this presents “extraordinary circumstances” such that this court should recall its mandate and reopen his case. In view of the circumstances, it seems unreasonable for our court to allow a second postconviction petition in the face of our precedent and for this court to appoint three pro hac vice attorneys. I would therefore deny the motion.
In deciding whether to recall a mandate, this court will examine 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; (3) the appeal is a death case that requires heightened scrutiny. Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006) (citing Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003)). | [
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Per Curiam.
Appellant Eric D. Martin, by and through his attorney, Phillip A. McGough, has filed a motion for rule on clerk. On December.23,1997, Appellant pled guilty to two counts of residential burglary, one count of theft of property, and one count of breaking or entering and was sentenced to probation for a total of thirty-six years on all counts. By judgment and commitment order entered February 20, 2008, Appellant’s probation was revoked, and he was sentenced to a total of432 months in the Arkansas Department of Correction. Appellant filed a notice of appeal on May 5,2008, from the judgment and commitment order entered February 20,2008. The record was tendered to the clerk of this court on June 26, 2008. The supreme court clerk refused to file the record because the notice of appeal was filed more than thirty days after the first judgment and commitment order was entered.
Appellant’s counsel filed this motion for rule on clerk, candidly admitting therein that he did not file the notice of appeal within thirty days of the entry of the judgment. Where a motion for rule on clerk is filed in error, it will be treated as a motion for belated appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Despite Appellant’s failure to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to consider his appeal when counsel has failed to follow appellate rules. Morris v. State, 373 Ark. 190, 282 S.W.3d 757 (2008) (per curiam) (citing Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam)). Consistent with our explanation of handling motions for rule on clerk and belated appeals in McDonald, 356 Ark. 106, 146 S.W.3d 883, we consider this a motion for belated appeal and direct the clerk of this court to accept the record and docket the appeal. We forward this opinion to the Committee on Professional Conduct.
Motion treated as belated appeal; granted. | [
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Per Curiam.
Doyle Dewayne Frye was found guilty of rape and sentenced as a habitual offender to life imprisonment. An appeal from the judgment has been lodged in this court. Appellant Frye is represented on appeal by Tony Pirani, a full-time public defender. Mr. Pirani 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. Mishion v. State, 369 Ark. 482, 255 S.W.3d 868 (2007) (per curiam).
We grant Mr. Parini’s motion to withdraw and appoint attorney Greg Knutson to represent appellant. Our clerk is directed to set a new briefing schedule for the appeal.
Motion granted.
Imber, J., not participating. | [
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Robert L. Brown, Justice.
Appellant David E. Williams appeals his judgment and commitment order for thirty-five counts of rape, five counts of engaging children in sexually explicit conduct for use in a visual or print medium, and one count of pandering or possessing visual or print material depicting sexually explicit conduct involving a child. We affirm the judgment.
On April 13, 2006, the Arkansas State Police executed a search warrant for Williams’s residence and business in Hermitage. Williams was questioned at his business, an electronics store, and confessed to engaging in oral sex with five boys under the age of fourteen on multiple occasions, to taking nude photographs of three of the boys in a hot tub, and to taking nude photographs of two of the boys swimming in a river. At Williams’s residence, police discovered still photographs of nude boys and over fourteen hours of videotape containing scenes of Williams engaging in sexual activity with young boys.
On April 19, 2006, Williams was charged with eight counts of rape. On January 29, 2007, the State filed an amended information charging Williams with twenty-five counts of rape, twenty-nine counts of engaging a child in sexually explicit conduct for use in a visual or print medium, five counts of second-degree sexual assault, and one count of possessing visual or print material depicting sexually explicit conduct involving a child.
On February 27, 2007, Williams filed a motion for individual voir dire and for a sequestered jury panel during jury selection. The trial judge, as an alternative, offered to prepare a written questionnaire that would be mailed to the prospective jurors before trial. Depending on answers given, defense counsel could have individual voir dire of selected panel members. When this was broached to Williams’s attorney, he responded, “That’s not what we’re asking for, but if that’s what the court grants, we’ll take anything we can get.”
On April 16, 2007, Williams filed a motion in limine to prevent the State from introducing the video footage as evidence due to it being more prejudicial than probative, citing Rule 403 of the Arkansas Rules of Evidence. It was revealed during the hearing on Williams’s motion that the State had edited the footage to a shortened DVD format for introduction at trial as an exhibit. The DVD was a compilation of clips from the videotapes seized from Williams’s residence, depicting Williams having sex with the minor victims. On May 7, 2007, the State filed a second amended information charging Williams with thirty-five counts of rape, five counts of engaging children in sexually explicit conduct for use in a visual or print medium, and one count of possessing visual or print material depicting sexually explicit conduct involving a child.
At the start of his trial on May 8, 2007, Williams again objected to the condensed version of the video footage and asked to plead guilty to possession of child pornography only. The trial judge denied Williams’s motion in limine on the basis that he could not find that the probative value of the DVD was substan tially outweighed by the danger of unfair prejudice under Rule 403. In addition, the judge declined to accept Williams’s guilty plea.
During the guilt phase of Williams’s trial, the State had Williams’s five victims, who were present in the courtroom, stand for identification. The State then introduced the condensed DVD version of the video footage, which was played for the jury as part of the testimony of Special Agent Roland Ponthieux, Jr., of the Arkansas State Police. Agent Ponthieux identified the individual victims, Williams, and the locations as the DVD played. He fast-forwarded through most of the clips, showing just enough to allow for identification of Williams, the victims, the location, and the sexual acts committed.
At the close of the State’s case, Williams moved for a directed verdict on the five counts of engaging children in sexually explicit conduct for use in a visual or print medium. He later renewed his motion at the conclusion of all of the evidence. The trial judge denied both motions. The jury convicted Williams of all counts.
During the State’s closing argument in the penalty phase of the trial, the prosecutor said: “The risk is too great. The risk is too great, too great. [Williams] doesn’t have to answer for it when the time comes, when the headline is ‘Registered Sex Offender Reoffends Again.’ You and I do. I ask you to do your duty.” At the end of the prosecutor’s argument, Williams’s attorney objected and asked that the comments be stricken. The prosecutor replied: “I think that the idea of future dangerousness is a perfectly legitimate argument to make and I made it earlier, and I think it is on our shoulders. It’s on mine and I think it’s on theirs.” Williams’s attorney next moved for a mistrial. The trial judge denied the motion. The jury returned verdicts fixing Williams’s sentences at the maximum for each count. The trial judge sentenced Williams to life imprisonment for each count of rape, a sentence of twenty years for each count of engaging children in sexually explicit conduct for use in a visual or print medium, and a sentence of ten years for possessing child pornography. Williams’s sentences were to run concurrently. Williams was also fined $85,000 and required to register as a sex offender.
We first address Williams’s sufficiency-of-the-evidence claim relating to engaging children in sexually explicit conduct for use in a visual or print medium because of double-jeopardy considerations. See Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005). Williams asserts that the trial judge erred by denying his motion for directed verdict on the production-of-child-pornography charges because there was insufficient evidence to find that he made the films or photos “for the purpose of producing any visual or print medium depicting the sexually explicit conduct” or that he engaged the children in sexually explicit conduct to produce the videos or photographs. He maintains that his sole purpose in using the children to engage in sexually explicit conduct was for his own sexual gratification, and not for the production of videotapes or pictures.
This court succinctly set out the standard of review for the denial of a motion for a directed verdict in Wilson v. State:
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. 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. We affirm a conviction if substantial evidence exists to support it. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.
365 Ark. 664, 666, 232 S.W.3d 455, 458 (2006) (internal citations omitted).
Engaging children in sexually explicit conduct for use in visual or print medium is a crime codified at Arkansas Code Annotated section 5-27-303. That statute provides:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any child to engage in or who has a child assist any other person to engage in any sexually explicit conduct for the purpose of producing any visual or print medium depicting the sexually explicit conduct is guilty of a:
(1) Class B felony for the first offense.
Ark. Code Ann. § 5-27-303 (Repl. 2006). “Producing” is defined as “producing, directing, manufacturing, issuing, publishing or advertising.” Id. § 5-27-302(3).
In the case at hand, Williams conceded at trial that he used the children to engage in the sexually explicit conduct. Moreover, Special Agent Roland Ponthieux, of the Arkansas State Police, testified that twelve VHS tapes and twenty-two super eight tapes were found in Williams’s house. Another two videotapes were recovered from Williams’s video camera and camera bag, respectively. Special Agent Ponthieux testified that all of the tapes contained footage of the five victims engaging in sex acts with Williams and each other. He stated that Williams’s camera bag included a handwritten note with Williams’s signature imploring anyone who discovered the tapes to destroy them without viewing them. Five sexual photographs of boys were found on Williams’s work computer.
Williams testified that he got the idea to film the sex acts “by accident” because he had installed a video surveillance system in his house and about half of the more than thirty filmed encounters were filmed with the surveillance system. He testified that he had written the note asking that the tapes be destroyed at least five or six years earlier. He further testified that he had placed pictures of the boys on his computer but that he never intended to share them with others. He later admitted, however, to sharing a photograph of two of the boys who were naked with another person. Williams also testified that he had placed the photographs of the nude boys on his computer so that he could show them to the boys because that is what the boys had wanted him to do.
This court has observed that the “purpose behind an act, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances surrounding the act.” Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985). Furthermore, a defendant’s improbable explanation of suspicious circumstances may be considered as proof of guilt. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). A presumption exists that a person intends the natural and probable consequences of his acts, and the fact-finder may draw upon common knowledge and experience to infer the defendant’s intent from the circumstances. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Because there was ample evidence to support the jury’s findings that Williams engaged children in sexually explicit conduct for use in a visual or print medium, we hold that sufficient evidence supports this conclusion.
Williams claims, as his second point, that the trial judge erred by denying his motion for individual voir dire and for sequestered panel members during voir dire. He urges that the highly sensitive nature of the issues coupled with the public’s sensitivity regarding discussions of human sexuality necessitated individual and sequestered voir dire. In its absence, he maintains that he was deprived of a fair trial.
When Williams moved for individual voir dire and a sequestered panel, the trial judge noted that he was not inclined to spend such a significant amount of time on voir dire. He suggested, instead, that a written questionnaire addressed to individual jurors be drafted, and he stated that if answers to the questionnaire necessitated private voir dire, it would be granted. Williams’s attorney agreed to the questionnaire procedure and said, “Never done it that way, but I guess there’s a first time for everything.” He added, “That’s not what we’re asking for, but if that’s what the Court grants, we’ll take anything we can get.” It is obvious that Williams did not object to the trial judge’s refusal to grant individual voir dire, but instead accepted the use of the questionnaire. It is axiomatic that a defendant cannot agree with a trial court’s ruling and then attack the ruling on appeal. Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003). Furthermore, at no time did Williams object that he was denied the right to a fair trial. At the close of jury selection, Williams’s counsel pronounced the jury “satisfactory.” These facts sufficiently demonstrate that the trial judge did not abuse his discretion in denying individual voir dire. Moreover, Williams admits in his brief that the trial judge “never expressly rule[d] on Appellant’s request for a sequestered jury.” Accordingly, we will not address the sequestration argument. See Alexander v. State, 335 Ark. 131, 133, 983 S.W.2d 110, 111 (1998) (“To preserve a point for appellate review, a party must obtain a ruling from the trial court.”).
Williams next contends that the trial judge erred by admitting into evidence a DVD consisting of a compilation of short clips taken from over fourteen hours of videotape footage, which was recovered from Williams’s home and which shows Williams engaged in sexual acts with five minor children. Williams asserts that the probative value of the DVD was substantially outweighed by the danger of unfair prejudice because he had confessed to the sexual contact. Williams also argues that the DVD was unnecessary because the victims were available to testify about the sex acts and where they took place. He asserts, as a final point, that it was error to admit the DVD and the forty-six video captures from the film because they were cumulative and confused the issues because they were made by police officers and not by him.
Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). A trial judge’s ruling in this regard will not be reversed absent an abuse of discretion. Id. at 93, 161 S.W.3d at 786. This high threshold does not simply require error in the trial court’s decision but rather that the trial court act improvidently, thoughtlessly, or without due consideration. Id.
As a general matter, all relevant evidence is admissible. Ark. R. Evid. 402. Relevant evidence is evidence that has a “tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable that it would be without the evidence.” Ark. R. Evid. 401. Evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
Video evidence is admissible “if it is relevant, helpful to the jury, and not prejudicial.” Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). The same requirements for the admission of photographs apply to the admission of video evidence. See id. at 176, 847 S.W.3d at 694, With regard to the admissibility of photographs this court has stated:
The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Of course, if a photograph serves no valid purpose and could be used only to inflame the jurors’ passions, it should be excluded.
Weger v. State, 315 Ark. 555, 560, 869 S.W.2d 688, 691 (1994) (internal citations omitted).
In the instant case, the DVD was shown during the testimony of Special Agent Ponthieux. The prosecution fast-forwarded through most of the clips, showing just enough of each one to allow the special agent to identify Williams, the victims, the locations filmed, and the sexual acts committed. The video footage was relevant for proving the elements of both the charges of rape and the charges of engaging children in the production of child pornography. It cannot be said that the video served no valid purpose other than to inflame the passions of the jury.
Williams claims that the DVD was not needed because he had confessed to the sexual acts and because the victims were available to testify against him. However, a defendant cannot prevent the admission of evidence simply by conceding to the facts of the crime. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005). The State is entitled to prove its case as conclusively as it can. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998).
Furthermore, the trial judge watched the DVD and determined that its probative value was not substantially outweighed by the danger of unfair prejudice. The trial judge observed that the State had the burden of proving the elements of all of the charges against Williams, not just “one or two or three, but all of them.” Finally, the trial judge stated that the State was entitled to prove the elements of the charges with its best evidence and that the videos were certainly the State’s best evidence.
Given the trial judge’s consideration of the issue, it cannot be said that the trial judge admitted the videos with “carte blanche” approval. See Berry v. State, 290 Ark. 223, 718 S.W.2d 347 (1986). Under these facts, it is apparent that the trial judge did not abuse his discretion in admitting the DVD into evidence. We affirm on this point.
For his next and last point, Williams argues that the prosecuting attorney’s remarks during his final closing argument of the penalty phase of his trial were inflammatory and prejudicial and deprived him of his right to a fair trial. He asserts that the trial judge’s failure to strike the prosecutor’s argument served to reinforce its disastrous effect upon the jury. He claims that it was error for the prosecutor to tell the jury that it was their “duty” to assess the maximum penalty. He further claims that the prosecutor’s comments were so flagrant that, in light of cumulative errors, he deserves resentencing, if not a new trial altogether.
Williams takes issue with two elements of the prosecutor’s closing argument. He, first, contests the fact that the prosecutor warned the jury of the possibility that Williams might “reoffend[| again,” and, second, he objects to the prosecutor’s telling the jury to do their “duty.”
We agree with the State that Williams’s objection on this point was untimely because the prosecutor made virtually the same future dangerousness argument in his first closing argument during the penalty phase without objection from Williams. To preserve a challenge to statements made during closing argument, this court requires “a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.” Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987); see also Edwards v. Stills, 335 Ark. 470, 503-04, 984 S.W.2d 366, 383 (1988) (“To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs.”). We affirm on this point as well.
The record in this case has been reviewed for reversible error pursuant to Supreme Court Rule 4-3 (h), and none has been found.
Affirmed.
Glaze, J., not participating. | [
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Jim Gunter, Justice.
Appellant, Dwain Oliver, appeals his unsuccessful challenge to his opponent’s qualifications in a judicial race in Calhoun County. Appellant asserts the trial court erred in holding that: (1) it lacked jurisdiction to grant appellant’s petition and (2) the issue presented by appellant’s petition was moot. Because this appeal pertains to elections and election procedures, this court has jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(4). We affirm.
On March 11, 2008, appellant and appellee Ronnie Phillips were certified by the Calhoun County Board of Election Commissioners as candidates for the position of Calhoun County District Judge. On May 19, 2008, one day before the general election, and sixty-nine days after certification, appellant filed a petition for declaratory relief and motion for writ of mandamus, asserting that Phillips was a resident of Dallas County, not Calhoun County, and was thus ineligible to be a candidate. To support his argument, appellant cited amendment 80, section 16(D) of the Arkansas Constitution, which states:
All Justices and Judges shall be qualified electors within the geographical area from which they are chosen, and Circuit and District Judges shall reside within that geographical area at the time of election and during their period of service. A geographical area may include any county contiguous to the county being served when there are no qualified candidates available in the county to be served.
Appellant requested that Phillips’s name be stricken from the ballot and that any votes cast for Phillips not be counted. Appellant requested an expedited hearing at the court’s earliest opportunity and served notice to Phillips and the other appellees on May 19.
The general election was held on May 20, with Phillips receiving 151 votes and appellant receiving 126 votes. On May 22, appellant filed a motion for preliminary injunction, asking the court to enjoin the Calhoun County Election Commission (the Commission) and the Secretary of State from certifying the election results.
On May 23, the Commission filed a response to appellant’s petition for declaratory relief and writ of mandamus. In its response, the Commission argued that because no hearing was held or ruling was made prior to the election, appellant’s petition and motion were moot. Phillips filed a separate response on May 28 in which he also asserted appellant’s request was moot.
A hearing on the matter was held on May 28. At the hearing, the Commission argued that the case should be dismissed for two reasons: (1) because the petition was filed one day prior to the election, it was impossible to have the hearing within two to seven days pursuant to Ark. R. Civ. P. 78(d) (2008), and the issue is now moot; (2) because the court did not have jurisdiction to decide a pre-election challenge post-election. At the conclusion of the hearing, the court agreed with the Commission and found that “a pre-election issue being decided post-election is outside the jurisdiction of the Court.” In its order, filed June 23, 2008, the court made the following findings:
3. There are two types of election contests provided for by statute: pre-election eligibility challenges and post-election, election contests. Zolliecoffer v. Post, 371 Ark. 263, 264 (2007). A party wishing to challenge a candidate’s eligibility to stand for election must bring the challenge by way of a petition for writ of mandamus and declaratory judgment prior to the election. Id. at 265.
4. Arkansas statutes do not provide for a post-election petition for writ of mandamus and complaint for declaratory relief to challenge a candidate’s eligibility. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). Although Oliver’s petition was filed pre-election, the timing of his petition made it impossible for this issue to be resolved prior to the election.
5. Because the issue was presented but not expedited and ruled on prior to the election, the issue is now moot. Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006). Nor does this court have jurisdiction to decide a pre-election eligibility issue in a post-election proceeding. Zolliecoffer, cited above.
Appellant then filed a notice of appeal to this court on July 21, 2008.
The right to contest an election is purely statutory. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). A statutory right to challenge the eligibility of a candidate before the election is provided by Ark. Code Ann. § 7-5-207(b) (Supp. 2007); however, this statute only allows pre-election challenges to a candidate’s eligibility. Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007). Post-election, the only private right to challenge an election is found under Ark. Code Ann. § 7-5-801 (Repl. 2007), which provides for a challenge by a candidate to contest certification by the county board of election commissioners.
On appeal, appellant first asserts that the trial court erred in finding that it lacked jurisdiction to consider appellant’s petition. In its order, the trial court cited Zolliecoffer, supra, for the proposition that it had no jurisdiction to decide a pre-election eligibility issue in a post-election proceeding. In Zolliecoffer, the losing candidate in a mayoral election filed a petition for writ of mandamus and declaratory judgment two days after the election. This court held that the trial court lacked subject-matter jurisdiction to consider the petition because the petition was filed post-election. Appellant argues that the case at bar is distinguishable because he filed his petition pre-election, not post-election, and therefore the trial court had jurisdiction to decide the case on the merits and prior to the official vote certification.
In response, appellees argue that although appellant’s petition was filed pre-election, the lateness of the filing made it impossible to conduct a hearing on the merits prior to the election and within the “no sooner than 2 and no longer than 7 days” requirement of Rule 78(d). And because Arkansas election law does not provide for a post-election petition for a writ of mandamus and declaratory relief, the trial court was without jurisdiction to hear the matter post-election. Pederson, supra.
Appellant did file his petition pre-election, albeit by only one day. Consequently, the trial court had jurisdiction when appellant’s petition was filed, and Arkansas case law has established that “where a court once rightfully acquires jurisdiction of a cause, it has the right to retain and decide.” Wasson v. Dodge, 192 Ark. 728, 730, 94 S.W.2d 720, 721 (1936) (citing Estes v. Martin, 34 Ark. 410, 419 (1879)). Zolliecoffer and Pederson are both distinguishable because the appellants in those cases did not file their petitions pre-election. Accordingly, we hold that because the action was filed pre-election, the trial court did have jurisdiction, and that jurisdiction was not subsequently erased by the election.
For his second argument on appeal, appellant contends that the trial court erred in finding that the issue presented by appellant was moot. The trial court’s order stated that “because the issue was presented but not expedited and ruled on prior to the election, the issue is now moot” and cited Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006). In Ball, this court held that a petition challenging the eligibility of a candidate, filed eight days before the election, was untimely and moot. In so holding, we stated:
Ball failed to pursue her petition for mandamus and declaratory judgment expeditiously in order to obtain the remedy to remove Jones’ name from the ballot before the election or before the election results were certified. In other words, Ball’s lawsuit became moot due to her own failure to act timely in the special proceeding.
Id. at 579, 222 S.W.3d at 208. We also noted that the candidates’ names were certified approximately thirty-eight days previously, and Ball offered no compelling reason for waiting until' eight days before the election to file her petition.
Appellant attempts to distinguish the holding in Ball by arguing that Ball’s appeal was deemed moot but the petition itself was only deemed untimely. However, this is a distinction without a difference, because in Ball it was the untimeliness of the petition that rendered the case moot. See id. at 578, 222 S.W.3d at 207 (“Ball’s inability to have Jones’ name removed from the ballot. . . was dire to her decision to wait until eight days before the election to file her petition .... In short, this election case is moot.”) As in Ball, appellant failed to pursue his petition expeditiously in order to obtain the remedy of removing Phillips’s name from the ballot before the election, and appellant has offered no compelling reason for his delay in filing the petition.
In addition, waiting until the day before thé election to file the petition rendered it impossible for the trial court to' fulfill the requirement under Rule 78(d) that the trial court hold a hearing no sooner than two and no longer than seven days thereafter. We established in Ball that this type of eligibility challenge should be filed in time to resolve all relevant issues prior to the election. See 364 Ark. at 577-78, 222 S.W.3d at 207 (“If Ball had filed hersuit within this thirty-eight day period [after certification] . . . there would have been ample time in which to resolve all relevant issues raised by Ball prior to the September 21, 2004 election.”) Also, this court has clearly stated that “[o]nce the election takes place, the issue of a candidate’s eligibility under § 7-5-207(b) becomes moot.” Clement v. Daniels, 366 Ark. 352, 355, 235 S.W.3d 521, 523 (2006) (citing State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989)). We therefore affirm the trial court’s finding that the issue presented in appellant’s petition was moot.
Appellant also makes the argument that there is a contradiction between amendment 80’s “at the time of the election” provision and § 7-5-207(b)’s “qualified and eligible at the time of filing as a candidate” language. Appellant asserts that the case was ripe, not moot, at the time it was filed at the brink of the election because under the clear language of amendment 80, a judicial candidate has until “at the time of election” to bring himself within the qualifying parameters by establishing a residence in the geographical area and becoming a qualified elector. According to appellant, the trial court erred in “elevating the Election Code’s statutory provisions and case law enforcement procedures over the Constitution’s controlling provisions to dismiss the action below.”
Though the circuit court ruled on this issue from the bench, the final written order did not address this issue. In a recent case where the judge made a constitutional decision from the bench, we said: “Pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.” McGhee v. Ark. State Bd. of Collection Agencies, 368 Ark. 60, 67, 243 S.W.3d 278, 284 (2006). When the circuit court makes no ruling on an issue, the appellate court is precluded from reaching the issue on appeal. Travis v. State, 371 Ark. 621, 369 S.W.3d 341 (2007). Therefore, this issue is. not preserved for our review.
In conclusion, we hold that the trial court did have jurisdiction to consider appellant’s petition, but that the trial court was correct in its finding that the petition was moot.
Affirmed.
Appellant named Phillips, the Calhoun County Election Commission, and the Secretary of State, Charlie Daniels, as defendants to the suit.
Arkansas Rule of Civil Procedure 78(d) provides:
Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the circuit court having jurisdiction to fix and announce a day of court to be held no sooner than 2 and no longer than 7 days thereafter to hear and determine the cause.
Arkansas Code Annotated section 7-5-207(b) provides in pertinent part:
No person’s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of fifing as a candidate for the office to hold the public office for which he or she is a candidatef.] | [
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Jim Gunter, Justice.
This appeal arises from a decision of the Board of Review of the Arkansas Department of Workforce Services (the Board) finding that Appellant Mamo Transportation, Inc. (Mamo) is required to pay unemployment insurance taxes for services performed by drivers for wages because Mamo failed to meet the three-prong test set out in Ark. Code Ann. § ll-10-210(e) (Supp. 2007). We affirm the Board’s decision.
Mamo is a Nevada corporation that provides a “drive-away” service in which it transports larger vehicles from a point of origin to a point of destination. Mamo is headquartered in Osceola, Indiana and operates throughout the forty-eight contiguous states and Canada. Mamo contracts with drivers to drive the vehicles. It has dispatch offices in Indiana, Pennsylvania, North Carolina, and Arkansas. Mamo’s safety director testified that Mamo has 316 “independent contractors” on an active list. The driver calls Mamo if he or she wants to work driving a vehicle. The drivers do not contact customers directly, but provide services for customers obtained by Mamo. The price is negotiated between the driver and Mamo. If the driver makes the commitment to transport the vehicle, Mamo notifies the customer that a driver has been assigned to their load. Mamo gains a profit by paying the driver less than what the customer pays Mamo. Mamo does not have exclusive agreements with its drivers. The drivers pay for their own training, although Mamo ensures that federal safety requirements are met. The drivers are free to drive the route decided upon by the driver; they provide their own transportation once a run is completed, pay for fuel and other expenses and provide tools which might be necessary.
Sylvia Jones-Alien, a resident of Arkansas, entered into an “Independent Contractor Driver Service Agreement” with Mamo. During her first ninety days driving for Mamo, Allen drove a 13'6" truck under an 11'8" bridge, causing $9,008 worth of damage to the truck. Mamo then terminated Allen’s contract. On April 14, 2003, Allen filed a request for unemployment benefits. She indicated that she was an independent contractor on the unemployment forms. Mamo agreed that Allen was an independent contractor.
Upon review, the Arkansas Department of Workforce Services (“Department”) determined that Mamo “exercised sufficient direction and control over the drivers and other workers to the degree necessary to establish an employer/employee relationship.” Mamo requested a fact-finding hearing, contending that the factual determination made by the Department in applying Ark. Code Ann. § ll-10-210(e)(l), (2), and (3) was not supported by the facts and that the drivers and workers were not employees of Mamo. A hearing was conducted by the Board on October 19, 2004. The Board found that Mamo was a covered employer subject to the payment of unemployment insurance taxes because it failed to meet Ark. Code Ann. § ll-10-210(e)(2).
The Arkansas Court of Appeals affirmed the Board’s decision. See Mamo Transp. Inc. v. Director, Dept. of Workforce Services, 101 Ark. App. 68, 270 S.W.3d 379 (2007). We granted Mamo’s petition for review on May 15, 2008. Upon a petition for review, we consider a case as though it had been originally filed in this court. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).
On appeal, Mamo argues that (1) the Board “ignored the plain, ordinary and common sense meaning of the language of the statute resulting in an absurd outcome not intended by the Arkansas legislature” and (2) the contractors at issue were independent contractors not subject to Arkansas unemployment taxes. Mamo specifically argues that the Arkansas legislature did not intend for the language of Ark. Code Ann. § ll-10-210(e)(2) to describe every road and highway in the United States and Canada as a “place of business” of Mamo. In response, the Department contends that the Board’s decision is supported by substantial evidence and complies with Ark. Code Ann. § 11-10-210.
We affirm the decision of the Board of Review if it is supported by substantial evidence. Coker v. Director, 99 Ark. App. 455, 262 S.W.3d 175 (2007). Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences deducible there from in the light most favorable to the Board’s findings. Id. Even if the evidence could support a different decision, our review is limited to whether the Board could have reasonably reached its decision based on the evidence presented. Id.
In this case, we are called upon to construe provisions of Arkansas Code Annotated section 11-10-210. We review issues of statutory construction de novo. Ark. Comprehensive Health Ins. Pool v. Denton, 374 Ark. 162, 286 S.W.3d 698 (2008). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. 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 construction. Id. However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. This court seeks to reconcile statutory provisions to make them consistent, harmonious, and sensible. Id.
Arkansas Code Annotated § ll-10-210(e) states:
(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact; and
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
Id. According to the statute, an employment relationship exists unless all three of the above elements are met. Here, the Board concluded that the first element was met, the second element was not met, and did not rule on the third element. Therefore, we are limited in our review to § ll-10-210(e)(2).
The Board concluded that Mamo failed to meet the second requirement of § ll-10-210(e) in that the course of business for both Mamo and the drivers is providing the delivery of vehicles, and Mamo’s places of business consist of not only its office, but also the roadways on which the drivers transport the vehicles. On appeal, Mamo presents no argument that the Board was incorrect in finding that delivery of the vehicles was in the course of Mamo’s business, so we will only address whether the Board erred in its finding regarding Mamo’s place of business.
Looking at the language of the statute, the second prong is not met unless the service is performed outside of all the places of business of the enterprise for which the service is performed. Mamo provides a “drive-away” service for its customers by transporting various types of vehicles throughout the United States and Canada. Its business is to take vehicles from origin to destination. Therefore, the “enterprise for which the service is performed” in this case is the transportation of vehicles. Black’s Law Dictionary 1169 (7th ed. 1999) defines “place of business” as “a location at which one carries on a business.”
The Board relied on Home Care Professionals of Arkansas, Inc. v. Williams, 95 Ark. App. 194, 235 S.W.3d 536 (2006), in making its determination that Mamo’s places of business include the roadways. In Home Care Professionals, the court of appeals held that Home Care Professionals (HCP) failed to meet the second prong of the statute. HCP was a home-care referral service. HCP maintained a list of caregivers who were able to provide home-care services. Once HCP received a request for a service from a client, HCP would find a caregiver willing to perform the service. The caregiver would sign an independent contract. The client and caregiver would negotiate a schedule and the terms of the caregiver’s engagement. Once the caregiver completed the service, the caregiver would turn in a time sheet and be paid by HCP the amount paid by the client minus HCP’s referral fee. In holding that HCP’s caregivers were not independent contractors, the court of appeals stated:
In regard to the place of business aspect of the second part of the test, an employer’s place of business has been found to include not only the location of a business’s office, but also the entire area in which a business conducts business. See Missouri Association of Realtors v. Division of Employment Security, 761 S.W.2d 660 (Mo. App. 1988); Employment Security Commission of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (Wyo. 1985); and Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 436 A.2d 765 (Vt. 1981). More specifically, the representation of an entity’s interest by an individual on a premises renders the premises a place of the employer’s business. See Carpetland, [Carpetland U.S.A. v. Illinois Dep’t of Employment Security, 201 Ill.2d 351, 776 N.E.2d 166 (2002)].
Home Care Prof'ls, 95 Ark. App. at 199, 235 S.W.3d at 540-41. Other states with statutes almost identical to § 11-10-210 have addressed the issue of what constitutes a “place of business.” In Chicago Messenger Service v. Jordan, 825 N.E.2d 315 (Ill. Ct. App. 2005), the appellate court of Illinois held that an employer’s couriers were employees, rather than independent contractors, for the purposes of the Unemployment Insurance Act. The court stated:
Finally, we reject CMS’ claim that it is merely a broker of delivery service. This is essentially the same argument that was made by the limousine company and rejected in O’Hare-Midway. Here, the usual course of business involved the pickup and delivery of packages by the couriers, similar to the pickup of passengers that was the usual course of business in O’Hare-Midway. As we have already noted, the couriers’ service is performed by transporting the packages, like the limousine passengers, from one location to another. Again, it stands to reason that the company’s interests are represented during the performance of that service and that the place of business includes travel between one location and another. Therefore, the couriers perform their services on the roadways, which are, then, for purposes of section 212(B), the place of business. See O’Hare-Midway, 232 Ill. App. 3d at 113, 173 Ill. Dec. 171, 596 N.E.2d 795.
Chicago Messenger Serv., 825 N.E.2d at 328. Similarly, in O’Hare-Midway Limousine Service v. Baker, 596 N.E.2d 795 (Ill. App. Ct. 1992), the Illinois Appellate Court found that, because chauffeurs represented the interests of the limousine company whenever they picked up passengers, the usual course of business was on the roadways traveled.
The Supreme Court of Wyoming also addressed the place-of-business issue in Employment Security Commission of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (Wyo. 1985), in which the court interpreted a statute similar to § 11-10-210. The court found that a taxicab company’s business consisted of providing transportation to customers by leasing taxicabs to drivers. The court held that the taxicabs themselves must be considered the company’s place of business because “the essence of Laramie Cabs’ business is conducted in cabs between the customer’s origin and destination, not in the company office.” Laramie Cabs, 700 P.2d at 407.
For the purpose of defining terms under Ark. Code Ann. § 11-10-210, we hold that “place of business” is the place where the enterprise is performed. An enterprise’s place of business must be decided on a case-by-case basis. In Home Care Professionals, the home-care service was performed in the customer’s home; in O’Hare-Midway, the limousine service was performed on the roadways traveled; in Chicago Messenger Service, the service of transporting packages was performed on the roadways; in Laramie Cabs, the taxicab service was performed in the taxicab itself. Here, Mamo’s enterprise, transporting vehicles, is performed in the vehicle itself between the point of origin and the point of destination. As in Home Care, the enterprise for which the service is performed takes place within the property of the customer. Under the facts in this case, we hold that, in addition to the physical locations of its dispatch offices, Mamo’s places of business include the location of the transported vehicle.
Because Mamo has failed to meet its burden set out in § ll-10-210(e), it is not exempt from paying unemployment insurance taxes on its drivers. The Board was correct in its decision that Mamo’s drivers “do not perform their services outside of all the places of Mamo’s business.” However, we hold that Mamo’s enterprise takes place inside the trucks, rather than on the road ways. Accordingly, we affirm the result reached by the Board, even though it announced the wrong reason. See Hardy v. Wilbourne, 370 Ark. 359, 259 S.W.3d 405 (2007).
Affirmed.
Corbin and Danielson, JJ., concur.
Brown, J., dissents. | [
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Per Curiam.
Appellant Steve Stewart, by and through his attorney, Gene E. McKissic, has filed a motion for rule on clerk.
Stewart was convicted of multiple counts of perjury by an Ashley County jury; the judgment and commitment order was entered on June 3, 2008. On June 19, 2008, Stewart filed a timely notice of appeal. Shortly thereafter, the court reporter informed Gene McKissic, Stewart’s attorney that, due to the number of appeals pending, he would need to file a motion for extension of time to lodge the record. Mr. McKissic filed such a motion on August 19, 2008, and the circuit court granted it on August 21, 2008. The record was tendered to this court on January 12, 2009, and our clerk refused to accept it as it was tendered more than seven months from the date of the entry of the judgment from which the appeal is taken. See Ark. R. App. P.-Civ. 5(b)(2). Mr. McKissic has now filed the instant motion for rule on clerk in which he accepts responsibility for miscalculating the deadline for filing the record.
This court clarified its treatment of motions for rule on clerk 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. Me Kissic has candidly admitted fault. The motion is, therefore, granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
Appellant Shelton Wormley, by and through his attorney, Donald E. Warren, Sr., has filed a motion for rule on clerk. Mr. Warren represented the appellant in the trial court and filed a notice of appeal on his behalf on June 12, 2008. The record in this matter was untimely, as it was tendered on November 18, 2008.
This court denied an earlier motion for rule on clerk filed by John L. Kearney. Mr. Kearney was appointed counsel for the appellant by the trial court after the notice of appeal was filed. We found that the trial court lacked jurisdiction to relieve Mr. Warren and substitute Mr. Kearney as counsel for appellant. Wormley v. State, 375 Ark. 247, 289 S.W.3d 463 (2008) (per curiam). Under Arkansas Rule of Appellate Procedure — Criminal 16(a), once the notice of appeal has been filed, the appellate court has exclusive jurisdiction to relieve counsel and appoint new counsel. Id. Consequently, this court would not consider the motion for rule on clerk filed by Mr. Kearney. Id. Because Mr. Warren was not relieved as counsel of record, we directed that he file a motion for rule on clerk. Id.
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:
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.
356 Ark. 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 or she has erred and is responsible for the failure to perfect the appeal. See id. When it is plain from the motion, affidavits, and record that relief is proper under either rule based on error or good reason, the relief will be granted. See id. If there is attorney error, a copy of the opinion will be forwarded to the Committee on Professional Conduct. See id.
Although Mr. Warren does not expressly acknowledge that the record was tendered untimely due to an error on his part, it is plain from the record that he erred. Pursuant to McDonald v. State, supra, we grant Wormley’s motion for rule on clerk and forward a copy of this opinion to the Committee on Professional Conduct.
Motion granted. | [
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Paul E. Danielson, Justice.
Appellant City of Little Rock appeals from the order of the Pulaski County Circuit Court granting attorney’s fees to appellee Willie Carpenter. We hold that the order of the circuit court was inconsistent with an award of attorney’s fees and costs and, therefore, we reverse and remand.
The record reveals the following material facts. On August 6, 2005, Little Rock police officers stopped a vehicle in which Mr. Willie Earl Leggs, Jr., was a passenger. As a result of the stop, Leggs was arrested for being a felon in possession of a firearm. While Leggs was incarcerated at the Northside Holding Facility of the Pulaski County Regional Detention Facility, he suffered some kind of seizure and was transported to Baptist Health Medical Center - North Little Rock. Leggs was later pronounced dead, and his autopsy report ruled the death as accidental, finding the cause of death to be from cocaine intoxication.
On September 26, 2005, Ms. Tammy B. Gattis, counsel for Ms. Willie Carpenter, Leggs’s mother and the appellee in this appeal, hand delivered a request for documents, pursuant to Arkansas’s Freedom of Information Act (FOIA), to the Little Rock City Attorney’s office and the Little Rock Chief of Police. The request read as follows:
All documents related in any way to any investigation/review conducted by any person or entity into the circumstances surrounding the incarceration or demise of Willie Earl Leggs, Jr., while in the Pulaski County Jail or in the custody of the Little Rock Police on or about August 6, 2005.
Melinda S. Raley, the Deputy City Attorney, responded to Ms. Gattis on September 28, 2005, by a letter sent both via facsimile and regular mail. That letter confirmed that the Little Rock Police Department (LRPD) had opened an Internal Affairs investigation as to Mr. Leggs’s death and that the files were still in active use. The letter also informed Ms. Gattis that Ms. Raley would discuss the FOIA request with the City Attorney, Thomas M. Carpenter, as soon as he returned to the office the following day.
On September 29, 2005, Ms. Gattis made a more specific FOIA request to Ms. Raley, which sought: (1) a copy of the LRPD general order number 311 (policy and procedure of Internal Affairs); (2) a copy of the LRPD policy and procedure 303 (policy concerning use of force); (3) the name of the “supervisor and officer who worked with North Little Rock holding cell the date of August 6, 2005 — including arrival and departure time of the officers;” (4) a copy of the “[pjolicy and procedure within LRPD when an inmate dies while in jail;” and (5) a copy of the “[pjolicy and procedure used to determine whether or not an Internal Affairs investigation will be conducted within [LRPD].” Shortly after this request was made, the Chief Deputy City Attorney, William C. Mann, III, responded to Ms. Gattis and outlined how her request was impacted by an ongoing Internal Affairs investigation in terms of the City of Little Rock’s ability to disclose certain documents. Mann copied the e-mail to LRPD Sergeant Terry Hastings and instructed him to immediately provide Ms. Gattis with the records to which she was unquestionably entitled. Later the same day, Ms. Gattis e-mailed Mann with a new FOIA request for access to any audio and video tapes of the stop and arrest of Mr. Leggs. Mann responded and informed her that the records of an Internal Affairs investigation are not disclosed pursuant to the FOIA unless the subject of the investigation is suspended or terminated as a result of the investigation. Additionally, Mann informed her that the North Little Rock Police Department (NLRPD) might have conducted a criminal investigation into Mr. Leggs’s death and, if so, she would be entitled to a copy of any tapes in the possession of the NLRPD once the investigation was completed. However, Mann did provide Ms. Gattis some of the documents generated from her previous requests — General Order 211 and General Order 303, involving the policy on use of force.
Ms. Gattis submitted a new FOIA request on October 6, 2005, for any written agreement between the City of Little Rock (hereinafter “the City”) and Pulaski County regarding staffing at the North Little Rock facility when a Little Rock prisoner is present. On October 10, 2005, Mann responded, informing Ms. Gattis that he could not determine the existence of any agreement between the City and Pulaski County on the operation of the North Little Rock facility, but that he would continue to follow up. He also indicated that he did not know the precise date the Internal Affairs investigation began, but offered that the information would be provided to him the next day. Finally, Mann revealed that the staffing records for the LRPD showed that officers Ian Ward and John Brawley were on duty from 9:45 p.m. until 5:45 a.m. on August 4-5, 2005, and were replaced by officer Martin Gorbet on August 5, 2005 at 6:45 a.m. until 2:45 p.m. The following day, October 11, 2005, Mann informed Ms. Gattis that there was no written agreement with Pulaski County regarding the operation of the North Little Rock facility.
Ms. Gattis made another FOIA request on October 28, 2005, asking for a copy of Ms. Carpenter’s statement to the Internal Affairs Department. Additionally, on November 11, 2005, she hand delivered a letter to Mann that included a new FOIA request and a repeat request for disclosure of some documents that had already been provided. Mann responded on November 14, 2005, and informed Ms. Gattis that a request had been made by the LRPD Chief of Police to the Arkansas Attorney General for an opinion concerning the disclosure of records contained in an ongoing Internal Affairs investigation.
On November 16, 2005, Mann supplied Ms. Gattis with public records from the LRPD criminal investigation files for Tory Edwards and Antonio Smith. The same day, the Attorney General issued an opinion in response to the request made by the LRPD Chief of Police. The opinion noted that if records had been properly categorized as “employee evaluations or job performance records,” the decision to withhold them from disclosure is consistent with the FOIA. See Op. Ark. Att’y Gen. No. 267 (2005). In addition, it stated that suspension or termination of the employee is the threshold requirement for release of employee evaluation or job performance records and provided the parameters for the custodian to follow in properly classifying records in order to make a determination as to which records are subject to release. See id.
On November 18, 2005, Mann sent a letter to Ms. Gattis explaining that, given the parameters set out in the Attorney General’s opinion, he had reviewed everything in the Internal Affairs file and had determined that fifty-four documents out of the file would be available for disclosure under the FOIA. He additionally explained what documents were not released and the City’s reasoning behind withholding them. Finally, he informed her that the North Little Rock criminal investigative file would be available because the investigation had been concluded. On November 23, 2005, Mann also supplied Ms. Gattis with a VHS tape of Leggs’s arrest made from the original two MVR tapes.
On the afternoon of December 5, 2005, Mann sent an e-mail to Stuart Thomas and David Ebinger, inquiring whether certain audio tapes of communications from the day of Leggs’s arrest existed and, if so, if they were Internal Affairs records. That information was necessary to determine if they were subject to disclosure. Thomas replied that he would have to defer to Ebinger because he did not know. The next day, December 6, 2005, Mann informed Thomas via e-mail that Ebinger had advised him that any audio would have been generated as a result of the Internal Affairs investigation and, therefore, he would not provide copies to Ms. Gattis.
Also on December 6, 2005, Ms. Carpenter filed a lawsuit with the Pulaski County Circuit Court, pursuant to Arkansas’s FOIA, codified at Ark. Code Ann. § 25-19-101 et seq. (Supp. 2005). The complaint alleged that the City and the LRPD had knowingly violated the FOIA and failed to timely respond to the FOIA requests. On December 10, 2005, in preparing for the hearing in the lawsuit, Mann sent Ms. Gattis the e-mails from December 5 and 6 between he, Thomas, and Ebinger, which created a two-page document when printed. Mann informed Ms. Gattis that the e-mails would be subject to disclosure as they were not generated by the Internal Affairs investigation.
The circuit court held the hearing on the FOIA matter on January 4, 2006, during which the LRPD was dismissed as a defendant, and Ms. Gattis was asked to specify what public records were being requested. The circuit court found that anything in the Internal Affairs file would be reviewed in camera to determine if they were subject to disclosure and that a few of the requests could not be answered because there was nothing in existence to produce. On January 23, 2006, the circuit court issued its order to review in camera all records maintained in the Internal Affairs file. After conducting its review, the circuit court found that “the City did not have to disclose any other public records pursuant to FOIA.”
Ms. Carpenter moved for attorney’s fees in this case on May 11, 2007. The circuit court issued its final order on October 15, 2007, and found:
9. The Court, after an in camera inspection, did not require the City to disclose the contents of the [Internal Affairs] file to Ms. Gattis or to Mr. Owens.
10. Throughout the changing sets of requests for public records pursuant to the Arkansas Freedom of Information Act, the City responded promptly, provided public records as quickly as possible. However, there were certain documents provided after the filing of the lawsuit.
11. The plaintiff is awarded the cost of filing the lawsuit along with the costs of service of the lawsuit. The plaintiff is also awarded attorneys fees of $1,000.00. This fee is a fraction of the fee requested based on the Court’s view that the plaintiff prevailed only sections [sic] of her complaint.
The City timely filed its notice of appeal and alleges on appeal that the circuit court erroneously granted attorney’s fees.
The City asserts that because Ms. Carpenter did not substantially prevail in the FOIA litigation and because it was unjust under the circumstances, the circuit court erred in awarding fees and costs to the appellee. Ms. Carpenter responds that the conduct of the City violated “the express intents and purposes of the Freedom of Information Act” and, while the City attempted to “gloss over its tactics of obstruction, delay and neglect,” there was no reasonable justification for withholding documents. Therefore, Ms. Carpenter argues the circuit court’s order should be upheld.
We have previously held that attorney’s fees are not allowed except where expressly provided for by statute. See Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006). An award of attorney’s fees will not be set aside absent an abuse of discretion by the circuit court. See id.
In the instant case, we are called to interpret the statutory provision of the FOIA regarding attorney’s fees. Our standard of review for issues of statutory construction is well settled:
We review issues of statutory construction de novo. We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language of a statute is plain and unambigu ous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used.
Harris, 366 Ark. at 280, 234 S.W.3d at 878 (internal citations omitted).
Arkansas’s FOIA allows for an award of attorney’s fees under Ark. Code Ann. § 25-19-107(d), which provides in pertinent part:
(d) In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust. However, no expenses shall be assessed against the State of Arkansas or any of its agencies or departments. If the defendant has substantially prevailed in the action, the court may assess expenses against the plaintiff only upon a finding that the action was initiated primarily for frivolous or dilatory purposes.
We give a liberal construction to the FOIA to accomplish its “broad and laudable purpose that public business be performed in an open and public manner.” Fox v. Perroni, 358 Ark. 251, 256, 188 S.W.3d 881, 885 (2004).
The plain language of the statute here is clear and controlling. Under the plain language of the statute, attorney’s fees shall be assessed against the defendant when the plaintiff substantially prevailed in his suit to enforce a right granted under the FOIA, unless the position of the defendant was substantially justified or other circumstances make an award of attorney’s fees or costs unjust. See Harris, supra.
We must now determine if attorney’s fees were warranted in the present case, first considering if Ms. Carpenter substantially prevailed in the FOIA lawsuit below. Our review of the record reveals that she did not even partially prevail on the FOIA claim. After asking Ms. Carpenter to specify what documents were being requested under the FOIA at the January 4, 2006 hearing, and after reviewing the Internal Affairs file, the circuit court found that the City did not have to disclose any other public records pursuant to the FOIA. The circuit court’s order also specifically found that “throughout the changing sets of requests for public records pursuant to the Arkansas Freedom of Information Act, the City responded promptly, [and] provided public records as quickly as possible.”
The circuit court did state in its order that it was awarding a fraction of the fees requested by Ms. Carpenter because of its opinion that she “prevailed only sections of her complaint [sic].” However, after reviewing the record and the specific findings made by the circuit court, this court fails to find on what claims Ms. Carpenter prevailed, much less, how she “substantially prevailed,” as required by the statute. While the circuit court included in its order that certain documents were provided after the filing of the lawsuit, its findings of fact provide only that “[o]n December 10, 2005, Mann provided an additional document to the plaintiff.” The record includes the letter and document provided by Mann to Ms. Gattis on that date, which was a printed set of internal e-mails discussing why certain audio tapes would not be provided to Ms. Gattis. Those e-mails were not generated until hours before the complaint was filed and, therefore, were certainly not the basis for the FOIA lawsuit.
Because Ms. Carpenter did not substantially prevail in the FOIA action, the circuit court abused its discretion in awarding her fees and costs. Therefore, we reverse and remand this matter to the circuit court for entry of an order consistent with this opinion.
Reversed and remanded.
Wills, J., not participating.
While the Pulaski County Sheriffs Office was a party below, it is not a party to the instant appeal.
Terry Hastings has since become Lieutenant; however, at the time, he was a sergeant.
Ms. Gattis had mistakenly asked for General Order 311; however, Mann informed her that it was 211 that involved the Internal Affairs Division.
Tory Edwards and Antonio Smith were both housed in the cell with Leggs on August 6,2005, before his death.
In the circuit court’s findings of fact, the only document found to be produced after the filing of the lawsuit was the document produced by Mann on December 10,2005.
In her brief, Ms. Carpenter argues that “on December 19, 2005, the remaining documents requested under the FOIA were delivered to appellee’s attorney’s office, including documents that the City of Little Rock previously claimed were not subject to disclosure under the FOIA law.” However, she does not cite this court to any document in the record or to any finding by the circuit court that supports this claim. Furthermore, the circuit court’s order found that the City responded promptly to the FOIA requests and provided the public records as quickly as possible. Ms. Carpenter did not appeal that finding and may not now present an argument contrary to that finding. | [
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Annabelle Clinton Imber, Justice.
Petitioner Jerry Cox has filed, individually and on behalf of the Family Council Action Committee and all other Arkansas voters similarly situated, an original action asking this court to declare the popular name and ballot tide of Proposed Amendment 3 insufficient and to enjoin Respondent Arkansas Secretary of State Charlie Daniels from placing the measure on the ballot for the November 4, 2008 General Election. The proposed amendment is sponsored by Intervenors John Bailey, Bill Halter, and Charles Hathaway, acting individually and as members of HOPE for Arkansas. Our jurisdiction to determine this matter is pursuant to Amendment 7 of the Arkansas Constitution and Arkansas Supreme Court Rule 6-5(a) (2008). We deny the petition.
The text of Proposed Amendment 3 is as follows:
Be it enacted by the people of the State of Arkansas:
Section 14 of Article 19 of the Constitution of the State of Arkansas is amended to read as follows:
Section 14. Lotteries prohibited
No-k>aery shall-be authorized by this State,-nor shall the sale of lottery tickets be allowed.
(a) The General Assembly may enact laws to establish, operate, and regulate State lotteries.
(b) Lottery proceeds shall be used solely to pay the operating expenses of lotteries, including all prizes, and to fund or provide for scholarships and grants to citizens of this State enrolled in public and private non-profit two-year and four-year colleges and universities located within the State that are certified according to criteria established by the General Assembly. The General Assembly shall establish criteria to determine who is eligible to receive the scholarships and grants pursuant to this Amendment.
(c) Lottery proceeds shall not be subject to appropriation by the General Assembly and are specifically declared to be cash funds held in trust separate and apart from the State treasury to be managed and maintained by the General Assembly or an agency or department of the State as determined by the General Assembly-
Id) Lottery proceeds remaining after payment of operating expenses and prizes shall supplement, not supplant, non-lottery educational resources.
(e) This Amendment does not repeal, supersede, amend or otherwise affect Amendment 84 to the Arkansas Constitution or games of bingo and raffles permitted therein.
(f) Except as herein specifically provided, lotteries and sale of lottery tickets are prohibited.
The initiative’s popular name is:
A CONSTITUTIONAL AMENDMENT AUTHORIZING THE GENERAL ASSEMBLY TO ESTABLISH, OPERATE, AND REGULATE STATE LOTTERIES TO FUND SCHOLARSHIPS AND GRANTS FOR ARKANSAS CITIZENS EN-
ROLLED IN CERTIFIED TWO-YEAR AND FOUR-YEAR COLLEGES AND UNIVERSITIES IN ARKANSAS.”
Its ballot title, which essentially mirrors the text of the initiative, is as follows:
AN AMENDMENT TO THE ARKANSAS CONSTITUTION AUTHORIZING THE GENERAL ASSEMBLY TO ENACT LAWS TO ESTABLISH, OPERATE, AND REGULATE STATE LOTTERIES; REQUIRING LOTTERY PROCEEDS TO BE USED SOLELY TO PAY THE OPERATING EXPENSES OF LOTTERIES, INCLUDING ALL PRIZES, AND TO FUND OR PROVIDE FOR SCHOLARSHIPS AND GRANTS TO CITIZENS OF THIS STATE ENROLLED IN PUBLIC AND PRIVATE NON-PROFIT TWO-YEAR AND FOUR-YEAR COLLEGES AND UNIVERSITIES LOCATED WITHINTHE STATE THAT ARE CERTIFIED ACCORDING TO CRITERIA ESTABLISHED BY THE GENERAL ASSEMBLY; REQUIRING THE GENERAL ASSEMBLY TO ESTABLISH CRITERIA TO DETERMINE WHO IS ELIGIBLE TO RECEIVETHE SCHOLARSHIPS AND GRANTS; DECLARING THAT LOTTERY PROCEEDS SHALL NOT BE SUBJECTTO APPROPRIATION BYTHE GENERAL ASSEMBLY; DECLARING LOTTERY PROCEEDS TO BE CASH FUNDS HELD IN TRUST SEPARATE AND APART FROM THE STATE TREASURY TO BE MANAGED AND MAINTAINED BY THE GENERAL ASSEMBLY OR AN AGENCY OR DEPARTMENT OF THE STATE AS DETERMINED BY THE GENERAL ASSEMBLY; REQUIRING LOTTERY PROCEEDS REMAINING AFTER PAYMENT OF OPERATING EXPENSES AND PRIZES TO SUPPLEMENT, NOT SUPPLANT, NON-LOTTERY EDUCATIONAL RESOURCES; DECLARING THAT THIS AMENDMENT DOES NOT REPEAL, SUPERSEDE, AMEND OR OTHERWISE AFFECT AMENDMENT 84 TO THE ARKANSAS CONSTITUTION OR GAMES OF BINGO AND RAFFLES PERMITTED THEREIN; PROHIBITING LOTTERIES AND THE SALE OF LOTTERY TICKETS EXCEPT AS HEREIN SPECIFICALLY PROVIDED.
On November 1, 2007, Attorney General Dustin McDaniel issued an opinion approving the popular name and ballot title and concluding that the popular name is sufficient as submitted and the ballot title plainly represents an impartial summary of the proposed amendment. Thereafter, Intervenors collected sufficient signatures to place the proposed amendment on the ballot. On July 21, 2008, Respondent announced that the signatures were sufficient and certified the proposed amendment to be placed on the ballot for the November 4 General Election. Petitioner filed this original action on September 19, 2008, and we heard oral argument on October 13, 2008.
Petitioner argues that the ballot title for Proposed Amendment 3 is insufficient because (1) the proposed amendment amounts to a repeal of article 19, section 14 of the Arkansas Constitution and the ballot title fails to inform the voters of such a change; (2) the ballot title fails to define the key term “state lottery” and therefore fails to disclose the broad range of games of chance that may be permitted under the amendment; and (3) the ballot title does not adequately inform the voters of its possible impact on the constitutionality of casino gaming. We begin our analyses with a review of the law regarding the sufficiency of ballot titles.
The ballot title must be an impartial summary of the proposed amendment, and it must give voters a fair understanding of the issues presented and the scope and significance of the proposed changes in the law. May v. Daniels, 359 Ark. 100, 106, 194 S.W.3d 771, 777 (2004). It must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. Id. It cannot omit material information that would give the voters serious ground for reflection. Id. It is required that the title be complete enough to convey an intelligible idea of the scope and import of the proposed law. Id. Thus, it 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. at 107, 194 S.W.3d at 777. This court has long recognized the impossibility of preparing a ballot title that would suit everyone. Id. Thus, 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. Id.
The issue of the sufficiency of a ballot title is a matter of law to be decided by this court. Id., 194 S.W.3d at 777. Thus, we will consider the fact of Attorney General certification and attach some significance to it; however, we will not defer to the Attorney General’s certification or give it presumptive effect. Id. Our most significant rule in determining the sufficiency of the title is that it be given a liberal construction and interpretation in order that it secure the purposes of reserving to the people the right to adopt, reject, approve, or disapprove legislation. Id. It is not our purpose to examine the relative merit or fault of the proposed changes in the law; rather, our function is merely to review the measure to ensure that, if it is presented to the people for consideration in a popular vote, it is presented fairly. Id. Ultimately, Amendment 7 places the burden upon the party challenging the ballot title to prove that it is misleading or insufficient. Id., 194 S.W.3d at 777-78. With these standards in mind, we discuss each of the points raised by Petitioner.
I. Failure to Inform Voters of the Constitutional Provision Being Changed
The ballot title expressly states that the proposed measure is a constitutional amendment. The ballot title essentially mirrors the text of the proposed amendment except that it does not specifically refer to article 19, section 14. Petitioner argues that this is a material omission because the amendment is not proposing a new provision to the Constitution but changing an existing provision, which amounts to a repeal of the provision. Petitioner asserts that failure to inform voters that the amendment repeals or amends a particular constitutional provision would give voters serious ground for reflection on how to vote.
Respondent and Intervenors argue that the proposed amendment amends article 19, section 14 but does not repeal it because the current constitutional ban on lotteries is preserved in subsection (f) of the amendment. Respondent argues that a ballot title is not required to describe the existing law and asserts that the citizens of this State are acutely aware of the fact that lotteries are currently banned. They also argue that since the ballot title expressly states that it is a constitutional amendment, it fairly and accurately apprises the voters that this measure proposes a new, limited exception to the current prohibition on lotteries.
We conclude that the proposed amendment does not repeal the existing article 19, section 14 of the Arkansas Constitution. We note at the outset that Petitioner has failed to cite any legal authority in support of his argument that this amendment repeals the existing constitutional provision. He bases his argument solely on the fact that the current language in article 19, section 14 has been completely changed by the amendment. This argument is unconvincing, as the constitutional ban on lotteries, other than “state lotteries” specifically provided for in the amendment, is expressly preserved under subsection (f) of the proposed amendment.
Petitioner argues that the ballot title is insufficient because it omits information concerning how the proposal would impact existing constitutional law regarding lotteries. We have stated that the ballot title is not required to state or summarize the present law, and the fact that it is an amendment is sufficient to inform that change will result. Becker v. Riviere, 270 Ark. 219, 224, 604 S.W.2d 555, 558 (1980). Petitioner then attempts to distinguish the instant case from Becker v. Riviere and argues that, while the ballot title approved by this court in the Becker case did not state existing law, it expressly referred to the particular constitutional provision to be amended. Such a distinction is misplaced. We did not hold in Becker that, while the ballot title is not required to state existing law, it is required to include the particular constitutional provision to be amended. Instead, we stated:
By far the most significant change that the proposed amendment would allow is the abrogation of the present 10 per cent limit on interest rates. We think the proposed ballot title sufficiently puts a voter on notice of this change by stating “the maximum rate of interest shall not exceed 10 percent except by law enacted by two-thirds vote of the general assembly” and that it and the proposed popular name both fairly identify the true purpose of the amendment. We reject petitioners’ contention that the ballot title is defective because it does not indicate the present constitutional limit on interest rates is 10 per cent per annum. The ballot tide is not required to state the present interest limitation, nor to summarize the Arkansas law on usury____The fact that it is an amendment is sufficient to inform that change will result.
Id., 604 S.W.2d at 557-58. Like the ballot title in Becker, the present ballot title is not required to state the present ban on lotteries, nor to summarize the Arkansas law on lotteries. The fact that it is an amendment is sufficient to inform the voters that change will result. Petitioner stresses that, without referring to the particular constitutional provision being amended, the ballot title fails to inform the voters that the amendment changes an existing provision instead of proposing a new provision, thereby failing to provide voters with a choice between the old law and the new law. However, we cannot see how inclusion of the numerals “Article 19, Section 14” will aid the voters in making an informed choice in the voting booth.
It is not necessary that a ballot title include every detail of an amendment. May v. Daniels, 359 Ark. at 111, 194 S.W.3d at 780. A ballot title is sufficient if it recites the general purposes of the proposed law and if the ballot title contains enough information to sufficiently advise voters of the true contents of the proposed law. Ward v. Priest, 350 Ark. 345, 359, 86 S.W.3d 884, 891 (2002). Our task is not to require nor draft the perfect proposed popular name and ballot title, but merely to determine if those presented are legally sufficient. Becker v. Riviere, 270 Ark. at 226, 604 S.W.2d at 558. Our most significant rule in determining the sufficiency of the title is that it be given a liberal construction and interpretation in order that it secure the purposes of reserving to the people the right to adopt, reject, approve, or disapprove legislation. May v. Daniels, 359 Ark. at 107, 194 S.W.3d at 777. Thus, Petitioner has not met his burden of proving that the ballot title is misleading or insufficient.
II. Failure to Define the Term “State Lottery”
For his next challenge, Petitioner argues that, without a definition of the term “state lottery” in either the ballot title or the text of the proposed amendment, voters are not adequately informed as to whether, by approving the proposed amendment, they will be authorizing the General Assembly to approve (1) only the sale of lottery tickets by or on behalf of the State or (2) other games of chance operated by or on behalf of the State that may comply with the definition of lottery as set forth by this court in previous decisions. Moreover, Petitioner argues that, by making the term plural, nothing in the language prohibits the State from operating multiple types of lotteries, and the voters are not adequately informed of this possibility.
Respondent and Intervenors point out that this court has already said that most voters will readily understand what a state lottery entails, citing Christian Civic Action Committee v. McCuen, 318 Ark. 241, 248, 884 S.W.2d 605, 609 (1994). Respondent further argues that the ballot title explicitly apprises the voters that the General Assembly will be vested with authority to supply these details, and Petitioner is asking the court to speculate on future legislation. Intervenors emphasize that the term “lottery” is not now and never has been defined in the current Arkansas Consti tution since its adoption in 1874. Moreover, no definition appears in the earlier state constitutions adopted in 1836, 1861, 1864, and 1868.
We have held that a ballot title is sufficient if it identifies the proposed measure and fairly recites the general purpose, and it need not be so elaborate as to set forth the details of the measure. Becker v. Riviere, 270 Ark. at 223, 604 S.W.2d at 557. In this case, the text of the proposed amendment does not contain a definition for “state lottery.” When the text of the proposed amendment mirrors the ballot title, we have said that the ballot title is not misleading for failing to give specifics where the amendment does not. May v. Daniels, 359 Ark. at 114, 194 S.W.3d at 782.
Petitioner cites Kinchen v. Wilkins, 367 Ark. 71, 238 S.W.3d 94 (2006), and argues that when the text is insufficient, the fact that the ballot title mirrors the text does not make the title sufficient. While Petitioner is correct in his interpretation of Kinchen v. Wilkins, we have consistently approved the use of the term “state lottery” in ballot titles without a definition. See Christian Civic Action Committee v. McCuen, supra; Parker v. Priest, 326 Ark. 123, 930 S.W.2d 322 (1996). We have stated that most voters could readily understand the term “state lottery.” Christian Civic Action Committee v. McCuen, 318 Ark. at 248, 884 S.W.2d at 609. In an effort to distinguish the instant case from Christian Civic Action Committee v. McCuen, Petitioner suggests that voters can distinguish “state lottery” from “charitable bingo game” or “a charitable raffle,” but cannot understand the meaning of “state lottery” if it stands alone in the ballot title. We disagree. Our conclusion was not that voters can distinguish different types of gambling, but that voters can understand each of the terms, including the term “state lottery.” Id., 884 S.W.2d at 609; Parker v. Priest, 326 Ark. at 132, 930 S.W.2d at 327. A highly technical definition is disfavored in ballot titles. While we have approved the use of commonly used terms such as “state lottery” and “charitable bingo game” in ballot titles, we have disapproved the use of terms that are technical and not readily understood by voters, such that voters would be placed in a position of either having to be an expert in the subject or having to guess as to the effect his or her vote would have. See Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000); Christian Civic Action Committee v. McCuen, supra; Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996). For example, in the Christian Civic Action Committee case, we struck a proposed measure from the ballot because the ballot title was misleading in that it used a definition full of highly technical terms in order to avoid using the term “casino-style gaming.” Christian Civic Action Committee v. McCuen, supra.
In another attempt to distinguish the instant case from Christian Civic Action Committee v. McCuen and Parker v. Priest, Petitioner argues that, in those two cases, the definition of “state lottery” was included in the text of the proposed amendment. If omission of the definition of “state lottery” would make the ballot title misleading or insufficient, the fact that the definition was included in the text of the proposed amendment would not cure the defect. The popular name and ballot title of the petition are the only portions of the proposal that appear on the ballot. McDonald v. Bryant, 238 Ark. 338, 339, 381 S.W.2d 736, 737 (1964).
For his last argument under this point, Petitioner contends that by omitting a definition of the term “state lottery,” voters will not know whether the proposed amendment only includes the sale of lottery tickets by or on behalf of the State or whether it also includes other games of chance operated by or on behalf of the State that may fall under the broad judicial definition of lottery in Burks v. Harris, 91 Ark. 205, 208, 120 S.W. 979, 980 (1909), Longstreth v. Cook, 215 Ark. 72, 80, 220 S.W.2d 433, 437 (1949), and Shuffield v. Raney, 226 Ark. 3, 7, 287 S.W.2d 588, 591 (1956). In addition, he suggests that the plural form of “lottery” may be interpreted to authorize the State to run more than one lottery.
As stated earlier, the ballot title does not have to state the existing law. Becker v. Riviere, 270 Ark. at 224, 604 S.W.2d at 558. Accordingly, the ballot title is not required to inform voters of the current case law on “lotteries.” Moreover, Petitioner’s argument would require this court to interpret the proposed amendment, which we do not do in reviewing the sufficiency of ballot titles. May v. Daniels, 359 Ark. at 112, 194 S.W.3d at 781. The proposed amendment in the instant case, like the proposal in May v. Daniels, puts the voters on notice that the General Assembly will pass further legislation to establish, operate, and regulate state lotteries. Until such legislation is enacted, we cannot interpret the particulars of the amendment. Id. at 109, 194 S.W.3d at 779. While Petitioner may disagree with the wisdom of such delegation or the broad discretion afforded by the proposed measure, our court will only review the sufficiency of a ballot title, and will not examine the merits of the proposed changes in the law. Even if proponents of the ballot title came up with a list of games or a definition of “lottery,” that list or definition would still be subject to further judicial interpretation in the event the proposed amendment is adopted.
In sum, our job is not to review the relative merit or fault of the proposed initiative, nor is it to fashion a perfect or even a better ballot title. May v. Daniels, 359 Ark. at 107, 194 S.W.3d at 777. We also bear in mind that strict technical construction is not required, but that substantial compliance with Amendment 7 is all that is needed. Id. at 109, 194 S.W.3d at 779. It is not necessary that a ballot title include every possible consequence or impact of the proposed measure, or anticipate every possible legal argument the proposed measure might evoke. Id. at 111, 194 S.W.3d at 780. It is our duty to approve a ballot title if it represents an impartial summary of the measure and contains enough information to enable the voters to mark their ballots with a fair understanding of the issues presented. Id. at 110, 194 S.W.3d at 779.
III. Failure to Disclose the Proposed Amendment’s Impact on Casino Gaming
Finally, Petitioner claims that the ballot title should include an express prohibition on casino gaming or any words of limitation indicating that casino gaming will not be permitted. He posits that, by failing to limit the scope of the lottery proposal, the ballot title has not disclosed to the voters that they may be authorizing the legislature to approve casino gaming operated by or on behalf of the State. According to Petitioner, casino games, like slot machines and roulette, clearly qualify under the definition of lotteries as “games in which the outcomes are based purely on chance.”
In rebuttal, Respondent points out that Petitioner’s concern about the proposal possibly authorizing “casino gaming” in the future is pure conjecture and will require the court to interpret the amendment. Moreover, he submits that, because Petitioner does not define “casino gaming,” this court cannot address the contingencies raised by Petitioner until the details of the proposed measure have been implemented by the legislature.
Intervenors further submit that the term “lottery” as used in the Constitution and the proposed amendment does not include casino gaming. They state that Arkansas law has long distinguished between lotteries and other forms of gambling, citing Longstreth v. Cook, supra. In essence, Intervenors assert that, except as to lotteries, the Constitution left to the General Assembly the question of permitting, prohibiting, or regulating gambling.
Petitioner also argues that all of the specific types of games of chance covered by the broad definition of lottery set forth in Burks v. Harris, supra, Longstreth v. Cook, supra, and Shuffield v. Raney, supra, have not been identified by this court, and that the definition is easily construed to prohibit any game of chance not otherwise authorized by the Arkansas Constitution. To support this argument, he insists that if this were not the correct interpretation of the Constitution, proponents of bingo and raffles simply could have enacted a statute to authorize those games instead of using the initiative process under Amendment 7 to place their proposed amendment on the ballot. Petitioner’s suggested interpretation of article 19, section 14 is not supported by our case law. We have said that the Constitution does not invalidate every statute that makes gambling legal; it forbids only the legalization of lotteries and lottery tickets. Scott v. Dunaway, 228 Ark. 943, 944, 311 S.W.2d 305, 306 (1958). Once again, we have held that, except as to lotteries, the Constitution left to the General Assembly the question of permitting, prohibiting, or regulating gambling. Longstreth v. Cook, 215 Ark. at 79, 200 S.W.2d at 437. “Lottery” as defined in Burks v. Harris, supra, does not include every game of chance. See Scott v. Dunaway, 228 Ark. at 944, 311 S.W.2d at 306. A lottery is a species of gaming, which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. Burks v. Harris, 91 Ark. at 208, 120 S.W. at 980. It is essential to a lottery that the winners be determined by chance alone. Scott v. Dunaway, 228 Ark. at 944, 311 S.W.2d at 306.
Petitioner nonetheless earnestly asserts that there is a possibility that the amendment, if adopted, will be interpreted to permit “casino gaming,” and that this undisclosed risk will give voters serious ground for reflection on how to vote. To support this possibility, he relies upon State ex rel. Stephan v. Finney, 867 P.2d 1034 (Kan. 1994), in which the Supreme Court of Kansas held that “lottery,” as used in a constitutional amendment permitting state-owned lotteries, was broad enough to include casino gambling. While we held in Parker v. Priest, 326 Ark. at 132, 930 S.W.2d at 327, that voters can readily understand terms such as “state lottery” and “casino gambling,” we have not decided whether “casino gaming” is a type of lottery within the definition of Burks v. Harris, supra. For us to address the issue now would necessarily involve construing the proposed amendment and speculating about its future impact on current laws. As we have said, we cannot engage in the interpretation and construction of the text of the amendment and speculate on future legislation. May v. Daniels, supra. Our court has rejected a similar argument when it was based entirely on speculation and conjecture as to how the amendment may be interpreted or construed in the future and how it may affect current laws. May v. Daniels, 359 Ark. at 111-12, 194 S.W.3d at 780. Petitioner’s suggestion that this court may interpret the term “state lottery” to include “casino gaming” under the proposed amendment amounts to nothing more than an assertion and is by no means a certainty, such that the ballot title must inform the voters. Again, it is not necessary that a ballot title include every possible consequence or impact of a proposed measure. Id. at 111, 194 S.W.3d at 780. Certainly not every detail of an amendment or how it will work in every situation can be revealed in the name and title. Id., 194 S.W.3d at 780. Nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. Id., 194 S.W.3d at 780.
Based on the foregoing, we hold that the ballot title and popular name of Proposed Amendment 3 are sufficient, and we deny Petitioner’s request to remove the measure from the ballot. The mandate herein will issue on October 22, 2008, unless a petition for rehearing is filed. Any petition for rehearing must be filed by October 20, 2008, and any response by October 21, 2008.
Petition denied.
Wills, J., not participating.
Intervenors concede that Petitioner can sue individually but challenge his capacity to sue on behalf of the Family CouncilAction Committee and all other Arkansas voters similarly situated. Because Petitioner filed properly before this court individually, we need not address his capacity to represent the Family Council Action Committee and other Arkansas voters similarly situated.
Petitioner refers to cases from other jurisdictions addressing the issue of whether certain types of games are included in their constitutional amendments authorizing state-operated lotteries. He cites Dalton v. Pataki, 835 N.E.2d 1180 (N.Y. 2005), in which the Court of Appeals of New York authorized video lottery gaming, and State ex rel. Stephan v. Finney, 867 P.2d 1034 (Kan. 1994), in which the Supreme Court of Kansas authorized casino gambling. In both of those cases, however, the courts were not reviewing the sufficiency of a ballot tide; rather, they were interpreting constitutional amendments in the context of lawsuits filed after the amendments were passed. | [
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Donald L. Corbin, Justice.
Appellant Anthony L. Young appeals the order of the Columbia County Circuit Court convicting him of rape and residential burglary. He was sentenced, respectively, to a term of life imprisonment and 360 months’ imprisonment, with his sentences to be served consecutively. On appeal, he argues that there was insufficient evidence to prove that he committed either offense. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2). We find no error and affirm.
The record reveals the following facts. During the early morning hours of August 6, 2006, the Magnolia Police Department received a call that L.W., an eighty-four-year-old woman, had been raped in her home. When officers arrived at L.W.’s home, they found her distraught and agitated. L.W. told the officers that she had been asleep on her couch, when she was awakened by a black male stánding by the couch and that he then raped her. She told officers that when she heard the sound of a car approaching her driveway, the attacker put on his clothes and fled the house. L.W. told officers that she believed it was either a brother or a cousin of Young’s who had raped her.
Authorities subsequently arrested Young, charging him with one count of rape and one count of residential burglary. He was tried before a jury on October 31, 2007. At trial, Officer Josh Bolton of the Magnolia Police Department testified that at approximately 4:50 a.m. on August 6, 2006, he and two other officers were approaching the end of their shift when they received an alert that a woman had been raped in her home. Officer Bolton stated that the officers proceeded to the home of L.W. Officer Bolton went around to the rear of the home to secure the scene. There, he discovered that a screen to a bathroom window had been pulled away from the frame, and the window was standing open.
Officer Sam Kirby testified that he also went to L.W.’s home, and when he first saw her, it appeared that she had been in some type of struggle. According to Officer Kirby, L.W. was crying, sweaty, and hysterical and stated that she had been raped.
Sergeant Cory Sanders testified that when he arrived at L.W.’s home with the other officers, L.W. was sweating, out of breath, shaking, and had tears in her eyes. L.W. told the officers that she had been raped by a young, black male that she believed to be the same person who had asked her the previous evening if he could clean out her flower beds for some money. L.W. told officers that she believed the man was Anthony Young’s brother or cousin. When Sergeant Sanders asked L.W. to give a detailed account of what had happened, she stated that she had fallen asleep on her couch and woke up to find a young, nude, black male standing over her. L.W told Sergeant Sanders that the man put a pink bath towel over her face, got on top of her, and proceeded to rape her. When she attempted to call police from the phone in her den, she discovered that the phone line had been cut. She then called police from a phone in a bedroom. Sergeant Sanders testified that officers collected a pink towel and a pair of boxer shorts at the scene. Also taken into evidence was the tee-shirt-style nightgown that L.W. was wearing at the time of the rape.
Dr. William Pittman testified that he was on duty at the Magnolia City Hospital the morning of August 6, when a police officer brought in L.W. to be examined regarding an allegation of rape. According to Dr. Pittman, in the course of conducting a physical exam of L.W., he discovered two vaginal lacerations that were not consistent with consensual intercourse. Dr. Pittman elaborated that one of the lacerations had cut through L.W.’s skin near her anus and opined that the character of this laceration was similar to a tear in the skin caused by childbirth. According to Dr. Pittman, the condition of L.W.’s vaginal area was consistent with unexpected forced sex.
Melissa Myhand, a forensic DNA analyst with the Arkansas State Crime Lab, testified that a tee shirt submitted to her was tested, and a semen stain was discovered on it. Myhand analyzed the semen stain and discovered that the DNA extracted from that stain matched Young’s DNA sample that had been submitted by authorities.
L.W. testified that a man broke into her home through her bathroom window as she lay sleeping on her couch. When she awoke, she saw the man standing naked near her couch, and he raped her. According to L.W., the man asked her if she had any money, and she told him that all she had was some change, to which he replied he did not want change, he wanted some real money. L.W. stated that she heard a car approach her driveway and that the man opened her door and ran out of the house, leaving his underclothes behind. According to L.W., five to ten minutes after the man fled her home, she called 911 to report the rape. When asked if she had ever seen the man before, L.W. stated that she had seen him either on a porch or in the yard of a home down the street from her. L.W. also stated that Young had previously told her there were snakes in her flower bed and he wanted to clean it out for her. Finally, L.W. testified that she never invited Young into her home.
At the conclusion of the State’s case, counsel for Young moved for a directed verdict, arguing that there had been no testimony by anyone about any penetration of L.W. by any body member of Young’s. He further argued that because the case law requires evidence of penetration, the State had not proven its case with regard to the charge of rape. Counsel also argued that a directed verdict should be granted on the charge of residential burglary, as there was no identification of Young being in the home on any occasion. The trial court denied both motions. Counsel for Young rested without presenting any evidence and renewed his directed-verdict motions. The trial court again denied the motions, and the case was subsequently submitted to the jury. The jury returned a verdict of guilty on both counts, and Young was sentenced as outlined above. This appeal followed.
On appeal, Young argues that there was insufficient evidence to support his conviction on the charge of rape. Specifically, he argues that the State failed to present any evidence of penetration as is required to establish the offense. In support of his argument, Young cites to Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); and Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986), as examples of cases where there was specific evidence of penetration.
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). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. See id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. See id. Furthermore, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sales v. State, 374 Ark. 222, 289 S.W.3d 423 (2008). Whether the evidence excludes every other hypothesis is left to the jury to decide. See id. The credibility of witnesses is an issue for the jury and not the court. See id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. See id.
With regard to a rape conviction, the testimony of a rape victim, standing by itself, constitutes sufficient evidence to support a conviction. See, e.g., Hanlin v. State, 356 Ark. 516, 157 S.W.3d 181 (2004). Moreover, in a rape case, “penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient.” Clem v. State, 351 Ark. 112, 117-18, 90 S.W.3d 428, 430 (2002) (citing Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999)).
Here, there was sufficient evidence to support Young’s conviction for rape. L.W. testified that she awoke to find a young, nude, black man standing over her and that this man raped her. Dr. Pittman testified that upon examining L.W., he saw signs of trauma to her vaginal opening. When asked to explain, Dr. Pittman, relying on photographs taken during his examination of L.W., stated:
In her case, we had two vaginal lacerations. One laceration would be right in this area right here (indicating) in the five o’clock position and one laceration was right here (indicating) going through the skin aspect of the vaginal opening. It was about in the five o’clock position also, five to six o’clock position. This one actually — the second one I’m referring to — actually filleted open the skin at that area.
Dr. Pittman further testified that the vaginal lacerations suffered by L.W. were consistent with forced sex and would have been very uncomfortable. According to Dr. Pittman, he had never seen injuries such as L.W.’s result from consensual intercourse. He stated that injuries caused during consensual intercourse do not occur at the vaginal opening, “which is where the penis would be inserted” and where L.W.’s injuries occurred. Finally, Melissa Myhand testified that a semen sample found on L.W.’s nightgown contained DNA that matched the DNA of Young.
This evidence was sufficient to establish that Young raped L.W. In order to convict Y oung of rape, the State had to show that Young engaged in sexual intercourse or deviate sexual activity with another person by forcible compulsion. See Ark. Code Ann. § 5-14-103(a)(l) (Supp. 2007). “Sexual intercourse” is defined as penetration, however slight, of the labia majora by a penis. See Ark. Code Ann. § 5-14-101(10) (Repl. 2006). “Deviate sexual activity” includes among other things, any act of sexual gratification involving the “penetration, however slight, of the labia majora ... of a person by any body member or foreign instrument manipulated by another person.” See Ark. Code. Ann. § 5-14-101(1)(B). Although L.W. did not testify specifically about the. penetration that occurred, the circumstantial evidence, specifically the testimony from Dr. Pittman regarding the injuries to L.W.’s vaginal opening, established the element of penetration. Accordingly, Young’s argument on this point is without merit.
Young also argues that there was insufficient evidence to establish that he committed residential burglary. Specifically, Young argues that the State alleged that Young committed residential burglary by entering the residence of L.W. with the purpose of committing the felony offense of rape, and that because the State failed to prove the offense of rape, it also could not prove the offense of residential burglary.
Arkansas Code Annotated section 5-39-201 (a) (Repl. 2006) sets forth the offense of residential burglary:
(a)(1) A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment.
(2) Residential burglary is a Class B felony.
Notably, the statute does not require that property actually be stolen. See Ark. Code Ann. § 5-39-201 (a)(1); see also Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).
Because we have determined that there was sufficient evidence of rape, and Young’s argument on this point is solely premised on the contention that there was insufficient proof of rape, there is no merit to Young’s argument with regard to the conviction for residential burglary.
In compliance with Arkansas Supreme Court Rule 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Young, and no prejudicial error has been found. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008).
Affirmed.
Wills, J., not participating. | [
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Per Curiam.
Appellant Ray Garcia, by and through his attorney, Dee A. Scritchfield, has filed a motion to file a belated notice of appeal. The circuit court’s order terminating Garcia’s parental rights was filed April 21, 2008. Pursuant to Arkansas Supreme Court Rule 6-9(b)(2) (2008), Garcia’s notice of appeal was required to be filed no later than May 5, 2008, but was not filed until the next day, May 6, 2008. Ms. Scritchfield states that, due to her lack of diligence, Garcia’s notice of appeal was untimely filed.
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. While the instant case is not a criminal case, we have afforded indigent parents appealing from a termination of parental rights similar protections to those afforded indigent criminal defendants by applying the McDonald standard. See, e.g., Smith v. Arkansas Dep’t of Health & Human Servs., 371 Ark. 425, 266 S.W.3d 694 (2007) (granting a motion for belated appeal in a termination-of-parental-rights case).
This court’s rules further provide that no motion for belated appeal shall be entertained unless application has been made to this court within eighteen months of the date of the entry of judgment. See Ark. R. App. P.-Crim. 2(e) (2004). We note that Garcia’s motion was filed well within the time period so prescribed.
In accordance with McDonald v. State, supra, Ms. Scritchfield 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 Edward S. McWilliams, by and through his attorney, Robert N. Jeffrey, has filed a motion for rule on clerk. Appellant pled guilty to possession of a firearm by certain persons on November 23, 2004, was sentenced to probation for five years, and ordered to pay a fine, court costs, and attorneys’ fees. By judgment and commitment order entered March 4, 2008, Appellant’s probation was revoked, and he was sentenced to eighty-four months in the Arkansas Department of Correction. On March 14, 2008, an amended judgment and commitment order was entered to correct a clerical error that the commitment was a result of the revocation of his probation. Appellant filed a notice of appeal on April 7, 2008, from the judgment and commitment order entered March 4, 2008. The record was completed and filed with the trial court on June 19, 2008, and tendered to the clerk of this court on June 23, 2008. The supreme court clerk refused to file the record because the notice of appeal was filed more than thirty days after the first judgment and commitment order was entered.
Appellant’s counsel filed this motion for rule on clerk, candidly admitting therein that he did not file the notice of appeal within thirty days of the entry of the first judgment. Where a motion for rule on clerk is filed in error, it will be treated as a motion for belated appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Despite Appellant’s failure to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow appellate rules. Morris v. State, 373 Ark. 190, 282 S.W.3d 757 (2008) (per curiam) (citing Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam)). Consistent with our explanation of handling motions for rule on clerk and belated appeals in McDonald, 356 Ark. 106, 146 S.W.3d 883, we consider this a motion for belated appeal. Because counsel candidly admits fault, we grant the motion for belated appeal and direct the clerk of this court to accept the record and docket the appeal. We forward this opinion to the Committee on Professional Conduct.
Motion treated as belated appeal; granted. | [
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Per Curiam.
Appellant DaimlerChrysler Corporation appeals from a judgment entered against it in the Columbia County Circuit Court for violation of the Arkansas New Motor Vehicle Quality Assurance Act, also known as “The Arkansas Lemon Law,” codified at Arkansas Code Annotated sections 4-90-401 to -417 (Repl. 2001). Because Appellant has submitted a brief without a proper abstract in violation of Arkansas Supreme Court Rule 4-2(a)(5), we order rebriefing.
Rule 4-2(a)(5) provides, in pertinent part:
The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such 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.
Furthermore, the procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Rule 4-2(b) (3):
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4 — 2(a) (5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
In the instant case, a hearing was held on January 17, 2007, in which counsel for all parties argued the merits of the motion to enforce settlement filed by Appellant. Rather than abstracting the transcript of this hearing as required by Rule 4-2(a)(5), Appellant simply reproduces the transcript and labels it “Abstract.”
Because Appellant has failed to comply with Rule 4-2(a)(5), we order Appellant to abstract the transcript of the January 17 .hearing and to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. If Appellant fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2.
After service of the substituted abstract, addendum, and brief, Appellee shall have an opportunity to revise or supplement their briefs in the time prescribed by the Court.
Rebriefing ordered. | [
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Robert L. Brown, Justice.
Save Energy Reap Taxes (“SERT”) is a nonprofit Arkansas corporation that was created to promote the ballot initiative in Sharp County to permit the sale of alcohol. On August 6, 2008, SERT submitted a number of initiative petitions, containing 5,017 signatures, to then-Sharp County Clerk Joe Estes. Of those signatures, 4,620 were certified by the county clerk, leaving 251 more than the 4,369 signatures required by statute for the issue to be placed on the November ballot.
Following certification, appellees Yota Shaw and Morris Street filed separate complaints in which each challenged the validity of the certification and sought injunctive relief. The circuit judge joined the two cases for trial, granted the appellees’ request for a temporary injunction, and held a hearing on the matter beginning September 22, 2008.
On October 3, 2008, the circuit judge entered a final order, which incorporated by reference findings of fact, conclusions, and orders set out in a document dated September 25, 2008. The final order set aside the county clerk’s certification of the local-option question and instructed the election commission to remove it from the November ballot and not to count the votes.
The circuit judge specifically found in his order that 461 of the signatures certified by the county clerk were invalid and could not be counted toward the 4,369 needed to place the issue on the ballot. In doing so, the judge considered the testimony of Dawn Reed, a forensic document examiner, as well as his own review of questionable initiative petitions and signatures and the admission of canvasser Ruth Reynolds. He also heard testimony from several individuals whose purported signatures were questioned. After considering the evidence, the judge ruled that signatures with common authorship appeared on twenty-three initiative petition pages. Because a canvasser had attached what the circuit judge determined was a false affidavit to those pages, purporting to verify that “the foregoing persons signed this sheet. . . and each of them signed his or her name thereto in my presence,” he invalidated all of the signatures on those pages — a total of 238 signatures. The judge also invalidated the signature of Charlotte Hall because, based on her testimony, he found that Ms. Hall’s husband had signed her name to the initiative petition.
The judge, in addition, invalidated 222 signatures because he determined that the verification of those initiative petition pages by affidavit was invalid. To meet the verification requirement, a canvasser, Ruth Reynolds, had presented various petitions to be notarized by Linda Thompson. Reynolds and Thompson both testified that Reynolds had signed about eighty-five percent of the initiative petitions before she presented the documents to Thompson for notarization. The circuit judge found that this violated the statutory requirements for witnessing and attesting to the veracity of local-option petitions. As a result, he invalidated eighty-five percent of the petitions gathered by Reynolds and notarized by Thompson.
SERT has now appealed the circuit judge’s order. Appellees Shaw and Street have cross-appealed on grounds that the initiative petitions proposed a county ordinance that was legally incorrect and further that the petitions did not follow the form set out by statute.
I. Verification
SERT contends as its first point that the circuit judge erred by invalidating eighty-five percent of the petitions circulated by Ruth Reynolds and notarized by Linda Thompson. SERT initially advances the argument that the notarization was not invalid under applicable statutes and, in the alternative, argues that Ruth Reynolds’s subsequent testimony cured any defect in the verification.
We begin by noting that under section 7-9-104 of the Arkansas Code governing initiatives, a signature on an initiative petition must be personally signed to be valid. Ark. Code Ann. § 7-9-104(a) (Repl. 2007). The Code further requires that the person who circulates the petition must verify the genuineness of the signatures by affidavit. Id. § 7-9-109. In doing so, the canvasser must swear that each person signed his or her name to the initiative petition in the presence of the canvasser. Id. Section 3-8-204(c) of the Local Option Code makes the section 7-9-109 requirements specifically applicable to local-option petitions. Id. § 3-8-204(c) (Repl. 2008).
The Arkansas Code governing notaries public sets forth the general requirements for witnessing a signature by a notary public:
(a) It is unlawful for any notary public to witness any signature on any instrument unless the notary public either:
(1) Witnesses the signing of the instrument and personally knows the signer or is presented proof of the identity of the signer; or
(2) Recognizes the signature of the signer by virtue of familiarity with the signature.
(b) Any notary public violating this section shall be guilty of a Class A misdemeanor.
(c) For purposes of this section, “personally knows” means having an acquaintance, derived from association with the individual, which establishes the individual’s identity with at least a reasonable certainty.
Ark. Code Ann. § 21-14-111 (Repl. 2004).
It is instructive, however, that the Local Option Code imposes stricter requirements before a notary public can verify a canvasser’s affidavit:
(f) A person shall be guilty of a Class A misdemeanor if that person:
(6) Acting in the capacity of a notary knowingly fails to witness a canvasser’s affidavit either by witnessing the signing of the instrument and personally knowing the signer or being presented with proof of identity of the signer.
Ark. Code Ann. § 3-8-204(f)(6) (Repl. 2008).
There is no question in this court’s mind that section 3-8-204(f) (6) governs this case because it is specifically directed to local-option petitions. See Ozark Gas Pipeline Corp. v. Ark. Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730, 736 (2000) (a general statute must yield when there is a specific statute involving the particular matter).
We turn then to the merits of this issue. An affidavit by the canvasser attesting to the validity of garnered signatures is required under section 3-8-204(c) for local-option petitions. An affidavit is generally defined as a written statement affirmed or sworn to by some person legally authorized to administer an oath or affirmation. See, e.g., Kirk v. Hartlieb, 193 Ark. 37, 39, 97 S.W.2d 434, 435 (1936). The process requires concurrent action on the part of the affiant and the authorized officer. Id. at 40, 97 S.W.2d at 436.
The circuit judge recognized in this case that the requirements of section 3-8-204(f).(6) are mandatory and require strict compliance. We agree. See Doty v. Bettis, 329 Ark. 120, 123, 947 S.W.2d 743, 744 (1997) (stating that prior to an election, the provisions of the laws are mandatory, and we will strike an initiative if it does not strictly adhere to the statutory require ments). Moreover, in the context of an election petition where an affidavit by the canvasser attesting to the validity of the signatures on the initiative petitions is required by sections 3-8-204(c) and 7-9-109, the notary’s verification takes on additional significance. Without a perfected affidavit by the canvasser swearing to the validity of the signatures in the initiative petition, the entire petition becomes suspect and the entire canvassing effort is called into question. It is essential that the attestation and the witnessing required by statute be strictly followed so that our citizenry can have faith and confidence in the election process, and the General Assembly has so mandated. By their own admission, Ruth Reynolds and Linda Thompson did not follow the required procedures, and we hold that this renders eighty-five percent of the petitions signed by Ruth Reynolds and notarized by Linda Thompson a nullity.
Nor do we agree with SERT that Reynolds cured the notarization defect by testimony under oath that all signatures on her initiative petitions were valid. On the contrary, Reynolds admitted that in a number of instances, someone else signed the name of the person on the petition. We affirm the circuit judge on this point.
II. Common Authorship
SERT’s second point on appeal is that the circuit judge erred by invalidating 238 signatures on grounds that there was evidence of common authorship. SERT initially claims that the judge did not apply the recognized standard of proof. SERT also urges this court to find that the evidence was insufficient to support a finding of common authorship. SERT finally contends that the trial judge erred by invalidating the petitions in their entirety because the appellees did not present evidence that the canvassers consciously submitted false affidavits.
SERT directs this court to Roberts v. Priest for the proposition that a “high degree of certainty” is required to invalidate a signature on an initiative petition. 334 Ark. 503, 513, 975 S.W.2d 850, 854 (1998). It points to Dawn Reed’s expert testimony that it was “more probably true than not” that the signatures had common authorship. Accordingly, SERT argues that the evidence did not meet the required standard of proof. In the alternative, SERT maintains that there was insufficient evidence to support a finding of common authorship under any standard of review. SERT alleges that Ms. Reed’s testimony was the only evidence of common authorship and that it was too speculative to support the circuit judge’s findings.
This court gives great deference to a circuit judge’s findings of fact. See, e.g., Graham Constr. Co. v. Earl, 362 Ark. 220, 225, 208 S.W.3d 106, 109 (2005). One reason is that this court is mindful that the circuit judge is in the best position to hear testimony and determine the credibility of the witnesses. Id. This court will reverse a finding of fact by a circuit judge only if it is clearly against the preponderance of the evidence. Id.; see also Ark. R. Civ. P. 52(a) (2008).
In the case before us, the circuit judge expressly relied on testimony of an expert witness. Moreover, Ruth Reynolds admitted that in a number of instances someone else had signed the name of the person whose signature appeared on the petition. The judge’s order also indicates that he relied on the testimony of witnesses whose signatures were purportedly invalid, as well as his own review of the petitions. Based on his assessment of this evidence, he concluded that there were instances of common authorship on twenty-three petition pages. This finding was not clearly against the preponderance of the evidence, and there was substantial evidence to support his finding.
SERT also claims that the trial court erred by invalidating all of the signatures on those twenty-three petitions. Instead, it asserts that evidence of common authorship operates to invalidate the entire petition only where there is evidence that the canvasser acted consciously and for an improper purpose. In advancing this proposition, appellant relies on a case involving a state initiative in which this court held that “one who attacks a petition cannot destroy the verity of the circulator’s affidavit merely by proving that at least one signature is not genuine. The plaintiff must also adduce proof to show that the falsity of the canvasser’s affidavit was conscious rather than inadvertent.” Pafford v. Hall, 217 Ark. 734, 737, 233 S.W.2d 72, 74 (1950). SERT argues that under the Pafford standard, the circuit judge was only permitted to nullify the signatures he found to be invalid, not the entire petitions.
SERT’s contentions must fail because the legislature has spoken on this point with respect to county initiative petitions. See Act of Mar. 24, 1977, No. 742, 1977 Ark. Acts 1736, now codified at Ark. Code Ann. § 14-14-915(d) (Repl. 1998). Section 14-14-915(d) reads:
(d) Sufficiency of Petition. Within ten (10) days after the filing of any petition, the county clerk shall examine and ascertain its sufficiency. Where the petition contains evidence of forgery, perpetrated either by the circulator or with his connivance, or evidence that a person has signed a name other than his own to the petition, the prima facie verity of the circulator’s affidavit shall be nullified and disregarded, and the burden of proof shall be upon the sponsors of petitions to establish the genuineness of each signature. If the petition is found sufficient, the clerk shall immediately certify such finding to the county board of election commissioners and the quorum court.
See also Parks v. Taylor, 283 Ark. 486, 491, 678 S.W.2d 766, 768 (1984) (when a circulator for a county initiative makes an affidavit that signatures are genuine when they are not, he has made a false affidavit and the petition loses its presumption of validity). Section 14-14-915(d) does not include the “conscious falsity” element. We hold that section 14-14-915(d) controls this issue for this county initiative.
In the instant case, there was sufficient evidence on which the circuit judge could rely to find that certain people signed names other than their own on various initiative petitions submitted to the county clerk by SERT. As such, the circuit judge was well within his bounds to reject the validity of those petitions and invalidate all of the signatures in the absence of proof from SERT that each signature was, in fact, valid. Accordingly, the burden of proving the genuineness of the disputed signatures shifted to SERT. Neither Ruth Reynolds, nor any other canvasser, however, testified that the individual signatures on the initiative petitions, other than those with common authorship, were valid or genuine. SERT’s burden of proof was not met. We hold that the circuit judge did not clearly err on this issue.
To summarize, we hold that the circuit judge was not clearly erroneous in finding a total of 461 signatures on the initiative petitions to be invalid. The result of this finding is that the required number of valid signatures was not collected to place the question on the ballot. Accordingly, we affirm the order of the circuit judge setting aside the certification of the question regarding the sale of alcoholic beverages in Sharp County for placement on the ballot for the November 4, 2008 general election. We further affirm the order of the circuit judge removing this question from the ballot and directing that no votes cast on this question be counted.
Because of this court’s affirmance on direct appeal, it is unnecessary to address appellees’ issues on cross-appeal. A request for oral argument was included in SERT’s initial brief but was not filed separately in letter form as required by our Rules of the Supreme Court. Ark. Sup. Ct. R. 5-l(a) (2008). Hence, we do not consider it.
The mandate will issue on October 22, 2008, unless a petition for rehearing is filed. Any petition for rehearing must be filed by October 20, 2008, and any response by October 21, 2008.
Affirmed.
A petition must be signed by thirty-eight percent of the qualified electors in any given county in order to certify a “wet/dry” election. Ark. Code Ann. § 3-8-205 (Repl. 2008). The county clerk in Sharp County determined that there were 11,496 legal registered voters in that county as of June 1, 2008. Therefore, 4,369 were required for SER.T to successfully put the issue on the ballot for the November 4,2008 general election.
SERT contends this court’s standard of review is de novo because the issues are solely issues of law. We disagree with regard to the circuit judge’s findings of fact, which were integral to his decision. | [
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Donald L. Corbin, Justice.
Appellant Howard H. Neal, Jr., appeals his conviction for capital murder and kidnapping in the Pulaski County Circuit Court. Appellant’s sole point on appeal is that the trial court abused its discretion in refusing to allow a witness to testify on the basis that Appellant failed to disclose in a timely manner to the State that the witness would be testifying. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We affirm.
As Appellant does not challenge the sufficiency of the evidence supporting his conviction, a brief recitation of the facts will suffice. On October 23, 2005, Jacquelyn Polk left her five-year-old daughter, Jasmine Peoples, at the home of Polk’s friend, Shavonda Perry. Polk was taking Perry to visit a relative in a nursing home, while Ronald Redden and others stayed with Jasmine and another child. While Jasmine was asleep in the front room, and the second child was asleep in a bedroom, Appellant walked in the front door of the apartment and exited out the back door, where he spent about fifteen minutes wandering around the backyard, talking to himself. Appellant then reentered the apartment stating, “ ‘I want all you M-F-ers to get out of my house.’ ” He then told Redden, “ ‘I’m going to kill every last one of y’all, and I’m going to start with your ass.’ ” Appellant then attacked Redden, stabbing him in the neck. Redden and the others fled the apartment, inadvertently leaving behind the two children.
The Jacksonville Police Department was called to the scene, and by the time officers arrived, Appellant had barricaded himself in the apartment. Sergeant Chris Burrough attempted to make contact with Appellant. He tried to convince Appellant to release the two children, but Appellant refused to do so. Because the apartment’s front door was blocked by furniture, the department’s entry team, a group of officers specifically trained in making entry into high-risk situations, was called. The entry team ultimately accessed the apartment through the back door and took Appellant into custody. Captain Kenny Boyd, a member of the entry team, began searching for the two children. After moving an overturned couch and televison set, Captain Boyd discovered a child’s body lying face down underneath the furniture. The child, who also had an extension cord around her neck, was later identified as Jasmine. The second child was found unharmed. An autopsy of Jasmine revealed numerous blunt-force and sharp-force injuries, but the ultimate cause of her death was compressional asphyxia, which was consistent with a heavy object or objects being placed on top of her chest.
Appellant was charged with capital murder and kidnapping. He was tried before a jury, convicted and sentenced to life imprisonment without the possibility of parole on the charge of capital murder and twenty-two years’ imprisonment on the charge of kidnapping, with the sentences to be served concurrently. This appeal followed.
As his sole point on appeal, Appellant argues that the trial court abused its discretion in refusing to allow a witness, Melody Perry, to testify on behalf of the defense at trial. Appellant concedes that he violated Ark. R. Crim. P. 18.3, in that Ms. Perry’s name was not provided to the State in a timely manner. He argues, however, that the sanction for such a violation is left to the discretion of the trial court, and here the trial court abused that discretion by denying Appellant’s request that Ms. Perry be allowed to testify. In support of this contention, Appellant avers that there was no evidence that he deliberately violated Rule 18.3, as he learned of Ms. Perry’s testimony the morning of trial. Moreover, Appellant argues it was an abuse of discretion because (1) Ms. Perry was the only known witness who could cast doubt on the State’s theory of the case; (2) the State would not have been surprised by Ms. Perry’s testimony as they cross-examined her during the defense proffer of her as a witness; (3) the State could have easily rebutted Ms. Perry’s causation testimony; and (4) it was for the jury, not the judge, to decide if Ms. Perry’s testimony was credible.
The State counters that no mention was ever made of Rule 18.3 at trial. The State objected to Ms. Perry testifying on the basis that she was not named as a witness during voir dire and that the State had not subpoenaed witnesses who could rebut Ms. Perry’s testimony, as there was no indication that the entry into the apartment would be an issue at trial. The State contends therefore that it was within the trial court’s discretion to preclude Ms. Perry from testifying. As to Appellant’s contention that the trial court abused its discretion in judging Ms. Perry’s credibility, the State argues that this court can affirm the trial court’s ruling for any reason. Finally, the State avers that Appellant cannot demonstrate prejudice resulting from the trial court’s ruling, as he all but concedes that Ms. Perry’s testimony was not to be believed.
Matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. Spring v. State, 368 Ark. 256, 244 S.W.3d 683 (2006); McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006). Furthermore, this court will not reverse absent a showing of prejudice, as prejudice is not presumed. Id.
In the present case, after the jury was selected, but prior to any opening statements, Appellant’s counsel notified the trial court and the State that it had just learned of a witness with potentially exculpatory information. Specifically, Melody Perry, who had originally been approached by an investigator for the defense regarding any knowledge she might have of the location of another potential witness, came forward and notified Appellant’s counsel that she was present at the time that officers from the Jacksonville Police Department entered the apartment through the front door, pushing over the furniture that had been piled against the front door. Appellant requested that he be allowed to call Perry as a defense witness. The State objected, arguing that the jury had already been seated and those members were selected based on whether they knew anyone involved with the case and that it had based its witness list on the announced witnesses. The trial court announced that it was taking the matter under advisement.
At the end of the first day of trial, Appellant was allowed to proffer Perry as a witness. Perry stated that she approached defense counsel and stated that she was standing in front of the apartment during the standoff and could see inside through a slit in the curtain. Inside she saw furniture barricading the front door. Perry-stated that after about an hour or an hour-and-a-half, police “started barging in the front door and the back door.” Upon cross-examination, Perry admitted that Appellant was her first cousin. At the conclusion of Perry’s proffered testimony, the trial court ruled that it was not going to allow her to testify at trial since she had come forward at the last minute and had no credibility.
Under Rule 18.3,
[s]ubject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.
Discovery in criminal cases, within constitutional limitations, must be a two-way street. See McEwing, 366 Ark. 456, 237 S.W.3d 43. This interpretation promotes fairness by allowing both sides the opportunity for full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays at trial. Id. In McEwing, this court held that a trial court did not abuse its discretion in prohibiting an alibi witness from testifying on behalf of the appellant when the appellant attempted to call the witness the morning of trial. In so ruling, this court stated that the trial court’s decision to exclude the witness was based on a determination that it would be unfair to the State to allow the witness when the appellant sought to call her the morning of trial. Id.
While McEwing is distinguishable on the basis that there was a blatant violation of Rule 18.3 involved there, the underlying principle that it would be unfair to the State under Rule 18.3 to allow a witness who comes forward the morning of trial to testify is the same in both cases. Even though in the present case it is clear that Appellant was unaware of Ms. Perry and her potential testimony, we still cannot say that the trial court abused its discretion in excluding her as a witness. While the trial court improperly ruled on Ms. Perry’s credibility, as credibility matters are within the province of the jury, see, e.g., Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008), this court can affirm the trial court if it reached the right result even for the wrong reason. See Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Accordingly, there is no merit to Appellant’s argument on appeal.
Affirmed.
Appellant was also charged with battery in the first degree relating to his attack on Redden, but this charge was later dismissed upon motion by the State. | [
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Elana Cunningham Wills, Justice.
This case requires the court to decide whether federal law preempts an order of the Arkansas State Highway Commission (Commission) forcing Burlington Northern Sante Fe Railway Company (BNSF) to reopen a private “at-grade” railroad crossing. We hold that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts the Commission’s jurisdiction in this instance; therefore, we vacate the Commission’s order.
The private railroad crossing at issue in this case is located between the cities of Hoxie and Walnut Ridge and has been in existence for over eighty years. In 1999, Roger and Ruth Anderson entered into an agreement to purchase the property accessed by the crossing and began using the property for their salvage yard business, Anderson Auto Salvage. BNSF and the Andersons later began negotiations to enter into an “Agreement for Private Crossing.” BNSF drafted an agreement that, among other provisions: (1) granted the Andersons a license “to construct, maintain, and use” the crossing; (2) required the Andersons to pay BNSF $10,000; (3) required the Andersons to indemnify BNSF; and (4) required the Andersons to procure and maintain liability insurance in connection with the crossing. The draft agreement also provided that either party could terminate the license by serving the other party thirty-days’ notice.
The Andersons refused to sign the agreement, and BNSF later posted notice that the crossing would be closed. After the Andersons contacted city officials in Walnut Ridge regarding the dispute, both the Walnut Ridge city attorney and the Andersons requested that the Commission hold a hearing on BNSF’s proposed closing of the crossing. The Commission’s counsel sent letters to BNSF asserting that an administrative hearing was required under Ark. Code Ann. § 23-12-304(b) before BNSF could close the crossing. BNSF responded by contending that the Commission’s authority to prevent it from closing a private crossing was preempted by federal law, and BNSF later barricaded the crossing.
The Commission held a hearing and ordered BNSF to reopen the crossing within ten days after it found that: the Commission’s action was not preempted by ICCTA and was authorized by Ark. Code Ann. § 23-12-304(b); BNSF merely held an easement in perpetuity for railway purposes over the Ander-sons’ property; there were no unsafe conditions that supported BNSF’s decision to close the crossing; and the crossing was the Andersons’ only access to their property. Further, the Commission ordered BNSF to draft an agreement with the Andersons, modeled on an earlier 1921 agreement regarding the crossing that was submitted into evidence, including a provision that stated that “Railway Company may seek to eliminate this crossing by requesting a hearing for that purpose, with notice to Licensee, before the Arkansas State Highway Commission.” The Commission’s order also prohibited BNSF from charging the Andersons a fee “because no fee was recited in the 1921 agreement,” and likewise prohibited BNSF from requiring the Andersons to procure and maintain “insurance of any kind.”
BNSF appealed the Commission’s decision to the Craighead County Circuit Court, repeating its arguments before the Commission and asserting several procedural errors underlying the Commission’s findings and order. Upon review, the circuit court vacated the Commission’s order, holding that ICCTA preempted the Commission’s authority over any matter in the case, including the safety issues raised by BNSF as well as “the terms and conditions which a railroad may impose in connection with permissive use of such private crossing.” Additionally, the circuit court held that the Commission had essentially and unlawfully “prejudged” the issues underlying the dispute between BNSF and the Andersons and committed other procedural errors, as well as exceeded the Commission’s constitutional and statutory authority by mandating the terms of the private crossing agreement.
The Andersons bring this appeal, arguing that the circuit court erred in holding that the Commission’s authority was preempted by ICCTA. The Andersons also argue that the circuit court erred for the following reasons: their property right in the private crossing was not a revocable license; the Commission properly allocated the burden of proof according to the hearing procedures set out under Ark. Code Ann. § 23-12-304; substantial evidence supported the Commission’s findings; and that any procedural errors “did not justify [the circuit court] declaring the hearing officers findings and conclusion void.”
We review the Commission’s order under the Arkansas Administrative Procedure Act (APA), Ark. Code Ann. §§ 25-15-201 to -218 (Repl. 2002 & Supp. 2007). Review of administrative agency decisions is limited in scope. Ark. Dep’t of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005). The appellate court’s review is directed not to the decision of the circuit court but to the decision of the administrative agency. Id. The APA provides that a reviewing court may reverse or modify the agency’s decision if the decision: (1) violates the constitution or a statute; (2) exceeds the agency’s statutory authority; (3) is affected by an error of law; (4) is procedurally unlawful; (5) is unsupported by substantial evidence in the record; or (6) is arbitrary, capricious, or is an abuse of discretion. Ark. Code Ann. § 25-15-212(h); Ark. Dep’t of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007).
The primary question presented by this case is whether 49 U.S.C. § 10501(b) of ICCTA preempts the Commission’s exercise of jurisdiction to order BNSF to reopen a private crossing under Ark. Code Ann. § 23-12-304. The Supremacy Clause of the United States Constitution provides that state laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); U.S. Const, art. VI, cl. 2. Under the principle of federal law supremacy, there are three ways that federal law can preempt state law: (1) where Congress makes its intent to preempt state law explicit in statutory language; (2) where state law regulates conduct in a field that Congress intends for the federal government to occupy exclusively; or (3) where there is an actual conflict between state and federal law. English v. Gen. Elec. Co., 496 U.S. 72 (1990). Where a federal statute contains an express preemption clause, the focus of statutory construction is “on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).
As the title of the legislation implies, ICCTA abolished the Interstate Commerce Commission, while simultaneously creating the Surface Transportation Board (STB) to replace it and to perform many of the same regulatory functions. See Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001). ICCTA contains an express preemption clause, stating as follows:
(b) The jurisdiction of the Board over —
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rides (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.
49 U.S.C. § 10501(b) (2000).
This court has addressed issues of federal preemption and ICCTA in two cases — Ouachita R.R., Inc. v. Circuit Court of Union County, 361 Ark. 333, 206 S.W.3d 811 (2005) and 25 Residents of Sevier County v. Ark. Highway & Transp. Comm’n, 330 Ark. 396, 954 S.W.2d 242 (1997). In the former, Ouachita Railroad brought an ejectment action against a married couple, the Harbours, alleging that they had wrongfully taken possession of the railroad’s land and removed the company’s railroad tracks. The defendant Harbours answered the complaint and counterclaimed, contending that they acquired the land through adverse possession and that Ouachita Railroad had abandoned the tracks.
Ouachita Railroad filed a motion for summary judgment, arguing that “the STB had exclusive jurisdiction over the abandonment or discontinuation of use of the right-of-way, and that the STB’s authority to regulate the matter preempted all state law relating to it.” 361 Ark. at 338-39, 206 S.W.3d at 813. The chancery court issued a letter opinion, finding that the question of whether the property had been abandoned by the railroad could only be resolved by the STB, but the court retained jurisdiction to address state-law claims after the STB’s final determination. As directed by the chancery court, the Harbours filed a petition with the STB requesting a waiver of the filing fee, which was declined. Ouachita Railroad then filed a supplemental motion for summary judgment, arguing that, because the STB denied the Harbours’ request to waive the filing fee, “since the court had already determined that the STB had exclusive jurisdiction over the Harbours’ counterclaim, it was appropriate for the court now to grant its motion for summary judgment.” Id. at 339-40, 206 S.W.3d at 813. The chancery court denied the motion for summary judgment on the grounds that the Harbours’ equitable defenses were within its jurisdiction, regardless of the abandonment issue.
The railroad then petitioned this court for a writ of prohibition, asserting that ICCTA preempted the chancery court’s jurisdiction. Upon review, this court framed the question as “whether the Harbours’ counterclaim against the railroad for abandonment and adverse possession of the railroad’s right-of-way is exclusively within the jurisdiction of the STB.” Id. at 343, 206 S.W.3d 816. The court held that “Section 10501(b) clearly provides that the STB’s jurisdiction over the abandonment of tracks is exclusive and preempts any remedies available under state law.” Id. The court noted that it had previously acknowledged “the broad language of § 10501(b)” and “its preemptive effect” in a case involving the closing of a railroad agency station or depot closings, 25 Residents of Sevier County, supra. Id. The court also cited cases involving the STB’s predecessor, the Interstate Commerce Commission (ICC), such as Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 319-23 (1981), in which the Supreme Court held that Congress granted to the ICC exclusive and “plenary authority to regulate, in the interest of interstate commerce, rail carriers’ cessations of service on their lines.” Turning to the Harbours’ counterclaims involving adverse possession and other equitable defenses they asserted to establish a right to the land at issue, the Ouachita Railroad court held that these issues were also preempted under 49 U.S.C. § 10501, stating as follows:
As already noted, the ICC’s, and now STB’s, jurisdiction over the “construction, acquisition, operation, abandonment, or discontinuance of . . . tracks” is exclusive. 49 U.S.C. § 10501(b)(2) (2000). Were the circuit court to quiet title over the land in favor of the Harbours based on their counterclaim of adverse possession or to acknowledge any right to the land by the Harbours, this would necessarily result in the acquisition of the right-of-way by the Harbours and in the discontinuation of the use of the same by the railroad. Such a determination clearly falls within the exclusive jurisdiction of the STB, as demonstrated by the clear language of the statute as well as the case law cited above. . . .
Because any determination by the circuit court on the matter of title or any right to the land would interfere with STB’s jurisdiction as provided for in the statute, we hold that the circuit court is wholly without jurisdiction to determine the abandonment and adverse possession claims but also any equitable defenses asserted by the Harbours that seek to bestow upon them any right to the use of the land. It is the STB that has exclusive jurisdiction over such matters.
Ouachita R.R., Inc. v. Circuit Court of Union County, 361 Ark. at 345, 206 S.W.3d at 817.
In 25 Residents of Sevier County, supra, relied upon in Ouachita Railroad, a railroad filed an application with the Commission to close an agency station in Dierks, Arkansas, in order to consolidate operations with those in a nearby city. After the Commission filed notice of the proposed closing, which became effective ninety days later, twenty-five residents of Dierks filed a petition requesting that the Commission order the railroad to reopen the agency station. The Commission requested that the parties present briefs addressing the question of whether ICCTA preempted state jurisdiction of the discontinuation of railroad agency stations. Following a hearing, the Commission determined that it did not have jurisdiction over the matter, because the STB had held “exclusive jurisdiction over ‘transportation by rail carriers’ as part of the interstate rail network” and dismissed the residents’ petition. 330 Ark. at 398-99, 954 S.W.2d at 243 (quoting the Commission’s order). The Pulaski County Circuit Court affirmed the Commission.
On appeal, this court examined the language of 49 U.S.C. § 10501(b) and first determined that, “[cjlearly, the act covers ‘transportation by rail carriers’ and the discontinuation of their carriers’ related facilities.” Id. at 400, 954 S.W.2d at 244. The court then considered the question of whether the agency stations were “facilities” within the meaning of § 10501(b), and held as follows:
Given the broad language of the act itself, its statutory framework, and considering the recent decisions interpreting the act, we believe it is clear that Congress intended to preempt the states’ authority to engage in economic regulation of rail carriers. The preemptive strike, we hold, includes regulation of agency station discontinuations. Accordingly, we conclude §23-12-611, which gives the AHT Commission the authority to regulate such closings, is preempted by the ICC Termination Act of 1995.
Id. at 401, 954 S.W.2d at 244.
Although this court held that the broad language of 49 U.S.C. § 10501(b) preempted state court action in both Ouachita Railroad, Inc. and 25 Residents of Sevier County, neither case involved railroad crossings as in the present appeal, and ICCTA does not expressly mention railroad crossings. However, a recent decision by the U.S. Fifth Circuit Court of Appeals involves railroad crossings, and it is instructive because it is in accord with this court’s construction of ICCTA. In Franks Investment Co. v. Union Pacific Railroad Co., 534 F.3d 443 (2008), a property owner filed an action in state court, alleging that he had a property right in four railroad crossings, and sought an injunction to prevent Union Pacific from closing two of the crossings, and to force it to reopen two it had already closed. The preliminary-injunction motion and possessory action was removed and consolidated in federal district court, which held that the state-law claim was expressly preempted by ICCTA.
Upon review, the Fifth Circuit framed the issue as “whether railroad crossings fit within the purview of ‘transportation by rail carriers,’ thereby evincing Congress’ intent to preempt state-law claims relating to ownership of the closings.” Id. at 446 (quoting 49 U.S.C. § 10501(b)).
The Franks court first recognized ICCTA’s broad definition of “transportation” as follows:
The ICCTA defines “transportation” to include, inter alia: “a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use.”
Id. (quoting 49 U.S.C. § 10102(9)(A)). The Franks court then noted that the federal district court had held that crossings are within the STB’s exclusive jurisdiction because ICCTA’s definition of “transportation” includes “the movement of passengers or property ... by rail,” and “[i]n that regard, the district court found crossings affect safety, drainage, and maintenance, which necessarily affect rail travel.” Id. The Fifth Circuit agreed, rejecting the argument that, because “crossings” were not explicitly listed in the ICCTA definition of “transportation,” it evidenced Congress’s intent to exclude crossings from the STB’s exclusive jurisdiction. Instead, ICCTA’s broad language and definition of transportation — to include “ ‘property ... or equipment of any kind related to the movement of passengers or property or both, by rail’ ” — clearly “belies the notion that Congress intended ‘transportation’ to include only items fisted in its definition.” Id. (emphasis in original).
At issue here, as in Franks, is whether a state proceeding to reopen a closed railroad crossing falls within the STB’s exclusive jurisdiction under the language of § 10501. The Andersons contend that it does not, and argue that this court should follow the North Dakota Supreme Court holding in Home of Economy v. Burlington Northern Santa Fe Railroad, 694 N.W.2d 840 (N.D. 2005). In Home of Economy, BNSF closed a private crossing on a spur fine that provided access from a road to property owned by the appellant. Flome ofEconomy filed suit against BNSF to reopen the crossing, alleging that it possessed an easement for access to the property. BNSF responded by claiming that it held easements by prescription, necessity, and estoppel. The trial court dismissed the suit, holding that it lacked jurisdiction because ICCTA vested the STB with exclusive jurisdiction over the regulation of railroad operations. Id. at 841. The trial court specifically “concluded the closing of the grade crossing constituted regulation of rail transportation under the ICCTA, because the grade crossing affected rail cars going from State Mill and Elevator [Roads] and could also affect liability for accidents at the crossing.” Id. Thus, the trial court held that the STB’s exclusive jurisdiction preempted any state court action by Home ofEconomy.
On appeal, Home ofEconomy argued that the ICCTA only grants exclusive federal jurisdiction to the STB “in those cases involving substantial economic impact on a railroad’s operations.” Id. The North Dakota Supreme Court agreed, holding that “IC-CTA does not explicitly preempt state law regarding grade crossings” because “[t]he preemption language in the ICCTA explicitly preempts many issues ‘with respect to regulation of rail transportation,’ but does not specifically refer to states’ traditional police power regarding grade crossings.” Id. at 846 (quoting ICCTA). Although the North Dakota Supreme Court acknowledged that “some courts have broadly construed Congress’s preemption language in ICCTA and have concluded that language preempted state or local laws,” it interpreted a selection of ICCTA’s legislative history to reflect that Congress only intended to economically regulate the interstate railway system while leaving intact states’ police power. Home of Economy, 694 N.W.2d at 844.
The Andersons’ reliance on Home of Economy is misplaced. First, in contrast to Home of Economy, this court specifically noted the broad language and preemptive reach of 49 U.S.C. § 10501(b) in Ouachita Railroad, Inc., supra, and 25 Residents of Sevier County, supra. More importantly, this court applied the language broadly to preempt state judicial and regulatory action, respectively, in those cases. Second, the Commission’s order in this case clearly impacts BNSF’s railroad operations and “transportation by rail carriers” for purposes of ICCTA. The Commission ordered BNSF: (1) to reopen the private crossing within ten days; (2) to redraft a 1921 private crossing agreement to apply to the Andersons; and (3) that “[n]o fee may be charged by the railroad for entry into this agreement with the Andersons, as no fee was charged in the 1921 agreement” and “[n]o insurance of any kind may be required by the railroad from the Andersons as no insurance was required in the original [1921] agreement.” This action, as in Franks, necessarily impacts “transportation by rail,” affecting both BNSF’s economic interests and the movement of passengers or property. As noted by the Fifth Circuit in Franks, supra, ICCTA’s definition of “transportation” includes “property ... or equipment of any kind related to the movement of passengers or property or both, by rail, regardless of ownership or an agreement concerning use.” 49 U.S.C. § 10102(9)(A) (2000) (emphasis added).
We hold that ICCTA preempts the Commission’s jurisdiction over this private railroad crossing dispute and we vacate the Commission’s order. Federal law preemption deprives the Commission’s jurisdiction under the facts presented in this case and invests exclusive jurisdiction in the STB. 49 U.S.C. § 10501(b) (STB has exclusive jurisdiction over railroad operations, tracks, and facilities). Decisions of the STB may be appealed to the appropriate United States circuit court of appeals. 28 U.S.C. § 2321(a) (2006) (judicial review of STB orders); 28 U.S.C. § 2342(5) (2006) (exclusive jurisdiction to determine validity of STB final orders lies with the courts of appeals).
Because we hold that the Commission’s jurisdiction is preempted by ICCTA, the Anderson’s remaining arguments are moot.
Commission’s order vacated.
An at-grade railroad crossing is on the same level of the railroad tracks, rather than over or under them.
Department of Transportation (DOT) # 667982U.
Ark. Code Ann. § 23-12-304(b) (Repl. 2002) provides:
(1) It shall be the duty of the Highway Commission, or any representative thereof, to make a personal inspection of any designated place where it is desired that a road or street, either public or private, cross any railroad in this state.
(2) Upon ten (10) days’ notice as required by law and after a public hearing, the commission may make such order as in its judgment shall be just and proper. The order may provide for a crossing at grade, over or under the railroad, and shall be enforced as other orders by the commission.
See also Cedarapids, Inc. v. Chicago, Cent. & Pac. R.R. Co., 265 F. Supp. 2d 1005 (N.D. Iowa 2003) (holding that to the extent that a state-law claim sought to force CC & P to abandon the track in question, such claims were preempted by ICCTA); Trustees of the Diocese of Vt. v. State, 496 A.2d 151 (Vt. 1985) (holding that a declaratory-judgment action in state court to determine whether an easement for railroad purposes had been abandoned interfered with the ICC’s authority to determine the issue); City of Seattle v. Burlington N. R.R. Co., 22 P.3d 260, 262 (Wash.Ct.App.2001) (stating that language of§ 10501 grants the STB “clear, broad, and unqualified” jurisdiction over the statute’s fisted activities).
The North Dakota Supreme Court cited H.R. Rep. No. 104-311, at 95-96 (1995), as reprinted in 1995 U.S.C.C.A.N. 793,807-08. | [
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Per Curiam.
On November 21, 2008, petitioner John Hobbs filed a petition for writ of prohibition and, in the alternative, a petition for writ of certiorari, as well as a motion for temporary stay and expedited relief. We now consider these motions.
An order of protection was entered by the Faulkner County Circuit Court on June 19, 2007. On September 4, 2007, Hobbs was charged by misdemeanor information with a violation of order of protection, a violation of Arkansas Code Annotated § 5-53-134 (Supp. 2005), and a Class A misdemeanor, in the Faulkner County Circuit Court. The criminal information states that the misdemeanor occurred in Faulkner County. However, the facts in the affidavit reveal that, on August 29, 2007, Hobbs allegedly beat Melissa Hobbs at her home in Southaven, Mississippi. A bench warrant was issued on September 4, 2007; Hobbs was arrested on May 27, 2008, and the warrant and return was filed with the Faulkner County Circuit Court on June 2, 2008. After Hobbs’s arrest, the circuit court set bond in the amount of $10,000, and, as a condition of the bond, required Hobbs to submit to GPS electronic monitoring. A petition for bail was filed on June 18, 2008. On August 18, 2008, the State filed a motion for revocation of bond, and an order was entered revoking Hobbs’s bond. A bond hearing was held, and on October 8, 2008, the circuit court ordered that Hobbs was to be held without bond for violating the terms of electronic monitoring. On November 13, 2008, Hobbs filed a second petition for bail. On November 20, 2008, both parties jointly stipulated that Hobbs’s alleged criminal conduct occurred in Mississippi and that the information was incorrect in stating that the crime occurred in Faulkner County. On November 17, 2008, Hobbs filed a motion to dismiss in Faulkner County Circuit Court, and the circuit court denied his motion to dismiss on November 20, 2008. Hobbs, a resident of Faulkner County, is currently a pretrial detainee without bail incarcerated in the Faulkner County Detention Center awaiting trial on the misdemeanor charge.
In his petition for writ of prohibition, Hobbs, citing Ark. Code Ann. § 5-l-104(a)(l) (Repl. 2006), argues that, in order for the circuit court to have jurisdiction over prosecuting the crime, the offense must have occurred in Arkansas. He further avers that, because the alleged criminal act occurred in Mississippi, the circuit court in Arkansas is wholly without jurisdiction. He also asserts that there is no final order from which to appeal and that no other remedy is available. In the alternative, Hobbs contends that a writ of certiorari should issue because he is being held on a misdemeanor charge without bail. In his motion for temporary stay, Hobbs requests a temporary stay of the trial court proceedings and the establishment of a briefing schedule. On December 1, 2008, the State filed a response, arguing that this court should deny Hobbs any temporary or extraordinary relief.
A writ of prohibition is extraordinary relief that is appropriate only when the circuit court is wholly without jurisdiction. International Paper Co. v. Clark County Circuit Court, 375 Ark. 127, 289 S.W.3d 103 (2008). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. When considering a petition for a writ of prohibition, this court confines its review to the pleadings in the case. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. Prohibition is never issued to prohibit a trial court from erroneously exercising jurisdiction. Id. Writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. Id. They should issue only in cases of extreme necessity. Id.
Territorial jurisdiction over a criminal defendant is controlled by statute: “A person may be convicted under a law of this state of an offense committed by his or her own . . . conduct for which he or she is legally accountable if... [e]ither the conduct or a result that is an element of the offense occurs within this state. . . .” Ark. Code Ann. § 5-1-104 (Repl. 2006). We have stated that territorial jurisdictional claims, such as those raised by Hobbs under Ark. Code Ann. § 5-1-104, can be raised on direct appeal. See, e.g., Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003). Under Kirwan, Hobbs may raise these jurisdictional claims in a direct appeal, and we cannot say that the circuit court is wholly without jurisdiction. For these reasons, we deny Hobbs’s petition for writ of prohibition.
We now turn to Hobbs’s petition for writ of certiorari to review the circuit court’s denial of bail. Writs of certiorari have been labeled the appropriate vehicle for relief in bail proceedings. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Article 2, § 8 of the Arkansas Constitution provides that “[a]ll persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great.” A criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail. Reeves v. State, 261 Ark. 384, 548 S.W.2d 822 (1977). See also Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004); Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992). Further, Arkansas Rule of Criminal Procedure 9.6 (2008) does not in noncapital cases preclude the setting of a new and reasonable bail with whatever terms and restrictions deemed appropriate within its provisions. Reeves, 261 Ark. at 387, 548 S.W.2d at 824. The standard of review is an abuse of discretion. See Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994) (per curiam).
The State argues that circuit court did not abuse its discretion in denying bail because Hobbs violated the terms of his electronic monitoring as required by his previous bond. However, the State’s argument is misplaced. Here, Hobbs was not charged with a capital offense, but rather, he was charged with a Class A misdemeanor for violating an order of protection. Under Reeves, the circuit court should have set a new, reasonable bail in this noncapital, misdemeanor case “with whatever terms and restrictions deemed appropriate within its provisions.” Reeves, 261 Ark. at 387, 548 S.W.2d at 824. For these reasons, we hold that the circuit court’s pretrial denial of Hobbs’s bail was an abuse of discretion. Accordingly, we grant Hobbs’s petition for writ of certiorari.
Further, Hobbs filed a motion for temporary stay and expedited relief and included in his petition is a request for a temporary stay of the trial-court proceedings and the establishment of a briefing schedule. We deny Hobbs’s motion for temporary stay and expedited relief.
We note that we do not find a ruling on Hobbs’s second petition for bail in the record. | [
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Per Curiam.
Appellant Kenny Travis, by and through his counsel Craig Lambert, has filed a motion for a belated appeal from the denial of his pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. Appellant was convicted of capital murder and sentenced to a term of life imprisonment on August 11, 2006. He filed a timely petition for postconviction relief on January 18,2008. The Mississippi County Circuit Court entered an order on February 20, 2008, denying the Rule 37 petition.
Appellant filed the instant motion on November 12, 2008, averring that it was only after recently retaining Mr. Lambert to represent him that he discovered that the trial court had denied his petition for postconviction relief. Attached to his motion is an affidavit wherein Appellant states that he never received notice that his petition had been denied or that he ever received a copy of that order. The State has not filed a response.
This court recently addressed a similar situation in Hampton v. State, 374 Ark. 527, 288 S.W.3d 643 (2008) (per curiam), and granted the motion for belated appeal because good cause was established for doing so. See also Rutledge v. State, 355 Ark. 499, 139 S.W.3d 518 (2003) (per curiam). In Hampton, the appellant averred that he never received notice of the denial of his petition for postconviction relief, and the State did not file a response. As a result, this court concluded that there was good cause to grant the motion as the State’s failure to respond was tantamount to a determination that the State could not demonstrate that the circuit clerk promptly notified the appellant of the court’s order. Likewise, in the present matter, Appellant has demonstrated good cause for his failure to file a timely notice of appeal, and we grant his motion for belated appeal.
Motion granted.
Appellant retained Mr. Lambert to represent him in the present appeal, and Mr. Lambert filed a motion for entry of appearance, which we granted this same day. | [
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Per Curiam.
Appellant Billy Joe Kelley appeals his conviction for rape and sentence of life imprisonment. Because Kelley has submitted a brief without a proper abstract, which is in violation of Arkansas Supreme Court Rule 4-2 (2008), we order rebriefing.
Rule 4-2(b)(3) explains the procedure to be followed when an appellant has failed to supply this court with a sufficient brief and states, in pertinent part:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4 — 2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct.
Rule 4-2(a)(5) provides, in pertinent part: “In the abstracting of testimony, the first person (i.e., T) rather than the third person (i.e., ‘He, She’) shall be used.”
In the present case, a jury trial was held February 5-6, 2008. Instead of abstracting the transcript of the testimony as required by Rule 4-2 (a) (5), Kelley provides a verbatim transcript of the testimony, and the abstract is not in the first person. Because Kelley has failed to comply with our rule, we order Kelley to abstract the testimony and to file a substituted brief within fifteen days from the date of entry of this order.
Rebriefing ordered. | [
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Jim Gunter, Justice.
This appeal arises from a September 11, 2007 judgment of the Pulaski County Circuit Court affirming the Pulaski County Court’s decision to grant Appellees’ petition for annexation. We affirm the rulings of the circuit court.
On May 11, 2006, Appellee landowners Sherwood Holding Company, LLC, Metropolitan Development, LLC, LILAC, LLC, and Greg Heslep petitioned for four tracts of real property totaling approximately 1951 acres to be annexed into the City of Sherwood. Sherwood Holding Co. is the owner of Tract 1, Metropolitan Realty & Development is the owner of Tract 2, LILAC is the owner of Tract 3, and Heslep is the owner of Tract 4. Tract 1, containing approximately 640 acres, is contiguous with the northern boundary of Sherwood. Tract 2, containing approximately 589 acres, is contiguous with Tract 1. Tract 3, containing 608 acres, and Tract 4, containing 112 acres, are contiguous by virtue of their connection with Tract 1. Appellee Michael Clayton is the authorized agent appointed by the landowners, and also serves as Sherwood’s city engineer.
Appellant City of Jacksonville submitted a resolution opposing the annexation of the properties into Sherwood. On June 20, 2006, a hearing was held regarding the petition for annexation in Pulaski County Court. The county court granted annexation on August 3, 2006. Appellant appealed this order to the Pulaski County Circuit Court. The circuit court held a bench trial on May 30, 2007. On May 31, 2007, the circuit court entered its judgment, affirming the order of the county court and approving the annexation of Tracts 1, 2, 3, and 4. Appellant now appeals.
On appeal, Appellant asserts that (1) the circuit court erred in affirming and approving the annexation of Appellees’ properties into the City of Sherwood by the county court because there was insufficient proof presented to the county court to make a determination of the Vestal criteria; (2) the circuit court erred in its application of the Vestal criteria by failing to complete an established statutory and case law criteria assessment of what is right, proper, and reasonable in an annexation; and (3) the circuit court erred in granting Appellees’ petition for annexation in ruling that Ark. Code Ann. § 14-56-413 and § 14-56-426 do not prohibit annexation into Sherwood those portions of Tracts 1, 2, and 3, which lie within Jacksonville’s extraterritorial planning jurisdiction and the air installation compatible use zones (“AICUZ zones”).
The five criteria used to decide if annexation is proper were set out by this court in Vestal v. City of Little Rock, 54 Ark. 321, 15 S.W. 891 (1891):
(1) Whether the property is platted and held for sale or use as municipal lots;
(2) Whether platted or not, if the lands are held to be sold as suburban property;
(3) Whether the lands furnish the abode for a densely setded community or represent the actual growth of the municipality beyond its legal boundary;
(4) Whether the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; and
(5) Wfiiether the lands are valuable by reason of their adaptability for prospective municipal uses.
See also Ark. Code Ann. § 14-40-603(a) (Repl. 1998) (requiring that the prayer of the petitioner for annexation be “right and proper”).
We have stated that these five criteria should be considered in the disjunctive, and an annexation is proper if any one of the five factors is met. Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998); Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989) (Gay II); Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986); Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985) (Gay I). The criteria apply regardless of whether the annexation proceeding was initiated by the city or by adjoining landowners. Town of Houston, supra; Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987); Louallen v. Miller, 229 Ark. 679, 317 S.W.2d 710 (1958); Cantrell v. Vaughn, 228 Ark. 202, 306 S.W.2d 863 (1957). If a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto. Town of Houston, supra; Gay II, supra; Chastain, supra; Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986).
Appellant first asserts that the circuit court’s order was an affirmance of a flawed county court ruling because there was insufficient proof presented to the county court to make a determination of the Vestal criteria. In response, Appellees contend that, regardless of how the proceeding was initiated, the circuit court properly treated this action as an independent attack on the annexation by holding a trial de novo.
Appellant filed a complaint in the circuit court to prevent the annexation, and it is our responsibility to determine whether the circuit court’s findings of fact are clearly erroneous. See City of Dover v. Russellville, 346 Ark. 279, 57 S.W.3d 171 (2001). Because our review is one from the circuit court, we are unable to address Appellant’s argument on this issue because it erroneously seeks our review of the county court proceeding. Id.
For its next argument, Appellant asserts that the circuit court erred in its application of the Vestal criteria by failing to complete the established statutory and case-law criteria assessment of what is right, proper, and reasonable in an annexation. In response, Appellees contend that Appellant has failed to meet its burden of proof that the lands proposed for annexation do not meet any one of the statutory requirements of § 14-40-302 and Vestal.
Tracts 1 through 4 contain raw timberland and/or floodplain acreage ranging from 112 acres to 640 acres. This general area lies between the cities of Sherwood and Jacksonville, with tracts divided by Bayou Meto, a natural waterway. Appellant asserts that the property east of Bayou Meto is part of the natural growth pattern for Jacksonville and should not be annexed into Sherwood. Appellant contends that the circuit court failed to complete an assessment of the four tracts under the Vestal criteria and did not address the factors of reasonableness set out in City of Marion v. Guaranty Loan & Real Estate Co., 75 Ark. App. 427, 58 S.W.3d 410 (2001).
It is Appellant’s burden to demonstrate that the land fails to meet at least one of the criteria of Ark. Code Ann. § 14-40-302, also known as the Vestal criteria. See Town of Houston, supra. The circuit court concluded that the land met two of the requirements: (1) the land is held to be sold as suburban property; and (2) the land is valuable by reason of its adaptability for prospective municipal purposes.
Testimony from the trial supports the circuit court’s conclusion. Steve Deere, a real estate developer and President of Sherwood Holding Company, testified that the company intended to “probably develop mainly residential housing in that area.” Terry Paff, President of Metropolitan Realty and Development, testified that “[w]e develop residential subdivisions, which is the biggest part of our plan with this property.” Andrew Collins, President of Cypress Properties, which manages Lilac, LLC, testified that he was aware that any development in the area would have to be approved by the Jacksonville Planning Commission. Greg Heslep, real estate developer and owner of Tract 4, testified that he planned to develop his land as commercial and multi-family developments. All four real estate developers testified that they thought that their land would be more valuable in the City of Sherwood rather than in an unincorporated area. They also stated that they were aware of, and would comply with, Sherwood’s land development regulations and Jacksonville’s zoning regulations designed to protect the fly zone of the Little Rock Air Force Base.
Michael Clayton, Sherwood’s city engineer, testified that he was appointed as the agent for the landowners. According to Clayton, Sherwood Wastewater had passed a one-cent sales tax dedicated for sewer system improvements and conducted a feasibility analysis for sanitary sewer for Tracts 1 through 4. He testified that they have approximately $2.2 million dollars set aside for a “skeleton sewer system.” He also testified that the City of Sherwood is preparing to extend utilities and to provide fire and police protection to the annexed areas.
Dwight Pattison, the planning consultant for the city of Sherwood, testified that the city adopted a “master street plan” and “land use plan,” which primarily show residential develop ment for the annexed areas. He further testified that “the recommended area’s highest use is suburban development.” According to Pattison, the only area remaining for Sherwood to expand is the area north ofits boundaries. “This annexation represents the actual growth of Sherwood beyond its boundaries.” Based on the above testimony, the circuit court was not clearly erroneous in finding that the land is being held for development as suburban property and that the land is adaptable for prospective municipal purposes. Since at least one of the Vestal criteria has been met, we hold that annexation was proper.
Appellant also asserts that the circuit court failed to address the reasonableness factors set out in Marion, supra. In Marion, the Arkansas Court of Appeals analyzed the Vestal criteria and also a reasonableness standard utilized by other jurisdictions to determine whether annexation was “right and proper.” First, the circuit court did not address the Marion reasonableness standard in its order. The 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. Bob Cole Bail Bonds, Inc. v. Brewer, 374 Ark. 403, 288 S.W.3d 582 (2008). Second, our case law only requires us to analyze and apply the Vestal criteria to issues regarding annexation, and we are not required to adhere to the reasonableness standard set out in Marion. Therefore, we reject Appellant’s argument that the circuit court was clearly erroneous in not addressing the Marion reasonableness standard.
For its next point on appeal, Appellant asserts that the circuit court erred in ruling that Ark. Code Ann. §§ 14-56-413 and 14-56-426 do not prohibit annexation of the tracts that lie within Jacksonville’s extraterritorial planning jurisdiction and the AICUZ zones. Reviewing issues of statutory interpretation, this court first construes a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Wal-Mart Stores, Inc. v. D.A.N. Joint Venture III, L.P., 374 Ark. 489, 288 S.W.3d 627 (2008). When the language of a statute is plain and unambiguous, conveying a clear and definite meaning, the court does not resort to the rules of statutory construction. Id. If there is an ambiguity, the court looks to the legislative history of the statute and other factors, such as the language used and the subject matter involved. Id. The court strives to reconcile statutory provisions relating to the same subject to make them sensible, consistent, and harmonious. Id.
We will first address section 14-56-413 (Repl. 1998), which states, in pertinent part:
(a)(1)(A) The territorial jurisdiction of the legislative body of the city having the planning commission, for the purposes of this subchapter, shall be exclusive and shall include all land lying within five (5) miles of the corporate limits.
(B) If the corporate limits of two (2) or more municipalities of the first or second class are less than ten (10) miles apart, the limits of their respective territorial jurisdictions shall be a line equidistant between them, or as agreed on by the respective municipalities.
A land use plan is meant to be just that, a plan. Taylor v. City of Little Rock, 266 Ark. 384, 583 S.W.2d 72 (1979). It is not to be legally binding on the city. Id. A comprehensive plan “is a policy statement to be implemented by zoning regulations, and it is the latter that has the force of the law .... Furthermore, a comprehensive plan, when it has been prepared by the planning board or agency, is generally deemed to be advisory, rather than controlling, and it may be changed at any time.” Id. at 387-88, 583 S.W.2d at 73-74 (citing 82 Am. Jur. 2d Zoning and Planning § 69).
The circuit court cited to Arkansas Soil & Water Conservation Comm’n v. City of Bentonville (ASWCC), 351 Ark. 289, 92 S.W.3d 47 (2002), in its ruling that Jacksonville’s claim of extraterritorial jurisdiction for water projects was not exclusive. In ASWCC, we were asked to construe § 14-56-413, and § 15-22-503, empowering the Commission to approve all water projects. Reading the two statutes harmoniously, we held that the city did not have exclusive jurisdiction over water projects in a five-mile extraterritorial planning area surrounding the city and that the Commission was within its statutory authority when it adopted its plan, even though the plan encroached on the city’s planning area.
Here, the mid-point between Jacksonville and Sherwood is west of Bayou Meto. At the hearing, the mayor of Jacksonville, Tommy Swaim, testified that portions of Tracts 2 and 3 east of Bayou Meto are critical to Jacksonville because the city has plans for construction of a water tower in the area to improve water pressure in that area. Kirby Rowland, consulting engineer for the Jacksonville Water Department, testified that he participated in the development of the water department’s master plan that was approved by the Arkansas Soil and Water Conservation Commis sion. According to Rowland, the master plan provided that another water supply is required to meet Jacksonville’s future needs through 2020. Jacksonville has contracted with Central Arkansas Water to create the infrastructure needed to provide water lines to Jacksonville, and the service areas of Tracts 2 and 3 were included as part of the calculated costs for this infrastructure. Michael Clayton testified that Sherwood was preparing to extend utilities into the annexed area, but would not object to Jacksonville providing water services in Tracts 2 and 3.
Once the land is annexed into Sherwood, Jacksonville will lose its extraterritorial- planning jurisdiction over the' land. See City of Sherwood v. Dupree Co., 263 Ark. 442, 565 S.W.2d 425 (1978). Looking at the plain language of the statute as well as our case law, we affirm the circuit court’s ruling that “Jacksonville’s plans for the area are not superior to and do not defeat the landowner’s right to petition for annexation to another city.”
We now turn to Appellant’s assertion that § 14-56-426 (Repl. 1998) prohibits annexation of the portions of tracts one and three that are affected by the AICUZ zoning ordinance. Section 14-56-426 states, in pertinent part:
(a) Any city of the first class in this state within which there lies in whole or in part an active-duty United States Air Force military installation shall enact a city ordinance specifying that within five (5) miles of the corporate limits future uses on property which might be hazardous to aircraft operation shall be restricted or prohibited.
Appellant contends that, by granting annexation, the circuit court is requiring property developers and homeowners to secure building permits and inspections from two different municipalities before construction can be undertaken in the area, and that such a process is “neither right, proper, nor reasonable.”
The Little Rock Air Force Base is located entirely within the Jacksonville city limits, and Jacksonville has enacted an ordinance in compliance with § 14-56-426. That statute is not applicable to Sherwood, although a portion of the land sought to be annexed is covered by the provisions of the statute. The express language of § 14-56-426 does not prohibit annexation of the land into Sherwood; however, because a state statute dictates the Jacksonville AICUZ ordinances, Sherwood is obligated to comply with those Jacksonville ordinances. Cf. City of Dover v. City of Russellville, 363 Ark. 458, 215 S.W.3d 623 (2005) (where state statute authorized Russellville flood-prevention ordinance and rendered its violation a nuisance, Dover was required to comply with the Russellville ordinances). Accordingly, we affirm the rulings of the circuit court.
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ROBERT J. GLADWIN, Judge
| ¶Appellant Gary Robinson, Jr., appeals his conviction by a Faulkner County jury on charges of simultaneous possession of drugs and a firearm, a Class Y felony, in violation of Arkansas Code Annotated section 5-74-106 (Supp. 2013), and failure to appear, a Class C felony, in violation of Arkansas Code Annotated section 5-54-120 (Supp. 2013). He challenges the sufficiency of the evidence supporting the convictions for simultaneous possession of drugs and firearms and failure to appear. We affirm.
I. Fads
On April 16, 2015, appellant was pulled over by Officer Richard Shumate of the Conway Police Department for traffic violations—failure to stop at an intersection and the | ¡.trunk standing open so that the license plate could not be read—at which time appellant was found to have a suspended driver’s license. Officer Shumate asked appellant to exit the vehicle, placed him into custody, handcuffed him, and performed a search of appellant’s person incident to arrest.
During the search, Officer Shumate found a plastic bag that contained eleven smaller bags of methamphetamine in a pouch sewn into appellant’s underwear. During the subsequent search of the car appellant was driving, Officer Shumate discovered a semiautomatic pistol between the center console and the driver’s seat. Officer Shumate indicated that if a person was in the driver’s seat of the vehicle looking down, the person would be able to see the firearm. The owner of the car was later found to be a woman named Felicia Jackson.
The State filed charges of simultaneous possession of drugs and a firearm, a Class Y felony; and possession of a controlled substance with purpose to deliver methamphetamine, a Class B felony, against appellant on April 17, 2015. Appellant’s case was set for a jury trial on July 28, 2016, but it was canceled when appellant did not arrive by the specified time of 9:00 a.m. On November 8, 2016, the State amended the felony information .to add one count of failure to appear, a Class C felony.
Appellant’s jury trial.was held on December 1, 2016. At the close of the State’s case, and again at the close of all the evidence, appellant’s counsel moved for a directed verdict on the simultaneous-possession and failure-to-appear charges, which the trial court denied. |sThe jury found appellant guilty of all three charges and sentenced him to eighty years for simultaneous possession; forty years for possession with purpose to deliver; and seven years for failure to appear, to run concurrently. The trial court entered the sentencing order on December 2,2016, and appellant filed a timely notice of appeal on December 28,. 2016.
II. Standard of Review
On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Brooks v, State, 2016 Ark. 305, 498 S.W.3d 292. Appellate courts will affirm the conviction if there is substantial evidence to support it. Id. Substantial evidence is that which is of suffi cient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. See Sylvester v. State, 2016 Ark. 136, 489 S.W.3d 146. The evidence -may be either direct or circumstantial; however, circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. King v. State, 100 Ark. App. 208, 266 S.W.3d 205 (2007).
In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Beaver v. State, 2014 Ark. App. 188. It is the jury’s role as fact-finder to resolve questions of conflicting testimony and inconsistent evidence, and the jury.is free to choose to believe the State’s account of the facts rather than the defendant’s. Hill v. State, 2015 Ark. App. 700, 478 S.W.3d 225. When doing so, the jury is not required to abandon common sense, and it is entitled to draw reasonable inferences from the evidence. | 4Jefferson v. State, 2017 Ark. App. 492, 532 S.W.3d 75. Whether the evidence excludes, every other hypothesis is a matter for the finder of fact to determine. Cosey v. State, 2014 Ark. App. 441, 439 S.W.3d 731.
III. Discussion
A. Simultaneous-Possession Conviction
The State charged appellant with simultaneous possession of a firearm during the commission of a controlled-substance offense in violation of Arkansas Code Annotated section 5-74-106(a)(1) (Repl. 2016), which provides that “[a] person shall not unlawfully commit a felony violation of §§ 5-64-419-5-64-442 while in possession of [a] firearm.”
In the motion for directed verdict, trial counsel argued that there was insufficient evidence, noting (1) the vehicle in question did not belong to appellant; (2) although there was a firearm in the vehicle at the time of the traffic stop, Officer Shumate testified that it was not visible unless the driver looked down at it; and (3) there was no indication that appellant was aware of the firearm’s presence in the car.
Arkansas Code Annotated section 5-1-102(15) (Repl. 2013) defines “possession” as “to exercise actual dominion, control, or management over a tangible object.” The State does not have to prove that the defendant physically held the contraband. Gill v. State, 2017 Ark. App. 22, 511 S.W.3d 865. Constructive possession, which is the control or right to control the contraband, is sufficient. Id. Constructive possession can be inferred when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. See Lambert v. State, 2017 Ark. 31, 509 S.W.3d 637; see also | 5U.S. v. Roberts, 953 F.2d 351 (8th Cir. 1992) (noting that “constructive possession” has been defined as knowledge of presence plus control). Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. White v. State, 2014 Ark. App. 587, 446 S.W.3d 193.
Appellant argues that the State did not prove beyond a reasonable doubt that he had constructive possession of the firearm located in the car. First, appellant notes that he has consistently denied any knowledge of a firearm being present in Ms. Jackson’s vehicle. There was no direct evidence that established appellant’s possession, such as fingerprints on the firearm or any testimony that someone saw him with the firearm or that appellant regularly drove Ms. Jackson’s car, see White, 2014 Ark. App. 587, at 3-4, 446 S.W.3d at 196. And there was no testimony from Officer Shumate to indicate that appellant attempted to conceal the firearm or acted suspiciously before to the traffic stop. See Lambert, swpra.
Second, appellant argues that there was insufficient evidence that he had control over the firearm. He urges that the firearm was not in plain sight, citing Officer Shumate’s testimony on direct examination that he located the firearm only after conducting a search of the vehicle. Appellant points out that on cross-examination, Officer Shumate acknowledged that the gun was not within plain sight, explaining, “If I didn’t look at the gun, I wouldn’t be able to see it. If I was driving and not looking down, I would not be able Rto see the gun.” Because the weapon was not located in plain sight, appellant' maintains that he lacked control over it and thus did not have constructive possession of it.
Appellant argues that the only evidence of constructive possession was circumstantial, and he urges that it did not exclude appellant’s explanation that he was unaware of the weapon’s presence in Ms. Jackson’s car. Accordingly, appellant contends that there was no substantial evidence that he had any knowledge or control of the weapon.
We disagree and hold that substantial evidence supports appellant’s conviction for simultaneous possession of drugs and a firearm. Possession may be imputed when contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his or her dominion and control. Lambert, supra. Here, it is undisputed that appellant was the driver and sole occupant of the vehicle, and the loaded firearm was found in plain view of anyone sitting in the driver’s seat.
There is a dispute as to whether appellant’s statements to Officer Shu-mate demonstrated his knowledge of the firearm’s caliber and manufacturer, as well as who had placed it in the vehicle. Even assuming appellant’s denials were consistent and unequivocal, witness credibility is an issue for the jury, which is free to believe all or a portion of any witness’s testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Thomas v. State, 2014 Ark. App. 492, 441 S.W.3d 918. The jury heard substantial evidence from which it could appropriately assess the credibility of appellant’s trial testimony and resolve any inconsistencies between it and his 17prior statements. We hold that substantial evidence supports the jury’s finding that appellant had exclusive dominion and control over the firearm found inside the vehicle at the time of the arrest; accordingly, we affirm his conviction for simultaneous possession of drugs and a firearm.
B. Failwre-to-Appear Conviction
Next, appellant argues that the State did not prove beyond a reasonable doubt that he had no reasonable excuse for being late to court. We need not address this argument because it was not raised to the trial court. On appeal, an appellant is bound by the scope and nature of his directed-verdiet motion. See Conte v. State, 2015 Ark. 220, 463 S.W.3d 686. Furthermore, we have held that a sufficiency-of-the-evidence argument that is not properly preserved by a directed-verdiet motion is not preserved for our review. Ark. R. Crim. P. 33.1(a), (c) (2016)
Affirmed.
Glover and Hixson, JJ., agree.
, Appellant was also convicted of possession of a controlled substance with tire purpose to deliver methamphetamine, less than two grams, a Class B felony, in violation of Arkansas Code Annotated section 5-64-420(b)(2) (Supp. 2013), but that conviction is not át issue in this appeal. | [
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Elana Cunningham Wills, Justice.
At approximately 1:45 a.m. on January 22, 2005, Dumas Police Department Investigator Chuck Blevins received a call reporting a shooting at Debbie Dean’s, a restaurant in Dumas. Upon arriving at Debbie Dean’s, Blevins found the body of Herman Cobb, Jr., on the floor with a gunshot wound to the head. After the coroner arrived, Blevins also discovered that Cobb had also been shot in the thigh. There were indications that a fight had taken place in the restaurant, as well.
Later in the day on January 22, 2005, appellant Stanley Jackson and his brother, Damon Freeman (who was also known as Damon Jackson), turned themselves in to the police. After both men gave statements to the police, Jackson was arrested and charged with capital murder. In March of 2007, Jackson was tried and convicted of capital murder, and a Desha County jury sentenced him to life imprisonment. Jackson filed a timely notice of appeal, and now raises six points for reversal. We find no error and affirm.
I. Sufficiency of the Evidence
In his first argument on appeal, Jackson contends that the trial court erred in denying his motion for directed verdict. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Wertz v. State, 374 Ark. 256, 287 S.W.3d 528 (2008); Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Wertz, supra. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id.
One commits capital murder if, “with the premeditated and deliberated purpose of causing the death of another person, [he] causes the death of any person[.]” Ark. Code Ann. § 5-10-101(a)(4) (Repl. 2006 & Supp. 2003). This court has said that “[p]remeditated and deliberated murder occurs when it is the killer’s conscious object to cause death, and he forms that intention before he acts and as a result of a weighing of the consequences of his course of conduct.” Daniels v. State, 373 Ark. 536, 285 S.W.3d 205 (2008); Carmichael v. State, 340 Ark. 598, 602, 12 S.W.3d 225, 228 (2000); see also O’Neal v. State, 356 Ark. 674, 158 S.W.3d 175 (2004) (defining deliberation as “weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers”).
This court has also noted that premeditation and deliberation may be formed in an instant. Winston v. State, 372 Ark. 19, 269 S.W.3d 809 (2007); McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). Moreover, while intent can rarely be proven by direct evidence, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).
The facts introduced at trial indicated that Cobb and Jackson’s brother, Damon Freeman, were embroiled in a fight in the early morning hours of January 22, 2005. The State’s first witness, Nick Ward, testified that he and Cobb had been riding around that night and decided tp stop and get something to eat at Debbie Dean’s. About five or ten minutes after they ordered their food, Jackson and Freeman came in; Jackson left, but Freeman ordered something to eat. Freeman and Cobb began to argue about something and started fighting. Jackson came back in the restaurant and asked who was trying to fight his brother. At the same time, Ward said, Jackson pulled a gun out of his pants. As Jackson began to fire the weapon, Ward “bumped” him, and Jackson shot out a light fixture.
Ward testified that Jackson fired the gun again, hitting Cobb in the leg. Ward further testified that Cobb stated, “You shot me, cuz.” At some point after this shot, Jackson dropped the gun, but Ward testified that Jackson must have picked it back up again because he was the next person whom Ward observed with the gun. Freeman and Cobb continued wrestling, and Freeman slammed Cobb to the ground. Ward and Freeman both asked Jackson not to shoot Cobb. However, despite their pleas, Ward said that Jackson “just shot” and Cobb “just laid back down, fell back down.” Ward stated that perhaps a minute or two elapsed between the second and third shots. He also asserted that Cobb never reached for the gun and that he was watching the altercation the entire time. On redirect examination, Ward identified Jackson as the man who shot Cobb.
Lee Jones testified that he was also present at Debbie Dean’s that night. Jones said that he was placing an order for some food alongside Freeman when Freeman and Cobb began arguing. Freeman stepped back from the counter, hit Cobb in the face, and started fighting with him. Jones was attempting to break up the fight when Jackson came in and drew his gun. Jones saw Jackson aim the gun at Cobb and fire, and then Jones ran behind the counter where he heard another shot. After the shooting ended, Jones stood up and saw Jackson and Freeman standing in front of the door, and he saw Cobb “laid out in the floor.” On cross-examination, Jones stated that the only person he saw in the restaurant that night with a gun was Jackson.
Other witnesses described a similar scene. Latoya Thomas testified that Freeman and Cobb were fighting, and then shots were fired. She said that the first shot took out the light; the second shot hit Cobb in the leg; and “the third shot I was out of Debbie Dean’s.” Thomas verified that Jackson was the one who shot Cobb in the leg, and she did not see anyone else with a gun. She also stated that she heard Ward begging Jackson not to shoot Cobb again.
Anthony Harrell, who also observed the fight between Freeman and Cobb, saw Jackson enter the restaurant with a gun and begin shooting at Cobb. After the first two shots, Harrell ducked behind the counter. While behind the counter, Harrell heard Cobb mumble, “Please don’t shoot me” or “Please don’t kill me.” Shortly after that, Harrell heard the third shot.
^ Debbie Dean, the owner of the restaurant, testified that Cobb came in the restaurant that night and ordered some food. Some time later, Freeman came in, and the two men began fighting. She said that some customers tried to break up the fight, and Harrell, her fiancé, hollered at her to call the police. During the fight, she saw Jackson enter the restaurant, pull out a gun, and shoot up at the ceiling. After he shot out the light, she got down on the floor in the kitchen. She did not see anyone else with a gun that evening. Dean did say, however, that she heard Cobb mumble Freeman’s name.
Kevin Knight, a police officer with the Dumas Police Department, testified that he interviewed Jackson as part of the investigation of the shooting. After Jackson was read his Miranda rights, he gave a statement to Knight on January 23, 2005, in which he said that he was standing outside of Debbie Dean’s when he heard someone say there was a fight inside. Upon entering the building, he saw his brother on the floor. Jackson said that Cobb pulled a gun, and Jackson and Cobb “tussled” over the gun. The first shot took out the lights, and after the second shot, Jackson said, he left the building.
In his statement, Jackson contended that he had “no intentions on anybody dying,” and he was “just defending [himself] to keep [Cobb] from shooting [him].” Jackson then told Knight that the gun should still be on the floor of the restaurant if no one picked it up. Jackson denied that Freeman ever had the gun. When Knight asked why he turned himself in, Jackson replied that he felt like it would only get worse if he ran.
Jackson gave a second statement to Knight on January 24, 2005. In this statement, Jackson admitted that he killed Cobb, but he claimed it was not intentional and that the gun had only gone off as they were “tussling”over it. In this statement, Jackson said that he “snatched” the gun from Cobb as Cobb was falling to the ground, and that he ran outside and threw the gun in a ditch.
Dr. Frank Peretti, the Associate Medical Examiner at the Arkansas State Crime Lab, testified that Cobb suffered from two bullet wounds: the first appeared to have been fired from some distance away and traveled through his thigh without hitting any major blood vessels; the second entered Cobb’s head above his left ear, traveled downward through the brain, and lodged in the bone of the skull. Dr. Peretti opined that, given the location and trajectory of the gunshot wound, it would not have been possible for the injury to have occurred if Cobb had been “tussling” over the gun by pulling or pushing it back and forth in front of him at chest level.
On appeal, Jackson argues that the above evidence “does no more than prove that when [he] entered Debbie Dean’s and saw his brother and [Cobb] fighting, he pulled a gun and shot out the lights.” He concedes that the evidence demonstrates that he shot Cobb in the leg, but he argues that there was no evidence showing that he possessed the premeditation and deliberation necessary to support a capital murder conviction.
However, it is clear that the State presented sufficient evidence to defeat Jackson’s directed-verdict motion. No witness testified that they saw anyone other than Jackson with the gun, and Nick Ward testified that Jackson fired three shots. All witnesses agreed that the first shot took out a light fixture, and Cobb suffered two gunshot wounds: one to the thigh and one to the head. Moreover, in his statement, Jackson himself admitted that he killed Cobb. The fact that over a minute elapsed between the shot to Cobb’s thigh and the shot to his head was sufficient to show premeditation and deliberation. See, e.g., Daniels v. State, 373 Ark. 536, 285 S.W.3d 205 (2008) (finding evidence of premeditation and deliberation where security videotape showed that the defendant paused before delivering the fatal stabbing blow). Accordingly, we conclude that the circuit court did not err in denying Jackson’s motion for directed verdict.
II. Voir Dire Issues
In his second point on appeal, Jackson raises numerous challenges to the manner in which voir dire was conducted. He contends that the trial court erred in 1) failing to continue the case when a number of people who had been summoned for jury duty did not show up; 2) proceeding with jury orientation when Jackson was not present; 3) excusing certain jurors who had expressed reservations about the death penalty, allowing the State to ask the venire members “impermissible questions designed to commit them to a verdict,” and allowing the State to death-qualify the jury; and 4) denying Jackson’s Batson challenges.
The extent and scope of voir dire is left to the sound discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of discretion. See Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006); Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). The judge’s restriction of that examination will not be reversed on appeal unless that discretion is clearly abused. Price, supra. Abuse of discretion occurs when the circuit judge acts arbitrarily or groundlessly. Id.; Horn v. State, 356 Ark. 156, 171-72, 148 S.W.3d 257, 267-68 (2004).
In his first subpoint, Jackson argues that the circuit court erred when it failed to continue the trial after a number of the venire members who had been summoned for jury duty failed to appear. Jackson’s trial was scheduled to begin in Desha County Circuit Court on the morning of Monday, February 26, 2007. However, on Saturday, February 24, 2007, a tornado struck the city of Dumas. On Monday morning, the circuit court assembled the attorneys in chambers prior to the beginning of the proceedings. At that time, Jackson had not arrived at the courthouse yet, although the court’s clerk advised that the sheriff s office had said they were “on their way from Dumas with him right now.” In addition, one of Jackson’s attorneys, Llewellyn Marczuk, had not yet arrived at the courthouse because he had been involved in an auto accident on his way to court.
The judge commented that, despite the devastation in Dumas, he thought they could “select a jury from all of the other surrounding areas. But we’ll just see who all shows up.” The judge and counsel then discussed which attorneys would be handling which phases of the proceedings, how many witnesses each side would call, whether an offer had been made, and other preliminary matters. The court also informed the attorneys that it intended to excuse any jurors who had been directly affected by the storm.
The parties proceeded into open court, where the judge assembled those jurors who had shown up and played a videotaped juror orientation. After the video was over, the court began asking questions to determine whether everyone was eligible to serve on a jury, such as whether everyone was over the age of eighteen, a citizen of the United States, and lived in Desha County, and whether anyone was a convicted felon or had served on a jury within the last two years. Two jurors were excused at this time.
After another short period of discussion between the court and counsel, Bing Colvin, one of Jackson’s attorneys, commented that the proceedings had been going on without Jackson’s presence. Colvin moved for a mistrial, arguing the jury would infer, from Jackson’s absence, that he was disinterested in the proceedings. The court denied the mistrial, noting that the roll had not been called and no jurors had been sworn in, but agreed to suspend the proceedings until Jackson arrived.
Jackson arrived at the courthouse shortly thereafter, and the court administered the oath to the prospective jurors. The State announced that it was ready for trial, but Jackson’s attorneys asked the court for a continuance based on the fact that the defense team had not yet completed its mitigation investigation. The court denied the motion and proceeded to call the roll of the prospective jurors. Many of the names that were called received no response; Jackson alleges that, of the 108 people who had been summoned, twenty-eight failed to appear.
On appeal, Jackson argues that the trial court’s failure to continue the trial resulted in a violation of his fundamental right to a fair trial before an impartial jury made up of a cross-section of the community. However, as is apparent from the sequence of events set out above, Jackson never raised a fair-cross-section objection before the trial court. The essence of a “fair-cross-section” claim is the systematic exclusion of a “distinctive group” in the community. See Harris v. State, 320 Ark. 677, 682, 899 S.W.2d 459, 462 (1995) (citing Lockhart v. McCree, 476 U.S. 162 (1986)). However, an objection on this basis must be raised in a timely fashion. In Harris, supra, the defendant did not raise his fair-cross-section argument until after trial in his motion for new trial; this court held that his objection was untimely. Id. at 682-83, 899 S.W.2d at 462. Here, the argument was never raised at all. Therefore, we decline to address it.
Jackson’s second subpoint concerns the court’s decision to conduct jury orientation before he was brought to the courthouse. As noted above, Jackson’s counsel moved for a mistrial based on Jackson’s absence, but the trial court denied it. On appeal, Jackson asserts that a criminal defendant has the right to be present during the process of impaneling a jury, and that, by “moving forward with jury selection in [his] absence,” the circuit court violated his constitutional right to a fair trial before an impartial jury made up of a cross-section of the community, as well as his confrontation and due-process rights.
The State responds that Jackson’s argument is not preserved, as he failed to move for a mistrial at the earliest opportunity. We note that, at the time he made his motion, the court had already engaged in discussions with counsel and had played the orientation videotape for the jury. Clearly, Jackson had been absent throughout these proceedings, but the mistrial motion was not raised until well after these events occurred. A motion for mistrial must be raised at the first opportunity. See Ellis v. State, 366 Ark. 46, 233 S.W.3d 606 (2006); Dorn v. State, 360 Ark. 1, 199 S.W.3d 647 (2004). This is true even when the alleged error involves trial proceedings occurring in the defendant’s absence. See Clayton v. State, 321 Ark. 602, 608, 906 S.W.2d 290, 294 (1995). Here, had Jackson moved for mistrial at the first opportunity — perhaps, say, as soon as the trial court initiated its discussion with counsel in chambers — the court could have halted the proceedings until Jackson arrived at the courthouse and avoided any potential problems.
In his third subpoint, Jackson argues that the circuit court “erred by excusing for cause potential jurors who expressed reservations about imposing the death penalty; by failing to excuse those jurors who were unfit for jury duty; and by allowing the State to ask the venire persons impermissible questions designed to commit them to a verdict, and to use the answers to exclude from the jury anyone who had qualms about the death penalty.”
Jackson alleges that the court erred by allowing the prosecutor to ask potential jurors a set of “A or B” questions regarding their views on the death penalty. The questions were these:
A. I believe the death penalty is appropriate in some capital cases, and I could return a verdict resulting in death in a proper case; or
B. Although I don’t believe that the death penalty should be imposed, as long as the law provides for it, I could assess the death penalty in the proper set of circumstances.
The State struck any potential juror who answered “B” to this question. Jackson also argues that the State should not have been permitted to read the potential jurors the aggravating circumstances on which it was relying and ask those jurors whether they agreed that such a factor ought to be considered an aggravator. In essence, Jackson argues that this practice allowed the State to commit the jurors to a verdict and select only those who were prone to imposing the death penalty.
To the extent that Jackson objects to the “death-qualification” of his jury, his argument is moot because he was sentenced to life imprisonment. This court has held that, where a defendant receives a sentence of life in prison, he lacks standing to raise errors having to do with the death penalty. See Hamilton v. State, 348 Ark. 532, 537, 74 S.W.3d 615, 618 (2002); King v. State, 312 Ark. 89, 92, 847 S.W.2d 37, 39 (1993) (the fact that the jury was death-qualified and death was considered throughout the trial as a possible sentence is of no moment when death is not the penalty assessed). Therefore, we do not address Jackson’s arguments wherein he urges that the trial court erred in 1) refusing to grant Jackson’s cause challenges to jurors who stated that they would be unable to consider anything but the death penalty and 2) granting the State’s cause challenges to jurors with reservations about the death penalty.
Nonetheless, Jackson argues that the “death-qualification” process left him with a jury that was unwilling to consider mitigation evidence. Specifically, he points to Juror Abernathy, who stated that he did not believe in lesser degrees of murder, and contends that the trial court erred in refusing to strike Abernathy for cause. However, Jackson did not preserve his for-cause argument with respect to Abernathy.
Abernathy was one of a panel of six venire members; the other people were Mr. Hundley, Ms. O’Leary, Mr. Mays, Ms. Fletcher, and Mr. Regan. Jackson argues that Abernathy stated during voir dire that “I think if you murder somebody, . . . you’ve done it and that’s it. There shouldn’t be a lesser. If you murdered somebody you murdered somebody.” Jackson initially moved to strike Abernathy for cause, but the court decided to allow the parties to attempt to rehabilitate him. When the State and the defense reached the end of their voir dire, the court asked again if there were any cause challenges. Jackson’s attorneys immediately moved to strike Mr. Hundley, who was the deputy prosecutor’s brother-in-law; this strike was granted in the following colloquy:
The Court: I’ll grant that one. Of course, I haven’t heard arguments, but I’ll grant that one.
Mr. Porch: Note my exception.
The Court: Very well, I’ll note your exception.
The Clerk: So Abernathy is cause?
The Court: No. Larry Hundley. Implied bias. Are there any others?
Jackson’s counsel responded by naming Fletcher, O’Leary, and Mays. No other mention was made of Abernathy. Therefore, Jackson either failed to receive a ruling on his initial motion to strike Abernathy for cause, or he withdrew his for-cause challenge. Thus, he has failed to preserve his argument on appeal in regard to Abernathy. See Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000).
Next, Jackson urges more generally that the State’s deliberate selection of death-prone jurors prohibited the jury from being able to consider any evidence of mitigation. In essence, he contends that the death-qualification of the jury prejudiced him by causing him to be tried by a jury prone to conviction, stating that the jury’s “unwillingness to consider [his mitigation] evidence manifested itself in a verdict of guilty of capital murder, rather than one of the lesser degrees of murder advanced” at trial. However, the United States Supreme Court has rejected this argument, see Lockhart v. McCree, 476 U.S. 162 (1986) (dismissing the notion that death-qualifying a jury results in a jury that is more prone to convict a capital defendant), as has this court. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).
Finally, Jackson argues that the trial court should have granted his motion to strike an entire six-member panel from the venire after the defense team received word from some of Jackson’s family members that they had overheard Jason Curtis, one of the venire persons, making comments to the effect of, “If he’s a Jackson, he’s guilty.” Jackson urges that this entire panel was tainted and should have been stricken for cause, which would have saved him from having to use four of his twelve peremptory strikes on this panel.
We do not address Jackson’s argument because “it pertains to venire persons that appellant excused through the use of his peremptory challenges.” Willis v. State, 334 Ark. 412, 420, 977 S.W.2d 890, 894 (1998). It is well settled that the loss of peremptory challenges cannot be reviewed on appeal. Id.; see also Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). The focus should not be on a venire person who was peremptorily challenged, but on the persons who actually sat on the jury. Willis, 334 Ark. at 420, 977 S.W.2d at 894. Of these six venire persons, the court struck Curtis for cause; the State exercised a peremptory challenge as to another; and the defense exercised peremptory challenges to the remaining four. Because Jackson excused these four out of the six venire persons through peremptory challenges, we do not address Jackson’s allegations of error as to them. See Willis, 334 Ark. at 420, 977 S.W.2d at 894.
In his fourth and final subpoint pertaining to alleged errors during voir dire, Jackson argues that the circuit court erred in denying his Batson challenges to the State’s striking of several jurors. Under Batson v. Kentucky, 476 U.S. 79 (1986), a prosecutor in a criminal case may not use his peremptory strikes to exclude jurors solely on the basis of race. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007); Ratliff v. State, 359 Ark. 479, 199 S.W.3d 79 (2004). In determining whether such a violation has occurred, a three-step analysis is applied. The first step requires the opponent of the peremptory strike to present facts that show a prima facie case of purposeful discrimination. Stokes v. State, 359 Ark. 94, 194 S.W.3d 762 (2004). This first step is accomplished by showing the following: (a) the opponent of the strike shows he is a member of an identifiable racial group; (b) the strike is part of a jury-selection process or pattern designed to discriminate; and (c) the strike was used to exclude jurors because of their race. Id. (citing MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)).
Once a prima facie case of discrimination has been shown, the process moves to the second step, wherein the burden of producing a racially neutral explanation shifts to the proponent of the strike. Travis, supra. This explanation, according to Batson, must be more than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. Weston v. State, 366 Ark. 265, 234 S.W.3d 838 (2006). The reason will be deemed race neutral “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam). But, according to Purkett, a trial court must not end the Batson inquiry at this stage, and, indeed, it is error to do so. If a race-neutral explanation is given, the inquiry proceeds to the third step, in which the trial court must decide whether the opponent of the strike has proven purposeful discrimination. Travis, supra. We will not reverse a trial court’s findings on a Batson objection unless the trial court’ decision was clearly against the preponderance of the evidence. Ratliff, supra.
Jackson argues his jury was disproportionately deprived of African-American members due to the State’s exercise of peremptory strikes. The first of Jackson’s Batson challenges was in regard to prospective juror Charles Carr. After the State moved to strike Carr, Jackson objected and pointed out that the State had been asking potential jurors if they had children close to Jackson’s age, but had only been asking that question of black jurors. The State responded that it had not established a pattern of racially motivated strikes, noting that of the five peremptory challenges it had exercised to that point, four of them were white venire members. The State then offered, as a racially neutral reason, that it had excused Carr because he had answered “B” to the State’s “A or B” question about his views on the death penalty. The court accepted this as a racially neutral reason.
The other three venire members about whom Batson challenges were raised were Jessie Powell, Percy Bentley, and Lorene Lewis. In each case, after Jackson raised his Batson challenge, the State explained that the potential jurors had answered “B” to its question on their views about the death penalty. In addition, as to Lorene Lewis, the State explained that Lewis had said that she went to church with Jackson’s wife and had visited with her at the courthouse.
On appeal, Jackson argues that the circuit court should have conducted a “reasonable and sensitive inquiry into the race-neutral reasons stated by the prosecutor.” However, the record reflects that Jackson did not pursue any further questioning after the State offered its racially neutral explanations to the circuit court. In Weston v. State, 366 Ark. 265, 234 S.W.3d 848 (2006), this court noted that it is the responsibility of the party opposing the strike to move the matter forward at the third stage of the process and to meet the burden of persuasion. Weston, 366 Ark. at 375, 234 S.W.3d at 856. The Weston court further stated that “[t]his is not the trial court’s responsibility, as the trial court can only inquire into the evidence that is made available to it. According to this court, if the party opposing the strike does not present more evidence, no additional inquiry by the trial court is required.” Id.
Moreover, in Weston, supra, this court upheld the State’s use of the same “A or B” questions as were utilized in this case. The Weston court noted that, while jurors should not be excused for cause without further questioning simply because they expressed reservations about the death penalty, the State could use its peremptory strikes to excuse jurors if it appeared they “would be less likely to impose the death penalty.” Weston, 366 Ark. at 375, 234 S.W.3d at 856. Accordingly, there is no merit to Jackson’s argument that the State’s reason for striking these jurors (i.e., they had all answered “B”) was not a valid reason for eliminating potential jurors. This is especially so when, as here, the State struck every juror — not just the African-American ones — who answered “B” to its question about their views on the death penalty. Accordingly, we conclude that there is no merit to Jackson’s Batson claim.
III. Ineffective Assistance of Counsel
In his third point on appeal, Jackson argues that the circuit court should have granted his motion for mistrial, made during voir dire, in response to the alleged ineffectiveness of one of his four attorneys. As attorney Marczuk was conducting voir dire of the fourth group of potential jurors, he raised an objection to a line of the State’s questioning. After the court excused the venire members so that counsel could discuss Marczuk’s objection, Marc-zuk asked that the panel be stricken, but the prosecutor, Thomas Deen, commented that it had been raising the same line of questions with the previous jurors. Marczuk replied that one of the other three attorneys had been objecting unsuccessfully to the question, and he did “not mind doing it again.” Deen retorted, “That’s probably because you were sleeping during the other ones.”
After another defense attorney complained that Deen’s comment was derogatory, Deen replied that Marczuk “has obviously been sleeping during these proceedings.” The court then attempted to turn the discussion to the actual objection that had been raised, and the court ultimately denied defense counsel’s request that the panel be stricken. At that point, defense attorney Bing Colvin again raised Deen’s comment about Marczuk’s sleeping, and the following colloquy occurred:
Colvin: Well, I’ve tried a number of cases against this prosecution, and one of their tactics is to make snide remarks like that. And it’s got no place in a trial where a man’s life is at stake. And it’s only done to make us look bad. Now, it’s just not —
Court: What is the objection —
Colvin: — got any place in the record. It’s not got any place in front of the jury.
Deen: Look bad to who? There’s nobody but us in here.
Colvin: And that’s what I meant. He’s going to keep going. I want to make a record. I made an objection when we first got started when we were going through that death is different.
Court: Well, let me — I understand. I think maybe it’s my responsibility. And lead counsel for the defense obviously has delegated the responsibility to somebody else. But he’s alert and he’s ready to go now. Let’s bring the jury back. The jury hasn’t — we’ve been going several hours. But I mean, nobody is making up anything. But, you know, he has a battery of attorneys for the defense —
Deen: I’m not suggesting he’s suffered any prejudice by it. I’m not suggesting that in the slightest.
Marczuk: Well, apparently he has. So I’ll, we’ll go ahead and declare me ineffective, Judge. I have no problem with that. If that’s what you want to do, I have no problem with that. Maybe we should just start over. I’ll go ahead and ask to recuse. If I might go ahead and ask to step aside.
Court: Well, I’m ready to go forward.
Marczuk: Is that denied, Judge?
Court: Yes. I really think that if you want to be excused, you can. If you’re ready to go, that’s fine.
Marczuk: No, I can’t deny it, Judge. I stayed up late last night. I’ve fallen asleep. I’m sure not going to drive now. Sure not going to.
Court: Now, he has three other competent attorneys. He’s not the only counsel for the client. But in terms of your objections, I’m ready to bring in the jurors.
On appeal, Jackson argues that his attorney’s behavior prejudiced his ability to receive a fair trial, and the trial court’s “refusal to grant a mistrial violated [his] Sixth Amendment right to effective assistance of counsel, as well as a fair and impartial jury.” However, it is not apparent from the above colloquy that any of Jackson’s attorneys ever specifically moved for a mistrial. In addition, the colloquy does not reflect that any of Jackson’s attorneys ever argued that Jackson’s right to a fair and impartial jury had been violated. Accordingly, neither of these arguments is preserved for appeal. See Dorn v. State, 360 Ark. at 4, 199 S.W.3d at 649 (a motion for mistrial, like an objection, must be both contemporaneous and specific).
Thus, the court need only consider whether Marczuk’s actions rendered his assistance ineffective. Under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), to determine ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). 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. Id. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. Furthermore, unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Id. Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id.
Jackson cites cases in support of the premise that “sleeping counsel is tantamount to no counsel at all.” See, e.g., United States v. Thomas, 194 Fed. App’x 807 (11th Cir. 2006); Burdine v. Johnson, 262 F.3d 336 (2001). Cases such as Burdine, supra, and Tippins v. Walker, 11 F.3d 682 (2d Cir. 1996), have held that prejudice can be presumed from the fact of a defense attorney’s sleeping through critical stages of a defendant’s trial because “if counsel sleeps, the ordinary analytical tools for identifying prejudice are unavailable.” Tippins, 11 F.3d at 686. See also United States v. Cronic, 466 U.S. 648 (1984) (a defendant is denied counsel not only when his attorney is physically absent from the proceeding, but when he is mentally absent as well, whether by being asleep, unconscious, or otherwise non compos mentis).
However, the cases on which Jackson relies involve a sole defense attorney sleeping through large portions of the trial. See, e.g., Burdine, 262 F.3d at 339 (witnesses testified that attorney fell asleep as many as ten times during trial, once for at least ten minutes). Here, on the other hand, Jackson had four attorneys, all of whom participated in voir dire. Moreover, the record does not reflect how long Marczuk had been asleep, and even during those periods when he was sleeping, Jackson’s other attorneys were actively engaged in voir dire. In Ex Parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005), the Texas Court of Criminal Appeals refused to presume prejudice from lead counsel’s naps, even when they occurred during critical stages of the trial, because the defendant had two attorneys and was thus never without counsel. McFarland, 163 S.W.3d at 752-53. Accordingly, because Jackson was never without the assistance of counsel — and counsel about whom he raises no claims of ineffectiveness — his argument lacks merit.
IV Exclusion of Testimony
In his fourth point on appeal, Jackson takes issue with two of the circuit court’s evidentiary rulings: the first ruling admonished the jury not to draw an inference from one witness’s testimony that Damon Freeman was the one who shot Herman Cobb; the second ruling precluded Jackson from calling two witnesses who would have testified about the relationship between Jackson and his brother. The circuit court has wide discretion in making eviden-tiary rulings, and we will not reverse its ruling on the admissibility of evidence absent an abuse of discretion. See Wright v. State, 368 Ark. 629, 249 S.W.3d 133 (2007); Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006).
During Jackson’s cross-examination of witness Anthony Harrell, Jackson engaged in a reenactment of the scene with Harrell in an attempt to demonstrate to the jury where Jackson, Freeman, and Cobb were located at the time Cobb was shot. Counsel then asked Harrell, “isn’t it true that . . . [Freeman] is right-handed, and Herman Cobb is shot in the left side of the head, so it has to come from this angle of [Freeman], not [Jackson]? Isn’t that correct? He was shot in the left side of the head?” Counsel then reiterated, “That’s the side he gets shot in, the side [Freeman] is on. Right?” The State objected, arguing that there was no evidence that Freeman had shot Cobb and asking the court to strike the question from the record. The court agreed, admonishing the jury as follows:
Ladies and gentlemen, I want to give you a cautionary instruction just for precautionary measures. There has not been any evidence presented at this time that supports that Herman Cobb was shot by [Freeman], and no inference is to be drawn that he was. And, if so, you are to disregard any inference that Herman Cobb was shot by [Freeman].
Jackson did not object to the admonition at the time. However, during the testimony of the next witness, Debbie Dean, Jackson asked the court to withdraw the admonition when Dean testified that she heard Cobb mumble Freeman’s name. The court denied the request, explaining that the admonition had gone to “that particular statement.”
On appeal, Jackson argues that the trial court erred by “directing the jurors to disregard evidence that Freeman may have killed Cobb.” However, as the State notes, at the time the court admonished the jury, there simply was no evidence that Freeman had been the one who shot Cobb. All of the witnesses’ testimony indicated that Jackson had been the only one seen with the gun, and Nick Ward testified that Jackson fired the third shot at Cobb. Therefore, the inference counsel wished to draw from his questioning was drawn from facts that were not in evidence. See Perry v. State, 279 Ark. 213, 216, 650 S.W.2d 240, 243 (1983) (questions which assume facts not in evidence are improper). Accordingly, the circuit court did not err in admonishing the jury.
Next, Jackson contends that the circuit court abused its discretion when it refused to allow him to call two of his sisters to testify during the guilt phase of his trial. These sisters, whose testimony Jackson was permitted to proffer, would have described the relationship between Jackson and Freeman in order to show that, by seeing his brother being beaten up by Cobb, Jackson was somehow provoked into shooting Cobb. This, Jackson contends, went to the heart of his defense that the shooting was an act of manslaughter, rather than an act of capital murder. After listening to the proffered testimony, however, the trial court ruled that it did not see how their testimony “would be relevant on guilt or innocence.”
On appeal, Jackson urges that the circuit court’s ruling prevented him from “presenting] evidence to refute the elements of capital murder” in violation of his Fifth and Sixth Amendment rights to present a defense. He contends that he wished to call his sisters to “show the reasonableness of the provocation that led to this incident, as well as to explain [his] emotional state at the time.” However, even assuming that the sisters’ testimony demonstrated the close nature of Jackson’s relationship with his brother, the court’s decision to exclude the testimony did not rise to the level of reversible error. This is so because, regardless of that testimony, the evidence still overwhelmingly showed that Jackson was not entitled to a manslaughter instruction, as discussed below. As such, the circuit court did not abuse its discretion in ruling that the sisters’ testimony was irrelevant to the guilt phase of Jackson’s trial.
V. Jury Instructions on Manslaughter as a Lesser-included Offense
As mentioned above, Jackson was charged with capital murder. While the parties were preparing their jury instructions, Jackson asked the court to instruct the jury on the lesser-included offense of manslaughter. The court denied the request, finding that the facts did not support the instruction. Jackson then proffered the instruction to the court. On appeal, Jackson argues that the circuit court’s rejection of his proffered jury instruction was error.
This court has stated repeatedly that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. See Boyle v. State, 363 Ark. 356, 361, 214 S.W.3d 250, 252-53 (2005) (citing Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005)). However, we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id. at 362, 214 S.W.3d at 253. Finally, we will not reverse a trial court’s ruling regarding the submission of such an instruction absent an abuse of discretion. Id. (citing Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003)).
The manslaughter instruction that Jackson wished to submit to the jury comes from Ark. Code Ann. § 5-10-104(a)(1) (Repl. 1997), which provides as follows:
(a) A person commits manslaughter if: ... [t]he 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.... 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[.]
In order for a jury to be instructed on extreme-emotional-disturbance manslaughter, this court has repeatedly held that there must be evidence that the defendant killed the victim in the moment following some kind of provocation, such as “physical fighting, a threat, or a brandished weapon.” Boyle, 363 Ark. at 362, 214 S.W.3d at 352 (quoting Kail v. State, 341 Ark. 89, 94, 14 S.W.3d 878, 881 (2000)).
This court has also stated that the passion that will reduce a homicide from murder to manslaughter
may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible. An assault with violence upon another who acts under the influence thereof may be sufficient to arouse such passion.
MacKool v. State, 363 Ark. 295, 298-99, 213 S.W.3d 618, 620-21 (2005) (quoting Rainey v. State, 310 Ark. 419, 837 S.W.3d 453 (1992)). Thus, to qualify for the manslaughter instruction, there must be evidence of a provocation resulting in an extreme emotional disturbance. Id. The element of emotional disturbance may be proven by evidence of an external event calculated to arouse or provoke a reasonable person to take the actions that resulted in the victim’s death. Bankston v. State, 361 Ark. 123, 129, 205 S.W.3d 138, 143 (2005).
Here, Jackson argues that there was evidence that he was provoked to shoot Cobb by witnessing the altercation between Cobb and his brother, an altercation that, by all accounts, Cobb was winning. He also notes that there was testimony that he and his brother were very close and that he looked out for Freeman. However, Jackson points to no evidence that Cobb’s actions in fighting Freeman were calculated to provoke Jackson to take action.
We also note that, after shooting Cobb in the thigh, there was a delay of a minute or two before Jackson fired the fatal shot to Cobb’s head. Moreover, during this interval of time, Ward and Freeman exhorted Jackson not to shoot Cobb. In light of this evidence, we cannot say that the trial court abused its discretion in finding that no rational basis existed for giving the jury Jackson’s requested manslaughter instruction.
VI. Medical Examiner’s Report
Jackson’s final point on appeal concerns the circuit court’s decision to allow the jury to take the medical examiner’s report with them into the jury room during deliberations. During Dr. Peretti’s testimony, the State moved to introduce the medical examiner’s autopsy report, which detailed his medical findings and conclusion as to the manner of Cobb’s death. Jackson objected, arguing that admitting the report in addition to Dr. Peretti’s testimony was simply “bolstering” and “cumulative” since the doctor had already testified. The trial court allowed the State to introduce the report at State’s Exhibit 6. The court also allowed the State to supplement the autopsy report with the State Crime Lab’s toxicology report. When the jury retired to begin deliberations, Jackson objected to the jury taking the report with them, stating that the report contained information that was not in evidence; however, the court overruled the objection.
On appeal, Jackson does not challenge the trial court’s initial ruling allowing the report to be admitted into evidence; rather, he argues that the court erred in letting the jurors take the report with them into the jury room, reiterating his argument that the report contained evidence that had never been presented to the jury. Therefore, he claims, because neither he nor his attorneys were present when the jury received this evidence, his right to be present at a critical stage of the proceedings was violated, and prejudice must be presumed under Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993).
Arkansas Code Annotated § 16-89-125(d)(3) (Repl. 2005) provides that, “[u]pon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause.” (Emphasis added.) In Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006), this court held that, where a videotaped statement had been introduced into evidence, it was not error for the trial court to allow the jury to have the videotape in the jury room during deliberations because the defendant had been present when the tape was played and introduced during trial. Anderson, 367 Ark. at 542-43, 242 S.W.3d at 234. Similarly, in the instant case, because the report was introduced into evidence during the trial, while Jackson was present and represented by counsel, the circuit court did not err in sending the report with the jury during deliberations.
In Flanagan v. State, 368 Ark. 143, 167, 243 S.W.3d 866, 883 (2006), this court concluded that the jury’s taking exhibits (in that case, audiotapes and videotapes of out-of-court statements) that had been admitted into evidence and made exhibits at trial was not a critical stage of criminal proceedings. Therefore, the defendant’s presence would not have contributed to the fairness of the proceedings. Id. (citing Anderson, supra). Similarly, here, as noted above, the report had been admitted into evidence. Although the report may have contained some details about which Dr. Peretti did not testify, this would merely have constituted cause to move for redaction of portions of the exhibit, which Jackson did not do. However, the report had been admitted as an exhibit, and therefore, under § 16-89-125(d)(3), the court did not err in sending it back with the jury.
VII. Rule 4-3(h) Review
The record in this case has been reviewed for reversible error pursuant to Supreme Court Rule 4-3 (h), and none has been found.
Jackson was also charged with being a felon in possession of a firearm; however, the circuit court subsequently granted Jackson’s motion to sever this charge from the capital murder charge.
The court notes its strong displeasure with the brief in this case. Prior to the submission of the briefs, Jackson’s appellate counsel filed a motion to submit an enlarged brief, seeking permission to file a thirty-six page brief. The court denied the motion, but we did allow counsel to file a thirty-page brief. When the briefs were submitted, counsel’s brief was thirty pages long; however, seven to eight of those thirty pages were single-spaced. Rule 4-1 (a) of the Rules of the Arkansas Supreme Court requires briefs to be “double-spaced, except for quoted material, which may be single-spaced and indented.” The single-spaced portions of appellant’s brief, however, contain no quoted materials. Rather, they consist primarily of summaries of various witnesses’ testimony and potential jurors’ comments during voir dire. We refer this matter to the Supreme Court Committee on Professional Conduct.
Damon Freeman is also known as Damon Jackson, but for clarity’s sake, we refer to him as “Freeman.”
Jackson initially declined to give a statement in the hours following his arrest.
One woman had brought her child to court with her because she could not arrange for daycare, and one man was excused because he had sat on a jury within the last two years.
Jackson asserts that the circuit court should have intervened on its own accord to address this matter, citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). However, this court has noted that, if we have previously rejected an attempt to argue an error on appeal when no objection was made, or no contemporaneous objection was raised, the alleged error cannot be within the Wicks categories. See Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Therefore, as the Harris court held that a fair-cross-section challenge requires a timely objection, the argument cannot fall under the Wicks categories of arguments that may be raised for the first time on appeal.
Jackson also argues that the State’s use of peremptory challenges against African-Americans violated his rights to a jury comprised of a fair cross section of the community. However, the United States Supreme Court has held that the fair-cross-section requirement does not preclude the State from using peremptory challenges on the basis of race. See Lockhart v McCree, 476 U.S. 162, 173 (1986) (“We have never invoked the fair-cross-section principle to invalidate the use of... peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large.”); see also Holland v. Illinois, 493 U.S. 474 (1990). | [
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Per Curiam.
Appellant, Ymari Boyce Reid, by and through her attorney, John L. Kearney, filed a motion for rule on clerk to file her record and have her appeal docketed on October 17, 2008. The State has not responded to the motion. The clerk refused to accept the record because the record before us does not show strict compliance with Arkansas Rule of Appellate Procedure-Civil 5(b)(1)(C).
We have 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 Bond v. State, 373 Ark. 37, 280 S.W.3d 20 (2008) (per curiam). Nevertheless, on September 18, 2008, this court adopted a rule change to Arkansas Rule of Appellate Procedure-Criminal 4, and specifically Rule 4(c), to provide for notice to prosecutors of record extensions and a deemed consent to the extension if the prosecutor does not object within ten days after being served a copy of the extension motion:
A motion by the defendant for an extension of time to file the record shall explain the reasons for the requested extension, and a copy of the motion shall be served on the prosecuting attorney. The circuit court may enter an order granting the extension if the circuit court finds that all parties consent to the extension and that an extension is necessary for the court reporter to include the stenographically reported material in the record on appeal. If the prosecuting attorney does not file a written objection to the extension within ten (10) days after being served a copy of the extension motion, the prosecuting attorney shall be deemed to have consented to the extension, and the circuit court may so find.
In re Rules of Supreme Court & Court of Appeals, Rule 4-3, 374 Ark. App’x 566 (Sept. 18, 2008) (per curiam).
In the instant case, counsel for Reid states “on information and belief’ in her motion for rule on clerk that the prosecutor was served with the motion for an extension of time to file the record. The prosecutor did not file a written objection; nor did he contest the facts set forth in Reid’s motion for rule on clerk. Under the new rule, Rule 4(c), Reid is in compliance because the prosecutor was served with the extension motion and filed no objection. Though the extension granted by the trial court occurred before the effective date of Rule 4(c), which was October 1, 2008, the rule is remedial, and we apply it retroactively.
Granted. | [
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BART F. VIRDEN, Judge
| Man Christopher Sarna appeals the circuit court’s decision affirming the Sex Offender Assessment Committee’s (SOAC) reassessment of his community-notification status and the denial of his motion to proceed in forma pauperis. We affirm.
On December 17, 1997, Sarna pled nolo contendere in the Sevier County Municipal Court to two. counts of first-degree sexual abuse. Sarna was sentenced to 36 months in the Arkansas Department of Correction and ordered .to register as a sex offender. In 1998, Sarna was assessed a community notification level 2 by the North Little Rock Police Department.
| {.On April 1, 2015, Sarna filed a petition with the Sevier County Circuit Court to terminate his obligation to register as a sex offender. Sarna explained that he was unlikely to pose a threat to the safety of others and that he had completed the requisite fifteen years of registration as a sex offender. The Sevier County Deputy Prosecuting Attorney filed a request for reassessment, stating that Sama had never been assessed by Sex Offender Screening & Risk Assessment Committee (SOSRAC), and an assessment by SOSRAC was necessary to ascertain the risk he posed to the community.
Sarna was assessed by SOSRAC and assigned community-notification level 3. Sarna requested administrative review of his assessment by the SOAC. Sama challenged his level-3 assessment based on the sufficiency of the evidence, the veracity of the reports in his case history and the accuracy of tools used to gauge his risk level, improper consideration of his noncriminal conduct and refusal to consider facts favorable to him, procedural errors regarding the staffing summary, his nervousness during his assessment, and a discrepancy between the test results and the level assigned' to him. Sarna also submitted an independent evaluator’s written opinion that it was possible that false statements had been made against him’
On September 2, 2015, the SOAC informed Sarna that an administrative .review had. been conducted, and his level-3 status had been upheld. In the letter, the SOÁC explained that originally Sarna had been assessed at level 2 but that additional information had become available that required adjustment of his status to level 3.
IsOn October 1, 2015, Sarna appealed to the Pulaski County Circuit Court. Among his many points on appeal, Sarna asserted that reassessment was not requested by an authorized party and “[rjeassessment thus violates SOAC’s own rules and is arbitrary and capricious.” The circuit court affirmed the SOAC’s decision to uphold Sarna’s level-3 status. Sarna filed a timely notice' of appeal on October 26, 2016. On January 17, 2017, Sarna filed a petition to proceed in forma pauperis that the circuit court denied the same day. The record was lodged with this court on January 19, 2017.
On appeal Sarna argues that because reassessment was not requested by an authorized party, “the entire reassessment process, including the Sex Offender Assessment Committee upholding Appellant’s reassessment as a Level 3, was in excess'of the agency’s statutory authority.” Sarna also argues that the circuit court erred when it denied Sarna’s petition to proceed in forma pauperis without making the required findings. We affirm. ■
According to Ark. Code Ann. § 12-12—917(b)(1) (Repl. 2016) the SOAC shall cause an assessment of public risk posed by a sex offender to be conducted f<?r a sex offender required to register pursuant to Ark. Code Ann. § 12-12-905 (after August 1, 1997) and when an assessment did not previously occur. A local law enforcement agency having jurisdiction, the Department of Community Correction, or the parole board may also request the reassessment of a sex offender’s assigned risk level at any time. Ark. Code Ann. § 12-12-917(h)(2)(A). Arkansas Code Annotated section 12-12-903(6) (Supp. 2017) provides that the “local law enforcement agency having jurisdiction” is the chief law ^enforcement officer of the municipality in which a' sex offender resides or expects to reside, is employed, or is attending an institution of training or education.
In light of Ark. Code Ann § 12-12-917, it is clear that the Sevier County Deputy Prosecuting Attorney is not authorized to request risk-level reassessment, and a violation of the statute occurred; however, Sarna was required to raise to the SOAC the issue of the deputy prosecutor’s unauthorized request for reassessment. 'Sarna first raised this issue in his appeal to the circuit court. It is essential to judicial review under the Administrative Procedures Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court. Parkman v. Sex Offender Screening & Risk Assessment Comm., 2009 Ark. 205, at 23-24, 307 S.W.3d 6, 20. Because Sama failed to raise to the SOAC his argument regarding the deputy prosecutor’s lack of authority to request reassessment, we are barred from addressing the issue.
Sarna also argues on appeal that - the circuit court did not make the required findings when it denied his request to proceed in forma pauperis. Indeed, Arkansas Rule of Civil Procedure 72 requires that the court make a finding .regarding indi-gency based on the affidavit, and it is clear that the circuit court made no findings on the issue; however, for the reasons set forth above we have denied Sarna’s appeal, and this issue is rendered moot;
Affirmed.
Gruber, C.J., and Harrison, J., agree.
. Before Amendment 80 to the Arkansas Constitution divided the courts into circuits in 2001. | [
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BART F. VIRDEN, Judge
■| Appellant Justin Turner appeals the sentencing order entered by the Crawford County Circuit Court on January 5, 2017, revoking his probation and sentencing him to four years in the Arkansas Department of Correction (ADC). On appeal, Turner argues that there was insufficient evidence to support the circuit court’s finding that he committed the new offense of first-degree battery and that he willfully failed to make payments toward restitution. We affirm.
On November 7, 2014, Turner pled guilty to one charge of third-degree domestic battery, second offense, a Class D felony (case number 17CR-14-341). ■ He was sentenced to six years’ suspended imposition of sentence in the Community Correction Center.-Turner was ordered to pay fines, • court costs, booking fees, and monthly administrative fees. On | ¾January 5, 2016, the State filed a petition to revoke Turner’s suspended imposition of sentence (SIS) due to new charges of third-degree battery, second offense, and second-degree criminal mischief (case number 17CR-16- 6), and due to Turner’s failure to pay fines related to ease number 17CR-14-341. On May 19, 2016, Turner pled guilty to the new charges. The court sentenced him to six years’ SIS conditioned on good behavior, and he was ordered to pay fines, costs, and fees. The State withdrew its petition to revoke Turner’s SIS.
On October 20, 2016, the State filed a petition to revoke Turner’s SIS regarding both prior cases based on a new charge of first-degree battery and his willful failure to pay fines relating to case number 17CR-16-6. After a hearing, the circuit court revoked Turner’s probation in both cases and sentenced him to four years in the ADC. Turner filed a timely notice of appeal.
In his first point on appeal, Turner argues that the State’s witness, victim Billy Joe Green, lacked credibility; therefore, the circuit court clearly erred in determining that he committed first-degree battery against Green based solely on Green’s testimony. We disagree and affirm.
The court may revoke the suspension of sentence or probation at any time before the expiration of the period of suspension of sentence or probation. Ark. Code Ann. § 16-93-308 (Supp. 2017). Our standard of review in cases involving the revocation of probation is well settled. The State must prove the violation of a probation condition by a preponderance of the evidence. McClain v. State, 2016 Ark. App. 205, 489 S.W.3d 179; 3Green v. State, 2015 Ark. App. 291, 461 S.W.3d 731. We will not reverse the circuit court’s findings unless they are clearly against the preponderance of the evidence. Id. Evidence that would not support a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id. Determining whether a preponderance of the evidence exists turns on questions of witness credibility and the weight to be given to the testimony. Id. This court defers to the circuit court’s determinations regarding the credibility of witnesses and the weight to be given testimony. Ware v. State, 2016 Ark. App. 284, at 2, 494 S.W.3d 438, 439.
A person commits battery in the first degree if the person'knowingly causes serious physical injury to any person by means of a deadly weapon. Ark. Code Ann. § 5-13-201(a) (Repl. 2013).
At the hearing, Green’s unrefuted testimony was that on or around September 28, 2016, he was walking behind the alley of Merle’s Steakhouse in Alma when he passed by a car with three people in it. Green identified Turner, a friend of his father’s, as one of the occupants of the vehicle. Green stated that he heard someone yell at him, and he turned around to confront the occupants of the car. When Green arrived at the car, Turner asked to shake his hand. Green explained that when he refused, the three people in the car exited the vehicle and attacked him. Green stated that Turner stabbed him in the chest, which resulted in a punctured lung and a five-day hospital stay.
Green also testified that he was high on drugs on the night he was attacked, that he believes his dog speaks to him, and that he believes he has been diagnosed with some form |4of mental illness. From the bench, the circuit court acknowledged that it had considered Green’s credibility, that it found convincing evidence that Green had been stabbed by Turner, and that the offense was serious. As we stated above, this court defers to the circuit court’s ability to weigh the credibility of the witness, and we take into account that the State must prove its case only by a preponderance of the evidence—more likely than not that the crime occurred. See McClain, su pra; Ark. Code Ann. § 5-13-201(a). We affirm.
The State need only prove that the appellant committed one violation of the conditions in order to revoke appellant’s sentence. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151. Because the circuit court did not err in finding that Green’s testimony was sufficient to prove that -Turner com-, mitted first-degree battery, we need not reach Turner’s second point on appeal regarding the willful failure to pay fines.
Affirmed.
Gruber, C.J., and Harrison, J., agree. | [
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ROBERT J. GLADWIN, Judge
| Appellant Brandon Wallace appeals his September 21, 2016 convictions by a Pulaski County jury on charges of kidnapping and aggravated assault on a family or household member. He was sentenced to concurrent terms of five years’ imprisonment for kidnapping and three years’ imprisonment for aggravated assault. He was given enhanced, consecutive sentences of one year imprisonment because the jury found that he used a firearm during the commission of the kidnapping and that the aggravated assault occurred in the presence of a child. He now challenges the trial court’s denial of his proffered jury instruction that second-degree false imprisonment is a lesser-included offense of kidnapping. We affirm.
I. Facts
|gOn March 11, 2016, the State filed an amended felony information against appellant alleging in relevant part that on or about November 10-11, 2014, appellant committed two felony offenses against Becky Mitchell: (1) the Class Y felony of kidnapping, as defined in Arkansas Code Annotated section 5-ll~102(a)(6) (Repl.’ 2013); and (2) the Class D felony of aggravated assault on a family member, as defined in section 5-26-306(a)(2) (Repl. 2013). In the amended information, the State also alleged that two sentence enhancements were applicable: (1) the “employment of a firearm” enhancement set forth in section 16-90-120(a)-(b) (Supp. 2015); and (2) the “in the presence of a child” enhancement set forth in section 5-4-702(a)-(d) (Repl. 2013). On September 20, 2016, at the beginning of appellant’s trial, the State again amended the information to reduce the kidnapping charge from a Class Y felony to a Class B felony. Aso, at that time, the trial court granted the State’s motion to dismiss a third felony charge that had been set forth in the March 11, 2016 amended felony information.
At the conclusion of his jury trial held on September 20-21, 2016, appellant was found guilty of having committed Class B felony kidnapping and aggravated assault on a family or household member. The jury also found that appellant had employed a firearm to commit kidnapping and that appellant had committed aggravated assault on a family or household member in the presence of a child. He was sentenced pursuant to a sentencing order'filed on October 12,. 2016, and an amended sentencing order filed on November 10, 2016. He filed a timely notice of appeal on November 10, 2016.
II. Standard, of Review and . Applicable Law
RA trial court’s ruling on whether to submit a lesser-included-offense instruction will not be-reversed absent an abuse of discretion. See Johnson v. State, 2017 Ark. App. 373, 523 S.W.3d 908; Webb v. State, 2012 Ark. 64, 2012 WL 503885. While an abuse of discretion may be manifested by an erroneous interpretation of the law, see State v. Gray, 2016 Ark. 411, 505 S.W.3d 160, in the absence of a showing that the trial court erred in its interpretation of a statute, its interpretation will be accepted as correct on appeal. Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007).
The determination of whether an offense is a lesser-ineluded offense of another is governed by Arkansas Code Annotated section 5—1—110(b) (Repl. 2013):
(1)It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It .consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury, to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
See, e.g., Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006). An offense must meet one of the three statutory tests to be considered a lesser-ineluded offense. Davis, supra. Even if an offense meets- the re*-quirements, an appellate court will affirm a trial court’s decision to exclude an' instruction on a lesser-ineluded offense if there is no rational basis for giving the instruction. Id.
III. Discussion
Appellant’s sole argument on appeal is that the trial court erred in denying his counsel’s request that the jury be instructed in the guilt phase of the trial that second-1¿degree false imprisonment is a lesser-ineluded. offense of kidnapping. Appellant’s counsel preserved this, issue for our review by requesting that the trial court so instruct the jury. Appellant proffered proposed jury instructions on second-degree false imprisonment as a lesser-ineluded offense of kidnapping, including appropriate transitional jury instructions. The trial court denied appellant’s counsel’s request based on our supreme court’s holding in Davis,- supra, that second-degree false imprisonment is not, a lesser-ineluded offense of kidnapping.
In Davis, the court applied Arkansas’s three statutory definitions of a lesser-included offense and held that under each of these definitions, second-degree false imprisonment is not a lesser-ineluded offense of kidnapping. At trial, appellant’s counsel argued that,, specifically pursuant to section 5-l-110(b)(3), second-degree false im prisonment is a lesser-included offense of kidnapping because it requires proof of a less culpable mental state.
Appellant submits that in Davis, and in other cases, our supreme court has interpreted section 5—1—110(b)(3) to require that the elements of a greater offense and a lesser offense be identical except that the lesser offense require proof of a less culpable mental state or proof of a less serious injury or risk of injury. Appellant submits that this strict “same elements” interpretation of section 5—1—110(b)(3) is incorrect. He claims that when section 5-1—110(b)(3) is properly applied, second-degree false imprisonment becomes a lesser-included offense of kidnapping. He claims that the greater-lesser relationship is established because each offense is in the same generic class and because second-degree false imprisonment requires proof of a less culpable mental state.
RWe disagree. Appellant was charged with kidnapping the victim with the purpose of terrorizing her. This definition is set forth in section 5—11—102(a)(6) and states, “A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person’s liberty with the' purpose of: terrorizing the other person or another person.” Appellant claims that in this definition of kidnapping, the culpable-mental-state element of “purpose” does not directly modify the conduct element of “restrains.” But pursuant to section 5-2-203(a) (Repl. 2013), the “purpose” culpable-mental-state element modifies the conduct element of “restrains.”
Second-degree false imprisonment and kidnapping are both codified in Chapter 11 of Title 5 of Arkansas Code Annotated under the heading “Kidnapping and Related Offenses.” Second-degree false imprisonment is defined in section 5-11-104(a) (Repl. 2013), which states, “A person commits the offense of false imprisonment in the second degree if, without consent and without lawful authority, the person knowingly restrains another person so as to interfere substantially with the other person’s liberty.” In this statute, the culpable-mental-state element of “knowingly” directly modifies the conduct element of “restrains.” Appellant submits that “knowingly” is a less culpable mental state than “purposely.” Ark. Code Ann. § 5—2—203(c)(3) (Repl. 2013).
Appellant maintains that a rational basis for the jury to acquit him of kidnapping and find him guilty of second-degree false imprisonment is found in the custodial statement that he gave to Sherwood Police Sergeant Keith Wilson on November 14, 2014. A recording of this statement was played for the jury at trial. In his custodial statement, ^appellant asserted that he asked the victim to ride with him so she could watch him commit suicide by shooting himself in the head. Had the jury believed this part of appellant’s custodial statement, appellant maintains that the jury could have concluded that appellant was not guilty of kidnapping because he did not restrain the victim with the purpose of terrorizing her, but did restrain her to interfere substantially with her liberty, and so find him guilty of having committed second-degree false imprisonment. He cites Arnold v. State, 179 Ark. 1066, 1073-74, 20 S.W.2d 189, 191-92 (1929), for the proposition that when considering the evidentiary basis for a lesser-included-offense jury instruction, a trial court is to consider the evidence in the light most favorable to the defendant.
We disagree and hold that the trial court did not err when it denied appellant’s proffered instruction because, pursuant to section 5-1-110 and. the holding in Davis, supra, second-degree false imprisonment is not a lesser-included offense of kidnapping. Even if it did meet the statutory requirement, there was no rational basis under these facts to so instruct the jury*
In Davis, supra, our supreme court specifically addressed whether second-degree false imprisonment is a lesser-included offense of kidnapping:
[Fjalse imprisonment in the second degree is not a lesser-included offense of kidnapping, pursuant to section 5-1-11[0](b)(1) as it also requires an additional element not required to prove kidnapping. Ark. Code Ann. § 5-1-110(b)(1); Ark. Code Ann. § 5-11-103(a). As noted by the State, second-degree false imprisonment contains the language “without lawful authority.” Ark. Code Ann. § 5-11-104(a). However, kidnapping is different, as no person can consent to it. Second-degree false imprisonment also does not meet the test of section 5—1—11 [0] (b) (2), as committing second-degree false imprisonment is not an attempt to commit | ./kidnapping. Finally, pursuant to section 5—1—11 [0] (b )(3), second-degree false imprisonment is not a lesser-included offense of kidnapping because, as explained- above, the risk of injury is not the only difference between second-degree false imprisonment and kidnapping.[ ]
Davis, 365 Ark. at 646-47, 232 S.W.3d at 486-87.
Appellant’s invitation on appeal to overrule Davis was not made below and is not preserved for review because this court cannot decide issues of statutory interpretation for the first time on appeal. Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507. The trial court’s findings were consistent with our supreme court’s interpretation in Davis; accordingly, it did not abuse its discretion.
Moreover, on appeal, appellant expands the arguments made to the trial court and now claims that the Arkansas Supreme Court has misinterpreted section 5-l-110(b)(3) to be read too narrowly. We note that appellant acknowledges in his jurisdictional statement that he is asserting claims that involve a significant issue concerning the interpretation of a statute and that his appeal seeks to have Arkansas Supreme Court precedent overruled, particularly Davis, supra, as well as other authorities. This court cannot overrule precedent handed down by the Arkansas Supreme Court. Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320.
Finally, even assuming second-degree false imprisonment was a lesser-included offense of kidnapping, there was no rational basis in the evidence for the trial court to give |sthe .proffered instruction. Even under appellant’s own version of the events provided to Sergeant Wilson, appellant’s conduct was clearly undertaken with the purpose of terrorizing his victim, and his own admission left no rational basis to believe he restrained Mitchell with any purpose other than to terrorize her. Accordingly,-the trial court need not have instructed the jury on second-degree false imprisonment. See Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). Because there was no rational basis for the trial court to instruct the jury on it, there was no reversible error regarding this issue, and therefore, we affirm.
Affirmed.
Glover and Hixson, JJ., agree.
. In Davis, there appear to be several scrivener’s errors. The opinion cites section 5-1-111(b)(1), (2), and (3), although it is clear from the subject matter that the cited sections should have been 5-1-110(b)(1), (2), and (3). For accuracy, the correct citations are substituted in brackets. | [
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JOHN DAN KEMP, Chief Justice
| jAppellant Robert Duran appeals an order of the Miller County Circuit Court granting summary judgment in favor of appellee Southwest Arkansas Electric Cooperative Corporation (Southwest). For reversal, Duran contends that the circuit court erred in granting summary judgment because Southwest owed him a duty of care and questions of material fact remain regarding whether that duty was breached. We affirm.
I. Facts
| aDuran was an employee of Charles Glover, Jr., d/b/a Charles Glover Trenching & Backhoe (Glover), an independent contractor that was hired to perform utility-trenching services for Southwest. The owner and operator of a rural electric system, Southwest was responsible for providing electrical services to a residence in Miller County that had been destroyed by a fire caused by a lightning strike. Southwest hired Glover to dig a trench from the residence to a pad-mounted electrical transformer (PMT); place PVC piping, used as a conduit, in the trench from the residence up to, under, and into the PMT; and install electrical wire the length of the conduit. On April 6, 2009, Duran suffered an electrical-shock injury while working near or inside an energized PMT owned by Southwest. That day, Glover used a key and special socket wrench provided by Southwest to open the protective casing covering the transformer so Duran could push the PVC conduit pipe underneath and up into the transformer. As Duran pushed the conduit inside the transformer box, he either touched or came very close to touching an energized part of the transformer and received an electrical shock.
When the injury occurred, Southwest and Glover had a written agreement in place titled “Special Services Contract.” That contract contained the following relevant terms:
WHEREAS, Contractor [Glover] represents that it has sufficient experienced personnel and equipment to perform, and Owner [Southwest] desires Contractor to perform, the special services described on Schedule # 1 attached to and made a part of this contract.
| ^Contractor agrees to furnish all supervision, labor, tools, transportation, equipment, and materials necessary to complete the special services required by this contract.
It is understood and agreed that Contractor is an independent contractor, having control over the work done pursuant to this contract, and has no authority to obligate Owner for any payment or benefit of any kind to any person or entity.
Contractor agrees to follow standard and reasonable safety practices and pro cedures while doing the work required by this contract.
Contractor agrees to install and maintain the necessary guards, barriers, and protective and warning devices at locations where work is being performed to prevent accidents involving personnel of Contractor, personnel of Owner, or the general public.
Schedule # 1 described the scope of work as follows:
Contractor to trench <& install conduit w/string or wire to specified depth.
Backfill trench <& leave to existing grade.
Install pedestal, transformer pads and other equipment to specifications.
In his deposition testimony, Duran stated that he had worked with PMTs before he was injured and that he could tell when transformers were energized because he could hear them humming. Duran stated that on the day he was injured, the transformer box was “extremely loud” and “humming louder than [he had] ever heard it.” He said that he knew the transformer was “high voltage.” Duran stated that he had been warned by Glover’s daughter, April, not to touch anything inside an energized transformer because “it will get you.” Duran acknowledged that Southwest could shut off electricity to the transformer and that a Southwest employee had come to a jobsite “once or twice” to de-energize a transformer. He stated that he had never been told that he was supposed to call Southwest to de-energize an energized PMT before opening it.
LGlover testified during his deposition that his company had done work for Southwest since 1976. He said that “years ago,” Southwest gave him keys and special socket wrenches to open transformers. Glover said that he told “everybody” not to touch anything that could be “hot.”
Southwest employee Harold Crane stated in deposition testimony that if a transformer was “dead,” then Glover would pull the wire into it, but if “anything [was] hot in there,” then Southwest would do it. Crane said that the only people who are supposed to have the special keys and wrenches that open Southwest’s transformers are “engineers, linemen, servicemen, District Managers, in other words, [Southwest] hierarchy.” Crane stated that only “qualified people” could have keys and that to be “qualified,” a person should be a “lineman.”
Southwest employee Willie Keener, Jr., testified that the National Electric Safety Code prohibits unqualified people from working inside a transformer unless it is de-energized. He said that in his opinion, “[n]one of Glover’s people ... are qualified to do live line work.”
Todd Newberg, a serviceman for Southwest, testified that he had been told by management at Southwest that “if somebody is going to be in a live transformer, one of us needs to be there.” Newberg stated that Glover “regularly accessed] live transformers” and that Southwest personnel were not present every time Glover accessed them.
Duran filed a negligence action against Southwest and alleged that it had failed to exercise ordinary care for his safety and to warn against any unusually hazardous Uconditions. Southwest filed a motion for summary judgment, which was granted by the circuit court. In granting the motion, the circuit court ruled,
In the case at hand, each of [Duran’s] allegations- against [Southwest] constitutes an alleged breach of either a duty to provide a reasonably safe work environment for [Duran] or to warn [Duran] of the hazards of working near an eher-gized transformer.
The Court rejects [Duran’s] arguments that [Southwest] owed [Duran] the duty owed to members of the general public or the duty owed to business invitees. Rather, the Court hereby concludes that the duty of care owed to [Duran] by [Southwest] was that owed to an employee of one’s independent contractor.... Applying the correct .duty of care, the Court concludes that there are no material questions of fact remaining, and that [Southwest] is entitled to' summary judgment as a matter of law on [Duran’s] complaint. [Southwest] owed no duty to provide [Duran] with a safe work environment or to warn him of the dangers of working near an energized transformer, particularly when working near1 an energized transformer was ah integral part of,the work Glover was hired to perform, and where [Duran] was already admittedly aware of the hazard at issue.
[The] Court also finds that Arkansas does not recognize an obvious-danger exception to the limited duty owed to an employee of one’s independent contractor, and even if it did,' there is no genuine issue of'material fact as to whether Glover was forced to encounter an open, energized transformer in order to do his work. The evidence is undisputed that the work could be safely performed without Glover or any, of his employees coming into contact with an energized transformer.
II. 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. E.g., Stone v. Washington Reg’l Med. Ctr., 2017 Ark. 6 90, 515 S.W.3d 104. The standard is whether the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. E.g., Talbert v. U.S. Bank, 372 Ark. 148, 271 S.W.3d 486 (2008). The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. E.g., Walls v. Humphries, 2013 Ark. 286, 428 S.W.3d 517.
On review, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. E.g., Tillman v. Raytheon Co., 2013 Ark. 474, 430 S.W.3d 698. 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. E.g., Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21.
III. Duty of Care'
To prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiffs injuries. E.g., Fordyce Bank & Tr. Co. v. Bean Timberland, Inc., 369 Ark. 90, 251 S.W.3d 267 (2007). Duty arises out of the recognition that the relation between individuals may impose upon one a legal obligation for the benefit of another. See Marlar v. Daniel, 368 Ark. 505, 247 S.W.3d 473 (2007). “The characteristics of the parties and the circumstances of their encounter may trigger a unique duty that imposes a distinct standard of care that' departs from the typical standard of | ordinary care.” Chew v. Am. Greetings Corp., 754 F.3d 632, 636 (8th Cir. 2014). Whether a duty is owed to a plaintiff is a matter for the court to decide as a question of law. See D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 264 (2002) (Sanders II). If the court finds that no duty of care-is owed, summary judgment is appropriate. See D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999) (Sanders I).
Duran asserted' that Southwest owed him multiple duties. First, he alleged that Southwest owed him a duty to exercise ordinary care for his safety and to warn against any unusually dangerous conditions. Second, he alleged that Southwest owed him a duty to provide a reasonably safe work environment. Third, he alleged that Southwest owed him a duty of care as a business invitee on its property. Fourth, he alleged that Southwest, as an electric utility company, owed him a duty to act with reasonable care in the delivery of services. We will address each of these alleged duties in turn.
A. Duty to Warn Against Any-Hidden Dangers or-Unusually Hazardous Conditions .
The general rule is that an employer of an independent contractor owes a common-law duty to the independent contractor’s employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions. Jackson v. Petit Jean Elec. Coop., 270 Ark. 506, 606 S.W.2d 66 (1980); Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969). These duties do not, however, include a duty to warn of obvious hazards that 'are an integral part of the work the independent contractor was hired to perform. See Stoltze v. Ark. Valley Elec. Coop., 354 Ark. 601, 127 S.W.3d 466 (2003); Jackson, 270 Ark. 506, 606. S.W.2d 66.
UDuran contends that Southwest had a duty to warn him about the dañgérs of working around energized electrical equipment. Southwest responds that, pursuant to this court’s holding in Jackson, Southwest had no duty to warn Duran of an' obvious danger that was an integral part of the job he was hired to perform. In Jackson, Petit Jean Electric Company hired Johnson Construction Company as an independent contractor to rebuild electrical transmission lines. Johnson’s -employee,' Clay Jackson, was seriously injured when his body came into contact with a hot wire while he was working' on Petit Jean’s energized lines. Jackson' filed suit and alleged, inter alia, that Petit Jean was negligent in failing to insulate, isolate, or de-energize its electrical lines during the work hours of the independent contractor. After noting the general rule that an employer of an independent contractor owes a common-law duty to the independent contractor’s employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions, we stated that there was
no basis in' the record for imposing any duty upon Petit Jean to isolate or de-energize its- lines or to warn employees of an electrical contractor that the work as contracted for would be dangerous if not done properly. Certainly, it cannot be seriously contended that Petit Jean should isolate lines from the employees-of an electrical contractor whose compensation and contractual obligations expressly contemplate working around energized lines. The duty of an employer of an independent contractor to use ordi nary care or to warn of latent dangers does not contemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform.
Jackson, 270 Ark. at 509, 606 S.W.2d at 68.
|aWe applied the principles articulated in Jackson to our decision in Sanders II. In that case, a warehouse owner hired an independent contractor to paint a roof, and the independent contractor’s employee died when he fell through a skylight while painting. The employee’s wife sued, and the jury awarded damages. We reversed and dismissed the case, holding that the independent contractor’s employees “were aware that the skylights posed an obvious hazard or danger that was an integral part of the work [the independent contractor] was hired to perform. Therefore, [the warehouse owner] had no duty to warn of these dangers because they were obvious and part of the work.” Sanders II, 349 Ark. at 106, 76 S.W.3d at 262.
In this case, Duran admitted that he had been warned not to touch energized transformers, that he knew when transformers were energized because they hummed, and that the transformer was “humming louder than [he had] ever heard it” on the day he was injured. Glover was hired to access non-energized PMTs and to call Southwest on the small percentage of jobs involving an energized PMT. As a utility trenching company, an integral part of Glover’s work was to safely navigate around the danger posed by energized PMTs. We conclude that Southwest had no duty to warn Duran of the obvious danger of working near energized PMTs.
B. Reasonably Safe Work Environment
In his complaint against Southwest, Duran alleged that Southwest was negligent in failing to supervise and control the work of Glover to guard against injury to Glover’s employees. He also alleged that Southwest should have ensured that Glover’s employees |inwere properly trained, that Glover complied with all relevant safety policies, procedures, rules and regulations, and that Glover did not permit unqualified personnel to access open, energized transformers. These allegations assert a breach of a duty to provide a safe work environment. The general rule is that an employer does not have a duty to provide a reasonably safe work environment for the employees of its independent contractor. Stoltze, 354 Ark. 601, 127 S.W.3d 466; Gordon, 246 Ark. 533, 439 S.W.2d 627. Accordingly, Southwest did not owe Duran, an employee of Glover, a duty to provide a reasonably safe work environment.
C. Business Invitee
Duran also contends that Southwest owed him an “additional duty” because he was a business invitee. The duties of an employer to the employees of an independent contractor are analogous to those a premises owner owes a business invitee. See Gordon, 246 Ark. 533, 439 S.W.2d 627. Generally, pursuant to the obvious-danger rule, the duty owed to an invitee is satisfied when the danger is either known or obvious to the invitee. See Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994). Nevertheless, an owner may continue to owe a duty of care to a business invitee who is forced, as a practical matter, to encounter a known or obvious risk to perform his or her job. See id., 887 S.W.2d 300.
We have recognized the forced-to-encounter exception to the obvious-danger rule in slip-and-fall cases where a business invitee was required to traverse an area prone to slippery conditions. In Carton v. Missouri Pacific Railroad Co., 303 Ark. 568, 798 S.W.2d 674 (1990), appellant, a driver of a diesel-fuel transport truck, slipped and fell while unloading diesel lufuel at appellee railroad’s terminal. The driver sued the railroad for its negligence in constructing and maintaining its facility. She testified that in order to unload her truck after reaching the terminal, she had to walk across a surface that was dirty, messy, and greasy and that fuel spillage “would accumulate and sit there.” Id. at 571, 798 S.W.2d at 675. The case went to trial and, at the close of the plaintiff’s case, the trial court granted a directed verdict. We reversed and remanded for a new trial and held that there was substantial evidence from which a jury might find that the railroad did not maintain the premises in a reasonably safe manner because it did not remove the greasy, messy gravel from the surface; did not use a concrete surface; or did not install a pump to minimize fuel spillage. Id. at 573-74, 798 S.W.2d at 676-77. In Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974), we affirmed a jury verdict in favor of a business invitee who slipped and fell on a slope of a delivery entrance where ice and snow had been allowed to accumulate. We noted that the proof at trial showed that “during the operation of a 24-hour business the accumulated ice and snow was permitted to remain upon a sloping entrance way for a period of some 18 to 20 hours” and held that “under those circumstances .., the landowner should have anticipated that the dangerous condition would cause physical harm to one required to use the entrance way notwithstanding the known or obvious danger.” Id. at 948, 504 S.W.2d at 346.
This court has not previously applied the forced-to-encounter exception to employees of an independent contractor. Southwest contends that we should decline Duran’s invitation to recognize the exception in cases involving independent-contractor | ^employees. We need not decide that issue because even if the exception applies, there is no question of material fact whether Glover and Duran,,were forced to encounter an open, energized PMT to do the work. The work could be safely performed without Glover or any of his employees coming into contact with' the energized transformer.
D. Reasonable Care in the Delivery of Services
■ Duran contends that, as an electric utility, Southwest owed him a duty to act with reasonable care in the delivery of services. None of the cases that Duran cites to this court involve a plaintiff who was an employee of the defendant’s ' independent contractor. They instead involve the duty owed by utilities to members of the public and are thus inapplicable to the case at bar.
IV. Conclusion
We hold that Southwest owed Duran no duty to warn him of obvious dangers, no duty to provide Duran with a reasonably safe work environment, and no duty to act with reasonable care in' the delivery of services. Finally, even if we were to conclude that the forced-to-'encounter exception applies to employees' of independent contractors, there is no evidence that Duran was forced to encounter an energized transformer to do the work. The circuit court did not err in granting Southwest’s motion for summary judgment.
| iaAffirmed; court of appeals opinion vacated.
Baker, Hart, and Womack, JJ., dissent.
. Duran originally appealed to the court of appeals, which affirmed. See Duran v. Sw. Ark. Elec. Coop. Corp., 2016 Ark. App. 237, 492 S.W.3d 87. Duran filed a petition for review, which we granted. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. E.g., McCourt Mfg. Corp. v. Rycroft, 2009 Ark. 332, 322 S.W.3d 491.
. Duran recovered workers’-compensation benefits from Glover's insurer. This appeal concerns whether Duran may recover in tort from Southwest, the company that hired Glover to perform the work,
. See Bellanca v. Ark. Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994); Woodruff Elec. Coop. Corp. v. Daniel, 251 Ark. 468, 473, 472 S.W.2d 919, 922 (1971); Ark. Power & Light v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953).
. Duran argued before the circuit court—and appears to argue before this court—that Southwest owed him a heightened duty of care because it retained control of part of-the .work. Because the circuit court did not rule on this issue, we do. not address Duran's argument on appeal. See, e.g., Grand Valley Ridge, LLC v. Metropolitan Nat'l Bank, 2012 Ark. 121, 388 S.W.3d 24. | [
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WAYMOND M. BROWN, Judge
| í Appellant appeals from the termination of her parental rights to E.H., born 09/01/2015. On appeal, she argues that the circuit court erred in (1) terminating her parental rights based on the failure-to-remedy ground, (2) finding that DHS had shown the subsequent-factor ground, and (3) denying her motion for a second psychological evaluation as. untimely. We affirm.
I. Facts
The hotline was called on October 7, 2015, due to concerns that E.H. was not being fed properly. According to family service worker (FSW) Laura Case, appellant could explain how to mix E.H.’s formula, but “could not do it in practice.” Appellant reported that she fed E.H. four ounces of formula every two hours, which was appropriate. However, FSW I Jennifer Williams reported “major concerns” regarding whether E.H. was being properly fed because she was being weighed regularly with no weight gain.
Dr. Sara Robinson admitted E.H. to the hospital on October 14, 2015, for failure to thrive due to not being fed properly; she wanted to observe appellant feeding E.H. and wanted E.H. to be weighed daily. There was “concern for [appellant’s] mental capacity as it relates to her ability to care for E.H.” Appellant was “on SSI for léarning disabilities” that reportedly affected her ability to read and write. A seventy-two-hour hold was taken on E.H. on October 14, 2015, due to her failure-to-thrive diagnosis. Appellee. Arkansas - Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect on October 19, 2015, which was granted by the' circuit court’s ex parte order for emergency custody entered on the same date.
A probable-cause order was entered on October 21, 2015, finding probable cause that emergency conditions existed that necessitated E.H.’s removal and that those conditions continued. In its December 8, 2015 adjudication and disposition order, the circuit court adjudicated E.H. dependent-neglected “as defined in the Arkansas Juvenile Code” and made specific findings. Appellant was ordered to complete a number of standard duties, including submitting to a psychological evaluation and following any recommendations. DHS was ordered to provide “specialized parenting classes to [appellant] to .focus on raising a baby.” Tammy Tolleson, appellant’s mother, was added to the case plan “since [appellant] lives |awith her and [Tolleson] participated in caretaking for [E.H.] before the hold was taken.” The goal of the case was reunification.
In its February 24, 2016 and August 12, 2016 review orders, the goal of the case remained reunification. In the latter review order, the circuit court found:
That [appellant] has complied with the caseplan -in that she has submitted to a psychological evaluation, completed specialized parenting classes and attended counseling. The psychological evaluation determined that [appellant] is functionally illiterate, that she cannot live independently and requires supervision of her child care. The maternal grandmother has agreed to act as a supervisor of [appellant’s] child care[.]
DHS agreed to allow appellant to have visitation with E.H. “during the week, with the child to return to the foster home on weekends.” The circuit court gave DHS the authority to begin a trial placement if the visitation went well.
On December 6, 2016, appellant filed a motion for a second psychological evaluation and a motion for a continuance. She requested that a second and independent psychological evaluation be performed as a reasonable accommodation pursuant to the Americans with Disabilities Act. She asserted that the first psychological evaluation had been completed before she submitted to services and provided “little flexibility for [appellant] and DHS to achieve a form of reunification.” She asserted that it would be prejudicial to her to use only the initial psychological examination “[g]iven that [she] has submitted to services; given that she is a disabled individual entitled to a reasonable accommodation pursuant to the ADA; and given that the State has a policy that mental incapacity is a basis for termination of parental rights.”
|40n December 8, 2016, DHS filed a petition for termination of appellant’s parental rights, citing two grounds. The first ground was failure to remedy the cause for removal. DHS stated that “[a]lthough [appellant] completed the tasks in the case plan, she ha[d] not successfully utilized the skills she learned the parenting classes, counseling or from homemaker services.” It also noted that E.H. had a “continuous problem” with diaper rash that was “constant and worsening” and that appellant gave incorrect instructions on the application of the prescription provided for the rash, after DHS suggested—and she went—to the doctor. DHS’s second asserted ground was the other-factors ground. It went on to state that during the trial home placement, appellant “did not provide the most basic care for her child resulting in circumstances that were contrary to the juvenile’s health, safety or welfare.”
On December 9, 2016, the circuit court entered its permanency-planning order in which it changed the goal of the case plan to adoption. It noted testimony from Nancy Mondragon, employed by First Kids Daycare, that (1) E.H. would be brought to daycare “dirty”;' (2) E.H. would “exude an odor” requiring workers to “wipe down her whole ’ b'ody with baby wipes”; and (3) appellant would bring bottles of “regular milk”—before E.H. turned one—in a bottle that would be “dirty and crusted with milk.” Mondragon stated that workers had spoken with appellant “several times about the .cleanliness of the bottle and the fact that they could not give a child regular milk before the child’s first birthday,” yet [¡¡appellant “continued to bring a dirty bottle with regular milk.” The circuit court found Mondragon’s testimony “very credible.”
It also noted testimony from FSW Carol Harp that appellant had complied with the case plan and court orders, leading to a trial home placement, but E.H. was removed from the placement on September 23, 2016. She noted visiting appellant’s home on that day—which was “very hot”— and seeing various safety hazards including a fan without a cover blowing on E.H. Appellant had claimed that the cover was only missing because she had washed it and it was drying, but FSW Bridget Warren had reported seeing the same safety hazard during her visit the previous day. Appellant had obtained, a prescription-strength diaper cream for E.H. and had advised daycare workers—and stated to Harp—that it was to be applied at “every” diaper change, but the bottle said twice per day. Furthermore, she testified that appellant intended to give E.H. baby Ora-jel without consulting doctor, though the box advised not doing so for a child under two; and that she was concerned about Tolleson’s ability to supervise appellant’s parenting because Tolleson has a prescription for and was taking “multiple hydroco-done pills per day.”
In the permanency-planning order, the circuit court found that appellant had complied with the case plan and its orders, stating specifically that she had done “everything” DHS or the circuit court had asked her to do, but went on to state:
[E.H.] is not safe with her at this time. [Appellant] does not understand when medication should be administered. She is either not bathing [E.H.] or not bathing her properly. She was not properly cleaning the bottle she was taking to day care. She either does not understand or is ambivalent to the fact that piles of clothing, a very hot home, electrical wires, and exposed fan blades could be dangerous to a baby.
| (jDespite these findings, and its order setting a termination hearing, it ordered DHS to continue to offer reunification services to appellant, “including looking for someone or some institution that would appropriately supervise [appellant’s] parenting.” It maintained that it was “very concerned about the condition of the home[.]”
DHS responded in opposition to appellant’s motions for a second psychological evaluation and for a continuance on December 12, 2016, asserting that appellant’s requests had “no basis on law or in fact,” specifically arguing that “to the extent that [appellant] attempts to characterize her request for a continuance as reasonable accommodation, a second psychological examination is not a “reasonable accommodation as contemplated by the ADA” since appellant “ha[d] not argued that a second psychological evaluation would allow her meaningful access to services” and did not list any services that should be offered. DHS denied that the initial psychological evaluation limited its flexibility, but averred that DHS used the recommendations therein to develop further services for appellant, which it detailed therein.
A status hearing was held on December 13, 2016, initially scheduled for purposes not pertinent to this appeal; however, the circuit court addressed appellant’s motions at the start of the hearing. Appellant argued that she was entitled to reasonable accommodations under the ADA and that she was seeking a second psychological evaluation because she did not have the “financial ability or the resources to provide [one] for herself in her defense.” She argued that a statement in the initial evaluation that appellant “cannot parent the child alone” was a limit that DHS relied on in providing services, visitation, and trial home placement to appellant. In pertinent and nonduplicative part, DHS argued that the motions |7were untimely; the ad litem agreed. From the bench, the circuit court made the following findings:
Well, I tend to agree with [DHS] and the ad litem. I think one thing we’re forgetting is about permanency for this child. We’re now, the best I can tell, this case was filed October 19, 2015. The child would’ve been taken a few days prior to that. We’re almost now 14 months into this case. The psychological that we’re talking about, as Mr. Landon said, was November 2015. I appreciate Ms. Standridge and she’s vigorously representing her client, but I don’t think it’s timely. It’s filed about 13 months after the psychological. I think [DHS]—I’m certainly not—made up my mind what I would do on the termination hearing, but [DHS], I assume, is still continuing to provide services to the mother as I’ve ordered and they’ll do so. And I don’t know that there’s any prejudice under the ADA. I’d have to consider the best interest of this child and this child deserves permanency. So I am going to deny your motion. I don’t know if a second psychological would not say the same as the first. I don’t know. I don’t think it’s timely[.]
The termination-of-parental-rights hearing was held on January 10, 2017. Where not duplicative of facts already given, pertinent testimony was as follows.
Dr. Robert Spray, Jr., testified that he conducted appellant’s psychological evaluation. He diagnosed her with intellectual disability—based on her “low level of cognitive functioning”—and unspecified anxiety disorder—due to his inability to tell' the nature of her self-reported “ongoing chronic anxiety.” He stated that appellant’s “ability to independently care for Jierself in that the low intellectual functioning in and of itself by itself does not suggest a problem!,]” but appellant “has some difficulty in carrying out”; “she could give strategies for doing things but she couldn’t explain how she could carry those strategies out in situations.” He recommended counseling as far as her ability to improve and understood that appellant had some parenting classes, but he stated that “there was no way for him to know based on [that] what the. outcome would be.”
Is As far as parenting E.H., Dr. Spray recommended that appellant “would need supervision by a competent adult living in the home” and he did not know for how long into the future. The supervising adult would have to be “competent and capable and be able to see to the child, because that adult will have to be as much of a caretaker” as appellant. He would have concerns for E.H.’s safety if she was returned to appellant without adult supervision, including, but not limited to (1) appellant being able to pay attention consistently to what, was going on with the child and what the- child was doing, (2) issues with dosing medications because appellant has low math and verbal reasoning skills, and (3) appellant’s anxiety disorder, which he did not know the status of treatment for, but which “would play a role in being able to pay attention enough to [E.H.] ” He believed appellant would know what a danger was, but would “maybe have difficulty following through with any plans that she would have to protect the child,”
Dr. Spray did not have enough information available to him to give a prognosis for appellant in being able to improve to the point where she could independently care for her child. He stated that a second psychological evaluation “would not provide better insight as to whether she benefited from services” because the “issue is parenting and the parenting part of the evaluation was difficult” because of appellant’s low cognitive functioning. However, he admitted that “[fit’s possible, [he] guess[ed]” that if appellant could comprehend and improve through more education and training, the psychological Revaluation “might” be different, but the “only way to know that is, in, fact, a second psychological evaluation is conducted.”
Mondragon testified that appellant or Tolleson would bring E.H. into daycare dirty “almost daily.” E.H. had dirt under her fingernails which “wasn’t normal for a child [E.H.’s] age”; she was not walking. She noted that when the facility told appellant it could not give whole milk to a child under one-year old, appellant “was bringing her own cup with whole milk” because she “thought if she brought the whole milk that would be okay.” She testified that she “never thought it necessary to call DHS or the hotline that [sic] E.H. wasn’t being cared fór”; she was “never concerned that [E.H.] was unsafe in [appellant’s] home.” However, she admitted that the problems seen at the facility “were there since [they] started seeing E.H.” and they “lasted quite a while,”
Holly Laird testified that appellant was bringing E.H. in for weight checks with the WIC program, which gives parents information on how to feed their baby for the first year of life. Though she was concerned about E.H., who was “very underweight,” she did not make a- hotline call. The program was not sure if there was a medical issue or a feeding issue. E.H. was “clean, appropriately dressed” during her visits.
Case testified that DHS was concerned early on with ADA, so it did early-childhood intervention for the baby. Appellant never asked for ADA accommodations; DHS was “just taking proactive steps in case that should happen,” to go “above and beyond so that it wouldn’t be an issue in the case.” While appellant progressed to unsupervised visitation and though DHS “very clearly” asked Tolleson to supervise appellant and let them know of any problems, she “didn’t see any improvements” in the behavior of appellant or Tolleson. | mTolleson was giving E.H. table food at only four or five months old and smoking in the home. She continued to smoke in the vehicle she used to transport E.H. once she stopped smoking in the home, despite being told “from day one that there could be no smoking around [E.H.] ” Case temporarily ended in-home visitations; appellant did improve some after resuming in-home visitations, but with additional requirements added to the visitations. She did not authorize the trial home placement, but someone after her did.
Stephanie Holland, employed with the Department of Child and Family Services, testified to being the person who worked one-on-one with appellant for her parenting classes and worked with her up until the trial home placement. She assisted with applications, like for food stamps and “housing authority.” She helped appellant with a budget because appellant looked at the option of getting her own place but getting her own place “wasn’t feasible.”
Holland stated that she referred appellant for nutrition classes and that she attended the first two classes, but not the last class; she never rescheduled. Likewise, with counseling, it was not being followed up on like it should have been. And after eight months of Literacy Council, when- appellant and her mother were informed that they would have to transport appellant to the program once the trial home placement started, appellant “just quit”; she “didn’t have the support system to help her continue.” Despite budgetary issues, there was a plan to correct the- issues between appellant and Tolleson; however, “appellant never | n followed through on it.” Appellant ■ had no understanding of finances and “depended] on [Tolleson] for that.”-¡The “only problem” was that appellant “would want to do these things but she didn’t have the backing to do it.”
Holland testified that she would' have concerns with E.H. being returned to appellant due to “lack of support” and what happened in the trial home placement when the case “just went south.” Another issue she had was that it was her “understanding that [Tolleson] was supposed to be [appellant’s] support mechanism” and she knew Tolleson “had knowledge of this,” but issues were still arising.
Appellant testified that she was twenty-three years old. E.H. had to be put in the hospital for lack of weight gain, and they put her on a “Similac-soy based formula and it was causing her to lose weight,” but “when [they] got in the hospital, they changed it and [E.H,] started gaining weight.” She stated that she had lived in an apartment by herself before and denied living with Tolleson since she was a baby, though she lived with her mother now in addition to her sister and her grandmother, who was sick but was “getting better sort of.” She paid her own rent from her $750.00 disability check; her mother would “hand the’ check to [her] and [she] would go pay everything.” She denied that DHS provided her any financial assistance to pay the bills that were in’ her name so she could get her own place and stated that “[w]hen [she] was in [her] own place HUD paid for it”; she just paid “whatever [she] had to pay.” DHS did not help her find another person “to take locare of [her] social security money.” She stated that “[t]here could have probably been other services [DHS] could have offered [her],” but “[n]ot anything [she could] think of.” When people tell appellant to do something different with E.H., she “[tries] to do what [she] can”; she is “capable.” She would be willing to have a “24/7 aide,” if she qualified, and was willing to get help from places other than Tolleson. She thought she was “capable enough.” “With people’s help,” she so believed.
Appellant asserted that the rash-cream instruction mistake was because she did hot realize she handed the daycare worker both a “butt paste” and a prescription. On that particular morning, she asserted that E.H. did not have a diaper rash when she went to daycare, though she had one when she returned, so she went to the doctor. Regarding the whole milk before E.H. was one year old, she denied that it was a whole bottle of whole milk; “just with water and a little bit.” She first asserted that a “doctor told [her] to start introducing” whole milk to E.H., but then testified “[a]s to who told me how to do it, well, I went to parenting classes and stuff and I just try to do everything. I didn’t just do that on my own, someone, told me something that I thought was okay.”
Appellant acknowledged that Tolleson “was supposed to be there to help” her during her trial home placement. While she denied that Tolleson was with her boyfriend—eventually admitting, that Tolleson would gó to be with her boyfriend—she stated that Tolleson “was there but she wasn’t there.” She acknowledged discussing with her attorney that Tolleson “might not be the right person for [her] to be with and [Tolleson is] not.” When asked if she planned to continue to live with Tolleson and appellant’s grandmother, she stated that she looked into some places, “but the care that everybody wants is not what hathey have.” She had recently had a family friend take her to check out some services in Mena; she did not notice he- was drunk “until someone said something.”
Harp, appellant’s current caseworker, testified to giving appellant information for First Steps Pregnancy and Resource Center in Mena because they “have more intensive one-to-one parenting as well as life skills!,]” and the Polk County Developmental Center “was taking a little bit longer and [DHS] wanted to get [appellant] some services quicker” because time was “critical.” When Harp spoke to the director of the program about appellant’s needs, the director “didn’t realize” that appellant needed “a continual process” as the program was a 12- to 18-month program that “transitions out,” so they would not be able to help appellant “as far as 24-hour, you know, live in somewhere and stay there.”
Harp testified that there were concerns “along the way” of the trial home placement, but DHS was “kind of working with” appellant and fixing the problems as they arose. Those concerns included (1) appellant’s inability to discern that a person had been drinking and that it was a danger to get into car with that person driving; (2) that multiple dogs and puppies were in the home during the trial home placement and “[p]oop was everywhere,” and she “was not .exaggerating”; and (3) appellant’s inability to recognize safety hazards. 1 uThe “pattern for [appellant was] that [Harp] would confront her on something, if [appellant] realized that she hadn’t—she had said the wrong thing, she would change it.”
Despite some potential options that had not been explored, Harp did not think it premature to recommend termination of appellant’s parental rights because they were fifteen months into the case, and even if there were other possibilities, there were no guarantees that they could be set up or that appellant would follow through. Appellant’s counsel advised Harp of a program in Van Burén that currently provides 24/7 care to a disabled gentleman and his two-year-old child; however, counsel admitted to the court that she had not brought up this program to Harp. Harp testified that no one ever suggested that she check any specific program and no one ever said “[appellant’s] disabled, we want this particular accommodation or we want you to accommodate her because she is disabled.” At the last hearing, an assisted-living place had been brought up as an option and Harp had researched that, finding no place that would take a client as young as appellant and none that would make an exception for her with the inclusion of E.H. Harp did not believe appellant was ready for reunification or to live on her own with E.H.
Appellant moved for a directed verdict after Harp’s testimony; the circuit court denied the motion. From the bench, the circuit court made the following pertinent findings:
This child has been adjudicated dependent-neglected due to failure to thrive. This case now is going on its 15th month. The Department has provided a myriad of services to the mother. The record is replete with all the services. The mother, based on the testimony of the psychologist, Dr. Spray, has a low level of cognitive skills. She would need supervision by a competent adult in order to parent her child. And Dr. Spray had indicated that he would be concerned about who that person was because the mother of the mother was in the home when the child was taken. The testimony is replete even from the mother today that her mother is not an appropriate caregiver for her. She needs an appropriate—she needs a caregiver. She cannot read, she has no driver’s license, I believe she’s a very nice person but she is low | functioning. She has a low level of cognitive skills. And as Dr. Spray said she’d need supervision by a competent adult in order to raise her child.
The child’s been outside the home— we’re in the 15 months—for more than 12 months. There’s been subsequent factors .... I know, ma’am, you love your baby very much. But I have to find what’s in the best interest of this child. And if I thought we could continue this case for another three months or six months or whatever, or a situation that you can parent the child, I would certainly consider it. But this child needs permanency.
This child needs a safe environment, a place where the—from both parents and where the child can be cared for. This child is, I believe about 14 or 15 months old. A little bit over that. This child needs permanency. I find reasonable efforts on behalf of the Department, more than reasonable efforts to accommodate. Especially to accommodate the mother with her disabilities. But I don’t know anything more that the Department could possibly do.
It then found termination of appellant’s parental rights to be in the best interest of E.H.
The circuit court entered an order denying appellant’s motions for a second independent psychological evaluation and a continuance on February 6, 2017. The circuit court entered its order terminating appellant’s parental rights on April 6, 2017. Therein, it found'that DHS had proven both grounds alleged in the petition. Appellant filed a motion for reconsideration and/or for a new trial on April 11, 2017, based on records from the Fresh Start program, which she “was engaged and participating in ... at the time of the | ^termination hearing,” and had since, “successfully completed” so that she can “safely and appropriately parent her child.” The accompanying documentation stated that appellant began the program on January 16, 2017. DHS responded in opposition to the motion on April 17, 2017. The circuit court denied the motion in its order entered on April 25, 2011. This timely appeal followed.
II. Standard of Review
The standard of review in appeals of termination of parental rights is de novo, but we reverse a trial court’s decision to terminate parental rights only when it is clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Grounds for termination of parental rights must be proven by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a ;firm conviction of. the allegation sought to be established. The appellate inquiry ⅛ whether the trial court’s finding that the’ disputed fact was proven by clear and convincing evidence |17is clearly erroneous. In resolving the clearly erroneous question, the reviewing court defers to the circuit court because of its superior opportunity to observe the parties and to judge the credibility of witnesses.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more statutory grounds for terminátion; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Only one statutory ground is necessary to terminate parental rights, Appellant does not contest the best-interest finding made by the trial judge, so if either ground found by the circuit court to be supported by clear and convincing evidence is not clearly erroneous, we are compelled to affirm..
|,«III. Failure to Remedy
Appellant’s first argument on appeal is that the circuit court clearly erred in terminating her parental rights based on failure to remedy because failure to thrive was the condition that caused the removal and that condition had been remedied. This court does not agree.
The failure-to-remedy ground provides that termination is appropriate if the court finds, by clear and convincing evidence, that the juveniles have been adjudicated dependent-neglected and have continued to be out of the parents’ custody for at least twelve months, and despite meaningful efforts by DHS to rehabilitate the parents and correct the conditions that caused removal, those conditions have not been remedied. “Dependent-neglected juvenile” is defined to include any juvenile who is at substantial risk of serious harm as a result of neglect or parental unfitness. “Neglect” is defined to include those acts or omissions of a parent that constitute:
(ii) Failure or refusal to provide the necessary food, clothing, shelter, or medical treatment necessary for the juvenile’s well-being; [or]
I ifl(iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the juvenile, including failure to provide a shelter that does not pose a risk to the health or safety of the juveniles
The circuit court’s December 8, 2015 adjudication and disposition order, adjudicated E.H. dependent-neglected, “as defined in the Arkansas Juvenile Code.” It specifically found that:
[E.H.] failed to gain much weight in the seven weeks after she was born due to the failure by [appellant] to property feed her child and the baby’s life was in danger due to lack of food. Dr. Sara Roberson, the family doctor who examined [E.H.] testified that [E.H.] failed to gain much through three check-ups at her clinic despite [Dr. Roberson and her nurses discussing with [appellant] hoio to properly feed the baby. After those three visits, Dr. Roberson diagnosed [E.H.] with failure to thrive after having concerns with [appellant’s], ability to feed her baby.... Through observation and testing, Dr. Roberson found no other medical reasons for [E.H.’s] failure to gain weight other than improper feeding. Holly [Laird] testified she also had concerns with [E.H.’s] weight and with [appellant’s] feeding, of [E.H.] even though they instructed [appellant] multiple times on how to properly feed [E.H.] FSW Jennifer Williams testified that on October 14th, she, met with [appellant] and [E.H.] at their home and asked [appellant] to make a bottle. [Appellant] made a bottle but shorted it a full scoop.... The Court finds Dr. Sara Robinson, Holly Laird, , and FSW. Jennifer Williams’ testimony credible.
It is clear from the circuit court’s order that the reason for E.-H.’s removal was the acts and omissions of appellant which led to E.H.’s failure to thrive and which gave rise to concerns regarding her ability to care for E.H., even when properly instructed. 'DHS listed the following as services provided to appellant:
[S]he was' offered and provided with one-on-one parenting and homemaking services;' arrangements' were made for her to receive instruction at the Extension office in Waldron; [DHS] helped her with the admissions process to Polk County Developmental Services—Adult Services; she was provided with psychological testing and counseling; she was provided with transportation to and from instruction at the Literacy Council; she was provided with psychological testing and counseling; she was provided with family visitation, home visits, Family Centered Meetings and |Ma trial home placement in which [appellant’s] mother agreed to provide additional assistance as needed.
Despite these services, termination-hearing testimony showed that appellant still was not showing an ability to properly apply instructions. She still was unable to recognize safety hazards. Additionally, she was unable to successfully treat E.H.’s “continuous diaper rash,” could not mix a proper bottle of formula, and could not provide proper instructions for medication usage. It was not only clear that she could not follow instructions, but also that she had to be instructed to make basic parenting decisions. Her inability to conform to the requirements of parenting—in addition to the failure of Tolleson to properly supervise appellant—led to an unsuccessful trial home placement.
These continued displays of appellant’s inability to follow through and successfully apply instructions exemplify Dr. Spray’s psychological-evaluation findings that appellant had low cognitive function and could not care for E.H. without supervision. Holland testified that she would come up with a plan with appellant but appellant would “never follow through.” Appellant’s own testimony was that she was capable of caring for E.H. with the help of others; she never asserted that she could, or would ever be able to, do it alone. Finally, she admitted that Tolleson was not a good helper to her. The statute requires that “the conditions that caused removal” be remedied, not just the named basis for the dependency-neglect adjudication.
127After fifteen months of services, the circuit court was still concerned that appellant had not reached a point where she could safely parent E.H. Even full compliance with the case plan is not a bar to termination of parental rights; the issue is whether the parent has become a stable, safe parent able to care for his or her children. Appellant’s continued inability to apply instructions showcased a continued failure, refusal, or irremediable inability to make proper decisions for E.H.’s benefit. Accordingly, this court holds- that the evidence shows that appellant failed to remedy the cause of E.H.’s removal, which was neglect.
IV. Other Subsequent Factors
Appellant’s second argument is that the circuit court erred in finding that DHS had shown the subsequent factors ground because DHS did not make reasonable accommodations in accordance with the ADA. This court has stated that the requirement that DHS make reasonable accommodations for a disability is not an overarching mandate applicable to all grounds for termination, but instead is one of the elements contained only in the “other factors” ground. , Because we find that the circuit, court did not err in terminating appellant’s rights pursuant to the failure-to-remedy ground, and only one 122ground is required to support termination of parental rights, we do not address this argument. However, we do positively note ■ DHS’s argument that appellant’s argument does not contend that she did not have meaningful access to services, but that she needed the second evaluation to determine the benefit of the services she received; to determine “whether she had improved.”
V. Denial of Motions
Finally, appellant argues that the circuit court erred in denying her motions for a second evaluation and continuance as untimely. DHS argues that the denial of appellant’s motions for a second evaluation and continuance were made in a separate order that was not appealed, and because that order was not listed in appellant’s notice of appeal, appellee’s argument is waived. We agree with DHS.
. Appellant’s motions for a second, evaluation and continuance were made on December 6, 2016. They were denied in the circuit court’s February 6, 2017 status-hearing order. Because the order was not final, it could not be appealed until entry of the circuit court’s April 6, 2017 order. Appellant designated the termination order and the order denying her motion for reconsideration in her notice of appeal. While a termination order might bring up all intermediate orders, appellant did not designate the February 6, 2017 order; therefore, she effectively waived her arguments regarding the motions for a second evaluation and a continuance.
| ^Affirmed.
Virden and Klappenbach, JJ., agree.
. The parental rights of E.H.’s father; David Armstrong, were terminated in the same order. Armstrong is not a party to this áppeal,
. E.H, gained four ounces from one night in the hospital.
. Americans with Disabilities Act of 1990, 42 U.S. §§ 12101-12213 (2013).
. See Ark, Code Ann. § 9-27-341 (b)(3)(B)(i)(a) (Repl. 2015).
.See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a).
. Warren also testified, but her pertinent testimony was duplicative.
. This statement came from questioning by the circuit court regarding Dr. Spray’s questioning .in appellant’s psychological evaluation of whether Tolleson’s supervision 'was inadequate, specifically stating "if they were living with her mother, why did her mother not see the-problem and intervene?”
, Tolleson had put some utility bills in appellant’s name and some overdue bills had not been paid. Tolleson was keeping all of appellant’s check except approximately $113 per month for appellant's personal items. Despite one other adult sibling living ‘ in the home, appellant’s check was "kind of carrying half of the household.”
. Holland noted that appellant’s body odor was documented as a medical condition and an appointment was set, but appellant never went; there were two times E.H. had a double ear infection; and there were two times when Tolleson was gone "nearly a week at a time with a new boyfriend” leaving appellant with her sixteen-year-old sibling only.
. She submitted a letter from her landlord verifying that she had housing, having moved in on December 1, 2016; however, the letter stated that she lived in the home with Tolle-son, Della Garcia, and Kayla Horton.
. Examples given included a wooden crate with wires sticking out of it being on the floor at a time when E.H. could begin crawling, appellant placing her bed so that the headboard blocked the only other exit in the room, and an “air conditioner with the front of it, exposed wires, a fan clipped to it.”
. This order was virtually identical to the circuit court’s status order entered on January 17, 2017; however, the February 6, 2017 order added a Rule 54(b) certificate. Neither party raises the issue of the Rule 54(b) certificate on appeal; however, this court addresses it here because, if valid, it would be a final order from which appellant failed to appeal. A review of the certificate shows that it was not valid because it merely tracked the language of the rule and did not make specific factual findings. See Albarran v. Liberty Healthcare Mgmt., 2013 Ark. App. 598, at 4, 2013 WL 5745122 (citing Cruse v. 451 Press, LLC, 2010 Ark. App. 115, 2010 WL 374457).
. Shaffer v. Ark. Dep’t of Human Servs., 2016 Ark. App. 208, at 3, 489 S.W.3d 182, 184 (citing Utlom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851; Brewer v. Ark. Dep’t of Human Servs,, 71 Ark. App. 364, 43 S.W.3d 196 (2001)).
. Id. (citing Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Knuckles v. Ark. Dep't of Human Servs., 2015 Ark. App. 463, 469 S.W.3d 377; Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002)).
. Greenhaw v. Ark. Dep't of Human Servs., 2016 Ark. App, 294, at 2-3, 495 S.W.3d 109, 111 (citing Hughes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 526, 2010 WL 2522197)..
. Id. at 3, 495 S.W.3d at 111 (citing J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997)).
. Houseman v. Ark. Dep't of Human Servs., 2016 Ark. App. 227, at 3, 491 S.W.3d 153, 155 (citing Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. 356, at 7, 2015 WL 5895440; Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001)).
. Id. at 2, 491 S.W.3d at 155 (citing Harbin v. Ark. Dep't of Human Servs., 2014 Ark. App. 715, at 2, 451 S.W.3d 231, 233).
. Id. (citing Ark. Code Ann. § 9-27-341(b)(3)(B), (b)(3)(A) (Repl. 2015); Harbin, supra).
. Beard v. Ark. Dep’t of Human Servs., 2016 Ark. App. 467, at 7, 503 S.W.3d 89, 93 (citing Sanford v. Ark. Dep’t of Human Servs., 2015 Ark. App. 578, 474 S.W.3d 503).
. Morton v. Ark. Dep’t of Human Servs,, 2015 Ark. App. 388, at 7, 465 S.W.3d 871, 875 (citing Ark. Code Ann, § 9-27-341(b)(3)(B)(i)(a) (Supp. 2011)).
. Ark. Code Ann. § 9-27-303(18)(A)(v) (Repl. 2015).
. Ark. Code Ann. § 9-27-303(18)(A)(vi).
. Ark. Code Ann. § 9-27-303(36)(A)(ii). This court notes that there is an inapplicable exception here.
. Ark. Code Ann. § 9-27-303(36)(A)(iv).’
. (Emphasis added.)
. Rodgers v. Ark. Dep't of Human Servs., 2016 Ark. App. 569, at 11, 506 S.W.3d 907, 914.
. Bean v. Ark. Dep't of Human Servs., 2017 Ark. App. 77, at 24, 513 S.W.3d 859, 874 (citing Villasaldo v. Ark. Dep’t of Human Servs., 2014 Ark. App. 465, 441 S.W.3d 62).
. Bane v. Ark. Dep't of Human Servs., 2016 Ark. App. 617, at 10, 509 S.W.3d 647, 654 (citing Anderson v. Ark. Dep’t of Human Servs., 2016 Ark. App. 428, 501 S.W.3d 831).
.This court notes DHS’s argument that the ADA does not apply as a defense to a termination proceeding because it is not a service, program, or activity; however, it provides no Arkansas authority stating the same. It is axiomatic that we are not compelled to follow the holdings of other jurisdictions. Progressive Eldercare Servs.-Chicot, Inc. v. Long, 2014 Ark. App. 661, at 5, 449 S.W.3d 324, 327. Our courts have yet to address this argument, and we do not address it here.
. See footnote 11.
. See Gyalog v. Ark. Dep‘t of Human Servs., 2015 Ark. App. 302, at 7, 461 S.W.3d 734, 738 (citing Velazquez v. Ark. Dep’t of Human Servs., 2011 Ark. App. 168, at 5, 2011 WL 715659) (appellant did not designate the permanency-planning order in his notice of appeal, effectively waiving his arguments related to the permanency-planning order). | [
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Robert L. Brown, Justice.
Appellant Southern Farm Bureau Casualty Insurance Company (Farm Bureau) appeals summary judgments in favor of the appellees, which held that a certain exclusion in the Farm Bureau insurance policy was void as against public policy. Cross-appellants Roy Johnson and Rhonda Johnson cross-appeal the trial court’s denial of their petition for attorneys’ fees, twelve percent interest, and prejudgment interest. We reverse the trial court’s summary judgments with respect to the policy exclusion and remand the case for an order consistent with this opinion. The cross-appeal is moot.
On November 12, 1998, appellee Terry Easter squealed his tires in a shopping center parking lot and caught the attention of a nearby Rogers police officer in a marked patrol car. The officer attempted to pull Easter over after he determined that Easter was driving over the speed limit. Easter did not pull over and ultimately collided with another car following a high speed chase with police officers. Appellees Roy and Rhonda Johnson, passengers in Easter’s vehicle, and appellee Ronald Taylor, the driver of the other car, were injured. Following the collision, Easter was arrested and charged with reckless driving, fictitious vehicle tags, no proof of insurance, felony fleeing, driving while intoxicated, and disobeying a stop sign. In December 1998, the Johnsons and Taylor filed personal injury lawsuits against Easter.
On April 9, 1999, Easter’s insurance company, Farm Bureau, filed a declaratory action in which it sought a determination from the trial court that it did not have a duty to defend the lawsuits or to pay any judgment rendered against Easter under his motor vehicle liability policy. Farm Bureau relied on an exclusion in the policy that it would not pay for bodily injury or property damage “while you or anyone using your auto, with your permission, is involved in the commission of a felony; or while seeking to elude lawful apprehension or arrest by any law enforcement official” (hereinafter “eluding-lawful-arrest exclusion”). Farm Bureau urged in its petition that the eluding-lawful-arrest exclusion applied and absolved it of any obligation to defend Easter’s claim.
The Johnsons and Taylor next filed separate motions for summary judgment in which they contended that the eluding-lawful-arrest exclusion was void as against public policy. The trial court granted these motions and held that the eluding-lawful-arrest exclusion in Easter’s policy violated public policy “as codified in the mandatory liability insurance and no-fault provisions of Arkansas Law.” Farm Bureau appealed. This court reversed the trial court’s decision and remanded the case because we found that a genuine issue of material fact remained regarding whether Easter was “seeking to elude lawful apprehension or arrest.” S. Farm Bureau Cas. Ins. Co. v. Easter, 345 Ark. 273, 277-78, 45 S.W.3d 380, 383 (2001) (Easter I). Following his arrest, Easter pled no contest to the charges and was sentenced to seven days in jail and six months’ probation.
After Easter I, Farm Bureau filed an amended complaint for declaratory judgment, which included a prayer that there was no duty to pay punitive damages. The Johnsons filed an answer and asserted a counterclaim in which they argued that Farm Bureau was obligated to pay medical expenses and disability income benefits (hereinafter personal injury protection “PIP benefits”) to them, pursuant to Easter’s policy. Farm Bureau answered the counterclaim and argued that the eluding-lawful-arrest exclusion also applied to medical injuries and disability benefits and absolved it of any liability to pay PIP benefits. In November 2005, a jury trial was held, and the jury found that Easter was seeking to elude lawful apprehension or arrest at the time of the accident. Following that, the circuit judge granted the Johnsons’ and Taylor’s renewed motions for summary judgment with respect to Farm Bureau’s amended complaint and held that the exclusion relied upon by Farm Bureau was void as against public policy.
Farm Bureau again appealed to this court. This court could not reach the merits of the appeal, however, because the trial court failed to enter an order with regard to the Johnsons’ counterclaim. S. Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 104, 251 S.W.3d 251, 253 (2007) (Easter II). The appeal was dismissed without prejudice pursuant to Rule 54(b) of the Arkansas Rules of Civil procedure. Id., 251 S.W.3d at 253.
After the second appeal was dismissed, the Johnsons moved for summary judgment on their counterclaim. Farm Bureau responded and filed a cross-motion for summary judgment. The circuit court concluded that Farm Bureau could not rely on the eluding-lawful-arrest exclusion to deny PIP benefits to the Johnsons and granted the Johnsons’ summary-judgment motion. The court also held that the Johnsons were not entitled to recover a twelve percent penalty, prejudgment interest, or attorneys’ fees and denied that prayer for relief because the court found that Farm Bureau did not lack good faith. The trial court further ruled that Farm Bureau’s request regarding punitive damages was not ripe for determination and that a ruling on the matter would be advisory. This claim was dismissed without prejudice.
Farm Bureau then filed the present notice of appeal, challenging the trial court’s rulings with regard to the eluding-lawful-arrest exclusion. The Johnsons filed a notice of cross-appeal with respect to the circuit court’s denial of attorneys’ fees, prejudgment interest, and a twelve percent penalty.
Farm Bureau’s appeal relates to whether the trial court properly interpreted relevant Arkansas statutes in granting summary judgment in favor of the appellees. The dispute between the parties centers on public policy as codified in the Arkansas statutes related to automobile liability insurance. The laws in question set out the minimum no-fault coverage that all automobile liability insurance policies must provide (hereinafter “no-fault law”), and also require that all motor vehicles be covered by a certificate of liability insurance (hereinafter “compulsory insurance law”).
Arkansas’ no-fault law was first enacted in 1973. Act 138 of 1973 is now codified at Arkansas Code Annotated sections 23-89- 201 to -208 (Repl. 2004 & Supp. 2007). The law mandates that all automobile liability insurance policies “provide minimum medical and hospital benefits, income disability, and accidental death benefits . . . without regard to fault.” Ark. Code Ann. § 23-89-202(a) (Repl. 2004). Appellees urge this court to affirm the trial court and hold that an insurance company may not deny third-party PIP benefits despite an exclusionary provision in the policy that would otherwise control because to do so would contravene the mandate of the statute.
In 1987, the Arkansas General Assembly passed the compulsory insurance law, which requires all motor vehicles to be covered by a liability insurance policy. Act 442 of 1987, that law, as amended, is now codified at Arkansas Code Annotated sections 27-22-101 to -107 (Repl. 2008). The compulsory insurance law also requires that each liability policy include a minimum amount of coverage. Ark. Code Ann. § 27-22-104 (Repl. 2008). The trial court held, and the appellees now assert, that these provisions of the Code make the eluding-lawful-arrest exclusion invalid as against public policy.
We note at the outset that “the determination of public policy lies almost exclusively with the legislature, and the courts will not interfere with that determination in the absence of palpable errors .’’Jordan v. Atl. Cas. Ins. Co., 344 Ark. 81, 85, 40 S.W.3d 254, 257 (2001). Furthermore, this court has said that “a state’s public policy is best evidenced by its statutes and an insurance provision that is in accordance with a statute cannot run contrary to public policy.” Id., 40 S.W.3d at 257.
Farm Bureau first claims on appeal that the trial judge erred in finding the eluding-lawful-arrest exclusion void as against public policy under our compulsory insurance law. With respect to compulsory insurance, the General Assembly has expressly provided that this law is “not intended in any way to alter or affect the validity of any policy provisions, exclusions, exceptions, or limitations contained in a motor vehicle insurance policy required by this chapter.” Ark. Code Ann. § 27-22-101(a) (Repl. 2008). This court has long held that the legislature’s intent in this provision is clear. See, e.g., Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 212, 937 S.W.2d 180, 183 (1997) (“[0]ur legislature has specifically provided that the compulsory insurance law was not intended to affect the validity of any policy exclusions.”).
As a result, this court has affirmed various policy exclusions in a long line of cases irrespective of our compulsory insurance law. See, e.g., Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004) (affirming a named-driver exclusion that operated to deny benefits to the injured policyholder); see also Jordan v. Atl. Cas. Ins. Co., 344 Ark. 81, 40 S.W.3d 254 (2001) (affirming a named-driver exclusion where the policyholder himself was the excluded driver); Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997) (affirming a named-driver exclusion where the injured party was an innocent third-party pedestrian); Cook v. Wausau Underwriters Ins. Co., 299 Ark. 520, 772 S.W.2d 614 (1989) (affirming a provision excluding coverage to the spouse of the policyholder).
Appellees do not disagree that this court has often upheld certain exclusions in liability insurance policies. Instead, they assert that these cases do not control in the instant case because the exclusion presently at issue is materially different than those this court has previously affirmed. They argue that a named-driver exclusion is not really an exclusion because the insurance policy is never actually issued to the excluded driver. They also assert that named-driver exclusions are different because the insured acknowledges that there will be no coverage for damages caused when the excluded driver operates the vehicle.
We find the appellees’ distinctions unpersuasive. As an initial matter, section 27-22-101(a), which approves exclusions, does not state that only certain exclusions are permitted by public policy, while others are not. Rather, it reads that statutes are not intended in any way to alter any policy exclusions. Moreover, in the instant case, as with named-driver exclusions, the insurance company and the policyholder set the parameters of risk covered by the policy. This court has said that “an insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy.” Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 412, 867 S.W.2d 457, 458 (1993).
Appellees further contend that unless this court affirms the trial court and holds that the eluding-lawful-arrest exclusion violates public policy, the statute’s provisions regarding minimum coverage will not have any effect. According to appellees, excluding accidents caused when a policyholder seeks to evade lawful arrest by allowing the exclusionary provision to stand under section 27-22-101 (a) would be inconsistent with the compulsory insurance law set out in section 27-22-104.
Appellees, however, misconstrue the meaning of section 27-22-101 (a) and this court’s precedent regarding its construction. While the compulsory insurance law requires an automobile liability insurance policy to include certain minimum amounts of coverage, it does not require the policy to insure against all kinds of risk. See Jordan v. Atl. Cas. Ins. Co., 344 Ark. 81, 83, 40 S.W.3d 254, 255 (2001) (named-driver exclusions included in insurance policies in order that “coverage may be maintained on the vehicle to be driven by operators with an acceptable level of risk”). Stated differently, a policy cannot cover certain types of automobile accidents but provide less coverage than the minimum required by statute. Nevertheless, section 27-22-104 does not require that every liability insurance policy cover every type of automobile accident. Indeed, section 27-22-101 (a) expressly states that any exclusions, exceptions, or limitations are permitted.
Appellees place great emphasis on the importance of protecting innocent third parties who are injured in automobile accidents. While this may be a laudable goal, it cannot contradict the stated intent of the legislature. In addition, while an important policy behind the compulsory insurance law is to decrease the financial catastrophe to others involved in accidents with motorists lacking adequate insurance coverage, it is not the only policy consideration implicated in the instant case. There is a countervailing public policy against compulsory liability insurance for the acts of an intentional wrongdoer. 16 Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 116.3 (2000).
As a final point, appellees direct this court to various cases from other jurisdictions holding that exclusionary insurance provisions like the one in the instant case are invalid as against public policy. This court, however, correctly addressed this point in Smith v. Shelter Mutual Insurance Company:
Because our legislature has specifically provided that the compulsory insurance law was not intended to affect the validity of any policy exclusions, it is unnecessary for us to address cases from other jurisdictions that rely on their own states’ statutes. We feel certain that, if the legislature wishes to provide that the compulsory insurance law is to affect the validity of any policy exclusions, it will change or amend § 27-22-101(a).
327 Ark. 208, 212, 937 S.W.2d 180, 183 (1997).
Regardless of this pronouncement and despite this court’s repeated reliance on the statement of intent in section 27-22-101(a) that policy exclusions are consistent with the compulsory insurance law, the General Assembly has not amended section 27-22-101 (a) since its enactment in 1987. This court has often observed that “it may be construed as acquiescence to our construction of the statute,” when the General Assembly fails to act in response to a certain construction. See, e.g., State Farm Mut. Auto. Ins. Co. v. Henderson, 356 Ark. 335, 341, 150 S.W.3d 276, 279 (2004). We continue to conclude that the legislature’s intent is clear as stated in section 27-22-101(a), and that the compulsory insurance law of the Arkansas Code is “not intended in any way to alter or affect the validity of any policy provisions, exclusions, exceptions, or limitations” of automobile insurance policies. (Emphasis added.) We hold that the trial court erred in granting the appellees’ motions for summary judgment on grounds that the eluding-lawful-arrest exclusion violated public policy as set forth in our compulsory insurance law. We reverse and remand on this point.
Farm Bureau’s second point on appeal is analogous to its first. The trial court also granted partial summary judgment for the appellees, Roy and Rhonda Johnson, holding that Farm Bureau could not rely on the eluding-lawful-arrest exclusion to deny them PIP benefits under our no-fault law. See Ark. Code Ann. §§ 23-89-201 to -208 (Repl. 2008). Farm Bureau asserts that the trial court erred because the Arkansas Code authorizes an insurance policyholder to reject certain covered benefits and also expressly permits insurers to exclude benefits when the insured causes injury while eluding apprehension or arrest.
The Arkansas no-fault law sets out the required minimum benefits that automobile liability insurance policies must include for medical and hospital benefits, income disability benefits, and accidental health benefits. Ark. Code Ann. § 23-89-202 (Repl. 2008). These minimum benefits must extend to the named insured as well as to other enumerated third parties irrespective of the insured’s fault. Id. Despite these minimum requirements, the Code also explicitly reads that “the named insured shall have the right to reject, in writing, all or any one (1) or more of the coverages enumerated in § 23-89-202.” Id. § 23-89-203(a). Section 23-89-205 is even more instructive for purposes of the instant case, as it provides:
An insurer may exclude benefits to any insured, or to his or her personal representative, under a policy required by § 23-89-202, when the insured’s conduct contributed to the injury he or she sustained in any of the following ways:
(1) Causing injury to himself or herself intentionally; or
(2) Causing injury while in the commission of a felony or while seeking to elude lawful apprehension or arrest by a law enforcement official.
Id. § 23-89-205. Taken together, these statutes provide the mandatory offering of no-fault coverage accompanied by the right to reject or exclude such coverage in whole or in part. In sum, section 23-89-202 is the starting point for our no-fault law, but the insurer and the insured are permitted by law to change the coverage, which, of course, is what they agreed to do in the case before us.
The appellees concede that an insurer may exclude PIP benefits for injuries sustained by the policyholder if those injuries were received while the policyholder was eluding lawful apprehension or arrest under section 23-89-205. They maintain, however, that it is against public policy to prevent innocent third parties from recovering PIP benefits in such a case. But as this court pointed out in Aetna Insurance Company v. Smith, section 23-89-205 “specifically permits an insurer to eliminate risks attributable to intentional misconduct of the insured.” 263 Ark. 849, 853, 568 S.W.2d 11, 13 (1978) (construing Ark. Stat. Ann. § 66-4017, the antecedent to Ark. Code Ann. § 23-89-205). It is also instructive that section 23-89-205 does not specifically provide protection for injuries to innocent third parties while the Insurance Code does so in the subchapter immediately following. See Ark. Code Ann. § 23-89-303(d)(l) (Repl. 2008) (expressly preventing an insurance company from rescinding coverage based on misrepresentations or fraud when the insured’s negligence causes injury to a third party). We note, as a final point, that this court has affirmed a named-driver exclusion when the injured party was an innocent child. See Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997).
Because this court has previously construed section 23-89-205 to allow an insurer to avoid risks caused by the intentional misconduct of the insured and because the General Assembly has failed to require no-fault coverage for injuries suffered by innocent third parties in such circumstances, the trial court also erred in ordering Farm Bureau to pay the appellees PIP benefits under this state’s no-fault law. We reverse and remand on this point as well.
Because we reverse and remand on the first two points, it is unnecessary for this court to address the Johnsons’ cross-appeal relating to their claim for attorneys’ fees, a twelve percent penalty, and prejudgment interest.
Reversed and remanded. Cross-appeal moot.
Glaze, J., not participating.
Taylor did not file a similar counterclaim, presumably because the policy did not cover medical expenses for those injured in another car.
We view this decision of the trial court as correct in this declaratory-judgment action as any ruling on such damages at this juncture would be premature.
Section 27-22-104, on the other hand, has been amended six times since 1987, the most recent being in 2007. See Act of Apr. 8,1991, No. 988,1991 Ark. Acts 3029; Act of Mar. 3, 1993, No. 357 1993 Ark. Acts 785; Act of Apr. 1, 1997, No. 991, 1997 Ark. Acts 5363; Act of Apr. 15,1999, No. 1527,1999 Ark. Acts 6572; Act of Apr. 13,2005, No. 2246, 2005 Ark. Acts 9600; Act of Mar. 26,2007, No. 485,2007 Ark. Acts 2428. | [
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Per Curiam.
Petitioner Dwayne Dobbins moves this court for a writ of mandamus, injunction, and declaratory relief, and further moves to expedite the hearing of his petition. In his petition, Dobbins prays that this court direct the respondents to certify him and to place him on the ballot for the position of State Representative, District 39.
We grant Dobbins’s motion to expedite and hereby order briefing in the matter. Simultaneous briefs by the parties shall be filed no later than 12:00 p.m. on Thursday, October 23, 2008. No reply briefs will be permitted. Because we take judicial notice of the fact that early voting has already begun in Pulaski County and the ballots have already been printed, we further order the parties to address, in addition to any issues raised or addressed by them, the practicality of placing Dobbins on the ballot at this late date should his petition be meritorious.
Motion to expedite granted; briefing ordered.
Wills, J., not participating. | [
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Jim Hannah, Chief Justice.
Appellant John Rohrbach was convicted of three counts of rape, three counts of sexual assault in the second degree, and one count of terroristic threatening in the first degree. The rape and sexual assault counts involved acts committed against his stepdaughter, M.C., and the terroristic threatening count was based on threats made to ensure M.C.’s silence. Rohrbach was sentenced as a habitual offender to the following consecutive terms: fife imprisonment for each count of rape, forty-five years’ imprisonment for each count of sexual assault in the second degree, and thirty-nine years’ imprisonment for terroristic threatening in the first degree, for a total of three life terms plus 174 years.
For reversal, Rohrbach asserts that the circuit court (1) erred in denying his motion for directed verdict on all counts, (2) abused its discretion in allowing testimony about the previous rape and sexual abuse of his biological daughter, (3) abused its discretion in allowing the victim’s mother to testify that he had threatened her with physical violence, (4) erred in denying his motion for mistrial as a result of comments made by the prosecutor during closing argument, and (5) erred in denying his motion to set aside the verdict because it was based on inconsistent testimony and because the multiple offenses for which he was charged were based on a continuous course of conduct that should have been charged as a single offense. Because Rohrbach was sentenced to terms of life imprisonment for his rape convictions, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2008). We find no error and, accordingly, we affirm.
Motions for Directed Verdict
Rohrbach moved for a directed verdict on all counts at the end of the State’s case and at the close of all evidence, claiming that the witness testimony was inconsistent and, therefore, not credible. The circuit court denied both motions. On appeal, Rohrbach asserts that his convictions are not supported by substantial evidence because the testimony of the victim and her mother was not credible.
In reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. See, e.g., Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). This court will affirm a judgment of conviction if substantial evidence exists to support it. See 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. See id.
We have held that the credibility of witnesses is a matter for the jury’s consideration. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). It is well settled that the testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. See Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007). Finally, we have stated that flight may be probative evidence of guilt. See Gillard, supra.
The jury heard the following evidence at trial. M.C., who was eight years old at the time of the trial, testified that Rohrbach had raped and sexually abused her on numerous occasions while threatening to harm her mother, brother, and sister if she told anyone about the abuse. M.C. stated that Rohrbach “licked my privates, put his thing in my butt, and tried to put his private in my front private.” M.C. also testified that Rohrbach put his penis in her mouth. M.C. testified that, at times, Rohrbach used strawberry and banana flavored condoms when he forced her to perform oral sex on him. M.C. further related that she had masturbated Rohrbach with her hand and that when she did, something yellow and whitish came out of his penis. M.C. testified that she did not tell anyone about the abuse for quite some time because Rohrbach told her-“he would kill Mommy, Bubba, and Sissy if I told.”
In addition to M.C.’s testimony, the jury heard testimony from M.C.’s mother, Heather Craft. Craft testified that Rohrbach told her that he had “licked on [M.C.]’s privates and that she liked it.” Craft also said that on the evening of Friday, February 23, 2007, Rohrbach forced her to stay in the bathroom while he took M.C. to the bedroom, from where Craft heard M.C. say three or four times that “it hurt.” A few minutes passed and then, according to Craft, M.C. and Rohrbach came into the bathroom where Craft was taking a bath. Craft stated that M.C. was naked and that Rohrbach was wearing only an open robe. M.C. got into the bathtub with her mother, and Rohrbach, who according to Craft was aroused, told M.C. “to wash her kitty cat real good.” Craft stated that Rohrbach also told M.C. that he would not hurt her and that “they would try the other later.”
Finally, Craft also stated that she had heard Rohrbach demand sexual favors from M.C. Craft testified that on the morning of Monday, February 26, 2007, Rohrbach approached M.C. with a flavored condom in his hand and told her there was something he wanted her to do. Craft said that Rohrbach was aroused at the time and had pulled his pants down around his knees. Craft stated that Rohrbach told M.C. he wanted her “to do for him what [s]he had done for Chris” and “that she had promised that she would.” M.C. told Rohrbach that she did not feel like it because her stomach hurt. Craft said that Rohrbach got upset, told M.C. that it was okay, and threw the condom on the floor.
Randolph County Sheriffs Deputy Willie Kimble testified that on February 26, 2007, he was notified that there were allegations that Rohrbach had sexually assaulted M.C. Deputy Kimble went to the Rohrbach residence to speak with Rohrbach, who was not there. Having received permission from Craft to look around the residence, Deputy Kimble searched the residence and found an opened condom packet, with the condom still inside, in the trash can. Deputy Kimble also testified that Rohrbach fled the state shortly after M.C. and Craft reported the abuse to the police. According to Deputy Kimble, Rohrbach eluded the police for four months and was finally located in Poplar Bluff, Missouri.
The State also presented testimony from Rohrbach’s twenty-nine-year-old biological daughter, T.Y., who stated that Rohrbach had sexually abused her when she was between the ages of five and eleven. She testified that Rohrbach fondled her vaginal area, forced her to perform oral sex on him, vaginally raped her, and attempted to rape her anally. T.Y. testified that Rohrbach repeatedly told her that he would kill her, her grandparents, and her aunt and uncle who were raising her if she told anyone about the abuse.
Here, Rohrbach does not challenge the State’s proof on any of the elements of the offenses charged against him, but instead argues that the testimony of M.C. and Craft was not credible because prior to this trial, both had made similar accusations against Craft’s father that were found to be unsubstantiated. The record reveals that the jury heard testimony concerning the previous allegations of abuse. Craft admitted at trial that she had previously lied when she had alleged that her father had sexually abused M.C. in 2002, explaining that she was angry and trying to separate her mother and father. It was for the jury to determine whether Craft was being truthful when she testified about Rohrbach’s sexual abuse of M.C. Here, the jury clearly found credible testimony concerning both Rohrbach’s abuse of M.C. and his threats to ensure M.C.’s silence. In addition, Rohrbach’s flight after the allegations provided further proof of his guilt. We hold that there is substantial evidence to support the jury’s verdict. The circuit court did not err in denying Rohrbach’s motions for directed verdict.
Admission of Testimony
Rohrbach next argues that the circuit court erred in admitting the testimony of his biological daughter, T.Y., because her testimony was more prejudicial than probative. At trial, T.Y. testified that Rohrbach sexually abused her when she was between the ages of five and eleven and that he told her he would harm her family members if she told anyone about the abuse. The circuit court allowed T.Y. to testify about the abuse and the threats, pursuant to Arkansas Rule of Evidence 404(b) (2007).
The admission or rejection of evidence under Rule 404(b) is within the sound discretion of the circuit court, and it will not be reversed absent a manifest abuse of discretion. Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). According to Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Such evidence is permissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid. 404(b). This court’s precedent has recognized a “pedophile exception” to this rule, whereby evidence of similar acts with the same or other children is allowed to show a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). 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. White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). There must also be an “intimate relationship” between the perpetrator and the victim of the prior act. Id.
T.Y.’s testimony falls under this court’s pedophile exception for Rule 404(b). The conduct about which she testified was sufficiently similar to the charged conduct to warrant application of the exception. Rohrbach fondled T.Y.’s vaginal area, forced her to perform oral sex on him, vaginally raped her, and attempted to rape her anally. M.C. was forced to perform oral sex on Rohrbach, and Rohrbach performed oral sex on M.C. In addition, M.C. testified that Rohrbach anally raped her and attempted to rape her vaginally. While T.Y. was raised by her aunt and uncle, Rohrbach lived in the same household with them. Likewise, M.C., Rohrbach’s stepdaughter, lived in the same household with him. T.Y. testified that the sexual abuse began when she was five years old and continued until she reported it at age eleven. M.C., who was eight at the time of the trial, testified that the abuse had been going on for years. Finally, both T.Y. and M.C. testified that Rohrbach threatened to harm their family members if they reported the abuse. The pattern and frequency of intimidation and abuse described by T.Y. closely resembled the rape, sexual abuse, and threats described by M.C. Clearly, this evidence was helpful in showing a proclivity toward specific acts with a person or class of persons with whom Rohrbach had an intimate relationship. T.Y.’s testimony helped to prove Rohrbach’s depraved sexual instinct, and the probative value of T.Y.’s testimony outweighed its prejudice. The circuit court did not abuse its discretion in allowing T.Y. to testify.
Rohrbach next asserts that the circuit court abused its discretion in allowing Craft to testify that he had threatened her with physical violence. Specifically, Rohrbach asserts that Craft’s credibility is at issue because she had previously accused her father of molesting M.C. and then later admitted on the stand that she had lied about those reports of abuse. He also contends that the evidence served no purpose other than to inflame the jury.
Prior to trial, Rohrbach moved to exclude Craft’s testimony concerning threats directed at her by Rohrbach a few days before she went to the police. Rohrbach asserted that the testimony was not relevant and was only intended to show that Rohrbach was a bad man. The circuit court determined that Craft’s testimony was admissible, pursuant to Rule 404(b), stating that it was relevant to show Rohrbach’s intent, plan, and motive. In addition, the circuit court determined that the probative value of the testimony outweighed the danger of prejudice to Rohrbach.
At trial, Craft testified that Rohrbach had coerced her to remain in the bathroom while he took M.C. to another room. Craft also stated that Rohrbach coerced her into signing typewritten statements admitting that she had engaged in sexual intercourse with numerous men, including members of her family. Craft said that she signed the statements because she was being beaten by Rohrbach. In addition, Craft stated that Rohrbach threatened to “pull all my insides out if I didn’t tell him everybody I had slept with.” Craft said that when Rohrbach made this threat to her, “[h]e had his hand all the way up inside me and was pulling on the inside of me till he started making me bleed. He told me he was going to pull my insides out and let me die.” She testified that she was beaten and physically abused by Rohrbach from Friday through Sunday; on Monday morning, she contacted the police.
The evidence of Rohrbach’s threats to and assaults upon Craft immediately before she contacted police is relevant and admissible under Rule 404(b). Apart from showing that Rohrbach threatened and assaulted Craft, the evidence shows that Rohrbach was attempting to silence a witness and, thus, is independently relevant to prove the crime charged. See Holman v. State, 372 Ark. 2, 269 S.W.3d 815 (2007).
The State asserts that the threat of physical violence provided Rohrbach with the opportunity to molest M.C. without Craft’s intervention. We agree. As for Rohrbach’s contention that Craft’s testimony was not credible due to her prior false accusation of sexual abuse, we again state that it is for the jury, not this court, to assess the credibility of witnesses. We hold that the circuit court did not abuse its discretion in allowing Craft to testify that Rohrbach had threatened her with physical violence.
Comments During Closing Argument
Rohrbach contends that the circuit court erred in refusing to grant a mistrial based on remarks made by the prosecutor during closing argument. He claims that the remarks were inflammatory and that a cautionary instruction could not have cured the prejudicial effect. During the course of the trial, evidence was introduced that Craft had falsely accused her father of sexually molesting M.C. Craft and M.C. were living in the same house with Rohrbach when these accusations were made. Craft admitted that she had made false allegations against her father, but she stated that the allegations arose when she discovered physical evidence of sexual abuse one day after M.C. returned from visiting her grandfather. During closing argument, the prosecutor made the following statement regarding the prior allegations of abuse:
Heather [Craft] told you that Freda is the one who first noticed that [M.C.’s] little vagina was all red. Something about her hole was too big. I don’t know what that means. It was, according to Heather, at least twelve hours before that came to her attention. That child was back in that home for a while. Now what can you rationally conclude from that evidence? It’s entirely possible that this defendant molested her then. It’s entirely possible.
Rohrbach objected to the remarks and asked for a mistrial. The circuit court denied the motion and advised the prosecutor to move on. Rohrbach did not request a cautionary instruction to the jury.
We have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Leaks, supra; Lee, supra. Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Leaks, supra; Noel, supra.
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. Leaks, supra. It is the trial court’s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Id.
The decision to grant or deny a motion for mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Johnson v. State, 366 Ark. 8, 233 S.W.3d 123 (2006). A mistrial is a drastic remedy and should only be declared when there is error so prejudicial that justice cannot be served by continuing the trial, and when it cannot be cured by an instruction to the jury. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007). However, among the factors we consider on appeal is whether the defendant requested a cautionary instruction or admonition to the jury, and the failure of the defense to request an admonition may negate the mistrial motion. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001).
The State points out that the cornerstone of Rohrbach’s defense was a previous allegation of abuse made by Craft against her father. Craft admitted that she lied when she told investigators that she had been abused by her father, but she testified that she suspected her father of abusing M.C. because physical evidence of abuse was discovered. To determine Craft’s credibility, it was important to clarify the basis for the original allegation of sexual abuse involving M.C.
The circumstances surrounding the earlier abuse were before the jury. After hearing Craft’s testimony, the jury may have believed that Rohrbach, not M.C.’s grandfather, had sexually abused M.C. when she was three years old. Therefore, we agree with the State’s contention that the prosecutor’s argument was based on a reasonable inference that could be drawn from the evidence presented at trial. Based upon this and based upon the fact that Rohrbach did not request a cautionary instruction to the jury, we hold that the circuit court did not abuse its discretion in denying Rohrbach’s request for a mistrial.
Motion to Set Aside the Guilty Verdict
After being found guilty by the jury, Rohrbach moved to set aside the verdict, alleging that there was insufficient evidence in support of it. In other words, Rohrbach moved for a judgment notwithstanding the verdict (JNOVj. Rohrbach now appeals the denial of the motion.
In a civil case, a party challenges the sufficiency of the evidence under Rule 50 of the Arkansas Rules of Civil Procedure by moving for a directed verdict at the conclusion of the evidence and by moving for a judgment notwithstanding a verdict after the verdict has been rendered. See Ark. R. Civ. P. 50(a), (b) (2007). While Rule 50 allows a party to ask that the circuit court set aside the verdict in civil cases, there is no such procedure available in criminal cases. Rather, in a criminal case, a defendant challenges the sufficiency of the evidence under Rule 33.1 of the Arkansas Rules of Criminal Procedure by moving for a directed verdict at the end of the State’s case and at the conclusion of all the evidence. Rohrbach did so. We have already addressed Rohrbach’s sufficiency challenges in the first point on appeal, and for the same reasons expressed there, we hold that there is substantial evidence to support the jury’s verdict.
Finally, Rohrbach contends that the guilty verdict should be set aside because his conduct was a continuing violation and he should not have been charged with more than one offense. We will not address this argument because Rohrbach failed to raise it at trial. Issues not raised at trial will not be addressed for the first time on appeal. See, e.g., Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). An appellant is limited by the scope and nature of the arguments and objections presented at trial and may not change the grounds for objection on appeal. See, e.g., Tavron v. State, 372 Ark. 229, 273 S.W.3d 501 (2008).
4-3 (h)
Pursuant to Arkansas Supreme Court Rule 4-3 (h), the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Rohrbach, and no prejudicial error has been found.
Affirmed.
Glaze, J., not participating.
Chris Rohrbach, the appellant’s stepson, was also alleged to have sexually molested M.C. According to the State, at the time of the appellant’s trial, Chris Rohrbach was in jail awaiting trial on charges that he had sexually abused M.C.
For her part, M.C., who was three years old in 2002, testified that she did not remember any allegations about her grandfather. | [
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Jim Gunter, Justice.
Appellant was convicted by a jury of sexual abuse in the first degree and sentenced to ten years’ imprisonment. He now appeals the sufficiency of the evidence supporting his conviction, asserting that the victim’s testimony was inconsistent and that the jury had to rely on speculation or conjecture in reaching its verdict. Because this court decided a previous appeal in this case, our jurisdiction is proper under Arkansas Supreme Court Rule l-2(a) (2008). We affirm the judgment of conviction.
Appellant was charged with sexual abuse in the first degree after his granddaughter accused him of touching her inappropriately when she was a child. The victim, who was twenty-two at the time of the trial, testified that appellant first abused her when she was eight or nine years old. She testified that she and her family were staying at appellant’s home for Thanksgiving, and appellant laid on the floor next to her while watching TV and “spooned” her. She testified that she fell asleep and when she awoke, appellant’s hand was on her vagina, inside her pants but not inside her underwear. She testified that her older brother was in the room but that the room was dark and she was under a blanket. She testified that this type of touching happened on more than one occasion. She testified that she told her brother about the abuse when she was seventeen years old, and her brother told her biological father. Her father then brought her to Arkansas to report the abuse. According to an incident report filed with the Ouachita County Sheriff s Office, the victim and her father first reported the abuse on August 8, 2003, when the victim was eighteen years old. On cross-examination, she admitted that she did not remember if all the incidents had happened during the day or at night, whether the lights were on or off, or exactly how many incidents had occurred.
The victim’s older brother testified that on one visit to appellant’s home for Thanksgiving, he, his sister, and appellant had stayed up late one night watching a movie. He testified that appellant lay behind his sister under a blanket and that “they were spooning like you would spoon with your significant other.” He testified that he was approximately thirteen years old at the time and did not think much of it. He testified that he was shocked when he later learned of the abuse.
Finally, the State presented the testimony of the victim’s uncle, who testified that he confronted appellant upon learning of the abuse. He testified that appellant had no response at first, but appellant later said he felt “like blowing [his] head off.”
At the close of the State’s evidence, appellant moved for a directed verdict, arguing that the State had failed to establish he was over eighteen at the time of the alleged offense, that the victim’s statements were inconsistent and contradictory, and that there had been no proof the alleged acts were done for the purpose of sexual gratification. The court denied the motion and, after the defense rested without presenting additional evidence, denied the renewed motion. A jury found appellant guilty, and the court imposed the recommended sentence of ten years’ imprisonment and a $10,000 fine. Appellant now appeals his conviction to this court.
The test for determining sufficiency of the evidence is whether substantial evidence, either direct or circumstantial, supports the verdict. Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id. The duty of resolving conflicting testimony and determining the credibility of witnesses is left to the discretion of the jury. Boyd v. State, 369 Ark. 259, 253 S.W.3d 456 (2007). This court will not pass upon the credibility of a witness and has no right to disregard the testimony of any witness after the jury has given it full credence, unless the testimony is inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could differ thereon. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007).
On appeal, appellant argues that the only evidence presented by the State to prove its case was the testimony of the victim and that her testimony contained too many inconsistencies to constitute substantial evidence to support his conviction. Although a rape victim’s testimony need not be corroborated to support a conviction, Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), we first note that the victim’s testimony was not the only evidence presented; the State also introduced testimony from her brother, who corroborated her account of appellant lying on the floor next to her and “spooning” her. Second, as noted above, any inconsistencies in the victim’s testimony were for the jury to resolve, and we are bound by the fact-finder’s determination on the credibility of witnesses. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). In addition, inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness’s testimony is sufficient to sustain a conviction. Id. Accordingly, we find that appellant’s conviction is supported by substantial evidence and affirm.
Affirmed.
Wills, J., not participating.
In State v. Hayes, 366 Ark. 199, 234 S.W.3d 307 (2006), this court reversed the circuit court’s dismissal of the criminal action against appellant and determined that the statute of limitations on the sexual abuse charge commenced to run on the victim’s eighteenth birthday, making timely the felony information filed approximately eight months after the victim’s eighteenth birthday. | [
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Elena Cunningham Wills, Justice.
The appellant, Benton County Stone Co., Inc., appeals an order of the Benton County Circuit Court affirming the decision of the Appeal Review Board of the Benton County Planning Board to deny Benton County Stone’s application for a permit to build a rock quarry.
Benton County Stone initially sought a permit from the Benton County Planning Board (“the Planning Board”) to build a rock quarry in an unincorporated area of Benton County. The Planning Board granted its approval on November 16, 2005. However, a group of landowners appealed the Planning Board’s decision to the Benton County Appeal Review Board (“the Review Board”), and the Review Board reversed the Planning Board’s decision, finding that the proposed development was not compatible with surrounding land uses. Affidavits of two of the three members of the Review Board indicate that the Review Board conducted an on-site review of the proposed quarry site on January 4, 2006, and held a hearing on the issue that same day. They further aver that, upon conclusion of the hearing, the Review Board unanimously voted to deny the development request as being incompatible with surrounding uses. The decision was “made based on the on-site review and other evidence considered.”
Benton County Stone appealed the Review Board’s decision to the Benton County Circuit Court on January 27, 2006, arguing that its proposed quarry was compatible with surrounding uses. In the alternative, Benton County Stone argued that the standard of review based upon “compatibility” was unconstitutionally void for vagueness. The circuit court rejected Benton County Stone’s arguments and upheld the decision of the Review Board. The court also determined that the standard of compatibility in the ordinance was not so void as to be unconstitutionally vague. Benton County Stone filed a timely notice of appeal, and it now raises three arguments for reversal, none of which has merit.
Under Arkansas Code Annotated section 14-17-211 (Repl. 1998), appeals from final action taken by administrative, quasi-judicial, and legislative agencies concerned in the administration of the county planning statutes “may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure applicable to appeals in civil actions from decision of inferior courts, including the right of trial by jury.” Our standard of review of a circuit court’s finding following a bench trial is whether that finding was clearly erroneous. Burke v. Elmore, 341 Ark. 129, 14 S.W.3d 872 (2000). However, questions of statutory and constitutional construction are reviewed by this court de novo. See Wilson v. Weiss, 370 Ark. 205, 258 S.W.3d 351 (2007); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999).
In its first point on appeal, Benton County Stone argues that the circuit court erred in determining that the Benton County planning ordinance was not void for vagueness. An ordinance is presumed to be constitutional, and the burden of proving otherwise is on the challenging party. Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998). A statute will pass constitutional scrutiny under a “void for vagueness” challenge if the language conveys sufficient warning when measured by common understanding and practice. Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999). However, a law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited and is so vague and standardless that it allows for arbitrary and discriminatory enforcement. Crcft, supra. Stated another way, a statute must not be so vague and standardless that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case-by-case basis. Ark. Tobacco Control Bd. v. Sitton, 357 Ark. 357, 166 S.W.3d 550 (2004).
Moreover, the subject matter of the challenged law also determines how stringently the vagueness test will be applied. For instance, if the challenged law infringes upon a fundamental right, such as liberty or free speech, a more stringent vagueness test is applied. Craft, supra (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)). In contrast, if the law merely regulates business activity, a less stringent analysis is applied and more flexibility is allowed. Id.
In this case, Benton County Stone argues that the Planning Board’s ordinance concerning large scale plan requirements is void for vagueness. Specifically, Benton County Stone challenges the concept of “land use compatibility” as set out in the ordinance. The “Land Use Compatibility” portion of the “Site Development Requirements” contained in the ordinance at section 2(B)(4) provides as follows:
A. Development Patterns. Must be consistent and compatible with existing development and the environment.
1) Clustering. Commercial and industrial developments are encouraged to cluster to minimize incompatible land-use.
2) Right to Farm. Any industrial and commercial development^) that could limit the viability of existing agricultural uses are discouraged.
3) Right to Operate. Residential development that could limit the viability of existing commercial and industrial operations are discouraged.
Section 4(D)(2) then states that the Planning Board “may deny the application because of noncompliance with items addressed in this code, incompatible development, protecting the public safety and health, or any violation of an existing state and/or county law, regulation, or ordinance.”
The circuit court determined that the terms “compatibility” or “incompatibility” were “not so vague in this case as to be constitutionally void for vagueness[,] . . . especially . . . where, as here, the County Planning Board’s discretion is limited by ordinance.” Benton County Stone, however, argues that the provisions set out above are unconstitutionally vague because the concept ofland use compatibility is “ambiguous and confusing.” It urges that the concept of compatibility is “defined” by the three enumerated issues (i.e., clustering, right to farm, and right to operate) and contends that this definition of compatibility is laid out only “in terms of encouragement or discouragement . . . for and from certain uses.” These three enumerated factors, it argues, do not make compatibility a requirement, but the ordinance nonetheless permits a permit to be denied on the basis of incompatibility. This “contradictory” language, Benton County Stone insists, renders the ordinance void for vagueness.
The question of whether a land-use statute or ordinance is void for vagueness was discussed by the court of appeals in Rolling Pines Ltd. Partnership v. City of Little Rock, 73 Ark. App. 97, 40 S.W.3d 828 (2001), as follows:
A statute violates the first essential of due process of law if it either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application. Anderson v. City of Issaquah, 851 P.2d 744 (Wash. App. 1993). The purpose of the void for vagueness doc trine is to limit arbitrary and discretionary enforcement of the law. Id. In the area of land use, a conditional use standard must be sufficiently specific to guide both an applicant in presenting his case and the Board in examining the proposed use. See Wakelin v. Town of Yarmouth, 523 A.2d 575 (Me. 1987). In determining this issue, it is permissible for a court to look not only at the face of the ordinance but also at its application to the person who has sought to comply with the ordinance and who is alleged to have failed to comply. Anderson v. City of Issaquah, supra.
Rolling Pines, 73 Ark. App. at 105, 40 S.W.3d at 834.
In Rolling Pines, supra, the City of Little Rock denied a conditional use permit to Rolling Pines Limited Partnership, a developer who wanted to place manufactured homes in a subdivision that had been zoned R-2, or single family use. The Little Rock Code granted the City Planning Commission the authority to approve or disapprove conditional use permits after a “detailed review of [the use’s] compatibility with the area.” The Code further established guidelines for evaluating applications for conditional use permits; among those guidelines was a requirement that the “proposed land use is compatible with and will not adversely affect other property in the area where it is proposed to be located.” Rolling Pines, 73 Ark. App. at 100, 40 S.W.3d at 831 (citing Little Rock Code § 36-107(2)).
After its application was denied, Rolling Pines appealed to the Little Rock City Board of Directors, which upheld the Commission’s denial. Rolling Pines then appealed to the Pulaski County Circuit Court and argued, among other things, that the ordinance under which the permit was denied was so vague as to allow unbridled discretion in the Commission. Id. at 102, 40 S.W.3d at 832.
On appeal to the court of appeals, Rolling Pines continued its argument that the ordinance was unconstitutionally void for vagueness. The court of appeals disagreed, concluding that the term “compatible” had a well-defined meaning and was not so vague as to leave an applicant guessing as to its import or meaning. Id. at 106, 40 S.W.3d at 835 (citing Anderson v. Peden, 568 P.2d 633 (Or. Ct. App. 1977) (holding that the word “compatible” was not impermissibly vague because it has a plain and ordinary meaning that could be readily understood by reference to a dictionary)). Accordingly, the court of appeals concluded that Rolling Pines had not established that the ordinance was unconstitutional. Id.
Similarly, in the instant case, the ordinance requires that the proposed development be “consistent and compatible with existing development and the environment.” The word “compatible” has a plain and ordinary meaning. The Oxford English Dictionary defines the word as meaning “[mjutually tolerant; capable of being admitted together, or of existing together in the same subject; accordant, consistent, congruous, agreeable.” See Oxford English Dictionary (2d ed. 1989), http://dictionary.oed.com/ (search “Find Word” for “compatible”). Likewise, according to the American Heritage College Dictionary, “compatible” means “[c]apable of existing or performing in harmonious, agreeable, or congenial combination.” See American Heritage College Dictionary 284 (3d ed. 1997).
That the ordinance goes on to discuss practices that are “encouraged” or “discouraged” does not mean, as Benton County Stone suggests, that “compatibility” is “defined in terms of a suggestion or preference.” The court of appeals addressed a similar argument in Rolling Pines, supra, in which the developer argued that the compatibility requirement in the challenged ordinance was controlled by eight technical requirements specific to manufactured homes that were set out in the city ordinance. Rolling Pines contended that these technical requirements “inherently contain a compatibility determination, meaning that if an applicant meets the eight requirements, his proposed use is necessarily considered compatible with the surrounding property.” Rolling Pines, 73 Ark. App. at 103, 40 S.W.3d at 832. The court of appeals disagreed, noting that the eight requirements were, by their own definition, regarded as minimum standards. The court concluded that the “use of the term ‘minimum’ necessarily implies that the [Little Rock Planning] Commission may consider matters over and above those eight requirements in assessing a conditional use.” Id., 40 S.W.3d at 833.
Similarly, here, the ordinance provides that proposed development patterns “must be consistent and compatible with existing development and the environment.” (Emphasis added.) The use of the word “must” makes this provision mandatory. See, e.g., Slusser v. Farm Serv. Inc., 359 Ark. 392, 198 S.W.3d 106 (2004) (words or phrases that are generally regarded as making a provision mandatory include “shall” and “must”). We conclude that the three clauses that follow the overarching “compatibility” requirement are to be considered as factors that guide the exercise of the Review Board’s discretion. As the circuit court correctly concluded, their presence does not render the mandatory clause unconstitutionally vague.
In its next argument, Benton County Stone urges that the circuit court erred in determining that the Review Board operated under “discretionary restraints” in denying the permit. The circuit court’s opinion stated that the term “compatibility” was not so vague as to be unconstitutional, “especially . . . where, as here, the County Planning Board’s discretion is limited by ordinance. Further, the record is replete with evidence that the County considered the compatibility of Benton County Stone’s proposed quarry in the context of the ordinance’s discretionary restraints.” Although Benton County Stone has set this contention out as a second point on appeal, it relates to the point discussed above concerning whether the ordinance is unconstitutionally vague. When the circuit court mentioned “discretionary restraints” in its order, it was essentially concluding that the ordinance does not grant unbridled discretion in the Review Board. As concluded above, the circuit court did not err in this decision.
In its third point on appeal, Benton County Stone asserts that the trial court was required to apply a strict construction of the planning ordinance. See, e.g., Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975) (zoning ordinances, being in derogation of the common law, are to be construed strictly); Rolling Pines, supra. However, given the language used in the circuit court’s order, it is impossible to tell how the court construed the regulation. The relevant paragraph of the court’s order reads as follows:
This de novo appeal by Benton County Stone (“BCS”) is denied. The term “compatibility” or “incompatibility” is not so vague in this case as to be constitutionally void for vagueness. Rolling Pines Ltd. Partnership v. City of Little Rock, 73 Ark. App. 97, 40 S.W.3d 828 (2001). This is especially true where, as here, the County Planning Board’s discretion is limited by ordinance. Further, the record is replete with evidence that the County considered the compatibility of BCS’s proposed quarry in the context of the ordinance’s discretionary restraints.
From this, it is not readily apparent that the court did not construe the regulation strictly. The mere fact that Benton County Stone disagrees with the court’s conclusion does not mean that the court applied anything other than a strict construction; further, Benton County Stone points to nothing specific — other than stating that the trial court “made no indication as to whether it strictly construed the ordinance” — that would support a conclusion that the court did not so construe it. In short, Benton County Stone makes no compelling argument that, even had the trial court strictly construed the ordinance, the ordinance would have been determined to be void for vagueness.
Affirmed.
The circuit court also subsequently denied Benton County Stone’s motion for reconsideration or for new trial.
When Benton County Stone filed its opening brief, its Addendum did not contain a copy of the ordinance that it challenges. In response, appellees O.F. Duffield and others argued that Benton County Stone’s appeal should be dismissed for failure to comply with this court’s abstracting rules. Subsequently, Benton County Stone filed a motion to supplement the Addendum and file a substituted brief. This court granted the motion on July 23,2008, and on August 22, 2008, Benton County Stone filed its substituted brief containing the ordinance in the Addendum. | [
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Per Curiam.
Alvin Travis McCullough was found guilty of rape, kidnapping, and residential burglary and sentenced as a habitual offender to an aggregate term of life imprisonment to be served consecutively to sentences imposed in other cases. Fines totaling $30,000 were also imposed. An appeal from the judgment has been lodged in this court. Appellant McCullough is represented on appeal by Robert Scott Parks, a full-time public defender. Mr. Parks 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. Mishion v. State, 369 Ark. 482, 255 S.W.3d 868 (2007) (per curiam).
We grant Mr. Parks’s motion to withdraw and appoint attorney Daniel D. Becker 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 Jeffrey L. Boen was convicted of theft of property, a class B felony, and criminal mischief, a class A misdemeanor, in the Johnson County Circuit Court. The judgment was filed for record on July 9, 2007. Boen’s notice of appeal was filed on August 29, 2007, by new counsel, John Cameron Burnett. Trial counsel, Kenneth A. Hodges, tendered the record on May 16, 2008, which our clerk correctly declined to file.
Hodges moves this court to direct our clerk to file the record, arguing unavoidable casualty. Hodges states that he informed Boen of both the need to file a notice of appeal within thirty days of the date of judgment and of the cost of the appeal. According to Hodges, Boen then elected to get another attorney. The notice of appeal was filed by Burnett.
In his motion for rule on clerk, Hodges argues that the judgment was filed of record on July 31, 2007. The notice of appeal supplied to this court says that “Jeffery L. Boen ... appealed the Decree of the Circuit Court entered on July 19, 2007.” The judgment furnished as an exhibit to this court is dated July 19, 2007, but is file marked July 31, 2007, which is timely. The motion for rule on clerk is granted.
Both Hodges and Burnett move the court to be relieved as counsel. By filing the notice of appeal, Burnett subjected himself to the court’s jurisdiction and to the requirement of Rule 16. Ark. R. App. P. — Crim. 16(a). Although he was apparently relieved by an order included in the record, the trial court had no authority to relieve counsel after the notice of appeal was filed because exclusive jurisdiction to relieve rests with the appellate court. After he entered his appearance, Burnett effectively abandoned the appeal. It is well settled that under no circumstances may an attorney who has not been relieved by this court abandon an appeal. Rogers v. State, 353 Ark. 359, 107 S.W.3d 166 (2003). Because Burnett took the initiative to file the notice of appeal, he has the responsibility to pursue the appeal, and his motion to be relieved as counsel is denied. Because we find Burnett committed attorney error, we refer him to the Committee on Professional Conduct.
Burnett’s motion to be relieved as counsel is denied; Hodges’s motion to be relieved as counsel is granted; motion for rule on clerk is granted. | [
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Per Curiam.
Appellant Lloyal Willie Bryant, by and through his attorney, Michael Hodson, has filed a motion for rule on clerk. Appellant was convicted of two counts of rape and two counts of sexual assault in the second degree. He was sentenced to life imprisonment on the first two counts and a term of forty (40) years on the second two counts, to be served concurrently. The judgment and commitment order was entered on May 5,2008. Appellant timely filed a notice of appeal from the judgment order on May 29, 2008. The time for filing the record on appeal expired on August 27, 2008. See Ark. R. App. P.-Civ. 5(a), applicable pursuant to Ark. R. App. P.-Crim. 4(a). Appellant’s tender of the record on August 28, 2008, was, therefore, untimely.
Despite Appellant’s failure to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to consider his first appeal when counsel has failed to follow appellate rule. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam). In McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004), we clarified our treatment of motions for rule on clerk and motions for belated appeals.
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 fihng 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 we no longer require 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., 146 S.W.3d at 891.
Mr. Hodson does not admit fault, but his fault is clear from the record. Therefore, we direct the clerk of this court to accept the record and docket the appeal, and we refer the matter to the Committee on Professional Conduct.
Motion granted. | [
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Donald L. Corbin, Justice.
Appellants, Advance America Servicing of Arkansas, Inc., d/b/a Advance America Cash Advance; Advance America, Cash Advance Centers of Arkansas, Inc.; and Advance America, Cash Advance Centers, Inc., appeal from the order of the Clark County Circuit Court denying their motion to compel arbitration of a putative class-action complaint for alleged violations of Arkansas’s Constitution and laws prohibiting usurious interest and deceptive trade practices. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(l) as an appeal involving the interpretation or construction of the Arkansas Constitution. On appeal, Appellants argue the circuit court erred in concluding the arbitration provision in question was invalid for lack of mutuality, in looking outside the arbitration provision to other parts of the underlying contract, and in failing to strike the invalid portion of the contract and to enforce the arbitration provision. We find no error and affirm the circuit court’s denial of the motion to compel arbitration.
Appellee, Brenda McGinnis, filed a putative class-action complaint against Appellants in circuit court on February 27, 2007, alleging Appellants had charged her and other potential class members usurious interest, engaged in deceptive trade practices, and violated a prior court-approved settlement agreement. According to the complaint, Appellee engaged in a transaction with Appellants at their Jonesboro, Arkansas, branch office on Novem ber 3, 2006, whereby she wrote a check for $278.83 and Appellants gave her $250.00 in cash and agreed to hold her check until her next payday. The complaint alleged this transaction was typical of the transactions between Appellants and its customers in Arkansas and amounted to a loan resulting in an effective annual percentage rate of over 150% in violation of the prohibition of usurious interest contained in article 19, section 13 of the Arkansas Constitution. As such, the complaint alleged entitlement to twice the amount of interest paid plus costs and attorney’s fees. See Ark. Const, art. 19, § 13; Ark. Code Ann. §§ 4-57-101 et seq. (Repl. 2001 & Supp. 2005). In addition to being a usurious loan, the complaint also alleged this transaction was a violation of the Arkansas Deceptive Trade Practices Act, Arkansas Code Annotated sections 4-88-101 et seq. (Repl. 2001 & Supp. 2003), entitling Appellee to her actual damages plus costs and attorney’s fees. The complaint alleged further that the transaction demonstrated that Appellants were operating under the Check-Cashers Act, Arkansas Code Annotated sections 23-52-101 et seq. (Repl. 2000 & Supp. 2005), and charging fees under that act in violation of a settlement agreement to cease conducting check-cashing transactions in Arkansas approved by the circuit court in Garrett v. Advance America, Cash Centers of Arkansas, Inc., Clark County Circuit Court, Case No. CIV-99-152.
Appellants moved to compel arbitration of the matters alleged in the complaint. They argued that Appellee’s claims arose from six transactions between her and Appellants conducted from September 1, 2006 to February 2, 2007, pursuant to a Deferred Presentment Option Agreement (Customer Agreement) she executed with Appellants. Appellants contended that, pursuant to the express terms of the Customer Agreement she signed, Appellee was required to submit to arbitration the claims alleged in her complaint. Appellants argued that Appellee did not challenge the arbitration provision of the Customer Agreement; rather, she asserted a challenge to the Customer Agreement as a whole and therefore Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), required the circuit court to send the case to arbitration. Appellants attached to their motion to compel arbitration a copy of the Customer Agreement. The portions of that Customer Agreement that are at issue in this appeal are as follows:
Deferred Presentment Option Agreement
Default, Returned Check Fee, Court Costs, and Attorney’s Fee. You will be in default under this Customer Agreement if you do not pay us any amount you owe us under this Customer Agreement or you cause your Check not to be honored on or after the Presentment Date. If the Check is returned to us from your bank or other financial institution due to insufficient funds, closed account, or a stop-payment order, we shall have the right to all civil remedies allowed by law to collect the check and shall be entided to recover a returned check fee of $25.00 as authorized by applicable Arkansas law, court costs, and reasonable attorney’s fee paid to an attorney who is not our salaried employee. Neither we nor any other person on our behalf will institute or initiate any criminal prosecution against you.
Acknowledgments. Please note that this Customer Agreement contains a binding Waiver of Jury Trial and Arbitration Provision. Y ou acknowledge that we issued a copy of this Customer Agreement to you. You acknowledge that we paid the proceeds of the transaction to you, in cash. ... You further acknowledge that you have read, understand, and agree to all of the terms on both sides of this Customer Agreement, including the provision on the other side of this Customer Agreement entitled “Waiver Jury Trial and Arbitration Provision.”
WAIVER OF JURY TRIAL AND ARBITRATION PROVISION. Arbitration is a process in which persons with a dispute: (a) waive their rights to file a lawsuit and proceed in court and to have a jury trial to resolve their disputes; and (b) agree, instead, to submit their disputes to a neutral third person (an “arbitrator”) for a decision. Each party to the dispute has an opportunity to present some evidence to the arbitrator. Pre-arbitration discovery may be limited. Arbitration proceedings are private and less formal than court trials. The arbitrator will issue a final and binding decision resolving the dispute, which may be enforced as a court judgment. A court rarely overturns an arbitrator’s decision. Nothing contained in this Waiver of Jury Trial and Arbitration Provision (hereinafter the “Arbitration Provision”) shall prevent or limit the authority of the Arkansas State Board of Collection Agencies from fully exercising its administrative remedies as set forth in Act 1216 of 1999 nor preclude you from any administrative remedies available to you under the Act. THEREFORE, YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
1. For purposes of this Arbitration Provision, the words “dispute” and “disputes” are given the broadest possible meaning and include, without limitation (a) all claims, disputes, or controversies arising from or relating directly or indirectly to the signing of this Arbitration Provision, the validity and scope of this Arbitration Provision and any claim or attempt to set aside this Arbitration Provision; (b) all federal or state law claims, disputes or controversies, arising from or relating directly or indirectly to this Customer Agreement (including the Arbitration Provision), the information you gave us before entering into this Customer Agreement, including the Application, and/or any past agreement or agreements between you and us; (c) all counterclaims, cross-claims and third-party claims; (d) all common law claims, based upon contract, tort, fraud, or other intentional torts; (e) all claims based upon a violation of any state or federal constitution, statute or regulation; (f) all claims asserted by us against you, including claims for money damages to collect any sum we claim you owe us; (g) all claims asserted by you individually against us and/or any of our employees, agents, directors, officers, shareholders, governors, managers, members, parent company or affiliated entities (hereinafter collectively referred to a’s ‘ ‘related third parties’ ’), including claims for money damages and/or equitable or injunctive relief; (h) all claims asserted on your behalf by another person; (i) all claims asserted by you as a private attorney general, as a representative and member of a class of persons, or in any other representative capacity, against us and/or related third parties (hereinafter referred to as “Representative Claims”); and/or (j) all claims from or relating directly or indirectly to the disclosure by or related third parties of any non-public personal information about you.
2. You acknowledge and agree that by entering into this arbitration Provision:
(a) YOU ARE WAIVING YOUR RIGHT TO HAVE A TRIAL BY JURY TO RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES;
(b) YOU ARE WAIVING YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS TRIBUNAL, RESOLVE ANY DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; and
(c) YOU ARE WAIVING YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED THIRD PARTIES.
3. Except as provided in Paragraph 6 below, all disputes including any Representative Claims against us and/or related third parties shall be resolved by binding arbitration only on an individual basis with you. THEREFORE, THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.
6. All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
In her response to Appellants’ motion to compel arbitration, Appellee for the first time asserted a challenge to the arbitration provision of the Customer Agreement as being unenforceable for lack of mutuality. Appellee relied on former case law from this court holding similar arbitration provisions unenforceable as lack ing the element of mutuality of obligation. See, e.g., Nat’l Cash, Inc. v. Loveless, 361 Ark. 112, 205 S.W.3d 127 (2005). Appellee also claimed that the lack of mutuality rendered the Customer Agreement one-sided and therefore unconscionable. According to Ap-pellee’s response, Buckeye was not applicable to her case since she now included a challenge to the arbitration provision of the Customer Agreement.
The circuit court held a hearing on November 20, 2007, on the motion to compel arbitration and ruled from the bench that
the language, reserving the right to all civil remedies, when considered with the language in the arbitration agreement section of the contract, that the arbitration agreement is invalid because the remedies lacked mutuality of the parties, not that the whole contract lacks mutuality. . . .
I’m not making any ruling with regard to the validity or non-validity of the contract. I’m making my ruling only with regard to the language which I think has to be considered in conjunction with the arbitration language to determine whether or not the arbitration clause is invalid.
The circuit court then entered an order on January 16, 2008, denying the motion to compel arbitration for the reasons stated from the bench. This appeal followed.
An order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P.-Civ. 2(a)(12). We review the circuit court’s order denying Appellants’ motion to compel arbitration de novo on the record. Nat’l Cash, 361 Ark. 112, 205 S.W.3d 127.
The first point Appellants assign as error to the trial court is the ruling that the “all civil remedies” language in the Customer Agreement renders the arbitration provision unenforceable for lack of mutuality of obligation. Implicit in the circuit court’s ruling was a finding, based upon this court’s case law, that the “all civil remedies” language gives Appellants access to the circuit court while limiting Appellee to arbitration. Appellants assert this was an incorrect interpretation of the arbitration provision, which provides that all disputes arising under the Customer Agreement must be resolved in either small claims court or binding arbitration. Appellants point out that the “all civil remedies” language is located separately and independently from the arbitration provi sion and that the circuit court erroneously grafted the language into the arbitration provision to find that it lacks mutuality. Appellants assert the circuit court erred in fundamentally equating and thereby blurring the distinction between “all civil remedies” available to a party and the “forum” in which a party may seek such remedies. Appellants maintain, for the first time on appeal, that the “all civil remedies” language is an independent-damages provision of the Customer Agreement giving Appellants the right to pursue “all civil remedies” in the event a customer’s check is dishonored, but does not give them the right to pursue those remedies injudicial forums.
Appellants assert five subpoints under this first assignment of error. We address all five subpoints, but first point out that many of these subpoints raised under this first assignment of error were not raised below. At the hearing on the motion to compel arbitration, Appellants’ primary argument was that Buckeye Check Cashing, 546 U.S. 440, required Appellee’s complaint to be heard by an arbitrator. Their focus at the hearing was on the fact that Appellee could not be in court because, according to Buckeye, her complaint only challenged the validity of the contract as a whole and not the arbitration provision. In addition, they argued that it was only in response to the motion to compel that Appellee raised a challenge to the arbitration provision; and then the challenge was not to the arbitration provision itself but to the “all civil remedies” language, which is found elsewhere in the Customer Agreement outside the arbitration provision and therefore required the court to evaluate the contract as a whole in violation of Buckeye. Thus, although there was discussion at the hearing regarding the “all civil remedies” language and mutuality of the arbitration provision, as we discuss in the remainder of this opinion, much of what Appellants now argue specifically on appeal simply was not raised or ruled upon below and is therefore not preserved for appellate review.
It is elementary that this court will not consider arguments that are not preserved for appellate review. Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008). We will not do so because it is incumbent upon the parties to raise arguments initially to the trial court in order to give that court an opportunity to consider them. Id. Otherwise, we would be placed in the position of reversing a trial court for reasons not addressed by that court. Id.
We first dispose of those subpoints that are not preserved for our review. These include Appellants’ arguments that (1) the fact that “all civil remedies” is listed on the face of the Customer Agreement in the same sentence as returned check fee, court costs, and reasonable attorney’s fees reflects the parties’ intent that “all civil remedies” refer to “damages” and not the “forum” in which a party may pursue such damages; and that (2) because the “all civil remedies” language appears outside and independent from the arbitration provision, it would defy the plain meaning of the Customer Agreement and the rules of contract construction to read the “all civil remedies” language as invalid for lack of mutuality. As previously stated, this court does not address arguments presented for the first time on appeal.
Turning now to Appellants’ subpoints that are preserved for our review, we first consider the argument that the “all civil remedies” language in the Customer Agreement merely restates the law as codified in the Check-Cashers Act and its implementing regulations and is therefore evidence that the “all civil remedies” language is intended to ensure Appellants’ right to recover damages, not to give them access to judicial forums. Below, Appellee cited Richard Harp Homes, Inc. v. Van Wyk, 99 Ark. App. 424, 262 S.W.3d 189 (2007), which held that a reference in an arbitration clause to court costs, expenses of litigation, and attorney’s fees rendered the arbitration clause ambiguous and therefore defeated mutuality. Appellants attempted to distinguish Van Wyk based on the fact that the language at issue in this case was a restatement of the Check-Cashers Act.
We note that the Act and regulations do use very similar language giving a check-casher the right to all civil remedies allowed by law, including receiving the face amount of the check purchased, a returned check fee, court costs, and reasonable attorney’s fees. However, the mere statement of such language in the Act does not restore the lack of mutuality of obligation in this Customer Agreement caused by the “all civil remedies” language. This court has consistently and repeatedly held that the reference to “all civil remedies” available to only one party in a check-cashing agreement renders the agreement to arbitrate invalid for lack of mutuality. See, e.g., E-Z Cash Advance v. Harris, 347 Ark. 132, 60 S.W.3d 436 (2001). There, this court stated that “[tjaking into account their line of business, it is difficult to imagine what other causes of action against a borrower remain that [the checkcasher] would be required to submit to arbitration.” Id. at 141, 60 S.W.3d at 442. Thus, regardless of the source and the location of the “all civil remedies” language, there is no other remedy for Appellants to seek in arbitration, and the “all civil remedies” language therefore has the effect of allowing Appellants to go to circuit court, thereby destroying the element of mutuality since Appellee does not also have that right. The location of the “all civil remedies” language in the Customer Agreement and the source of the language have no effect on the issue of mutuality or lack thereof.
Appellants also argue as a subpoint that mutuality of obligation does not require mutuality of remedy. They contend that under this Customer Agreement, the fact that the remedy or damages available to one party may be different than the remedy or damages available to the other party, does not defeat mutuality of obligation in the separate and independent arbitration provision. Contrary to Appellants’ assertion, we do not interpret the circuit court’s ruling as requiring both parties to have the same remedies. Even if the ruling below did so require, however, we can affirm it for the reason that mutuality of obligation is required and is lacking here. It is axiomatic that this court can affirm a circuit court if the right result is reached even if for a different reason. Office of Child Support Enforcement v. Wood, 373 Ark. 595, 285 S.W.3d 599 (2008).
Appellants’ second assignment of error is the circuit court’s holding that a term outside and independent of the arbitration provision rendered the arbitration provision unenforceable. Appellants contend the circuit court erred in looking to provisions of the contract outside the arbitration provision to evaluate the validity of the arbitration provision. The circuit court ruled that the “all civil remedies” language in the Customer Agreement destroyed the arbitration provision’s mutuality. Appellants contend that since the “all civil remedies” language was not part of the arbitration provision itself, the circuit court erroneously evaluated the contract as a whole and thereby contravened Buckeye Check Cashing, 546 U.S. 440.
Buckeye does not stand for the proposition argued by Appellants. Buckeye holds that it is improper for a court to consider a claim that a contract containing an arbitration clause is invalid as a whole when there is not also a claim that the arbitration clause is itself invalid. Buckeye does not, however, also hold that when considering the validity of an arbitration clause, a court is constrained to the clause itself and prohibited from considering other parts of the contract relating to the agreement to arbitrate disputes arising from the contract. Appellants’ argument extends the holding of the Buckeye case too far.
Buckeye involved a putative class action filed in Florida state court alleging the deferred deposit contract signed by Buckeye Check Cashing and its customers violated Florida’s laws prohibiting usury and deceptive trade practices. Buckeye Check Cashing moved to compel arbitration of that case. The United States Supreme Court granted certiorari to decide “whether a court or an arbitrator should consider the claim that a contract containing an arbitration provision is void for illegality.” Buckeye Check Cashing, 546 U.S. at 442. The Supreme Court observed that “[t]he crux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge” and went on to conclude that “because respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court.” Id. at 444, 446. The Supreme Court ultimately held that, “regardless of whether the challenge is brought in federal or state court, a challenge to the validity of a contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” Id. at 449.
Like Buckeye, the complaint in the present case does not assert a challenge to the arbitration provision itself, but rather asserts a challenge to the whole contract as being usurious and a deceptive trade practice. However, unlike Buckeye where there was no challenge to the arbitration provision itself, Appellee in the present case asserted a claim that the arbitration provision was invalid for lack of mutuality of obligation in her response to the motion to compel arbitration.
The circuit court below clearly stated from the bench that it was not making a ruling on the merits of the validity of the contract as a whole, but was ruling that the “all civil remedies” language appearing on the first page of the Customer Agreement rendered the arbitration provision found in the remainder of the Customer Agreement invalid for lack of mutuality. As we quoted previously in this opinion, the circuit court clearly stated: “I’m not making any ruling with regard to the validity or non-validity of the contract. I’m making my ruling only with regard to the language which I think has to be considered in conjunction with the arbitration language to determine whether or not the arbitration clause is invalid.” This ruling does not amount to an evaluation of the validity of the contract as a whole and therefore does not run afoul of Buckeye.
Appellants’ third assignment of error is that the circuit failed to strike the allegedly offensive “all civil remedies” clause and enforce the remainder of the arbitration provision. Appellants contend that rather than invalidating the arbitration provision, the circuit court should have, at most, invalidated and severed only the “all civil remedies” language, while giving effect to the intent of the parties to arbitrate claims covered by the arbitration provision. Appellants concede that the arbitration provision does not contain a severance provision. They argue, however, that the essence of the Customer Agreement is that the parties arbitrate any disputes arising from or related to the Customer Agreement and severing the “all civil remedies” language does not change the essence of that intent to arbitrate.
Neither the addendum nor the abstract reveals that Appellants ever asked the circuit court to strike the “all civil remedies” language and give effect to the remainder of the Customer Agreement. Appellants’ motion to compel arbitration does not raise the issue. The abstract of the hearing does not indicate this issue was ever presented to or ruled upon by the circuit court. Because Appellants did not raise below the argument that the circuit court should have struck the “all civil remedies” language from the Customer Agreement that it now makes on appeal, we do not consider that argument. Seidenstricker, 374 Ark. 123, 286 S.W.3d 142.
Appellee includes an assertion in her brief that this court could affirm the trial court for a reason different from what it ruled — that the arbitration provision was unconscionable. There is no need to address this assertion since we affirm on the lack of mutuality. See, e.g., The Money Place v. Barnes, 349 Ark. 411, 78 S.W.3d 714 (2002) (stating that because the arbitration provision was held unenforceable for lack of mutuality, there was no need to discuss whether the arbitration provision was unconscionable).
We conclude that, consistent with Buckeye, it was permissible for the trial court to rule on the validity of the arbitration provision because Appellee challenged the arbitration provision on an independent basis from her challenge to the contract as a whole. Appellee’s challenge to the contract was that it was a usurious loan, a deceptive trade practice, and a violation of a court-approved settlement agreement. Her challenge to the arbitration provision was that it was unenforceable as lacking mutuality of obligation. The trial court followed the numerous cases from this court invalidating similar arbitration provisions and contract language as lacking mutuality of obligation and therefore correctly denied Appellants’ motion to compel arbitration. The order denying the motion to compel arbitration is affirmed.
We observe that while the motion to compel arbitration was pending in state circuit court, Appellants also filed an action in federal district court to compel arbitration and stay the state-court proceedings. The Court of Appeals for the Eighth Circuit ultimately dismissed that action, determining that the amount in controversy did not satisfy the requirements for diversity jurisdiction. Advance Am. Servicing of Ark., Inc. v. McGinnis, 526 F3d 1170 (2008). | [
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Donald L. Corbin, Justice.
The instant appeal presents the question of whether Appellee Union Planters National Bank is a holder in due course, as defined by the Uniform Commercial Code, and is entitled to seek payment from Appellant Southern Bank of Commerce after a cashier’s check issued by Southern Bank was declined due to insufficient funds. On appeal, Southern Bank argues that the trial court erred in finding that Union Planters was a holder in due course. Southern Bank also argues that the trial court’s award to Union Planters of prejudgment interest was in error. Union Planters cross-appeals and argues that the trial court erred in denying its request for an award of attorney’s fees. We affirm, both on direct appeal and on cross-appeal.
This case stems from a transaction between Raymond and Diane Crutchfield and Regions Bank, whereby Regions approved the Crutchfields’ application for a loan that included a refinancing of their home. At the time, Union Planters held a $97,100 loan against the Crutchfields’ home. Regions contracted with Julia Gray, a closing agent with Security Title, to close the Regions loan, including the payoff to Union Planters. Regions transferred $129,000 to Gray to fund the Crutchfields’ new loan. Security Title then issued a check on September 5, 2003, drawn on Southern Bank and made payable to Union Planters in the amount of $95,506.42, but this check was declined due to insufficient funds. Thereafter, Union Planters contacted Gray and notified her that she must provide a cashier’s check in exchange for the returned check. Gray then issued a personal check, drawn on First National Bank, in the amount of $95,214.20, which she deposited into Security Title’s account at Southern Bank, in order to obtain a cashier’s check that was made payable to Union Planters in the amount of $95,506.42. Gray then delivered the cashier’s check to Union Planters on October 21, 2003, for “the payoff on the Crutchfield loan” and to cover charges stemming from the prior insufficient check.
According to Greg Miller, President of Southern Bank, he received a call from the Federal Reserve on October 22, 2003, informing him that Gray’s check drawn on First National was being returned because it was drawn on insufficient funds. The next day, Miller spoke with Joe Turney, an official with Union Planters, and advised him that Southern Bank would be returning its previously issued cashier’s check because Gray had obtained it through fraud. Turney advised Miller to contact Union Planters’ fraud department in Memphis, Tennessee, which Miller did. When Southern Bank received the cashier’s check on October 23, it stamped it “refer to maker” and returned it to Union Planters. Originally, Union Planters’ internal loan history showed that the Crutchfields’ loan was paid in full, but the loan was returned to Union Planters’ books after the cashier’s check was returned, and therefore Union Planters did not release its mortgage on the Crutchfields’ property.
Counsel for Union Planters contacted Regions Bank and demanded that Union Planters’ mortgage be paid in full. Union Planters threatened to foreclose on the property if Regions did not comply. Then, however, Union Planters and Regions entered into negotiations that resulted in a merger of the two banks. Union Planters subsequently entered into an agreement promising not to sue Regions or the title insurer over Gray’s fraudulent cashier’s check. Union Planters then filed suit against Southern Bank on February 24, 2005, alleging that it was a holder in due course of the cashier’s check and requesting that Southern Bank be required to pay the check.
A bench trial was held in Craighead County Circuit Court on July 3, 2007. At the conclusion of the trial, the court held that Union Planters was not a holder in due course pursuant to Ark. Code Ann. § 4-3-302 (Supp. 2001), because it did not give value for the cashier’s check as defined in Ark. Code Ann. § 4-3-303 (Supp. 2001). Union Planters then filed a motion under Ark. R. Civ. P. 59 to alter or amend the judgment. After taking the motion under advisement, the circuit court reversed its previous order, finding that because the cashier’s check was transferred as payment of an antecedent loan that Union Planters had against the Crutch-fields, Union Planters was a holder in due course. Thus, the court entered a judgment in favor of Union Planters in the amount of $95,506.42. The trial court entered a subsequent order on November 27, 2007, declining to award attorney’s fees to either party, but granting an award of prejudgment interest to Union Planters in the amount of $20,320.61 and costs of $174.58. Southern Bank then appealed, and Union Planters cross-appealed on the order declining to award it attorney’s fees.
As its first point on appeal, Southern Bank argues that the trial court erred in entering judgment in favor of Union Planters because it was not a holder in due course, as it took the cashier’s check with sufficient notice of Gray’s fraud and it did not give value for the cashier’s check. Union Planters counters that the trial court correctly determined that it was a holder in due course because it took the check for value, in good faith, and without notice that the check had been dishonored. More specifically, Union Planters avers that it gave value for the check as it was an instrument issued or transferred as payment of, or as security for, an antecedent claim. Union Planters is correct.
We begin our review by turning to the applicable statutes. Section 4-3-302(a)(2) defines a holder in due course as one who takes “the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonoredf.]” Section 4-3-303(a) (3) specifically provides that an instrument is transferred for value if it “is issued or transferred as payment of, or as security for, an antecedent claim against any person[.]” Thus, the question to be decided is whether Union Planters took the cashier’s check for value as set out in section 4-3-303, and without notice, so that it is entitled to holder-in-due-course status.
The issue of whether a bank was a holder in due course was addressed by this court in Byrd v. Security Bank, 250 Ark. 214, 464 S.W.2d 578 (1971). In that case, the appellants executed blank promissory notes in favor of a gin company. The gin company then filled in the notes for varying amounts and assigned them to the appellee Security Bank. After the notes matured and went unpaid, Security Bank brought suit. The court found that Security Bank was a holder in due course because the notes were taken for value as they were accepted for “payment of, or in security, for an antecedent claim[.]” Id. at 217, 464 S.W.2d 580.
Considering this court’s holding in Byrd and giving the words of4-3-303 their plain meaning, it appears that the trial court correctly concluded that Union Planters was a holder in due course, where it accepted the cashier’s check for payment of the Crutchfields’ loan, an antecedent claim. Southern Bank’s argument that Union Planters cannot be a holder in due course because it never acted on the cashier’s check, i.e., it never released the mortgage on the Crutchfields’ property, is inapposite. Here, the evidence at trial was that Union Planters never released the note, the loan remained on the books, and the Crutchfields have made no payments on Union Planters’ loan. Thus, Southern Bank’s assertion that a finding that Union Planters was a holder in due course would result in a windfall is simply without merit, as Union Planters’ ability to collect on the cashier’s check as a holder in due course will simply allow it to finally discharge the Crutchfields’ mortgage that remains unpaid.
Moreover, we are unpersuaded by Southern Bank’s reliance on American Federal Savings & Loan v. Madison Valley Properties, Inc., 958 P.2d 57 (Mont. 1998), in support ofits contention that Union Planters cannot be a holder in due course. In that case, a customer obtained a cashier’s check from Valley Bank by using stolen funds and then used the cashier’s check to pay off a debt he had with American Federal. Once American Federal learned of the customer’s fraud, it stopped the payoff on the customer’s loan. In addressing the issue of whether American Federal was a holder in due course, the Montana court, relying on Montana’s version of the UCC, held that the cashier’s check was not issued or transferred for value where the lending institution did not release its security interest in the collateral before it received notice that the check was being rescinded. The court reasoned that, while the lender had taken certain internal administrative steps toward discharging the note and releasing the lien, those could all be administratively rescinded and, in fact, were rescinded. The court ultimately concluded that, by not irrevocably releasing its security interest, the lender had not taken the cashier’s check for value by the time it received notice.
While the fact situation is somewhat similar to the one now before us, we disagree that the reasoning utilized by the Montana court is applicable here. In fact, we find the case of Peoria Savings & Loan Ass’n v. Jefferson Trust & Savings Bank of Peoria, 410 N.E.2d 845 (Ill. 1980), to be more instructive in the instant matter. There, the Illinois Supreme Court concluded that a bank gave value the instant it accepted a cashier’s check, even though no bookkeeping entry was made with respect to the deposit of the check until after the plaintiff bank had issued a stop-payment order. The court noted that in enacting Illinois’s version of the UCC the legislature had not included a requirement that value was not given until the instrument was posted or applied to an account. Accordingly, the court opined no such requirement should be read into the statute. Likewise, our legislature in enacting section 4-3-303 (a) (3) did not include any language requiring a party to take immediate action on the antecedent claim in order to obtain holder-in-due-course status, and we will not read such a requirement into the statute. Accordingly, Union Planters took the cashier’s check for value.
Next, we must determine whether Union Planters took the cashier’s check with knowledge of its deficiency. For the following reasons, we conclude that Union Planters took the cashier’s check without such notice. A person has “notice” of a fact if the person: (1) has actual knowledge of it; (2) has received a notice or notification of it; or (3) from all the facts and circumstances known to the person at the time in question, has reason to know that it exists. See Ark. Code Ann. § 4-1-202 (Supp. 2007). In addressing the issue of notice, this court has held that the burden is on the appellant to demonstrate that the appellee took an instrument with actual knowledge of its infirmity or defect. See Cruce v. Dillard, 203 Ark. 451, 156 S.W.2d 879 (1941). In Cruce, the court concluded that where the instrument was complete and regular on its face, was acquired by appellee before it was overdue, and had not previously been dishonored, there was no merit to the appellant’s argument that the appellee took the instrument with knowledge of its defect.
Here, it is undisputed that Union Planters did not learn that the check was going to be dishonored until the day after it had been received by Union Planters. Southern Bank avers, however, that the notice received after the cashier’s check was transferred prevents Union Planters from claiming to be a holder in due course. In advancing its argument, Southern Bank points to section 4-3-302(f) and argues that such notice was effective as it prevented Union Planters from releasing the Crutchfields’ mortgage. Section 4-3-302(f) states that “[t]o be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.” While this section sets forth prerequisites that must be satisfied before notice can be deemed effective, it does not stand for the proposition that a party takes an instrument with notice of a defect when such notice is received after transfer of that instrument. A person receives notice when it comes to that person’s attention. See Ark. Code Ann. § 4-l-202(e)(l). At the time Union Planters took the cashier’s check, it did not have notice of the check’s insufficiency, as it was not brought to Union Planters’ attention until the day after the check was negotiated. Accordingly, because Union Planters took the cashier’s check in good faith, for value, and without knowledge of its insufficiency, Union Planters was a holder in due course.
Next, Southern Bank argues that if this court affirms the trial court’s finding that Union Planters was a holder in due course, Union Planters is not entitled to prejudgment interest, as Union Planters cannot demonstrate that it has been injured by Southern Bank’s actions.
This court recently addressed an award of prejudgment interest and stated:
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. See Reynolds Health Care Servs., Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005); Ozarks Unlimited Res. Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998). Prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that makes it possible to compute the amount without reliance on opinion or discretion. See id. This standard is met if a method exists for fixing the exact value of a cause of action at the time of the occurrence of the event that gives rise to the cause of action. See Reynolds, 364 Ark. 168, 217 S.W.3d 797. Where prejudgment interest may be collected at all, the injured party is always entitled to it as a matter of law. See id.; Ozarks, 333 Ark. 214, 969 S.W.2d 169. Nevertheless, prejudgment interest is always dependent upon the initial measure of damages being determinable immediately after the loss and with reasonable certainty. See Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981).
Sims v. Moser, 373 Ark. 491, 509, 284 S.W.3d 505, 519 (2008). As we stated in Sims, it is irrefutable that the key factor in determining the appropriateness of prejudgment interest is whether the exact value of the damages at the time of the occurrence of the event that gives rise to the cause of action is definitely ascertainable, without reliance upon opinion or discretion. See also Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 372 Ark. 190, 272 S.W.3d 91 (2008).
Here, the issue is not one of whether the exact amount of damages is definitely ascertainable; rather Southern Bank contends that Union Planters is not entitled to prejudgment interest because it suffered no damages. According to Southern Bank, this case is analogous to the situation presented to this court in Sorrells v. Bailey Cattle Co., 268 Ark. 800, 595 S.W.2d 950 (1980). There, this court declined to award a prevailing plaintiff prejudgment interest because the plaintiff could have taken possession of the property they were purchasing but chose not to do so. Thus, Southern Bank argues that Union Planters could have demanded that Regions pay off the Crutchfields’ mortgage, but chose not to, and therefore should be denied prejudgment interest. There is no merit to this argument, as Union Planters’ recourse as a holder in due course was against Southern Bank and Southern Bank’s failure to honor the cashier’s check prevented Union Planters from closing the Crutchfields’ loan and further caused Union Planters to incur the present litigation in order to recover on that check. Accordingly, we cannot say the trial court’s order of prejudgment interest was in error.
On cross-appeal, Union Planters argues that it was entitled to attorney’s fees pursuant to Ark. Code Ann. § 16-22-308 (1999), and thus it was error for the trial court to deny its request for such fees. Southern Bank counters that the decision to award attorney’s fees is discretionary, and the trial court properly determined an award of fees was not warranted in this case. Specifically, Southern Bank contends that Union Planters took no action to release the Crutchfields’ mortgage, Union Planters received a large benefit from the court’s order, and Southern Bank suffered a loss, therefore, it was proper to deny the request for attorney’s fees.
An award of attorney’s fees 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.
This court has recognized that because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, we usually recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998).
An award of attorney’s fees under section 16-22-308 is not mandatory; rather, it is a matter within the discretion of the trial court. Considering the deference that we give to a trial court’s decision regarding attorney’s fees, we cannot say that Union Planters has demonstrated that the trial court abused its discretion in denying the request for attorney’s fees.
Affirmed on direct appeal; affirmed on cross-appeal.
Gray was indicted in federal district court and ultimately pleaded guilty to one count of bank fraud. As part of her plea agreement, Gray was ordered to pay restitution to Bank of Paragould in the amount of 850,655.22 and to Southern Bank in the amount of $95,506.42. At the time of the trial of this matter, Gray had been making restitution payments to Southern Bank.
The Crutchfields are making payments on the loan proceeds made available by Regions Bank that were turned over to Julia Gray for purposes of closing the Crutchfields’ loan. | [
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Per Curiam.
Rule 2-4 of the Rules of the Arkansas Supreme Court require petitions for review to “briefly and distinctly state the basis upon which the case should be reviewed” and “may include citations to authority or references to statutes or constitutional provisions.” Although subsection (b) of that rule prohibits briefs in support of review petitions, it allows petitioners to attach a copy of their petition for rehearing before the Court of Appeals. Rule 2-3 dictates the procedure and requirements of petitions for rehearing and allows a brief in support to be filed with a petition for rehearing.
Appellee, the Arkansas Department of Human Services, claimed in its petition for review that the Court of Appeals “made errors of fact and law and should be reversed.” The petition fails to note with particularity what it believes those errors to be and upon what grounds this court should grant review. Although Appel-lee attached its petition for rehearing, it is a nearly identical copy of the review petition and gives no additional argument or citation to authority. Appellee also attached its Brief in Support of Petition for Rehearing to its review petition, and it is in that document that Appellee makes its substantive argument regarding the errors it believes the appellate court made. Because Rule 2-4 prohibits this court from accepting briefs in support of petitions for review, we cannot consider the arguments made in the Brief in Support of the Petition for Rehearing.
For purposes of clarification to the Bar, this court will only consider the Petition for Review filed with this court pursuant to Rule 2-4 and, if attached to the review petition, the Petition for Rehearing to the Court of Appeals. It will not accept a brief in support of the review petition and will not consider a brief in support of the rehearing petition.
Appellee’s petition for review is denied. | [
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Per Curiam.
Appellant Charles Jason Baldwin, by and through his attorneys, has filed a motion for rule on clerk. His attorneys, J. Blake Hendrix and John T. Philipsborn, state in the motion that our clerk refused to accept their untimely tender of the record.
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. Hendrix and Mr. Philipsborn have candidly admitted fault. The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Motion granted.
Wills, J., not participating. | [
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Donald L. Corbin, Justice.
This is an appeal from an order granting summary judgment in favor of Appellees Farmers Insurance Company, Inc., and Mid-Century Insurance Company Los Angeles, California, a member of the Farmers group, in a case where Appellant Ruth Ann Couch, Administratrix of the Estate of Jennifer Ann Green, Deceased, sought recovery for underinsured-motorist (UIM) benefits under multiple policies issued by Appellees. Appellant raises three arguments on appeal, specifically that the trial court erred in finding that the other insurance provisions of the policies issued by Appellees were (1) unambiguously incorporated into the UIM endorsement; (2) not void as being in derogation of Ark. Code Ann. § 23-89-209 (Repl. 2004); and (3) not void as against public policy when applied to the UIM coverage.-As this appeal presents a question of statutory interpretation, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(6). We find no error and affirm.
The record reflects that on January 15, 2000, Jennifer Ann Green was killed in a single-vehicle accident, while a passenger in Jason Reams’s vehicle. At the time of her death, Jennifer was a named insured on an automobile insurance policy issued by Appellee, Mid-Century. This policy provided UIM coverage in the amount of $50,000 for all claims arising out of injury to a single person. After a settlement was reached whereby Reams’s insurance carrier paid $20,000 to Appellant, Mid-Century paid benefits of $50,000, including $5,000 for a death benefit and $5,000 to cover funeral expenses, under the UIM coverage of the policy upon which Jennifer was the named insured.
Once Mid-Century paid out on Jennifer’s policy, Appellant sought payment for UIM benefits under three additional policies in effect with Appellees, wherein Jennifer, as a family member of the three named insureds and a resident of the household, was an insured under those policies. Two of the policies at issue, each with $50,000 limits under the UIM coverage, were issued by Farmers: Policy No. 18146299762 and Policy No. 18146299763, with the named insureds under both policies being Joe and Ruth Ann Couch, Jennifer’s stepfather and mother. The third policy, Policy No. 18150550870, also with a $50,000 limit of UIM coverage, was issued by Appellee Mid-Century and listed the named insured as Roddy Couch, Jennifer’s sibling. Appellees refused to pay under the three additional policies, citing to other insurance provisions in those policies that Appellees asserted precluded Appellant from recovering under multiple policies.
Appellant filed suit, alleging that premiums had been paid for UIM coverage on each of the three policies, and because Jennifer was an insured under each of those policies, they were entitled to benefits from Farmers in the amount of $100,000, and benefits from Mid-Century in the amount of $50,000. Appellant also sought an award of statutory penalties, prejudgment interest, and all costs, including attorneys’ fees. After filing an answer denying Appellant’s allegations, Appellees filed a motion for summary judgment. Therein, Appellees stated that Mid-Century had paid out on the policy in which Jennifer was the named insured and that the Appellant sought to stack the UIM benefits from three additional policies, each of which contained anti-stacking provisions. Appellees asserted that because of the clear and unambiguous anti-stacking language, it was entitled to summary judgment. Thereafter, the trial court entered an order denying the motion for summary judgment.
Appellees filed a renewed and amended motion for summary judgment, again arguing that the three policies at issue each contained anti-stacking provisions that prohibited Appellant from recovering under multiple policies. After taking the motion under advisement, the circuit court entered a letter order on July 16, 2007, granting the motion for summary judgment. Therein, the circuit court acknowledged that it initially denied the motion for summary judgment, but upon review of the amended motion, which included an argument about a specific provision within the policies regarding stacking between multiple policies issued by the same insurance company, determined that summary judgment was warranted. A written order reflecting the trial court’s ruling was entered of record on September 26, 2007. This appeal followed.
The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Stromwall v. Van Hoose, 371 Ark. 267, 265 S.W.3d 93 (2007). 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. See 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. See 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. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id. The facts here are undisputed by the parties. As there is not a genuine issue of material fact, the case was appropriately determined as a matter of law. Therefore, the issue here is whether summary judgment was granted in favor of the correct party based upon the interpretation of the law at issue.
As her first point on appeal, Appellant argues that the circuit court erred in finding that the other insurance provisions of the policies were unambiguously incorporated in the UIM coverage endorsement. Specifically, Appellant asserts that the anti-stacking language contained in the UIM section is limited to intra-policy stacking and is thus inapplicable in this case. Appellant further argues that if the applicability of the other insurance clause is ambiguous, any ambiguity must be resolved in favor of the insured. Appellees counter that the anti-stacking provision is clear and unambiguous. We agree with Appellees.
When presented with an issue regarding interpretation of a contract, this court has stated:
The first rule of interpretation of a contract is to give to the language employed the meaning that the parties intended. 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. “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.” 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.
Health Resources of Ark., Inc. v. Flener, 374 Ark. 208, 211, 286 S.W.3d 704, 706-07 (2008) (citations omitted).
In granting summary judgment, the circuit court held that each of the four insurance policies at issue contained clear and unambiguous anti-stacking language that applied to the UIM coverage. Specifically, the court stated that the anti-stacking language appeared “to be applied by reference to the Under-Insured Motorists Endorsement and by its terms it unambiguously provides that the policy limits of the four policies in this case cannot be stacked.” We now turn to the policy provisions at issue.
In one of the insurance policies issued by Farmers on behalf of the named insureds, Joe Couch and Ruth Ann Couch, the following language is found:
PART II— UNINSURED MOTORISTS
Coverage C — Uninsured Motorist Coverage
(Including Underinsured Motorist Coverage)
Other Insurance
4. If any applicable insurance other than this policy is issued to you by us or any other member company of the Farmers Insurance Group of Companies, the total amount payable among all such policies shall not exceed the limits provided by the single policy with the highest limits of liability.
The following language is found in the endorsement for Underinsured-Motorist Coverage:
Under Part II of the policy the provisions that apply to Exclusions, Limits of Liability, Other Insurance and Arbitration remain the same and apply to this endorsement except where stated otherwise in this endorsement.
This endorsement is part of your policy. It supersedes and controls anything to the contrary. It is otherwise subject to all other terms of the policy.
Considering our rules of contract interpretation and giving the language employed the meaning the parties intended, we cannot say that the trial court erred in finding that the anti-stacking language clearly and unambiguously applied to the UIM coverage. Nothing in the insurance contracts demonstrates the existence of an ambiguity involving intra-policy stacking versus inter-policy stacking, as Appellant suggests. The language cited by Appellant, “[o]ur maximum liability under the UNDER-Insured Motorist Coverage is the limits of the UNDERInsured Motorist Coverage stated in this policy,” is not in conflict with the other insurance clause and simply sets forth the limits for liability under that particular policy. Accordingly, there is no merit to Appellant’s argument that there was an ambiguity in the insurance contracts.
Next, Appellant argues that the trial court erred in finding that the other insurance clause when applied to UIM coverage was not void as being in derogation of section 23-89-209. In support of this argument, Appellant cites to this court’s decision in Heiss v. Aetna Casualty & Surety Co., 250 Ark. 474, 465 S.W.2d 699 (1971). Appellees counter that Heiss is inapplicable and nothing in section 23-89-209 precludes the prohibition against the stacking of policies. Appellees are correct.
We review issues of statutory construction de novo. Ryan & Co. AR, Inc. v. Weiss, 371 Ark. 43, 263 S.W.3d 489 (2007). It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. 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 construction. Id. We turn then to the statute at issue.
Section 23-89-209 sets forth the provisions for UIM coverage and provides in relevant part:
(a)(1) No private passenger automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall be delivered or issued in this state or issued as to any private passenger automobile principally garaged in this state unless the insured has the opportunity, which he or she may reject in writing, to purchase underinsured motorist coverage.
Clearly, section 23-89-209 mandates that an insurer make UIM coverage available to an insured, but an insured is allowed to reject such coverage in writing. We fail to see, however, how the anti-stacking provisions at issue here are in derogation of this section. Simply because an insurer must offer UIM coverage does not translate to a requirement that an insurer not be allowed to prohibit the stacking of benefits. We agree with Appellees that an exclusion to coverage cannot violate public policy where an insured can opt out of UIM coverage altogether. See Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002).
Likewise, the Heiss decision relied on by Appellant is unavailing in this regard. In Heiss, 250 Ark. 474, 465 S.W.2d 699, a man was killed in a collision involving an uninsured motorist. The deceased had an insurance policy and paid separate premiums for uninsured-motorist coverage and medical payments. The insurer claimed that it was entitled to deduct the medical payments made from the $20,000 limit contained in the uninsured-motorist section of the policy. This court rejected the insurer’s argument, holding that any such deduction for medical expenses was in derogation of the explicit requirements of the uninsured-motorist statute and financial responsibility laws at issue, which established limits of payment for injuries or death. To hold otherwise would have allowed the insurer to pay less than mandated by the legislature. Pursuant to section 23-89-209(a)(4), however, if an insurer issues UIM coverage, such coverage must be at least equal to the limits prescribed for bodily injury or death in Ark. Code Ann. § 27-19-605 (Repl. 2008), and the amount paid by Farmers under Jennifer’s policy exceed that statutory limit. Accordingly, our decision in Heiss is of no import to the present case.
Before leaving this point, we note that Appellant argues that it is unfair to allow Appellees to receive multiple premiums but only require them to pay on one policy. In support of this contention, Appellant cites to cases from other jurisdictions that have held as much. First, just as we held in Chamberlin v. State Farm Mutual Automobile Insurance Co., 343 Ark. 392, 36 S.W.3d 281 (2001), the reliance on authority from other jurisdictions is unpersuasive, particularly where this court has previously addressed the same issue. Moreover, the Couch family maintained four insurance policies on four different automobiles, and the premiums paid on those policies were calculated based on coverage for each singular vehicle. At the time the Couches contracted with Appel-lees to provide insurance coverage, they were aware that each of those policies contained language prohibiting the stacking of multiple policies. If we were to void the anti-stacking provisions of these contracts, Appellees would be forced to pay quadruple coverage in exchange for only one premium paid for the deceased. Accordingly, we find no merit to the contention that Appellees are gaining a windfall because it accepted multiple premiums where those premiums were calculated on coverage for a single vehicle and based on the explicit prohibition of stacking multiple policies.
As her final point on appeal, Appellant argues that the trial court erred in finding that the other insurance clause, when applied to UIM coverage, is not void as against public policy. In support of her contention, Appellant argues that the anti-stacking provision undermines the public policy favoring compensation of the person wrongfully injured or killed and that limitations on coverage are not favored. In advancing her argument, Appellant acknowledges this court’s decisions in Clampit v. State Farm Mutual Automobile Insurance Co., 309 Ark. 107, 828 S.W.2d 593 (1992), and Chamberlin, 343 Ark. 392, 36 S.W.3d 281, but argues that those cases are distinguishable and should be limited so as to not apply to this case. Appellees counter that this court has settled the public-policy argument and that there is no reason to deviate from that precedent. We agree.
This court has held that unless the legislature has specifically prohibited exclusions, courts will not find the restrictions void as against public policy. Harasyn, 349 Ark. 9, 75 S.W.3d 696. Moreover, as we previously stated, an exclusion to coverage cannot violate public policy when one considers that a driver can opt out of the coverage altogether. Id. While acknowledging the holding in Harasyn, Appellant avers that the decision should be overruled or at least limited to the facts of that case. In the absence of a compelling reason to do so, this court declines to overrule Harasyn. It has been said that
[it] is necessary, as a matter of public policy, to uphold prior decisions unless great injury or injustice would result. The policy behind stare dedsis is to lend predictability and stability to the law. 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. Precedent governs until it gives a result so patently wrong, so manifesdy unjust, that a break becomes unavoidable.
State Auto Prop. & Cas. Ins. Co. v. Ark. Dep’t of Envtl. Quality, 370 Ark. 251, 257, 258 S.W.3d 736, 741 (2007) (quoting Cochran v. Bentley, 369 Ark. 159, 174, 251 S.W.3d 253, 265 (2007)).
Appellant also acknowledges this court’s holdings in Clampit and Chamberlin upholding anti-stacking provisions as not being violative of public policy. Appellant contends, however, that those two cases are distinguishable and that their application should be limited. We disagree. In Clampit, 309 Ark. 107, 828 S.W.2d 593, a husband and wife owned two vehicles that were insured under separate policies. The couple and their daughter were killed in an automobile collision while occupants in one of the insured vehicles. The other driver was underinsured, and personal representatives of the deceased brought an action against the insurer to recover the limits of UIM benefits under both policies. The insurer refused to pay under both policies, citing an owned-but-not-insured exclusion which precluded recovery under both policies. This court held that the exclusion to UIM coverage did not violate the public policy of this state, explaining, by way of example, that if an insurer is required to insure against a risk of an undesignated-but-owned vehicle, it is required to insure against risks that it is unaware of and unable to charge a premium for. The court further reasoned:
If we were to disallow the exclusions in question, the insurance companies would have to spread the increased (and unknown) risk among all insureds, regardless of the risk or circumstances of each case, the end result being that multi-car owners would be acquiring insurance at rates subsidized by single-car owners — a result we deem neither desirable nor compatible with pubhc policy.
Id. at 113, 828 S.W.2d at 597.
Following Clampit, this court again addressed the issue of stacking in Chamberlin, 343 Ark. 392, 36 S.W.3d 281. In that case, the insured, while a passenger in her husband’s vehicle, was injured in a collision with an underinsured driver. At the time of the accident, the insured and her husband owned three separate insurance policies, one for each of their three vehicles, issued by the same insurer. The insurer paid UIM benefits on only one policy, rejecting claims on the other two policies because of owned-but-not-insured exclusions contained in each policy. The insured filed suit, and after the trial court granted summary judgment, the insured appealed to this court. We affirmed the grant of summary judgment, noting that we had considered and rejected the appellant’s precise argument in Clampit. Although the insured argued that this court’s position reflected a minority-jurisdiction position, this court held that it was bound to follow its prior law. In concluding that the anti-stacking provision was valid, the court noted that the policy language was clear and unambiguous and that the parties were free to contract as to the terms, as long as they were not violative of state law. Finally, the Chamberlin court noted: “Although aware of our judicial decisions . . . the legislature has not amended the governing statutes to permit stacking. . . . [T]he General Assembly’s silence over ‘a long period gives rise to an arguable inference of acquiescence or passive approval’ to the court’s construction of the statute.” Id. at 398, 36 S.W.3d at 284 (quoting Chapman v. Alexander, 307 Ark. 87, 90, 817 S.W.2d 425, 427 (1991)).
Despite the clear pronouncements in both Clampit and Chamberlin, Appellant asks this court to deviate from its established position that anti-stacking provisions are not contrary to the public policy of this state. The distinction that those two cases involved owned-but-not-insured exclusions rather than another insurance clause is not a meaningful one. The gist of Clampit and Chamberlin is that an insurer may prohibit the stacking of multiple insurance policies if those policies unambiguously prohibit the stacking of benefits. Just as in the prior cases, at issue here are multiple policies insuring multiple vehicles, and each of those policies contained clear and unambiguous language excluding the stacking of policies. If we were to disallow those exclusions, we would bind Appellees to a risk that was plainly excluded and for which Appellant did not pay. Accordingly, we find no merit to Appellant’s argument that the trial court erred in determining that the anti-stacking provisions were not void as violative ofpublic policy.
Affirmed.
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Elana Cunningham Wills, Justice.
Wesley and Tina Seth appeal from an order of the Sebastian County Circuit Court granting St. Edward Mercy Medical Center’s (St. Edward) motion for summary judgment on the basis of the charitable immunity doctrine. The Seths first argue that the trial court erred because St. Edward waived any claim of charitable immunity from suit or liability and that the principle of estoppel prevents application of the defense to St. Edward. Second, the Seths argue that the trial court erred in retroactively applying this court’s decision in Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), and by refusing to allow amendment of their complaint to name St. Edward’s pooled liability fund owner and/or its commercial liability insurer as proper party defendants.
On February 18, 2004, the Seths filed a medical negligence suit against St. Edward, Arkansas Heart Center, Emergency Medicine Associates, and two doctors. The complaint also named St. Edward’s unknown insurer in the event that St. Edward asserted a charitable immunity defense, and stated in paragraph seven of the complaint that St. Edward “may claim immunity from suit or tort liability as a charitable or non-profit entity,” and “in such case, John Doe Insurance Company would be the appropriate Defendant under the Arkansas direct action statute.” St. Edward filed an answer to the Seth’s complaint on March 16, 2004, averring that it was a nonprofit corporation, denying negligence or causation, and asserting certain affirmative defenses. However, St. Edward specifically responded to paragraph seven of the Seths’ complaint in its answer by stating, “No response from this defendant is required to paragraph 7 of the Complaint. To the extent any response is required, the allegations in paragraph 7 are denied.”
The Seths filed a motion for partial summary judgment on November 28, 2005, asserting that no factual issues remained to preclude determination of St. Edward’s negligence. St. Edward filed a response to the answer on December 30, 2005, contending that genuine issues of material fact remained, but once again did not raise the defense of charitable immunity. The trial court denied the Seths’ motion.
On January 24, 2007, St. Edward filed an amended answer to the Seths’ complaint, asserting for the first time that it was entitled to charitable immunity from liability and suit. On the same date, St. Edward also filed a motion for summary judgment, requesting that the trial court dismiss the complaint against it because it was a charitable entity as a matter of law and, therefore, immune from tort liability. The Seths filed a response to St. Edward’s motion for summary judgment, arguing that Arkansas law at the time the action arose and the complaint was filed required St. Edward to be named as a defendant because it was not immune from suit. Further, the Seths contended that St. Edward never asserted the defense of immunity from suit in its original answer or the amended answer, thus waiving such defense under Ark. R. Civ. P. 8 and 12 and under the principle of estoppel. The Seths also argued that “[n]ew law,” presumably Low, supra, should not be applied retroactively to this case. Alternatively, the Seths argued that if St. Edward was dismissed from the complaint, the court should allow substitution of Sisters of Mercy, a Missouri corporation that managed a pooled liability fund for St. Edward, and/or St. Edward’s separate commercial liability insurer as proper party defendants under the direct-action statute. The Seths also argued that they should be allowed to amend their complaint to add the individual employees of St. Edward as defendants under Ark. R. Civ. P. 15. The Seths did not file a separate motion to strike St. Edward’s amended answer as provided by Rule 15(a).
The trial court issued an order on May 9, 2007, granting St. Edward’s motion for summary judgment “[pjursuant to the case law as set forth in George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206 (1999); Low v. Insurance Co. of North America, et al., 364 Ark. 427 (2005); and Sowders v. St. Joseph’s Mercy Health Center, 06-414 (Ark. 1-18-2007) and the cases and authorities cited in the respective cases.” The Seths filed a timely notice of appeal after the trial court granted the Seths’ motion to voluntarily dismiss all remaining defendants.
This court’s standard of review for summary judgment has been often stated as follows:
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entided to judgment as a matter of law. Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence ofa material issue of fact. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. On appeal, we determine if summary judgment was appropriate based on whether the eviden-tiary items presented by the moving party in support of its motion leave a material question of fact unanswered. 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. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties.
Sykes v. Williams, 373 Ark. 236, 239-40, 283 S.W.3d 209, 213 (2008).
The Seths first argue that the trial court erred in granting St. Edward’s motion for summary judgment on the basis of charitable immunity because St. Edward waived any defense based on its charitable status. Specifically, the Seths’ complaint stated that St. Edward “may claim immunity from suit or tort liability as a charitable or non-profit entity,” and “in such case, John Doe Insurance Company would be the appropriate Defendant under the Arkansas direct action statute.” After asserting that it was a nonprofit corporation, St. Edward responded to this paragraph of the complaint by stating, “No response from this defendant is required to paragraph 7 of the Complaint. To the extent any response is required, the allegations in paragraph 7 are denied.” Accordingly, the Seths assert that St. Edward denied that it would claim immunity from either suit or liability as a charitable entity, thus waiving the charitable immunity defense it later raised in the amended answer.
Under Ark. R. Civ. P. 8(c), “an affirmative defense must be set forth in the defendant’s responsive pleading.” Poff v. Brown, 374 Ark. 453, 454, 288 S.W.3d 620, 622 (2008). Although Rule 8 lists a number of affirmative defenses, “the list is not exhaustive and includes ‘any matter constituting an avoidance or affirmative defense.’ ” Id. The “failure to plead an affirmative defense can result in the waiver and exclusion of the defense from the case.” Felton v. Rebsamen Med. Ctr., 373 Ark. 472, 284 S.W.3d 486 (2008). This court has clearly stated that “charitable immunity is an affirmative defense that must be specifically pled.” Neal v. Sparks Reg’l Med. Ctr., 375 Ark. 46, 289 S.W.3d 8 (2008) (citing Felton, supra).
St. Edward did not affirmatively plead charitable immunity in its original answer, but contends that it may amend its answer under Ark. R. Civ. P. 12 and 15, because Rule 15 allows a pleading to be amended at any time, and charitable immunity is not a defense that is waived if not asserted in an original responsive pleading under Rule 12(h)(1).
Neal, supra, involved a similar situation as that presented in this case. The appellants in Neal filed a medical negligence action against Sparks Regional Medical Center (Sparks) in 2005. Under Arkansas precedent at the time the suit was filed against Sparks, a charitable entity was immune from liability but not suit; therefore, the appellants were required to file suit against Sparks, rather than against Sparks and its liability' carrier. See Clayborn v. Bankers Standard Ins. Co., 348 Ark. 557, 75 S.W.3d 174 (2002); see also Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004) (declining to overrule Clayborn). Sparks filed an answer on September 8, 2005, stating that it was a “not-for-profit Arkansas corporation,” but did not assert that it was a charitable entity or assert the defense of charitable immunity as to either liability or suit.
In December 2005, this court handed down its decision in Low, supra, holding that a qualified charitable entity was immune from suit as well as liability, and that the Arkansas direct-action statute, Ark. Code Ann. § 23-79-210, required an action to be filed against the charitable entity’s liability carrier. On January 26, 2007, Sparks filed an amended answer stating for the first time that it was entitled to charitable immunity. The appellants responded by filing a motion to strike Sparks’s amended answer as prejudicial, but the trial court denied the motion, concluding that the amended answer did not raise any additional defenses, and was not, therefore, prejudicial. Sparks then filed a motion for summary judgment, and the appellants responded by requesting that they be allowed to substitute Sparks’s liability carrier as the proper party defendant in an amended complaint. The trial court denied the request under Ark. R. Civ. P. 15(c) because the appellant had not proven that the liability carrier had knowledge of the suit within 120 days after it was filed, nor that it knew or should have known that the appellants would have brought the suit against it but for a mistake concerning the identity of the proper party.
On appeal, this court first held that the trial court erred in ruling that Sparks’s amended answer did not raise any new defenses, stating that “[m]erely asserting its status as a not-for-profit corporation is not equivalent to specifically raising the affirmative defense of charitable immunity, as not all not-for-profit organizations will be immune under the doctrine” Neal, 375 Ark. at 51, 289 S.W.3d at 11. We therefore held that charitable immunity had not been affirmatively pled in the original answer. This court further held that the trial court erred in allowing the amended answer because it resulted in prejudice to the appellants. At the time Sparks filed its original answer, “the appellants were still within the 120-day period for notifying [Sparks’s liability carrier] of the suit for relation-back purposes under Ark. R. Civ. P. 15(c).” Id. However, when Sparks filed its amended answer asserting charitable immunity for the first time, it was too late to substitute the liability carrier as the proper party.
The primary distinguishing factor between Neal and this case is that in Neal, the appellants filed a motion to strike Sparks’s amended answer because it was prejudicial. Under Ark. R. Civ. P. 15(a) (emphasis added), “[w]ith the exception of defenses mentioned in Ark. R. Civ. P. 12(h)(1), a party may amend his pleadings at any time without leave of the court,” unless, “upon motion of an opposing party, the court determines prejudice would result.” If the court finds that prejudice results, it may strike the amended pleading. Thus, charitable immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Ark. R. Civ. P. 8. Because it is not a defense listed in Rule 12(h)(1), however, it may be raised in an amended answer under Ark. R. Civ. P. 15, unless there is a motion to strike the pleading, and the court finds that prejudice results. Here, when St. Edward filed its amended answer and motion for summary judgment on the same day, asserting charitable immunity for the first time, the Seths only filed a response to the motion for summary judgment. They did not file a motion to strike the amended answer as prejudicial. Accordingly, waiver of the defense of charitable immunity does not result under our Rules of Civil Procedure.
In addition to waiver, the Seths argue in their first point for reversal that St. Edwards was estopped from asserting the charitable immunity defense based on the Seths’ reliance on St. Edward’s failure to assert charitable immunity in its original answer. However, this argument is not well developed. It consists of one sentence in the Seths’ brief and includes no citations to authority or discussion of specific application of the factors of estoppel. This court has repeatedly held that “something more than a mere assertion of an argument in the pleadings is required to preserve an issue for appellate review,” Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 188, 60 S.W.3d 458, 461 (2001), and that we will not consider arguments without convincing argument or citations to authority, Kelly v. State, 350 Ark. 238 (2002).
For their second point on appeal, the Seths argue that “the trial court erred when it determined it would apply Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005) retroactively.” However, this one sentence is the extent of the argument. For the same reasons cited above on the issue of estoppel, we will not consider this argument. The Seths also argue that the trial court erred by refusing to allow them to amend their complaint to name Sisters of Mercy and/or St. Edwards commercial excess liability insurer as proper party defendants. The trial court never ruled on this issue, raised in the Seths’ response to the motion for summary judgment, and this court “will not review an issue where the circuit court has not first decided it.” Sowders v. St. Joseph’s Mercy Health Ctr., 368 Ark. 466, 477, 247 S.W.3d 514, 522 (2007).
Affirmed.
St. Edward also reserved the right to “file additional pleadings or amendments to its pleadings,” and to “assert additional defenses or claims.”
This court issued the decision in Low, supra, on December 15, 2005, that held charitable entities are immune from suit and, therefore, the proper party defendant in a claim against a charitable entity is the entity’s liability insurer. A petition for rehearing was filed in Low on January 3,2005, and the court issued its mandate on January 19,2005.
St. Edward claimed both immunity from suit and liability in its amended answer. In its motion for summary judgment and brief in support, St. Edward asserted that it is immune from liability rather than suit. However, St. Edward did cite Low, supra, in its brief in support and Low’s holding that a charitable entity is immune from liability and suit.
The Seths, “for the purposes of this appeal,” do not challenge St. Edward’s status as a charitable entity.
Ark. R. Civ. P 12(h)(1) (emphasis added) provides in pertinent part:
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency ofservice of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.
Rule 15(c) provides that:
An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Ark. R. Civ. P. 15(a) provides that “a party may amend his pleadings at any time without leave of the court,” with the exception of the defenses listed in Ark. R. Civ.P. 12(h)(1). | [
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Per Curiam.
Appellant Larry Neely appeals from the circuit court’s order granting summary judgment to appellees Lona McCastlain and the State of Arkansas. Because appellant has submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2(a)(8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides that the appellant’s brief shall contain an addendum that includes a true legible photocopy of the order or judgment from which the appeal is taken, “along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.” Rule 4-2(b)(3) provides that, if the court finds the abstract or addendum to be deficient, such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, then the court may notify the appellant of the deficiencies and allow appellant to file a substituted brief.
Here, appellant’s brief is deficient because his addendum lacks relevant pleadings essential to an understanding of the case. While appellant has included a copy of his complaint for declaratory judgment and writ of habeas corpus, he has failed to include the appellees’ answers to that complaint, the appellees’ joint motion for summary judgment, and his response to that motion. Also, as part of his argument, appellant discusses information in two affidavits, one affidavit of his own and one affidavit of the investigating officer in his underlying criminal action, but neither affidavit is included in the addendum.
Because appellant has failed to comply with our rules, we order him to file a substituted addendum and brief within fifteen days from the date of entry of this order. If appellant fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted brief, the appellees shall have an opportunity to revise or supplement their brief in the time prescribed by the clerk.
Rebriefing ordered. | [
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BRANDON J. HARRISON, Judge
| ¶ Susan Darcey appeals the circuit court’s order deciding multiple motions for contempt and modification. She argues that the,circuit court erred in (1) altering the parties’ property-settlement agreement, (2) not finding David Matthews in contempt on multiple issues, and (3) awarding $750 in attorney’s fees on the child-support issue. We reverse on Dar-cey’s first argument but affirm on the remaining ones.
The parties divorced in January 2011 after a fifteen-year marriage. They have two' children: ten-year-old E.M. and six-year-óld C.M. Darcey was awarded primary custody of the children, and Matthews was awarded visitation in accordance with the propérty-settlement agreement (PSA) attached to the divorce decree. Pursuant to the PSA, Matthews agreed to pay $2,000 a month in child support, to keep the children on their current medical insurance, and to “cover all medical, dental and orthodontic expenses for the children.” |2The PSA also provided that Darcey would be the owner and beneficiary of Matthews’s USAA life insurance policy arid that Matthews would continue to pay for the policy. The decree noted that the PSA “forever settles the rights and claims of each to property and other matters” and “shall have the same force and effect as this Decree and shall be enforced by further orders of the Court.” The parties agreed that the PSA could be modified by mutual agreement.
In April 2014, the parties agreed to an amended PSA; the amendment provided that Matthews would apply to reinstate his lapsed USAA life insurance policy for $2 million and would transfer ownership of that policy to Darcey, who, would thereaf ter be responsible for payment of the premiums. In the event that USAA refused to reinstate the policy, Matthews was required to apply for a new policy in the same amount and transfer that policy to Darcey. The parties agreed that the terms and conditions of the amended PSA were contractual and not modifiable by the court. The parties also agreed that “[i]f either party defaults in performing any obligation under this Amended Agreement, so that the other party is required to engage the services of an attorney to seek enforcement or relief, the defaulting party will pay all of both parties’ reasonable attorney’s fees, expenses, and costs incurred.” An amended divorce decree recited the amended PSA verbatim and concluded that the amended PSA was “approved and incorporated, but not merged, into this Amendment to Divorce Decree.”
In August 2014, the court allowed Dar-cey to relocate to San Diego, California with the children and entered an agreed amended visitation schedule. In December 2014, the court found Matthews in willful contempt of the previous orders and awarded Darcey |3unpaid medical and other related costs in the amount of $7,130.67, to be paid in installments of $150 a month. The court also reiterated its earlier order that Matthews procure a $2 million life insurance policy. The court ordered that Matthews pay $750 in attorney’s fees, payable within thirty days of the order being entered.
The current round of litigation began soon after, in January 2015, when Darcey filed a motion for contempt based on Matthews’s failure to pay the $750 in attorney’s fees within thirty days and his failure to pay medical and pharmacy bills forwarded to him in November and December 2015. Over the next year, Darcey filed another nine motions for contempt, and Matthews moved to modify the terms of the PSA and for contempt, alleging that Darcey ha,d prevented communication between him and the children. The circuit court held a hearing in May 2016, and after receiving testimony from the parties and written closing arguments from counsel, the court entered a written order in June 2016 that included the following findings:
8. Child Support: The Court finds that Plaintiff is in willful contempt of the previous orders of the Court for unilaterally reducing his child support on multiple occasions.
14. The Defendant is awarded a judgment in the amount of $5,333.00 constituting the Plaintiffs total child support arrears as of April 30, 2016.
19. The Defendant is also awarded attorney’s fees and costs of $750.00 on the matter of child support.
20. Medical Costs: The Court does not find the Plaintiff in contempt with regard to Medical Expenses.
|⅜24. The Defendant presented the Court with a list of medical bills that the Plaintiff was to have paid over an eighteen (18) month period running from November 2014 through April of 2016. By the Court’s count, the Defendant has submitted 46 medical bills during that 78 week period by a myriad of methods including text, email, and regular mail.
25. During that same 18 month period, however, the evidence reflects that the Plaintiff did not miss a single $150.00 monthly payment towards his existing medical costs arrears as required by the December 10, 2014 order.
26. The Court finds that any of the specifically alleged failures by the Plaintiff to timely pay medical expenses was de minimus, and, at least in part, attributable to the inefficiencies of the existing system by which medical expenses are submitted and paid by the parties.
33. Life Insurance Policy: The Court does not find the Plaintiff in contempt with regard to the life insurance policy.
34. The Court finds, however, that the Plaintiffs efforts to procure life insurance in the amount of $2,000,000.00 heretofore have been insufficient. The Plaintiff will make reasonable efforts to procure life insurance in the amount of $2,000,000.00 pursuant to previous agreements and orders of the Court. The Court defines reasonable as making application to no fewer than five (5) insurance providers no later than ninety (90) days from the date of this Order. Should an application be denied, the Plaintiff shall inquire as to the maximum amount of coverage, if any, he could obtain from said company.
35. The Plaintiff shall procure the maximum amount of' coverage available to him as a result of these inquiries.
36. Tax Returns: The Court does not find the Plaintiff in contempt with regard to the filing of tax returns.
38. Attorney’s Fees: The Court finds that the Plaintiff is in willful contempt of the previous orders of the Court for failing to timely pay the attorney’s fees ordered on December 10, 2014, and January 21, 2015.
39. The Defendant is awarded attorney’s fees and costs of $500.00 on the matter of enforcing the previous attorney’s fee orders of the Court to be paid Lby the Plaintiff no later than one hundred and twenty (120) days from the date of the Order.
40. All Other Claims: Aside from the Plaintiff’s willful contempt of the Court’s previous child ■ support and attorney’s fees orders, the Court finds that neither party is in Contempt of any other previous Orders. All remaining motions for and claims of contempt are denied.
46. The,.Court finds that there has been a material change in the Plaintiffs income since the date he agreed to pay all medical, dental, and orthodontic expenses for the children.
47. Each party will be responsible for half of all the children’s non-covered medical, .dental, and orthodontic expenses as of the date of this Order.
Darcey has timely appealed from this order.
We review domestic-relations cases de novo, but we will not reverse a circuit court’s finding of fact unless it is clearly erroneous. Hunter v. Haunert, 101 Ark. App. 93, 270 S.W.3d 339 (2007). A finding is clearly erroneous when, although there is evidence to support ¾ the reviewing court is left with a definite and firm conviction that the circuit court has made a mistake. Id. In reviewing a circuit court’s findings of fact, we give due deference to the court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Fletcher v. Stewart, 2015 Ark. App. 105, 456 S.W.3d 378.
I. Property-Settlement Agreement,
A court may not modify an independent contract' that is made part .of a divorce decree. See Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007). Questions relating to the construction, operation, and effect of independent property-settlement agreements are governed, in general, by the rules and provisions that'apply to other contracts generally. 9Surratt v. Surratt, 85 Ark. App. 267, 148 S.W.3d 761 (2004). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the. writing in accordance with the plain meaning of the language employed. Id.
A. Life Insurance
Darcey argues that instead of requiring a $2 million life insurance policy as ¿greed, the circuit court modified the PSA and permitted Matthews to make five attempts at acquiring a $2 million policy, and if those attempts failed, to obtain- a policy in the maximum amount available. Darcey contends that the circuit court impermissi-bly'modified the PSA.
In response, Matthews argues that Darcey has waived this argument because the PSA was first .modified in December 2014 and she failed to appeal that order. He argues that the December 2014 order .modified the PSA by requiring him to only make- “reasonable efforts” to obtain an insurance policy, and Darcey did not appeal this order, so “she has waived-her right to now complain of similar modifications.”
Alternatively, Matthews argues that the circuit court’s modification should be affirmed based on the doctrine of impossibility of performance. Impossibility of performance of a contract sufficient to excuse the nonperformance on the part of either party means an impossibility consisting in the nature of the thing to be done and not in the inability of the party to do it, and it must be shown that the thing required under the contract cannot be accomplished. Serio v. Copeland Holdings, LLC, 2017 Ark. App. 280, 521 S.W.3d 131 (citing Whipple v. Driver, 140 Ark. 393, 215 S.W. 669 (1919)). In this case, Matthews asserts that he presented undisputed evidence that he has a history of prostate cancer, an |7extremely poor credit rating, and has been denied at least twice after having applied for life insurance policies. He contends that the circuit court reasonably concluded that it might not be possible for him to get a $2 million life insurance policy and therefore modified the agreement to require him to obtain the maximum amount of coverage available if $2 million is not attainable after five attempts.
In reply, Darcey first argues that Matthews cites no authority to support' his waiver argument and that the- December 2014 order did not modify the relevant portions of the PSA such that waiver could possibly apply. Second, she asserts that Matthews cannot invoke the doctrine of impossibility because the circuit court never made a finding that Matthews could not procure the required $2 million policy.
We hold that the circuit court’s order impermissibly modified the PSA and must be reversed. Darcey has not waived her argument because the December 2014 order did not modify Matthews’s obligation to procure a $2 million life insurance policy. We also agree with Darcey that Matthews cannot rely on the doctrine of impossibility because the circuit court did not make that finding, and this court cannot make it for him.
B. Medical, Orthodontic, Vision', Counseling, and Dental Expenses
On this point, Darcey argues that the PSA required Matthews to cover all medical, dental, and orthodontic expenses for the children and that the circuit court impermissibly modified the agreement to make each party responsible for half of all the children’s noncovered medical, dental, and orthodontic expenses. In support, she cites court of appeals cases finding that the general terms ■ of a PSA cannot be modified by the circuit court. See 8Fischer v. Fischer, 2015 Ark. App. 116, 456 S.W.3d 779; Martin v. Scharbor, 95 Ark. App. 52, 233 S.W.3d 689 (2006).
In response, Matthews again argues that Dareey has waived this argument because she did not appeal the December 2014 order, which he claims modified the PSA on this issue. Second, he argues that the payment of medical expenses is similar to child support and should therefore always be modifiable. He contends that medical expenses, like child support, are “a necessary expense for the support and care of a child” and that the circuit court’s finding that a material change in his income warranted a modification of the responsibility for. medical expenses should be affirmed.
In reply, Dareey again asserts that there has been no waiver of her argument and argues that the circuit court’s modification of the medical-expenses provision must be reversed under the current case law. She cites Fischer and Martin and specifically notes that the appellant in Martin made a similar argument that “school clothes, school-related expenses, and medical and dental bills not epvered by insurance” clearly fall within the definition of child support. Martin, 95 Ark. App. at 56, 233 S.W.3d at 693. In that case, this court held that appellant’s obligation to pay those expenses was in addition to, and independent of, his child-support obligation and therefore not modifiable. Dareey argues that likewise,-in this case, the PSA is clear that the medical expenses are in addition to, and not in the form of, child support; thus, the circuit court’s modification of the medical-expenses provision must be reversed.
We first hold that Darcey’s argument has not been waived. We also agree that this ease is analogous to Martiri and that Matthews’s obligation to pay the children’s medical | flexpenses is independent from his child-support obligation. The circuit court’s ruling was therefore an impermissible modification of the PSA, and we reverse on this point.
II. Contempt
To establish civil contempt, there must be willful disobedience of a valid court order. Balcom v. Crain, 2016 Ark. App. 313, 496 S.W.3d 405. The order must be definite in its terms' and clear about what duties it imposes. Riddick v. Harris, 2016 Ark. App. 426, 501 S.W.3d 859. We will not reverse a circuit court’s finding of civil contempt unless it is clearly against the preponderance of the evidence. Williams v. Arnold, 2015 Ark. App, 715, 479 S.W.3d 56. A finding is clearly against the preponderance of the evidence if, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Catt v. Catt, 2014 Ark. App. 616, 2014 WL 5697149. In our review, we defer to the superior position of the circuit court to determine the credibility of witnesses and the weight to be given their testimony. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15.
Dareey contends that the circuit court erred in not finding Matthews in contempt regarding (1) his efforts to obtain a life insurance policy, (2) late reimbursements for medical bills, (3) his failure to pay for the children’s prescription eyeglasses, (4) his failure to file his tax returns, (5) his failure to give her advance notice of a trip to Michigan with the chil- • dren, and (6) his interference with Dar-cey’s exercise of visitation in July 2015. On four of these issues, she also argues that regardless of the contempt finding, Matthews should be responsible for attorney’s fees because she had to retain the- services of an attorney to address |inthese issues. Matthews generally responds that the cir cuit court did not clearly err in finding that he had not willfully disobeyed the court’s previous orders.
We agree that the circuit court did not clearly err in the above instances when it did not find Matthews in contempt. The court heard testimony from both parties on these issues, and in our review, we defer to the superior position of the circuit court to determine the credibility of witnesses and the weight to be given their testimony. Russell, supra.
We also hold that the circuit court did not err in failing to award attorney’s fees on the above motions. According to the PSA, “[i]f either party defaults in performing any obligation under this Amended Agreement, so that the other party is required to engage the services of an attorney to seek enforcement or relief, the defaulting party will pay all of both parties’ reasonable attorney’s fees, expenses, and costs incurred.” Darcey asks this court to find that even though Matthews was not held in contempt' on these issues, he still “defaulted” because she was forced to engage the services of an attorney and file numerous contempt motions. But we have no clear definition of what a “default” is under the PSA, nor do we have a finding by the circuit court that Matthews did or did not “default” with regard to the above issues. We do have findings of contempt on the child-support and attorney’s-fees issues, and the circuit court awarded hex-attorney’s fees on those issues. Under these circumstances, we affirm the circuit court’s decision.
III. Attomey’s-Fee Award
In domestic-i-elations proceedings, the circuit court has the inherent power to award attorney’s fees. Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178. Whether the circuit court should award fees, and if so in what amount, are within the court’s discretion. Id. |uWhen addressing a circuit court’s award of attorney’s fees, our courts have often observed that there is no fixed formula in determining what is reasonable. Id. Given the circuit court’s intimate acquaintance with the rec^ ord and the quality of service rendered, we usually recognize the superior perspective of the circuit court in assessing the applicable factors. Id. Accordingly, attorney’s fees will not be set aside absent an abuse of discretion. Id. An abuse of discretion occurs when the court acts thoughtlessly, without due consideration, or improvidently. Id,
On this issue, Darcey argues that the circuit court abused its discretion in awarding her only $750 because it did not properly consider the Paulson factors and “it cost [her] far more than $750 for the most prevalent issue in a two-day hearing, preparation for the two-day hearing, three contempt motions, and discovery on the child support issue.”
Matthews responds that circuit courts are not required to make specific findings, either written or oral, when awarding attorney’s fees in domestic-relations proceedings, citing Tiner, supra. Thus, the circuit court was free to use its own judgment and expertise in setting the attorney5s-fee award; and in addition, Darcey failed to present any evidence that the award should have been higher. Thus, Matthews contends, the circuit court did not abuse its discretion.
| 12As noted by Matthews, we do not require specific findings on attorney’s-fee awards in domestic-relations cases, and Darcey presented no evidence of what amount should have been awarded. We therefore affirm on this point.
Reversed in part; affirmed in part.
Gruber, C.J., and Virden, J., agree.
. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983), held that among the pertinent considerations in determining the amount of attorney's fees are the attorney’s judgment, learning, ability, skill, experience, professional standing, the relationship between the parties and the importance of the subject matter of the case, the nature, extent and difficulties of services, the research, anticipation of defenses and means of meeting them and receiving of confidential information and giving of confidential advice before any pleadings are filed or other visual steps are taken. | [
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N. MARK KLAPPENBACH, Judge
|! Appellant Tyrone Randolph appeals the Pulaski County Circuit Court’s denial of his motion to transfer his case to the juvenile division of circuit court. Randolph was charged in relation to an armed robbery of the Bank of America branch on Cantrell Road in Little Rock on the afternoon of January 6, 2016, during which the branch manager was shot. Randolph was facing charges of aggravated robbery, theft by force, and first-degree battery. His attorney asked' that the matter be transferred to the juvenile division. After a hearing on the matter, the trial court denied the motion, and this appeal resulted. We affirm.
At the hearing in October 2016, a bank teller (Shunda Canada) testified. that a man wearing a mask entered the bank and pointed a shotgun directly in front of her station, |2demanding money. Canada screamed, and another teller gave the robber $2,947, putting it in a plastic bag.; The robber began to walk out of the bank, slowed down, made eye contact with the branch manager (Sam Lewis), and shot him with a sawed-off shotgun. Lewis was turning toward his office when he was shot in his right index finger and shoulder, and he testified that he thought that, had he not turned at that moment, the shotgun blast would have killed him. The robbery was captured on the bank’s surveillance cameras. . .
■ At the time the bank was being robbed, a woman in the area called the police, reporting that she had seen a man'in-a clown mask enter the bank and flee in a car that she was able to describe. The car belonged to Randolph’s mother. That day, the police located Randolph, searched the house where he lived, and found the sawed-off .20 gauge Mossberg shotgun, several live rounds of ammunition, a spent round of ammunition, $2,436 cash in a purse, a mask, a hood, and a hacksaw. Store receipts showed that the gun and hacksaw had been purchased the day before the robbery.
Randolph was almost seventeen years old at the time of the robbery. He admitted that he robbed the bank and that he had thought about committing the robbery for several days. Randolph explained that his girlfriend had told him that she was pregnant, he did not | ¡¡have a job, he was not in school, and the robbery would get him money to support his family. Randolph’s older brother Antonio Griffin was in jail for aggravated robbery. Randolph testified that he had been with his girlfriend when they went to Wal-Mart to purchase the gun, and he had his stepfather purchase the bullets and one of the two hacksaws he used to saw off the shotgun. He said that he later learned that his girlfriend had lied to him about being pregnant. Randolph expressed regret for his actions, especially his having shot the bank manager, although he claimed that he did not remember pulling the trigger.
His girlfriend (Jasha Howard) admitted buying the gun and that she was the driver of the getaway car. Additional evidence revealed that Randolph had completed only the ninth grade, that he was a poor student, and that he had had a difficult upbringing. Forensic mental-evaluation reports were entered into evidence, indicating that Randolph’s primary diagnosis was conduct disorder and stating that he was competent to stand trial. Inmate-behavior-assessment forms dated in September and October 2016 recited that he was pleasant and cooperative in jail; that he wanted to help others by telling them not to make the same mistakes he had; and that he wanted to change his lifestyle, go back to school, and “do something with his life.” Randolph’s great uncle, grandmother, mother, and a family friend testified on his behalf, stating that he is a good person who needs a second chance.
The trial court rendered its findings at the conclusion of the hearing, reciting each of the ten statutory factors it considered and the evidence or lack of evidence as to each factor. A written order was filed on November 1, 2016, to reflect the trial court’s findings on each statutory factor. The trial court found that the offenses were serious and committed in an | ^aggressive, violent, premeditated or willful manner; that the offenses were against both person and property; that Randolph helped to plan this robbery and was the sole person who executed the plan; that he had no prior juvenile adjudications; that after considering his sophistication and maturity as determined by his home environment, emotional attitude, pattern of living, and desire to be treated as-an adult, Randolph was immature and unsophisticated; that he was age sixteen at the time of the crimes and presently age seventeen; that there were facilities and programs available through the juvenile system but that those were not likely to rehabilitate Randolph prior to his twenty-first birthday ; that he acted along with another individual in the commission of the crimes; that other written reports and materials relating to his mental, physical, educational, and social history were considered, specifically including a rereading of the forensic mental-health evaluations; and that he had “an abysmal home life.” In closing, the trial court found that the case would remain in the adult division of circuit court and that Randolph did not present clear and convincing evidence to have the case transferred to the juvenile division. This appeal followed.
Randolph argues on appeal that the trial court clearly erred in denying his motion to transfer the case to the juvenile division, challenging two of the ten statutory factors. He | ¿contends in particular that (1) the trial court found that the offenses charged here were serious but clearly erred in failing to make written findings on whether the protection of society required prosecution in the criminal division of circuit court; and (2) the trial court clearly erred in finding that, although there were resources available to Randolph in the juvenile division, those resources were unlikely to rehabilitate the juvenile before his twenty-first birthday.
Arkansas law on this topic is well settled. It is within a prosecuting attorney’s discretion to charge a juvenile in either the juvenile or criminal division of circuit court if a juvenile is at least sixteen years old when he or she allegedly engages in conduct that, if committed by an adult, would be a felony. Ark. Code Arm. § 9—27—318(c)(1) (Repl. 2015). On motion of the court or any party, the court in which the charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of circuit court. Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case should be transferred. Flowers v. State, 2017 Ark. App. 468, 528 S.W.3d 851; Z.T. v. State, 2015 Ark. App. 282, 2015 WL 1952969. The court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2).Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. R.W.G. v. State, 2014 Ark. App. 545, 444 S.W.3d 376. We will not reverse a trial court’s determination of whether to transfer a ease unless that decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to |fisupport it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
Arkansas Code Annotated section 9-27-318(g) sets forth the factors the trial court must consider and make written findings on at a transfer hearing. Those factors are: . ,
(1) the seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court-,
(2) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) the culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if ■ so, whether the offenses were against persons or property, and any other previous history' of antisocial behavior or patterns of physical violence;
(6) the sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or .desire to be treated as an adult;
(7) whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty - first birthday,
(8) whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) any other factors deemed relevant by the judge.
(Emphasis added.) See also R.W.G., supra. Proof need not be introduced on each factor. Nichols v. State, 2015 Ark. App. 397, at 5, 466 S.W.3d 431, 433. The trial court does not have to give equal weight to each factor. R.W.G., supra. The Juvenile Code has several stated purposes, one of which is to protect society more effectively by substituting for retributive punishment, whenever possible, methods of offender rehabilitation and rehabilitative | ./restitution, recognizing that the application of sanctions that are consistent with the seriousness of the offense is appropriate in all cases. Ark. Code Ann. § 9-27-302(3).
Randolph challenges the court’s findings as to the first and seventh statutory factors and its conclusion that the factors weighed against transferring the case to the juvenile division. We are not left with a firm and definite conviction that a mistake was made in this case.
As to the first argument on appeal, Randolph' contends that' there lacked required specific written findings of fact on the entirety of the first statutory factor and that this mandates reversal. He agrees that written findings were rendered on the seriousness of the offenses but contends there were no written findings on whether the protection of society requires that the case remain in the adult-court system. Randolph adds that he had an abysmal home life; that he expressed remorse; and that extended juvenile jurisdiction would provide protection to society, such that denying transfer was erroneous. We disagree that there is clear error here.
The statute requires that-the trial court issue findings of fact on “all of the factors,” and the trial court clearly presented a written finding on the first factor. The trial court recited that Randolph’s charges of aggravated robbery, theft by force, and first-degree battery were serious offenses, exposing him to significant years of imprisonment and a substantial fine. The trial court, admittedly did not spell out that the protectipn of society required prosecution in adult criminal circuit court. Nonetheless, the trial court also, found these were violent, aggressive, premeditated acts, and Randolph was fast approaching age eighteen. We do not require that an order contain “magic words” but instead determine if the trial court fulfilled I sits statutory duty to consider and render findings on all ten statutory factors. We note that this case is distinguishable from W.J.S. v. State, 2016 Ark. App. 310, 495 S.W.3d 649, and Brown v. State, 2015 Ark. App. 570, 2015 WL 6378733, in which we held that an order containing a list of the section 9-27-318 factors with check marks beside them did not constitute adequate written findings. In contrast, in this case the trial court made specific findings on each statutory factor tailored to Randolph and the evidence before the trial court. We hold that the trial court fulfilled its statutory duty to make written findings on the first factor.
In the second argument on appeal, Randolph contends that the trial court erred with respect to the seventh statutory factor. The precise argument is that, although the trial court found that there were rehabilitative resources available, it was clearly erroneous to find that it was unlikely that those would rehabilitate Randolph before he turns twenty-one. We disagree that Randolph has (demonstrated clear error on this point.
We acknowledge that Randolph presented witnesses on his behalf to'testify that he is a good person who deserves a second chance, and it was agreed that he had an abysmal home life. Even if there were some factors tending to favor juvenile jurisdiction, however, the trial court weighed these factors against the other factors that favored jurisdiction in the criminal division of circuit court. See Hubbard v. State, 2017 Ark. App. 636, 535 S.W.3d 669; Kiser v. State, 2016 Ark. App. 198, 487 S.W.3d 374. Randolph was just three months shy of turning eighteen years old when the motion to transfer was denied. This was a premeditated bank robbery in which Randolph shot a person with a sawed-off shotgun. See A.E.L. v. State, 2013 Ark. App. 706, 2013 WL 6271853 (holding that there was no clear error in the trial court’s finding that rehabilitative programs |nor facilities were not likely to rehabilitate seventeen-year-old A.E.L. who was charged with aggravated assault, felony fleeing, and first-degree criminal mischief). The trial court is not required to give equal weight to each of the statutory factors, and it may use its discretion in deciding the weight to be afforded each factor. See Leach v. State, 2016 Ark. App. 502, 504 S.W.3d 668. Thus, we hold that the trial court did not clearly err in denying Randolph’s motion to transfer the .case to juvenile .court because.- it found that, after consideration of all the statutory factors, Randolph did not carry his burden to prove that the matter should be transferred to juvenile court.
Affirmed.
Whiteaker and Vaught, JJ., agree.
. Lewis was' in the hospital for 3½ days and was off work for approximately 4 ½ months. ' Lewis had no functionality in his finger, which was almost shot off, and was facing at least two more surgeries to repair the bones and tendons in his hand. Lewis was also going to have follow-up visits to treat his hand and shoulder.
. Randolph’s date of birth is January 27, 1999. The robbery took place approximately three weeks before his seventeenth birthday.
. Randolph's girlfriend was eighteen years old at the time of the bank robbery.
.There was no evidence presented at the hearing on the issue of such facilities and programs. However, before the entry of the order on appeal, the State and the defense had stipulated to the availability of these facilities and the trial court’s finding in a prior hearing that those were not likely to rehabilitate Randolph. We note that Randolph’s attorney failed to have the court reporter transcribe the prior hearing as part of the appellate record, and consequently, there is no abstract of this prior hearing. We could remand to supplement the record and order rebriefíng to include an abstract of that hearing. We choose not to do so in this instance because''we are able to address the merits, given the stipulations. We caution counsel to include all pertinent and necessary materials in the future. | [
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Robert L. Brown, Justice.
Appellant Bernard Marks appeals from his conviction for capital murder and his sentence to life imprisonment without parole. He asserts two points on appeal. We affirm.
Testimony at trial revealed that on the morning of July 5, 2004, Marks, Chris Claiborne, and Ricky Howard left the Three Gables nightclub together. Howard was driving the three men in a car he had borrowed. The three men arrived outside of the residence of Alvin Benjamin to find Michael Walker, the ultimate victim, standing in the front yard. The three men got out of the vehicle, and Marks and Claiborne began to beat Walker. Immediately after that, while Walker was lying unconscious in the road, Marks got in the borrowed vehicle and proceeded to run over Walker. In the early morning hours of July 5, 2004, Walker was taken to the emergency room of the Jefferson Regional Medical Center in Pine Bluff. Walker was severely injured and subsequently died of his injuries. Marks was later arrested and charged with capital murder.
At Marks’s trial, Ricky Howard was called as a witness for the State. On direct examination by the prosecutor, he testified that he saw Marks pushing, hitting, and kicking Walker, and that Marks stated that he was going to run Walker over. Howard testified that he then observed Marks get into the car and start to move it and that the car ran over Walker. On cross-examination, Howard testified that he fled the scene when Marks got in the car. During the prosecutor’s redirect examination, Howard testified that he did not actually see the car run over Walker, but he heard a noise — “bl-bloom, bl-bloom, bl-bloom.” When the prosecutor asked Howard what the noise was, defense counsel objected: “He said he heard it. He didn’t say he saw it.” The judge overruled the objection and said, “If he knows, he can answer it. If not, he can respond accordingly.” The prosecutor questioned, “What-what happened to a body,” and Howard stated “Ran over.” At the conclusion of the trial, Marks was convicted of capital murder and sentenced accordingly.
For his first point on appeal, Marks contends that the circuit judge erred by overruling his objection to Howard’s testimony that the sound he heard was Marks driving over Walker. Marks claims that Howard lacked the requisite personal knowledge to testify under Arkansas Rule of Evidence 602. He claims that “the record lacks any basis for a conclusion that Howard had sufficient knowledge to distinguish the sound of a vehicle running over a human body as opposed to some other similar object.” The State responds that Marks has mischaracterized Rule 701 under the Arkansas Rules of Evidence as a Rule 602 objection. The State adds that Marks’s true argument on appeal is that Howard was not qualified as a lay witness under Rule 701 to make the inference that the sound he heard was that of a car driving over a human body. The State claims that the circuit judge did not abuse his discretion because Howard’s opinion testimony was rationally based on his perception and the surrounding circumstances and was helpful to a clear understanding of the determination of whether Marks was driving the car that ran over Walker. Additionally, the State argues that Marks cannot show prejudice because the testimony of other witnesses established that Marks ran over Walker with the car.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). This court will not reverse an evidentiary decision by the trial court in the absence of prejudice. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001).
As already noted, Marks first contends that Howard’s testimony was inadmissible under Arkansas Rule of Evidence 602. Rule-602 provides, in pertinent part, as follows:
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.
Ark. R. Evid. 602.
In the case before us, sufficient evidence was introduced at trial to support a finding that Howard had personal knowledge of the matter to which he testified. It was undisputed that Howard was present at the scene of the crime. He testified that he witnessed Marks beating Walker, that he heard Marks state that he was going to run over Walker, and that he saw Marks get into the car and begin driving. Finally, immediately after running from the scene, he heard the sound — “bl-bloom, bl-bloom, bl-bloom.” Howard, without question, had personal knowledge of the events to which he testified. The circuit judge did not err in permitting the testimony under Rule 602.
Rule 701, which the State maintains is the appropriate rule for our analysis, reads:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
Ark. R. Evid. 701.
We agree with the State that Rule 701 governs this case. In Carton v. Missouri Pacific Railroad Co., 303 Ark. 568, 798 S.W.2d 674 (1990), we set out a three-prong test for determining admissibility under Rule 701. First, the testimony must pass the “personal knowledge” test of Rule 602. Id. Second, it must be rationally based, that is, the opinion must be one that a normal person would form on the basis of the facts observed. Id. Finally, the opinion must meet the “helpful” test. Id.
The facts in this case are these:
• Marks, Howard, and Claiborne left a club together on the morning of July 5, 2005. The three men went to the home of Alvin Benjamin.
• Upon arriving at Benjamin’s house, Howard observed Marks and Claiborne assaulting the victim, Michael Walker.
• Howard then heard Marks state that he was going to run Walker over, and saw Marks get into a car and begin driving.
• When Marks started to move the car, Howard turned and ran from the scene. While running away, Howard heard the sound — “bl-bloom, bl-bloom, bl-bloom.”
• At trial, Howard testified that the “bl-bloom, bl-bloom” sound was the sound of Marks running over Walker’s body.
Marks asserts that the trial judge abused his discretion in allowing Howard to testify that the tell-tale bumping sound was the sound of Marks driving over Walker because Howard did not actually see what caused the sound. He contends that Howard lacked sufficient knowledge to distinguish the sound of a vehicle running over a human body as opposed to another object because there was no evidence that Howard had seen or heard a vehicle run over a human body on a prior occasion.
Marks is incorrect. For the first prong, under the Carton test, Howard’s testimony concerning Marks driving over Walker was based on his personal knowledge of Marks’s actions at the scene of the crime as already noted in the opinion. See Ark. R. Evid. 602 (“Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.”). This easily satisfies the first prong of the Rule 701 analysis.
Turning to the second prong, under Carton, Howard’s opinion that the bumping sound he heard was Marks driving a car over Walker’s body was formed on the basis of the facts Howard observed at the scene of the crime and his perception of what happened to Walker. It is not necessary that Howard actually heard previously the exact sound a car makes driving over a human body. Rather, it is sufficient that his opinion and inference were ones that a normal person would form on the basis of the facts he observed and what he heard. In Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), we stated that opinion testimony by lay witnesses is admissible “in observation of everyday occurrences, or matters within the common experience of most persons.” The common experience of most persons when coupled with the facts Howard observed and what he heard at the scene of the crime reasonably leads to the inference Howard made in regard to the source of the sound.
Rule 701(1) speaks in terms of “perception” of the witness. “Perception” is not limited to what is actually seen, as Marks would have it. Rather, “perception” is defined in Black’s Law Dictionary as “[a]n observation, awareness or realization, usually based on physical sensation or experience; appreciation or cognition.” Black’s Law Dictionary 1172 (8th ed. 2004) (emphasis added). Here, Howard saw the fight, heard the threat, saw Marks get into the car and start driving toward Walker, and then heard the sound of the car running over the body. Based on this, he could certainly form his opinion based on perception that Marks, in fact, ran over Walker.
Finally, Howard’s opinion testimony was helpful to a determination of a fact in issue, which is the third prong. That fact was whether Marks was the driver of the car that ran over Walker’s body. Because Howard’s opinion testimony satisfies the three-prong analysis for determining admissibility under Rule 701, there was no abuse of discretion by the circuit judge in allowing it into evidence.
Marks next urges that the circuit judge erred by failing to correct, sua sponte, defense counsel’s misstatement of the law regarding the burden of proof during his opening statement. At trial, Marks’s counsel reserved his opening statement until after the State had presented its case-in-chief. After the prosecution rested, Marks’s counsel began his opening statement by saying, “If you will recall, yesterday morning the judge told you that I would reserve my opening statement until such time as the burden shifts, or at least until the close of the State’s case. The responsibility from this point on is for the defendant to move forward.” Defense counsel failed to raise an objection to his own statement.
Marks recognizes that this court does not recognize “plain-error” and that the contemporaneous-objection rule has not been complied with here. Marks, nevertheless, asks this court to expand the recognized Wicks exceptions to the contemporaneous-objection rule to include a statement that the burden of proof in a criminal case has shifted to the defendant, when made by the defendant’s own trial counsel, even though defense counsel did not object to his own statement.
Marks is correct that Arkansas does not recognize the plain-error rule, under which plain errors affecting substantial rights may be reviewed on appeal although they were not brought to the attention of the trial judge. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). It is a fundamental rule of this court that an argument for reversal will not be considered absent an appropriate objection in the trial court. Id. Four exceptions are recognized: (1) when a trial court fails to bring to a jury’s attention a matter essential to the consideration of the death penalty; (2) when an error is made by a trial judge himself or herself at a time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) when the serious nature of an error obligates the trial judge to intervene, without objection, either by admonition to the jury or the declaration of a mistrial; and (4) when an evidentiary ruling affects substantial rights. Id. Our case law is clear that Wicks presents only narrow exceptions that are to be rarely applied. Anderson v. State, 353 Ark. 384, 398, 108 S.W.3d 592, 600 (2003).
Admittedly, the facts involved in this point are somewhat bizarre because Marks argues that his defense counsel erred in his statement, did not object to his own error, but that the circuit judge should have stepped in and corrected it. It is, of course, a fundamental principle of criminal law that the State has the burden of proving the defendant guilty beyond a reasonable doubt. Marks asks this court to determine whether a statement indicating that the burden of proof in a criminal case has shifted to the defendant, when made by the defendant’s own counsel, implicates the third Wicks exception. Marks’s argument presupposes that defense counsel incorrectly stated the burden of proof. We are not convinced that he did. Defense counsel started to say that he had reserved his opening statement until the burden shifted, but then quickly corrected himself to say until the prosecution rested. He then said that “the responsibility from this point on is for the defendant to move forward.” Nothing in these statements impressed upon the jury the idea that the defendant had the burden of proving his innocence. Rather, the statements referred to the defendant’s ability to proceed with the presentation of defense evidence, if the defendant so desired.
In like situations, this court will defer to the superior position of the circuit judge to control and manage the arguments of counsel. Anderson, 353 Ark. at 405-06, 108 S.W.3d at 606. We note, in addition, that the correct burden of proof was stated to the jury in the closing argument of counsel for both parties and in the circuit judge’s final instructions. This court 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 a manifest abuse of discretion. Id. at 395, 108 S.W.3d at 598. We conclude that the defense counsel’s statements were not so flagrantly incorrect as to compel a finding that the circuit judge’s failure to intervene, sua sponte, and instruct the jury as to the law was a manifest abuse of discretion.
The record in this case has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), and no reversible error has been found.
Affirmed.
Corbin and Danielson, JJ., concur.
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Jim Hannah, Chief Justice.
Appellants Lili Mitchell Davis, Rose M. White, Jack D. Wilson, Dennis Burnett, Wayne Nunnerly, and Owen Honeysuckle appeal the order of dismissal in favor of appellee Brushy Island Public Water Authority of the State of Arkansas (Authority), formerly known as Brushy Island Water Association, Inc. (Association). On appeal, the appellants contend that the circuit court erred in dismissing their claims under the doctrines of claim preclusion, issue preclusion, and mootness. We affirm.
Appellants are members of the former Brushy Island Water Association, Inc. They filed a complaint seeking to invalidate the July 15, 2003 vote whereby the Association was converted to the Authority.
The present action is the second case challenging the validity of the conversion vote. Previously, former members of the Association sued the Authority and its directors, seeking a declaration that the vote to convert the Association from a nonprofit corporation into a water authority was void and invalid. See Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006). The circuit court granted the Authority’s motions (1) for summary judgment, (2) to strike an amendment to the Association’s complaint, and (3) to appoint a receiver for the Authority. See id. We affirmed the circuit court’s decision in its entirety. See id.
While the appeal in the Williams case was pending, the appellants in the instant case filed a complaint for declaratory judgment in the circuit court on January 10; 2006. In the complaint, the appellants requested, in relevant part, that the circuit court declare (1) that the July 15, 2003 vote of Association members to convert the Association to the Authority failed to carry a two-thirds majority as required by Arkansas Code Annotated section 4-28-225(a) (2) (Supp. 2003), (2) that the Authority has no existence because the membership conversion vote failed to carry by a two-thirds majority, and (3) that the Authority does not have corporate existence. The circuit court dismissed the appellants’ complaint, pursuant to Arkansas Rule of Civil Procedure 12(b)(8), finding that the appellants’ complaint and the then-pending Williams case were “between the same parties arising out of the same transaction or occurrence.” The appellants did not appeal from this order, nor did they seek to intervene in the Williams case. In addition, the appellants did not seek a stay of the order in the Williams case appointing CAW as receiver. Therefore, during the pendency of the appeal, CAW moved forward with the improvements directed by the order.
Following the issuance of this court’s decision in the Williams case, the appellants again filed a complaint for declaratory judgment on December 22, 2006, requesting that the circuit court find and declare that the vote to convert did not receive a two-thirds vote of the members present at the meeting and, pursuant to Arkansas Code Annotated section 4-28-225(a) (2), the vote failed, and the Association was not properly converted to the Authority. Accordingly, the appellants requested that the circuit court find and order that the Authority has no existence and that the Association continues to exist in the form that it held prior to the July 15, 2003 vote. On October 8, 2007, the Authority moved for summary judgment on the grounds of res judicata and mootness. On March 5, 2008, the circuit court dismissed the complaint with prejudice. The appellants now bring this appeal.
As a threshold matter, we must determine whether the appellants’ complaint should have been dismissed under the doctrine of mootness, as the Authority contends. The Authority claims that the complaint for declaratory judgment is moot because it is clear from the receivership order that the circuit court’s decision to appoint a receiver had nothing to do with whether the assets in question were owned by a water association or a water authority. The Authority asserts that even if a court were to enter judgment declaring the conversion vote invalid, the facilities of the former Association are, and will continue to be, in receivership, pursuant to the order in the Williams case. The appellants assert that the Authority offered no evidence of facts, events, or occurrences that have transpired during the course of this litigation or in the course of the 2003 suit, including the Williams appeal, from which the circuit court could conclude that the issue of the passage of the conversion vote by the statutorily mandated two-thirds majority would have no practical legal effect on the outcome of this litigation. We disagree.
As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id.
In this case, the appellants filed a complaint for declaratory judgment, seeking, in relevant part, that the circuit court: (1) declare that the July 15, 2003 vote of the Association members to convert the Association to the Authority failed to carry by a two-thirds majority, as required by Arkansas Code Annotated section 4-28-225(a) (2); (2) declare that the Authority has no existence because the July 15, 2003 Association membership vote failed to carry by a two-thirds majority; and (3) declare that the Brushy Island Public Water Authority was not properly constituted and does not, therefore, have corporate existence.
The appellants’ complaint is moot because any judgment rendered by the circuit court would have no practical legal effect upon the case. In its October 18, 2005 order appointing CAW as receiver, the circuit court found that Brushy Island lacked sufficient management or staff to adequately serve the needs of Brushy Island customers and that Brushy Island lacked the necessary infrastructure to provide Brushy Island customers with adequate fire service protection. The circuit court also noted that the Arkansas Department of Health and Human Services had cited Brushy Island for several violations of the rules and regulations pertaining to public water systems and the national primary drinking water regulations. Accordingly, the circuit court found that it was in the best interest for Brushy Island customers that CAW be appointed as receiver for Brushy Island. In the order of receivership, the circuit court expressly empowered and authorized CAW to perform any of the following duties:
a. to take possession and control of the Assets and any and all proceeds, receipts, and disbursements arising out of or from the Assets;
b. to receive, preserve, protect, and maintain control of the Assets, or any part or parts thereof;
c. to manage, operate, and carry on the business of Bmshy Island, including the power to enter into any agreements, incur any obligations in the ordinary course of business, lawfully cease to carry on all or any part of the business, or lawfully cease to perform any contracts of Bmshy Island;
d. to engage consultants, appraisers, agents, experts, auditors, accountants, managers, counsel, and such other persons from time to time on whatever basis, including on a temporary basis, to assist with the exercise of the powers and duties conferred by this Order;
e. to settle, extend, or compromise any indebtedness owing to Bmshy Island;
f. to purchase or lease such machinery, equipment, inventories, supplies, premises, or other assets to continue the business of Bmshy Island or any part or parts thereof;
g. to execute, assign, issue, and endorse documents of whatever nature in respect of any of the Assets, whether in the name of CAW, as a receiver, or in the name and on behalf of Brushy Island, for any purpose pursuant to this Order;
h. to initiate, prosecute, and continue the prosecution of any and all proceedings and to defend all proceedings now pending or hereafter instituted with respect to Brushy Island, the Assets, or CAW, as receiver for Brushy Island, and to settle or compromise any such proceedings. The authority hereby conveyed shall extend to such appeals or applications for judicial review in respect of any order or judgment pronounced in any such proceeding;
i. to market any or all of the Assets that are not necessary for the operation of Brushy Island, including advertising and soliciting offers in respect of the Assets or any part or parts therefor and negotiating such terms and conditions of sale as CAW, as receiver, in its discretion may deem appropriate;
j. to sell, convey, transfer, lease, or assign the Assets or any part or parts thereof out of the ordinary course of business, (i) without the approval of this Court in respect to any transaction not exceeding fifty thousand dollars ($50,000), provided that the aggregate consideration for all such transactions does not exceed two hundred and fifty thousand dollars ($250,000); and (ii) with the approval of this Court in respect of any transaction in which the purchase price or the aggregate purchase price exceeds the applicable amount set out in the preceding clause;
k. to apply for any permits, licenses, approvals, or permissions as may be required by any governmental authority and any renewals thereof for and on behalf of and, if thought desirable by CAW, as receiver, in the name of Brushy Island; and
l. to take any steps reasonably incidental to the exercise of these powers.
In addition, the circuit court ordered CAW to contract for and begin improvements to the Brushy Island water system so that the system would meet standards for water systems operated by CAW. Specifically, CAW was ordered to install improvements, detailed in the order as follows:
The Improvements consist of the installation of approximately 4400 Linear Feet (LF) of 24-inch Ductile Iron (DI) pipe, 4900 LF of 12-inch DI pipe, 4900 LF of 8-inch DI pipe, 4300 LF of 3-inch PVC pipe, and 5900 LF of 2-inch PVC pipe and appurtenances. The Improvements will also include the installation of 10 new Fire Hydrants, 320 new service meters and Pressure Regulators, as well as repair and/or replacement of existing service lines as required.
The order stated that Brushy Island customers would be responsible for paying the debt to finance the improvements and that the debt would be recouped as a surcharge on utility bills each month.
Whether CAW is receiver for a water association or a water authority, it is still receiver for the assets of Brushy Island pursuant to the October 18, 2005 order. The record reveals that the improvements opposed by the appellants are substantially completed. The debt incurred by Brushy Island to finance the improvements is still in effect, pursuant to the October 18 order, and the customers are still obligated to pay certain amounts each month as a surcharge to repay the debt for the improvements.
Based on the foregoing, we hold that any judgment rendered on the conversion vote would have no practical legal effect upon the former Association because its facilities are now subject to receivership. The circuit court was correct in dismissing this case under the doctrine of mootness. Because we so hold, we need not address the appellants’ remaining arguments.
Affirmed.
We have recognized two exceptions to the mootness doctrine. The first exception involves issues that are capable of repetition, yet evade review. Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007). The second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id. The appellants do not contend that either exception applies. | [
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Jim Hannah, Chief Justice.
The City of Centerton appeals a judgment of the Benton County Circuit Court declaring as invalid its annexation of surrounded land described as “West Island.” Centerton argues that the circuit court erred in finding that the appellees City of Bentonville, a municipal corporation, George and Nancy Huber, Daniel and Ruby Davies, Sandra and Gary Townsend, and the Lois Peters Revocable Trust (collectively referred to as “Bentonville”) satisfied their burden of proof to show that Center- ton’s annexation of West Island failed to meet the requirements of Arkansas Code Annotated section 14-40-302(a) (Supp. 2005). We affirm the decision of the circuit court. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(b)(5).
Centerton annexed two areas of unincorporated and surrounded land known as “West Island” and “East Island.” Both sections of land are completely surrounded by the neighboring municipalities of Centerton and Bentonville. Only West Island is at issue in this appeal.
As permitted under Arkansas Code Annotated section 14-40-501 (Supp. 2005), Centerton, as the municipality with the greatest distance of city limits adjoining West Island, passed an ordinance to annex West Island. At about the same time, Benton-ville annexed West Island by petition of adjoining landowners, as permitted under Arkansas Code Annotated section 14-40-601 (Repl. 1998). Bentonville sued Centerton, alleging that West Island failed to comply with the requirements qualifying the land for annexation by Centerton under Arkansas Code Annotated section 14-40-302(a). A judgment was entered declaring Center-ton’s annexation invalid.
Admission by Bentonville
Centerton argues first that Bentonville’s annexation of West Island by petition constitutes an admission by Bentonville that West Island met not only the requirements for annexation by Bentonville, but also for annexation by Centerton. Based on this alleged admission, Centerton argues that Bentonville may not assert that Centerton’s annexation was invalid. An admission is an acknowledgment or concession of a fact. See Ferguson v. State, 362 Ark. 547, 210 S.W.3d 53 (2005).
Centerton asserts that “Mr. Peters’ signature on that petition is an admission that the Trust’s property met at least one of the five criteria set out in A.C.A. § 14-40-302(a).” Peters is an owner of property in West Island in an area referred to as the land south of Motley Road. He, among other landowners, petitioned to be annexed into Bentonville. Centerton cites us to City of Marion v. Guaranty Loan & Real Estate Co., 75 Ark. App. 427, 58 S.W.3d 410 (2001), for the proposition that annexations by petition under section 14-40-601 must satisfy at least one of the listed criteria for annexation set out in section 14-40-302(a) before an area may be annexed. Centerton further argues that only when the land to be annexed meets at least one of the criteria set out in section 14-40-302(a) is the petition “right and proper” as required for annexation by petition in Arkansas Code Annotated section 14-40-603 (a) (Repl. 1998).
With regard to whether the criteria of section 14-40-302(a) apply to annexation by petition of adjoining landowners, even though section 14-40-302(a) is not mentioned in the statutes on annexation by petition, Ark. Code Ann. §§ 14-40-601 to -606 (Repl. 1998), this court in City of Jacksonville v. City of Sherwood, 375 Ark. 107, 111, 289 S.W.3d 90, 93 (2008), stated that “the criteria apply regardless of whether the annexation proceeding was initiated by the city or by adjoining landowners.” See also Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998). Where at least one of the criteria of section 14-40-302(a) is met, the petition of adjoining landowners is “right and proper” under section 14-40-603(a). Id.
We agree that Bentonville in the landowners’ petition asserted that the annexation of West Island was right and proper, and that implicit within that petition is an assertion that West Island met at least one of the criteria of section 14-40-302(a) with respect to the annexation by Bentonville. However, the landowners’ petition makes no assertion, implicit or otherwise, that West Island met at least one of the criteria of section 14-40-302(a) with respect to the annexation by Centerton. That West Island met a criterion with respect to Bentonville does not necessarily mean that it met that same criterion or any other criteria with respect to Centerton. For example, the actual growth of one municipality surrounding an island might be moving into an island while the actual growth of another surrounding municipality might not. See Ark. Code Ann. § 14-40-302(a)(3). In the landowners’ petition, neither Bentonville nor the petitioners make an admission that West Island met the requirements for annexation by Centerton.
Prima Facie Presumption of Compliance With Section 14-40-302(a)
Citing Arkansas Code Annotated section 14-40-503 (a) (2) (Repl. 1998), Centerton next argues that when the majority of its governing body voted for annexation, a prima facie case of annexation was established that Bentonville had to overcome in its suit challenging the annexation. Section 14-40-503(a)(2) provides, “If a majority of the total number of members of the governing body vote for the proposed annexation ordinance, then a prima facie case for annexation shall be established, and the city shall proceed to render services to the annexed area.” A decision to annex becomes final in thirty days unless challenged in circuit court. Ark. Code Ann. § 14-40-503(b) (Repl. 1998). The burden rests on those objecting to the annexation to produce sufficient evidence to defeat the prima facie case, and that means that they must show that the area should not be annexed. Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989). The party challenging the ordinance bears the burden of proving the annexation was improper. Id. However, this court has noted that “by the very nature of this type of litigation, there is a wide latitude for divergence of opinion and, consequently, a high degree of reliance must be placed upon the findings of the trial judge.” Id. at 557, 769 S.W.2d at 741. A finding by a circuit court on annexation will not be reversed unless it is clearly erroneous. Town of Houston, supra.
Annexation is proper where any one of the criteria set out in section 14-40-302(a) is met. Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1989). However, “[ijfapart of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto.” Town of Houston, 332 Ark. at 348, 965 S.W.2d at 135. Section 14-40-302(a) provides as follows:
(a) By vote of two-thirds (2/3) of the total number of members making up its governing body, any municipality may adopt an ordinance to annex lands contiguous to the municipahty if the lands are any of the following:
(1) Platted and held for sale or use as municipal lots;
(2) Whether platted or not, if the lands are held to be sold as suburban property;
(3) When the lands furnish the abode for a densely setded community or represent the actual growth of the municipahty beyond its legal boundary;
(4) When the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or
(5) When they are valuable by reason of their adaptability for prospective municipal uses.
After all the evidence was admitted, the circuit court issued a decision and stated that there was no indication that Centerton “looks at that property as meeting any of these factors in 14-40-302.” The circuit court went on to state that it had carefully considered the criteria in section 14-40-302(a), and that while the court was reluctant to overturn an action of the Centerton city council, the “Peters property and the property below the road [Motley] on the south simply don’t meet any of the criteria of 14-40-302.” The evidence supports this decision. Centerton Mayor Ken Williams testified that the Peters’ land south of Motley Road was annexed because, “in order to take in the whole island we had to take it in.” Williams made no reference to any requirement of section 14-40-302(a). The land south of Motley Road was annexed because to get the land Centerton wanted, Centerton had to annex the land south of Motley Road as well. Nonetheless, Centerton argues that there was no proof that West Island did not meet the requirements of section 14-40-302(a)(3)-(5) (Supp. 2005).
Section 14-40-302(a)(3) provides that lands may be annexed “when the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary.” Mayor Williams testified that the area south of Motley Road in West Island was not densely populated. He also testified that to his knowledge, “there are no municipal plans or uses for the property south of Motley Road.” Williams did make reference to a “small subdivision” that would be in the area south of Motley Road, but the annexation did not represent the actual growth of Centerton beyond its legal boundary. Further, the circuit court found that the only evidence regarding the use of the Peters property south of Motley Road was that is was used for farming. Agricultural and horticultural lands are not to be annexed when their highest and best use is agriculture or horticulture. Town of Houston, supra.
Section 14-40-302 (a) (4) provides that lands may be annexed when “the lands are needed for any proper municipal purposes such as for the extension of needed police regulation.” In an October 7, 2005 letter providing notice of an annexation hearing on West Island and East Island, Centerton stated plainly that the annexation was necessary to protect Centerton’s loans, funding, and plans for water service. No other reason for annexation was offered. Mayor Williams was asked in cross-examination to confirm that “the sole reason for this island annexation was to preserve water customers for the City of Centerton.” He responded, “Correct.” He then testified that the area south of Motley Road was not part of the water service area the annexation was to protect. Clearly, the land south of Motley Road was only annexed to obtain the “whole island.” Bentonville showed that there was no municipal purpose in annexing the property south of Motley Road. When part of the annexed land fails to meet at least one of the five criteria of section 14-40-302(a), the entire annexation is void in toto.
Section 14-40-302(a)(5) provides that lands are subject to annexation “[w]hen they are valuable by reason of their adaptability for prospective municipal uses.” Mayor Williams was asked, “To your knowledge, do you have any municipal plans, municipal uses for this property south of Motley Road?” He responded, “No, we don’t.” Centerton now argues that other municipal services such as fire and police constitute evidence that the presumption arising from the prima facie case was not overcome; however, as the circuit court noted, Centerton was asked about municipal services and responded that water service was the sole reason for annexation.
The circuit court stated that it had looked carefully at the section 14-40-302 (a) criteria and that not one of the criteria was met as to the land lying south of Motley Road. In reviewing this matter with a high degree of reliance placed upon the findings of the trial judge, we find no basis for Centerton’s allegation that the circuit court’s decision declaring the annexation invalid was clearly erroneous.
Affirmed.
Centerton argues that the circuit court erred in finding that the criteria of Arkansas Code Annotated section 14-40-302(a) (Supp. 2005) do not apply to annexation by petition of adjoining landowners under Arkansas Code Annotated section 14-40-601 (Supp. 2005). The circuit court erred. See City of Jacksonville v. City of Sherwood, 375 Ark. 107, 111, 289 S.W.3d 90, 93 (2008). However, this error does not require reversal in this case because Bentonville also showed that none of the section 14-40-302(a) criteria were met.
Arkansas Code Annotated section 14-40-302(a) (Supp. 2005) sets out what are sometimes referred to as the “Vestal criteria.” See Utley v. City of Dover, 352 Ark. 212, 221, 101 S.W.3d 191, 194 (2003); Chastain v. Davis, 294 Ark. 134, 142, 741 S.W.2d 632, 636 (1987). This court in Vestal v. Little Rock, 54 Ark. 321, 16 S.W. 291 (1891), discussed the criteria that could be met to satisfy the requirements of the then applicable statutes on annexation. See 29 Mansfield Digest §§ 916-923, at 324-25 (1884). Annexation is a special statutory proceeding. Posey v. Paxton, 201 Ark. 825, 147 S.W.2d 39 (1941). Thus, annexation is defined by statute. See Rooker v. City of Little Rock, 234 Ark. 372, 352 S.W.2d 172 (1967); Grayson v. Arrington, 225 Ark. 922, 286 S.W.2d 501 (1956). The criteria set out in Vestal were modified and adopted into the current statutes as section 14-40-302(a). | [
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COURTNEY HUDSON GOODSON, Associate Justice
| Appellant Patricia Cannady, individually and as administratrix of the estate of Anne Pressly, appeals the order of the Pulaski County Circuit Court granting summary judgment in favor of St. Vincent Infirmary Medical Center (St. Vincent). St. Vincent, Jay Holland, and Candida Griffin cross-appeal the denial of their motions for summary judgment as to 12Cannady’s outrage claim. We have jurisdiction over this case pursuant to Ark. Sup. Ct. R. 1-2(a)(7), because it is a second, or subsequent, appeal of this matter in this court. See Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548 (Cannady I). We affirm on direct appeal and dismiss the cross-appeal.
I. Facts and History
On October 20, 2008, Cannady’s daughter, Anne Pressly, was assaulted in her home and was hospitalized at St. Vincent where she died as a result of her injuries on October 25, 2008. Pressly was a news anchor for a Little Rock television station, and there was a high degree of public' interest in the facts of her case. Holland was a physician practicing at St. Vincent but was not a St. Vincent employee. Griffin and Sarah Elizabeth Miller were St. Vincent employees.
In a complaint filed October 16, 2009, Cannady alleged claims of invasion of privacy and outrage against St. Vincent, Holland, Griffin, and Miller. Cannady alleged that Holland, Griffin, and Miller, each accessed Pressly’s medical record with no legitimate reason, and that St. Vincent took no action to restrict access to medical records available |athrough its electronic database system. Cannady filed an amended complaint on January .7, 2010, adding that Holland, Griffin, and Miller each pled guilty to a violation of 42 U.S.C. § 1320d-6(a)(2), which governs the wrongful disclosure of individually identifiable health information.
St, Vincent answered and argued that any claim for invasion of privacy or outrage did not survive Pressly’s death. Holland, Griffin, and Miller filed separate answers. St. Vincent filed a motion for summary judgment, again arguing that an invasion-of-privacy claim does not survive the death of the decedent, and that, the claim for the tort of outrage also failed because it was based on the invasion of privacy. Holland, Griffin, and Miller each filed motions for summary judgment adopting St. Vincent’s motion. The circuit court granted the motions, and Cannady appealed to this court. We affirmed in part and reversed in part, finding that the circuit court improperly dismissed the outrage claim solely because it was based on the same conduct as the invasion-of-privacy claim, which was extinguished by Pressly’s death. We concluded:
However, neither St, Vincent nor the. circuit court has cited to any authority for the proposition that two separate claims cannot be based on the same conduct. In addition, the outrage claim was not made on behalf of the decedent, but on appellant’s own behalf, and'the court failed to make any findings regarding whether sufficient facts existed to state a cause of action for outrage. Thus, we reverse the court’s order on this point and remand for further proceedings.
Cannady I, 2012 Ark. 369, at 10-11, 423 S.W.3d 548.
^Because the circuit court determined that St. Vincent could not be held vicariously liable for the conduct of employees when the claims against the employees failed, we also reversed as to the dismissal of the outrage claim against St. Vincent.
On remand, St. Vincent, Holland, and Griffin again filed motions for summary judgment. ,St. Vincent argued that it was entitled to summary judgment because the conduct alleged to give rise to the tort of outrage was not, as a matter of law, the type of conduct that would support such a claim under Arkansas law; Arkansas does not recognize a cause of action when the defendant’s conduct is directed to a third person; and' even if Arkansas were to recognize such a- cause of action, summary judgment would still be appropriate because Cannady was not present when the allegedly outrageous conduct occurred, St. Vincent further argued that it could not be held vicariously liable for the conduct of Griffin and Miller because the conduct was not committed within the scope of their employment, B.oth Holland and Griffin argued that the conduct alleged is not the type of conduct that will support a claim for the tort of outrage under Arkansas law. Holland and Griffin also argued that Arkansas does not recognize a cause of action when the defendant’s conduct is directed to a third person and that even if Arkansas were to recognize such a cause of action, Cannady was not present when the alleged outrageous conduct occurred. In response, Cannady argued the law of the case precluded consideration of any issue except whether the conduct alleged rose to the level of outrage. |BCannady further, argued that the conduct alleged was sufficiently extreme., and outrageous for an outrage claim. -
The circuit court found that the arguments made by St. Vincent, Holland, and Griffin in their second motions were not barred by the law-of-the-case doctrine and denied the motions as to the outrage claim, finding that there were genuine issues of material fact as to whether the conduct of Holland, Griffin, and Miller was sufficiently extreme and outrageous to- support a claim of outrage, whether the conduct was directed to a third party, and whether the plaintiff was present at the time the conduct occurred. The court granted St. Vincent’s motion as to its vicarious liability, concluding that the conduct of Griffin and Miller was outside the scope of their employment, was for their own desires, and was not authorized or ratified by St. Vincent. Although the order did not dispose of all claims, the circuit court certified the case for an immediate appeal pursuant to Ark. R. Civ. Pi 54(b)(1), citing the novel issues presented and the possibility of avoiding a trial altogether. Cannady appealed, arguing that the circuit court erred in ruling that St. Vincent’s motion was not barred by the law-of-the-case doctrine and in, granting St. Vincent’s motion on the ground that the conduct of Griffin and Miller was outside the course and scope of their employment. St. Vincent, Holland, and Griffin filed cross-appeals, arguing that the circuit court erred in not granting summary judgment on the underlying outrage claim.
| fiII. Discussion
A. Direct appeal
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. See Repking v. Lokey, 2010 Ark. 356, 377 S.W.3d 211. A circuit court -will grant summary judgment only-when it is apparent, that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as' a matter of law. Id. The burden of proof shifts to the opposing party once the moving party establishes a prima facie entitlement to summary judgment, and the opposing party must demonstrate the existence of a material issue -of fact. Id. After reviewing the undisputed’ facts, the circuit court should deny summary judgment if, under the evidence, reasonable minds might reach different conclusions from the same undisputed facts. Id. On appeal, this court determines if summary judgment was appropriate based on whether the evi-dentiary items' presented by the moving party leave a material question of fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. This review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. Id.
The circuit court granted St. Vincent’s motion for summary judgment with respect to its argument that it could not be liable for actions taken by Griffin and Miller because 17they were acting, outside the scope of their employment when they viewed Pressly’s medical records. Cannady first argues that the circuit court erred in finding the law-of-the-case doctrine did not preclude consideration of St. Vincent’s argument that it could not be held vicariously liable for the. conduct of its employees because they were acting outside the scope of their employment,. We addressed the doctrine of the law of the case in Green v. George’s Farms, Inc., 2011 Ark. 70, at 7-8, 378 S.W.3d 715, 720:
The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). The law-of-the-case doctrine also prevents consideration of an argument that could have been raised at the first appeal and is not made until a subsequent appeal. First Commercial Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998). The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Jones v. Double “D” Props., Inc., 357 Ark. 148, 161 S.W.3d 839 (2004). However, the law-of-the-case doctrine is conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal, and it does not apply if there was a material change in the facts. See Weiss v. McFadden, 360 Ark. 76, 199 S.W.3d 649 (2004).
St. Vincent argues that the law-of-the-case doctrine is inapplicable because its first motion for summary judgment was based entirely on questions of law and was filed before any depositions were taken. St. Vincent points to our prior decision where we found no reason that the.outrage claim could not be based on the same facts as the privacy-violation |8claim; that the outrage claim was not made on behalf of Pressly but on behalf of Cannady herself; and that the circuit court failed to make any finding as to whether sufficient facts existed to state a cause of action for outrage. In Cannady I, the circuit court determined that the outrage claim failed because it was based on the same facts as the privacy claim. Because there was no actionable claim against the employees, the circuit court determined that St. Vincent had no vicarious liability. St. Vincent did not argue that the employees were acting outside the scope of their employment, and the circuit court never ruled on that issue. In Cannady I, we reversed the circuit court’s determination that St. Vincent could not be held vicariously liable for the conduct of its employees, and we said that “[bjecause we are reversing on the outrage claim, we likewise reverse on this point as it relates to the outrage claim and remand.” In applying the principles set forth in Green, it is clear that the law-of-the-case doctrine does not preclude St. Vincent’s argument. We did not determine in Cannady I that Griffin and Miller were acting within the scope of their employment or that St. Vincent’s argument that it could not be held liable for its employees’ conduct, which was outside the scope of their employment, was without merit. Likewise, although Cannady argues that the defense could have been raised in the first appeal, the case is in a different posture now. Now, although the facts have not changed, depositions have been taken, and the record is more developed in that it is now clear that Griffin and Miller were not acting within the scope of their employment, that their actions |3were in violation of their training and the confidentiality agreements they signed, and that their employment was terminated as a result. Although Cannady argues that the material facts supporting the respondeat superi- or claim were in the record at the time of the first appeal, she alleged in her first amended complaint that the actions of Griffin and Miller were taken in the course and scope of their employment. Given Can-nadjfs allegation that the actions taken by St. Vincent’s employees were within the scope of their employment, St. Vincent could not have argued then that material facts were sufficiently'undisputed to establish that it had no vicarious liability for its employees’ actions. In light of the previous posture of- the case versus its current status, particularly given the former dispute as to whether Griffin and Miller were acting within the scope of their employment, the law-of-the-case doctrine does not preclude St. Vincent’s argument.
Cannady next argues that even if law of the’ case does not apply, St. Vincent may still be liable for Griffin’s and Miller’s actions because they were not unexpecta-ble. If the actions of an employee were not authorized but could be expected given the nature of the job, respondeat superior may apply. See Life & Casualty Ins. Cot. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966) (holding that an argument and assault arising from an employee’s attempt to collect money was not unexpectable). Cannady argues that the improper actions of the employees in looking at medical records without reason could be expected, but St. Vincent trained its employees to not access records without legitimate reason, and hnfederal law prohibits inappropriate access. Griffin and Miller were acting exclusively in their interests, and each pled guilty to a violation of 42 U.S.C, 1320d-6(a)(2). St. Vincent did not ratify or endorse the improper actions in any way. Jn fact, Griffin and Miller were terminated for their misconduct. St. Vincent trained its employees to respect patients’ privacy, and took appropriate action when they did not. St. Vincent is therefore entitled to expect St. Vincent employees to obey hospital policy, to remain faithful to their agreements, and to not' violate federal law. Therefore, the- employees’ actions were unexpected. No genuine issues of material fact requiring litigation exist, and St. Vincent is entitled to judgment as a matter of law.
B. Cross-appeal
St. Vincent, Holland, and Griffin also cross-appeal the circuit court’s order denying their motions for summary judgment as to the tort of outrage. As a preliminary matter, even though the parties do not raise it, we must consider whether the cross-appeal is properly before us. In Holbrook v. Healthport, Inc., 2013 Ark. 87, at 2, 2013 WL 776240, we wrote:
Whether an order is subject to an appeal is a jurisdictional issue that this court has the duty to raise, even if the parties do not. Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree entered by the circuit court. Although the purpose of requiring a final order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Robinson v. Villines, 2012 Ark. 211 [2012 WL 1739140].
1 nGenerally, there is no basis for the review of a denial of interlocutory orders such as motions for summary judgment. Arkansas Ins. Dep’t v. Baker, 358 Ark. 289, 188 S.W.3d 897 (2004). However, interlocutory appeals may be proper if the order in effect determines the action and prevents a judgment from which an appeal might be taken. Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). We have allowed the appeal of the denial of a summary judgment motion when the circuit court in so ruling engages in fact finding that effectively rules on a party’s defense. BPS, Inc. v. Parker, 345 Ark. 381, 47. S.W.3d 858 (2001). In some situations, consideration of an appeal of the denial of a motion for summary judgment may be-proper when considered in conjunction with an appeal of an order granting summary judgment in order to determine if factual disputes remain for trial. Wilson v. McDaniel, 247 Ark. 1036, 449 S.W.2d 944 (1970). However, if a review of the denied motion is not necessary to sustain the motion that was granted, an appeal is not proper. City of North Little Rock v. Garner, 256 Ark. 1025, 511 S.W.2d 656 (1974).
Although denials of summary judgment are not generally appealable, in the instant case, the circuit court certified its decision for immediate appeal pursuant to Rule 64(b)(1). However, we are not convinced the court’s certification makes the otherwise improper appeal appropriate. We have previously said that orders denying summary judgment “are interlocutory and not subject to certification as final orders pursuant to Rule 54(b)(1).” Williams v. Peoples Bank of Paragould, 365 Ark. 114, 225 S.W.3d 389 (2006) (per curiam). 12The issues presented here compel us to reaffirm our prior opinion. First, the circuit court did not make any final judgment with respect to Cannady’s outrage claim but determined only that material facts remained in dispute. Second, the circuit court’s ruling would not prevent the presentation of any defense at trial. Third, our consideration of the denied motion is not necessary to sustain the part of St. Vincent’s motion that was granted. In sum, we do not believe the circuit court’s order is immediately appealable pursuant to Rule 54(b)(1).
We find support for our conclusion in the -language of Ark. R. Civ. P. 54(b)(1) itself, which provides: ... .
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of .a final judgment as to one or more but fewer than all of .the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. ...
(Emphasis added.)
Here, the circuit- court made no final judgment regarding' Cannady’s outrage claim but indicated only that material facts remained in dispute. Likewise, Ark. R. App. P.—Civ. 2(a)(11) provides for a properly certified Rule 54(b)(1) appeal of.
[a]n order or other form . of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties....
hs(Emphasis added.)
Clearly, Ark. R. App, P.—Civ. 2(a)(11) contemplates an appeal when the circuit court has entered a final judgment as to a claim or a party. Here, the circuit court made no final decision on the merits of Cannady’s outrage claim; rather, it simply determined that factual questions remained. Therefore, there is no. final judgment to review. Accordingly, the cross-appeal is not properly before us and must be dismissed. Rule 54(b)(1) should not prevent a litigant from having his or her day in court.
Affirmed on direct appeal; dismissed on cross-appeal.
Hart, J., dissents1.
. Miller is not participating in this appeal.
. Cannady originally named as defendants Catholic Health Initiatives and First Initia tives Insurance Company, but they were dismissed by agreement of the parties. The complaint also named as defendants John Does # 1-# 15, but those claims were abandoned pursuant to Ark. R. App. P.—Civ. 3(e)(vi). | [
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BART F. VIRDEN, Judge
11Appellee G & C Generator, LLC (G & C), filed a complaint against appellant JMAC Farms, LLC (JMAC), and JMAC’s contractor, McReynolds Enterprises, Inc., d/b/a McReynolds Water Systems (McRey-nolds), seeking to collect $66,200 for generators sold for the construction ■ of poultry houses on JMAC’s property and to foreclose on its materialmen’s lien. Default judgment was later entered against McReynolds, and the remaining parties filed cross-motions for summary judgment. The Benton County Circuit Court granted summary judgment to G & C. On appeal, JMAC argues that G & C failed to strictly comply with the lien statutes. We agree with JMAC that G & C cannot have a lien against property it did not improve pursuant to Ark". Code Ann. § 18-44-101 (Repl. 2015). Because summary judgment was inappropriate, we must reyerse.
|⅞1. Lien Statutes
Arkansas Code Annotated section 18-44-101 (a) provides the following:
Every ... material supplier ... who supplies ... material ... in the construction ... of an improvement to real estate, ... by virtue of a contract with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon complying with the provisions of this subchapter, shall have, to secure payment, a lien upon the improvement and on up to one acre of land upon which the improvement is situated, or to the extent of any number of acres of land upon which work has been done or improvements erected.
Section 18-44-115(b)(4) (Supp. 2017) provides that no material supplier shall be entitled to a lien on commercial real estate unless it notifies the owner of the commercial real estate being 'constructed, or improved in writing that the material supplier is currently entitled to payment but has not been paid. This notice shall be sent to the-owner before seventy-five days have elapsed from the time the materials were furnished. Ark. Code Ann. § 18-44-115(b)(5)(A). The notice shall contain, among other things, “a-description of the job site sufficient for identification” and a statement of notice set out in boldface type. Ark. Code Ann. § 18-44-115(b)(6)(D) & (E).
Further, section 18-44-117(a)(l) (Repl. 2015) provides that it shall be the duty of every .person who wishes to avail himself or herself of the provisions of this sub-chapter to file with the clerk of the circuit court of the county in which the improvement to be charged with the lien is situated, and within 120 days after the things .speQified in this subchapter shall have been furnished, (A) a just a,nd true account of the demand due or owing to him or her after allowing all credits, and (B) an affidavit of notice attached to the | alien account. The lien account shall contain “a correct description of the property to be charged with the lien” verified by affidavit. Ark. Code Ann. § 18-44-117(a)(2).
.II, Procedural History
. On February 1, 2016, G & C filed a verified claim, sworn statement, and notice of lien account, stating that it had furnished materials that were delivered to and incorporated into one or more improvements located on the following real property situated in Benton County, Arkansas: .
A PART OF THE NE/4 OF THE NE/4 OF SECTION 15, TOWNSHIP IS NORTH, RANGE 33 WEST, BENTON COUNTY, ARKANSAS, MORE PARTICULARLY DESCRIBED AS BEGINNING AT A POINT 542.85 FEET EÁST AND NORTH 0°14 MINUTES WEST 929.12 FEET OF THE SOUTH WEST CORNER OF SAID NE/4 OF THE NE/4, SAID POINT BEING THE CENTERLINE OF A CREEK; THENCE SOUTH 0°14 MINUTES EAST 929.12 FEET; THENCE WEST 217.30 FEET ALONG THE SOUTHERN BOUNDARY OF SAID. NE/4 OF THE NE/4 THENCE NORTH 0°14 MINUTES WEST 704.21 FEET TO THE CENTERLINE OF SAID CREEK; THENCE NORTHEASTERLY ALONG SAID CREEK CENTER-LINE TO THE POINT OF BEGINNING.'ALSO A PART OF THE NE/4 OF' THE NE/4 OF SECTION 15, TOWNSHIP 18 NORTH, RANGE 33 WEST, BENTON COUNTY, ARKANSAS, MORE PARTICULARLY DESCRIBED AS BEGINNING AT A POINT 325.55 FEET EAST AND NORTH 0°14 MINUTES WEST 704.21 FEET FROM THE SOUTHWEST CORNER OF SAID NE/4 OF THE NE/4, SAID POINT BEING THE CENTERLINE OF A CREEK; THENCE SOUTH 0°14 MINUTES EAST 704.21 FEET; THENCE WEST 105.00 FEET ALONG THE SOUTHERN BOUNDARY OF THE NE/4 OF THE NE/4 THENCE NORTH 0°14 MINUTES WEST 594.56 FEET TO THE CENTERLINE OF SAID CREEK; THENCE NORTHEASTERLY ALONG THE CENTERLINE OF SAÍD CREEK TO THE’ POINT OF BEGINNING.
LG & C stated that the property’s address is 20190 Garman Road, Gentry, Arkansas 72732. G & C stated that the materials were purchased by McReynolds, which was hired by JMAC to make certain improvements on its property using these and other materials. G & C stated that the materials had improved the owner’s property. G & C claimed a lien on the property, including “any and all leaseholds, buildings, and improvements located there upon,” in order to secure the sum of $66,200, which was due and owing to it for the materials located in and on the property. Attached to the lien account was an affidavit of pre-lien notice to comply with sections 18-44-114 and 18-44-115.
On July' 25, 2016, G & C filed a verified complaint for judgment and decree of foreclosure of a materialmen’s lien against JMAC and McReynolds, alleging that it had entered into, a contract with McRey-nolds in 2015 for the purchase of two generators and four transfer switches for the sum of $66,200 and that the materials were delivered to and incorporated into certain improvements located on JMAC’s property, described by the legal description set forth above and an address of 20190 Garman Road, Gentry, Arkansas 72732. Among other causes of action, which were subsequently dismissed, G & C sought foreclosure on its materialmen’s lien. G & C alleged that it had notified JMAC of the outstanding debt and of its intention to file the lien by serving the requisite notice; that G & C had filed a verified claim, sworn statement, and notice of lien account against the | ^property; that the lien was filed on.February 1, 2016; that G & C had provided copies of the lien to McReynolds and JMAC, along with another demand for payment; and that its lien was valid and enforceable.
JMAC answered G & C’s complaint, generally denying paragraph seven, which set forth the property’s legal description and address, .and raising the affirmative defense of payment. McReynolds neither answered G & C’s complaint nor appeared to defend, and default judgment was entered against it.
On July 29, 2016, G & C filed a notice of lis pendens, asserting that the land encumbered by such materialmen’s lien and on which the judgment and decree of foreclosure was sought is located in Benton County, Arkansas. It was described using the metes and bounds legal description set out above and the address of 20190 Garman Road.
On August 29, 2016, JMAC filed a motion for summary judgment, accompanied by an affidavit from Paul Geurin, a member of JMAC, attesting that JMAC had constructed ten new poultry houses and renovated two old poultry houses on five different tracts of real property that it owns; that JMAC purchased materials from McReynolds, which were incorporated into the new construction and located on the same parcel of real property as the newly constructed poultry houses;, and that JMAC had paid McReynolds in full for the materials. JMAC further alleged that there were no poultry houses on the tract of real property against which G & C had filed its materialmen’s lien; that only a residence and barn were located on the property against which the lien was filed; that 20190 Garman Road was not the address for the property on which JMAC’s poultry houses are located; Rthat the Benton County Tax Assessor’s website associated the property on which the poultry houses sat with the address of “Garman Road” or “20178 Garman Road”; and that its broiler-production contract with Tyson Foods showed an address of “20296 Gar-man Road.” JMAC attached several aerial photos of the properties from the assessor’s office, the invoice for the materials that it had purchased from McReynolds, a cashier’s check and personal check showing payment in full for the materials, a deed plot for the property charged with the lien, and its broiler-production contract with Tyson.
On September 21, 2016, G & C filed a motion for summary judgment and brief in support, incorporating aerial photos of JMAC’s property, including the poultry houses and the property on which the residence and barn sat, and photos of the mailbox identifying the address 20190 Gar-man Road and depicting the driveway at several angles, showing the poultry houses along each side of the driveway leading to a residence.
Following a hearing, the trial court entered an order granting summary judgment to G & C and denying JMAC’s motion for summary judgment. JMAC appeals from that order. The trial court subsequently entered an order staying enforcement of the decree of foreclosure pending appeal.
III. Summary-Judgment Standard of Review
Summary judgment is to be granted only when'it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Corn Ins. Agency, Inc. v. First Fed. Bank of Ark, F.A., 88 Ark. App. 8, 194 S.W.3d 230 (2004). Normally, on a summary-judgment appeal, the evidence is viewed most |7favorably for the party resisting the mo tion and any doubts and inferences' are resolved against the moving party, but in a case in which the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgment, as was done here, they essentially agree that there are no material facts remaining, and summary judgment may be an appropriate means of resolving the case. Id. The filing of cross-motions' for summary judgment, however, does not necessarily mean that there are no material issues of fact in dispute. Id. As to issues of law presented, this court’s review is de novo. Crafton, Tull, Sparks & Assocs., Inc. v. Ruskin Heights, LLC, 2015 Ark. 1, 453 S.W.3d 667.
IV. Discussion
JMAC argues that the property against which G & C filed its lien is not the property on which the poultry houses are situated. JMAC asserts that G & C thus failed to strictly comply with Ark. Code Ann. § 18—44—115(b)(6)(D), which requires that G & C give notice of the lien with “a description of the job site sufficient for identification,” and Ark. Code Ann. § 18-44—117(a)(2), which requires that G & C file a lien account containing “a correct description of the property to be charged with the lien.” JMAC further argues that G & C cannot, pursuant to Ark. Code Ann. § 18-44-101(a), have a lien against property on which it has made no improvements.
As a preliminary matter, the parties disagree as to the proper construction of the lien statutes. JMAC argues that strict compliance is required, while G & C maintains that “pin-point precision is not required to satisfy the property description requirement,” | 8relying, in part, on E.O. Barnett Brothers v. Wright, 116 Ark. 44, 172 S.W. 254 (1914), as well as Westside Galvanizing Services Inc. v. Georgia-Pacific Corp., 724 F.Supp. 644 (W.D. Ark. 1989), Arkansas Foundry Co. v. American Portland Cement Co., 189 Ark. 779, 75 S.W.2d 387 (1934), Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 352-53, 258 S.W. 353, 355 (1924), and In re Horton Vaults, Inc., 109 B.R. 356 (E.D. Ark. 1989).
Our supreme court has most recently held in Ground Zero Construction, Inc. v. Walnut Creek, LLC, 2012 Ark. 243, 410 S.W.3d 579, and Books-A-Million, Inc. v. Arkansas Painting and Specialties Co., 340 Ark. 467, 10 S.W.3d 857 (2000), that the materialmen’s-lien statutes are in derogation of the common law and therefore are strictly construed, thus requiring strict compliance. Although the court focused on the statutory-notice requirements of section 18-44-115 in Ground Zero and Books-A-Million, the supreme court said generally that “[o]ur lien statutes are in derogation of the common law, and we construe them strictly since they provide an extraordinary remedy that is not available to every merchant or'worker.” Books-A-Million, 340 Ark. at 470, 10 S.W.3d at 860 (citing Valley Metal Works, Inc. v. A.O. Smith-Inland, 264 Ark. 341, 344, 572 S.W.2d 138, 140 (1978)); see also BB & B Constr. Co., Inc. v. F.D.I.C., 316 Ark. 663, 875 S.W.2d 48 (1994); Christy v. Nabholz Supply Co., Inc., 261 Ark. 127, 546 S.W.2d 425 (1977);
Before determining whether a lien has been perfected, we must determine whether the property itself was subject to a lien. G & C has consistently described JMAC’s property using both the legal description set forth in section II of this opinion ;and the address 20190 Garman Road. The record shows that the address- and legal description relate to the Usame piece of property, Arkansas Code Annotated section 18-44-101(a) provides that a material supplier shall have “a lien upon the improvement and on up to one acre of land upon which the improvement is situated.” The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Massey v. Fulks, 2011 Ark. 4, 376 S.W.3d 389.
JMAC contends that G <& C claimed a lien against specifically described property on which no improvements are situated and on which no work was performed. We agree. G <& C furnished materials for the poultry houses-on JMAC’s property. The legal description on the lien account filed with the clerk, which requires a “correct description,” is for a piece of property on which only a house and barn sit, i.e., there are no poultry houses and thus no improvements. We hold that, according to the plain language of sections 18-44-117(a)(2) and 18-44-101(a), G & C cannot have a lien on property on which it has made no improvements.
V. Conclusion
We conclude that the plain language of section 18-44-101(a) provides that G & C shall have a lien “upon the improvement and on up to one (1) acre of land upon which the improvement is situated.” G. & C cannot have a lien against property on which no improvements were made. Accordingly, ,G & C was not entitled to judgment as a matter of law, and we must reverse. We need not reach JMAC’s other arguments..
Reversed.
ImGlover and Murphy, JJ., agree.
. The road is spelled "Garman” at times and "Garmon” at other times, but we will use the former spelling when referring to this road.
. In its answer, JMAC asserted that it had purchased three generators and eight transfer switches. | [
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KENNETH S. HIXSON, Judge
| Appellant Juan Perez was convicted of three counts of rape committed against K.W., who was ten or eleven years old when the offenses were committed. Mr. Perez was sentenced to three concurrent twenty-five-year prison terms. On appeal, Mr. Perez argues that the trial court erred by failing to grant his motion for directed verdict because there was insufficient evidence that he committed the crimes.
As an initial matter, we observe that Mr. Perez’s argument on appeal also purports to challenge the sufficiency of the evidence supporting an additional rape conviction committed against nine-year-old G.K The charges involving K.W. were assigned case number 46CR-14-312-1, and the-charge involving G.K. was given case number 46CR-14-183-1, and the .two cases were tried together. However, there .were two separate sentencing orders entered by the trial court. The sentencing order in case number 46CR-14-312-1 is included in the record on appeal; the sentencing order in case number 46CR-1214-183-1 is nót. The sentencing order that is before this court on appeal provides that the three concurrent sentences in 46CR-14-312-1 shall run consecutive with the sentence in 46GR-14-183-1.
In Mr. Perez’s notice of appeal, he indicated only that he was appealing from his convictions in case number 46CR-14-312-1, which he identified as three convictions for which he was sentenced to 300 months in prison. The notice of appeal makes no mention of case number 46CR-14-183-1, nor does it otherwise identify the. conviction arising out of that case'.
Rule 2(a) of the Arkansas Rules of Appellate Procedure provides in part that “the person desiring to appeal a circuit court judgment or order or both shall file with the clerk of the circuit court a notice of appeal identifying the parties taking the appeal and the judgment or order or both being appealed,” A notice of appeal, must designate the judgment or order appealed from, and an order not mentioned in the notice of appeal is not properly before an appellate court. Todd v. State, 2015 Ark.App. 356, 465 S.W.3d 435.
Because Mr. Perez’s notice of appeal does not designate the sentencing order in case number 46CR-14-183-1 or otherwise identify his conviction in that case, he has taken no appeal from that order. Therefore, our review is limited to the three rape convictions involving KW. in case number 46CR-14-312-1, from which Mr. Perez has appealed and claims there was insufficient evidence.
Pursuant to Arkansas Code Annotated section 5-14-103(a)(3) (Repl.2013), a person commits rape if he engages in sexual intercourse, or deviate. sexual activity with another person who is less than fourteen years, of age. “Deviate sexual activity” means any act of | ¡¡sexual gratification involving the penetration, however slight, of the anus or mouth of &/ person by the penis of another person. Ark.Code Ann. § 5 — 14—101(1)(A) (Repl. 2013).
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424. When sufficiency is challenged on appeal from a criminal conviction, we consider only that proof that supports the verdict. Davis' v. State, 2015 Ark. App. 234, 459 S.W.3d 821. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Draft v. State, 2016 Ark. App. 216, 489 S.W.3d 712. We will affirm if the finding of guilt is supported by substantial evidence. Id. ■ Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring resort to speculation or conjecture. Id. The weight of the evidence and credibility of the witnesses are matters for the fact-finder, not for the trial court ón a directed-verdict motion or this court 'on appeal. Simpkins v. State, 2010 Ark. App. 723.
The victim, K.W., testified that he lived in the same neighborhood as Mr. Perez. Mr. Perez was friends with KW.’s older brother. K.W. testified that, when he was ten or eleven years old, Mr. Perez molested him more than twenty times.
K.W. gave detailed accounts of several of the specific incidents. He testified that, the first time it happened, he was walking with his brother and Mr. Perez wanted to show him. “something cool” and took him out to the woods. After talking to K.W. about sex, Mr, Perez threw K.W. to the ground and pulled down his pants and underwear. According to K.W., Mr. Perez then used some kind of liquid, put on a condom, and “put his pée-pee inside me” while Mr. Perez held his hand over KW.’s mouth. K.W. wanted to tell Rsomeone what had happened, but testified, “I was scared because I didn’t know what could’ve happened if I snitched.”
Several more incidents followed. K.W. testified that, on one occasion, Mr. Perez lured K.W. into his house and had anal sex with K.W. on-his bed. On another occasion, Mr. Perez made K.W. give him oral sex behind a shed. Two more incidents of anal sex occurred when Mr. Perez molested K.W. on some old bleachers and then again out in the woods, K.W. stated that, after some of these incidents, Mr. Perez would give him gifts such as hats or necklaces. K.W. testified that the assaults finally ended when he refused to go outside anymore.
K.W. stated that he did not disclose these assaults to anyone until he and G.K. had gotten into trouble after getting caught filming two little girls with their pants down. As KW. was being questioned about that incident, he “blurted out that [he] was molested by Juan and [he] was screaming because [he] was really mad and sad- at the same time and it just all came out.”
K.W. was subsequently interviewed at a children’s advocacy center, where he disclosed the molestations to a forensic interviewer. K.W. acknowledged that, during the interview, he had told the interviewer that Mr. Perez had threatened to kill him if he told anyone about the abuse, which was not true. K.W. testified that he lied about that as an excuse for why he had not reported the abuse earlier. K.W., however, maintained that his accounts to the interviewer about being molested were truthful..
fiG.K. testified about the one incident where he was raped by Mr. Perez. G.K. testified that it happened in Mr. Perez’s bedroom, and that Mr. Perez used a lubricant and a condom. G.K. said that-after it was over Mr'. Perez gave him a hat and a necklace.
Kathy Lach, a registered nurse, performed a sexual-assault examination on K.W. Although Ms. Lach found no signs of any injury or trauma to K.W., she testified that she was not surprised by that because it was very rare to find trauma or injury in these types of eases.
In this appeal, Mr. Perez argues that there was insufficient evidence to support the jury’s convictions for rape committed against K.W. Mr. Perez asserts that there were numerous inconsistencies in KW.’s testimony, and that the jury failed to give proper weight, to those inconsistencies or the motive for K.W. to fabricate a scapegoat to shift away focus from his misbehavior involving the young girls.
In support of his argument, Mr. Perez offers specific examples of K.W.’s inconsistent statements during his testimony. When describing the first episode of abuse, K.W. stated at one point that his brother was with him, and at another point stated he was not. Mr. Perez further asserts that KW.’s testimony was inconsistent regarding the gifts he allegedly received after being molested. K.W. also gave varying testimony about whether it was his mother or sister who he first saw after being molested behind the shed, and as to what time of the year the assaults occurred. K.W. failed to report the alleged assaults until he was investigated for misconduct involving young girls, and after reporting the assaults he admittedly gave false information during an interview by stating that Mr. Perez had | f,threatened to kill him. In light of these discrepancies, Mr. Perez submits that the jury’s finding that he committed the rapes was based on speculation.
We hold that there was sufficient evidence to support the jury’s verdicts. It is well established that the uncorroborated testimony of the victim alone is sufficient to support a rape conviction. Vance v. State, 2011 Ark. App. 413. Moreover, inconsistencies in the testimony of a rape victim are matters of credibility for the jury to resolve, and it is within the province of the jury to accept or reject testimony as it sees fit. Brown v. State, 100 Ark. App. 172, 265 S.W.3d 772.
In this case, viewing the evidence in the light most favorable to the State, KW.’s testimony was substantial evidence supporting Mr. Perez’s convictions. K.W. testified that, when he was ten or eleven years old, he had been raped by Mr. Perez more than twenty times over the course of about a year. K.W. then proceeded to testify about several specific instances of penetration, which if believed by the jury, established the necessary elements of rape. Leaving credibility determinations to the jury, as we must, we conclude that appellant’s rape convictions were supported by substantial evidence. Therefore, we affirm. "
Affirmed.
Abramson and Glover, JJ., agree. | [
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PER CURIAM
hln 1987, petitioner Sanders M. Carter was convicted by a jury of rape, aggravated robbery, and burglary. He was sentenced as a habitual offender to consecutive terms of imprisonment of life for rape and an aggregate sentence of forty years’ imprisonment for the other offenses. We affirmed. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).
Subsequently, Carter filed in this court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1987). The petition was denied. Carter v. State, CR-87-209 (Ark. Oct. 16, 1989) (unpublished per curiam). In 1990, appellant filed in the trial court a pro se petition for writ of habeas corpus that was denied. On appeal from the order, this court concluded that the allegations raised in the petition were cognizable under Rule 37.1 and did not state a ground to issue the writ. The appeal was dismissed. Carter v. State, CR-90-187 (Ark. Nov. 5, 1990) (unpublished per curiam). Carter then filed in the trial court a petition for scientific testing of evidence pursuant to Act 1780 of 2001 Acts of Arkansas, codified at Arkansas Code Annotated sections 16-112-201 to 207 (Supp. 2003), based on a claim that, the chain of custody of certain evidence was not broken and could be used in his defense. Ark. Code Ann. § 16-112-202(b). After a hearing at which Carter was represented by counsel, the trial court denied the petition, and we affirmed. Carter v. State, CR-03-148 (Ark. Feb. 19, 2004) (unpublished per curiam). Next, in 2005, Carter filed a petition for writ of habeas corpus in the circuit court in the county in which he was incarcerated. The petition was denied, and we affirmed the order. Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006) (per curiam).
In 2008, Carter filed another pro se petition for writ of habeas corpus in the trial court pursuant to Act 1780. The trial court held that Carter had already sought scientific testing of evidence collected at the crime scene and that he had not established that he was entitled pursuant to Arkansas Code Annotated section 16-112-205(d) to file a subsequent petition for scientific testing. The petition was denied, and we affirmed the order. Carter v. State, 2010 Ark. 29 (per curiam).
In 2011, Carter filed in this court a pro se petition in the case 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 was necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Neuman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered | awhile there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
In the 2011 petition, Carter asserted a violation of the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court revisited Brady and declared that when the petitioner contends that material evidence was not disclosed to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or |4because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286; see Howard, 2012 Ark. 177, 403 S.W.3d 38, Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481.
The Brady violation alleged by Carter in the 2011 petition was that the State withheld evidence from the defense, but, as we noted in the opinion denying the petition, the documents and testimony that he pointed to as having been withheld did not exist at the time of trial. The petition was denied. Carter v. State, 2011 Ark. 481 (per curiam).
Now before us is Carter’s second petition to reinvest jurisdiction in the trial court in the case to consider a petition for writ of error coram nobis. Carter asserts in the second petition that he learned during the 2015 Act 1780 proceeding in the trial court that there were thirty-four “negroid” hairs recovered from the rape victim’s pink bedsheet. He contends that at his trial in 1987 only one pubic hair and eight hair fragments had been forensieally tested and that the existence of the thirty-four hairs had been concealed from the defense. He argues that he would not have been found guilty had the thirty-four hairs been tested at the time of trial because the hair examiner would have had a larger pool of evidence to test.
We do not find that Carter has proven a Brady violation because Carter has not demonstrated with facts that there is a reasonable probability that the outcome of the trial would have been different had the hair examiner had a larger pool of hair samples to examine. At most, Carter has suggested that more hair would have given the examiner more to compare; he does not contend that more hair would necessarily have ruled him out | Sas the perpetrator. Moreover, even if it could be said that not all of the hairs taken into evidence were forensieally examined at the time of trial, Carter has not shown that there is a reasonable probability based on the evidence adduced at trial that the outcome of the trial would have been different if the hair examiner who testified at trial had a greater number of hairs to-test.
There was evidence adduced at Carter’s trial that in November 1986 a man entered the victim’s home through a kitchen window off a deck. He threatened to kill the victim with a knife, searched her purse for money, raped her, beat her repeatedly, and threatened that, if she called the police, he would come back at a later time and cut her throat. The assault lasted forty to forty-five minutes; In spite of his threat, the victim called the police and gave a description of the perpetrator. One night in January 1987, the victim heard someone on the deck and saw a man pass by the window. She called the police, and Carter was apprehended on the deck and taken into custody. Later that day, and again at trial, the victim identified Carter as her assailant. See Carter, 295 Ark. at 220, 748 S.W.2d at 127.
When considering a Brady violation, we look at the significance of the evidence that was alleged to have been concealed from the defense weighed against the totality of the evidence to determine if the evidence at issue would have been such as to have prevented rendition of the judgment had the evidence been available at the time of trial. Smith v. State, 2015 Ark. 188, 461 S.W.3d 345 (per curiam); Goff v. State, 2012 Ark. 68, 398 S.W.3d 896; Sanders v. State, 2011 Ark. 199 (per curiam). We further consider the cumulative effect of the allegedly suppressed evidence to determine whether the evidence that was alleged to have been suppressed was material to the guilt or punishment of the defendant. Goff, 2012 Ark. 68, 398 S.W.3d 896. Here, the vie-tim’s testimony was sufficient to establish that Carter committed the offenses. His claim of a Brady violation falls short of establishing that there was evidence withheld that meets the threshold requirements of a Brady violation that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. It is petitioner’s burden to demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Wilson v. State, 2014 Ark. 273 (per curiam). Petitioner has failed to meet this burden.
Petition denied. | [
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PHILLIP T. WHITEAKER, Judge
1 ¶ Appellant Kareem Muhammad was convicted of one count of robbery and one count of theft of property following a bench trial. Because Muhammad had nine previous convictions, he was sentenced as a habitual offender and received twelve years in the Arkansas Department of Correction. On appeal, Muhammad raises three arguments: (1) the evidence was insufficient to support his conviction for robbery; (2) in conjunction with that argument, Arkansas’s standard of review in criminal cases is unconstitutional and inconsistent with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); and (3) Arkansas’s habitual-offender sentencing statutes are unconstitutional. We find no error and affirm.
|2I- Standard of Review
As part of his challenge to the sufficiency of the evidence in this case, Muhammad challenges the constitutionality of our appellate courts’ standard of review. Muhammad correctly states that Arkansas’s well-settled standard of review requires an appellate court to view the evidence in the light most favorable to the appellee and affirm if substantial evidence supports a conviction. For purposés of this opinion, we will refer to the Arkansas standard as the “substantial evidence” test. Muhammad contends that this standard violates'’ the constitutional framework established by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the United States Supreme Court held that a state criminal conviction could be successfully challenged in a federal ha-beas proceeding “if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324, 99 S.Ct. 2781. For purposes of this opinion, we will refer to the Jackson standard as the “rational trier of fact” test.
Muhammad’s challenge to the “substantial evidence” test is without merit. Our supreme court has repeatedly rejected this very argument. In Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), the supreme court explicitly held that the language in Jackson did not require abandonment of the “substantial evidence” test. Jones, 269 Ark. at 120, 598 S.W.2d at 749. This decision was subsequently reaffirmed in Hale v. State, 843 Ark. 62, 74-75, 31 S.W.3d 850, 858 (2000) (declining to adopt Jackson’s “rational trier of fact” test as the appropriate standard of review when there is a challenge to. the sufficiency of the evidence). [sMore recently, in Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002), the supreme court again rejected the argument and pointed out that
[the] substantial-evidence test, while not explicitly reciting the standard from Jackson word for word, requires that evidence supporting a conviction must compel reasonable minds to a conclusion and force or induce the mind to pass beyond suspicion or conjecture, and, thereby, ensures that the evidence was convincing to a point that any rational fact-finder could have found guilt beyond a reasonable doubt.
351 Ark. at 227, 91 S.W.3d at 61 (internal citations omitted). Thus, the argument that Muhammad puts forth in his brief has been repeatedly and soundly rejected by our supreme court, and we are bound to follow that court’s decisions. See Earl v. State, 2010 Ark. App. 186 (rejecting a Jackson-based argument for that reason).
We therefore apply our well-settled standard of review to this case. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Kourakis v. State, 2015 Ark. App. 612, 474 S.W.3d 536. We have defined substantial evidence as evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
II. Sufficiency of the Evidence
Having established the standards by which we review this case, we turn to the merits of Muhammad’s appeal. As noted above, Muhammad was charged with robbery. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark. |4Code Ann. § 5-12-102(a) (Repl. 2015). “Physical force” means any bodily impact, restraint, or confinement, or the threat thereof. Ark.Code Ann. § 5-12-101(1)-(2). Muhammad was also convicted of theft of property. In his brief, however, he concedes that there was sufficient evidence to support the theft-of-property conviction; therefore, we need only consider the evidence introduced in support of the robbery conviction.
Utilizing our standard of review, we find the evidence sufficient to support Muhammad’s conviction for robbery. The evidence introduced at trial showed the following. During early morning hours, Desi Jones, who was sixteen years old at the time, was standing in the parking lot of his apartment complex and talking on his iPhone. Muhammad pulled up to him in a car and asked if he could use Jones’s phone. When Jones refused, Muhammad punched him in the face, took the phone, and drove away. Using his mother’s iPad, Jones and his mother were able to track the location of the iPhone. Little Rock police were called to that location. When Muhammad answered the door, Jones positively identified him as the man who had taken his phone. Muhammad handed the phone over to the officers, and he was arrested. We conclude that Muhammad’s act of punching Jones in the face and taking the phone constitutes substantial evidence to support a conviction for robbery. See Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975) (evidence that defendant hit victim in the face while stealing her purse supported robbery conviction); Baldwin v. State, 48 Ark. App. 181, 892 S.W.2d 534 (1995) (jerking victim’s hand from car horn during carjacking sufficient to support robbery conviction).
|fiMuhammad nonetheless points to his own testimony that he simply borrowed the phone from Jones and forgot that he had it. He also asserts that there was no physical evidence, such as bruising or-scratching, to indicate that he hit Jones. These arguments, however, substitute Muhammad’s assessment of Jones’s credibility for the circuit court’s, which is contrary to our standard of review. See Glennon v. State, 2016 Ark. App. 25, at 5, 480 S.W.3d 894, 897. It is the responsibility of the trier of fact to make credibility determinations based on the evidence. Wilson v. State, 2016 Ark. App. 218, 489 S.W.3d 716. The circuit court, as finder of fact, is free to believe the testimony of the State’s witnesses as opposed to a defendant’s self-serving testimony. Hale v. State, 2009 Ark. App. 308. Here, the circuit court chose to believe the testimony of Jones and not that of Muhammad. We therefore affirm Muhammad’s robbery conviction.
III. Sentencing as a Habitual Offender
Muhammad’s second argument on appeal pertains to his sentencing as a habitual offender. Muhammad was charged as a habitual offender. Knowing this, Muhammad waived his right to a jury trial and asked the circuit court to both determine his guilt and set his punishment. After the bench trial, the circuit court held a separate sentencing hearing. At the beginning of that hearing, the State introduced evidence of Muhammad’s nine prior convictions. Although Muhammad asked the court to consider probation or a suspended imposition of sentence, the circuit court found that the previous convictions precluded such a sentence. See Ark.Code Ann. § 5-4-301(a)(2) (“If it is determined pursuant to § 5-4-502 |fithat a defendant has previously been convicted of two (2) or more felonies, the court shall not ... [suspend imposition of sentence; or ... [p]lace the defendant on probation.”).
, On appeal, Muhammad argues that Arkansas’s habitual-offender statute violates the separation-of-powers clause in the Arkansas Constitution. He failed to raise this argument in the circuit court, however, arid it is therefore not preserved for appellate review. It is well settled that we will not consider arguments, even constitutional ones, that are raised for the first time on appeal. Laymon v. State, 2015 Ark. 485, at 5, 478 S.W.3d 203, 206. Accordingly, we do not address this argument.
. Affirmed. ■
Virden and Brown, JJ., agree. | [
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LARRY D. VAUGHT, Judge .
liOn February 6, 2012, an ammonia leak at a Tyson Foods plant in Springdale, Arkansas, where appellant Gregory Taylor was employed, caused a plant evacuation. Following an’ internal investigation of the leak, -Tyson management concluded that Taylor and coemployee Daniel Patrick were involved in causing the leak. ■ Tyson terminated Taylor and Patrick, and they were subsequently charged by the Washington County Deputy Prosecutor with second-degree criminal mischief and ten counts of third-degree battery committed against ■ ten ' Tyson employees who were exposed to the ammonia. Four months later, the criminal charges against Taylor and Patrick were dismissed by an order of nolle prosequi.
In October 2014, Taylor filed a civil complaint alleging malicious prosecution against appellees, Tyson Foods, Inc., and its employees Woody Doss, Gregory Clark, and Chris Mitchell. Appellees moved for summary judgment, and the Circuit Court of Washington |aCounty entered an order granting the motion. Taylor appeals, contending that summary judgment was entered in error because there are material facts in dispute. We affirm.
The facts and procedural history of this case are summarized in detail in its companion case, Patrick v. Tyson Foods, Inc., 2016 Ark. App. 221, 489 S.W.3d 683, handed down April 20, 2016. As in Patrick, the trial court granted appellees’ motion for summary judgment dismissing the malicious-prosecution complaint finding that (1) there was probable cause to issue the warrant; (2) there was no evidence of malice; and (3) appellees were entitled to the advice-of-counsel defense because they made a full, fair, and truthful disclosure of all facts known to them, including the security video, to competent counsel/prosecuting attorney.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Sawada v. Wal-Mart Stores, Inc., 2015 Ark. App. 549, at 3, 473 S.W.3d 60, 63. Once a 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., 473 S.W.3d at 63. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id., 473 S.W.3d at 63. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id., 473 S.W.3d at 63. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id., 473 S.W.3d at 63. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Id. at 4, 473 S.W.3d at 63.
To establish a claim for malicious prosecution, a plaintiff must prove (1). a judicial proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) lack of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. Sawada, 2015 Ark. App. 549, at 4, 473 S.W.3d at 63-64.
On appeal, Taylor argues that the trial court erred in entering summary judgment on his malicious-prosecution complaint because genuine issues of material fact exist. Specifically, he argues that there are “hotly contested fact questions” on the issues of probable cause and malice and on the advice-of-counsel defense because Tyson’s internal report falsely stated that the security video showed he committed crimes. For example, he contends that the report falsely stated that the video showed (1) Patrick moving behind a support column to hide from view of the camera; (2) Patrick motioning to two men walking by together, one of whom was Taylor; (3) Taylor turning and walking to Patrick; (4) Patrick handing a container to Taylor; (5) Taylor walking to the ammonia valve; and (6) Taylor bending over, hold ing the container under the ammonia valve, appearing startled, standing up quickly, and walking rapidly away while screwing the lid back on the container. Taylor argues that the video shows him performing his regular job duties. For support, he cites the affidavit of Deputy Prosecuting Attorney Brian Lamb, who stated that he filed the charges against Taylor based, in part, on the statements made in the* Tyson report regarding what could be observed in the video. When pLamb later viewed the video in preparation for trial, the actions taken by Taylor as described in the internal report were not clear to Lamb.
In making a probable-cause determination in the context of a malicious-prosecution suit, the court generally “concentrates on the facts before the [legal] action commenced.” Sundeen v. Kroger, 355 Ark. 138, 145, 133 S.W.3d 393, 397 (2003). The test for determining probable cause is an objective one based not on the accused’s actual guilt, but on the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Walr-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 348, 681 S.W.2d 359, 361 (1984). Generally, ordinary caution is a standard, of reasonableness and an issue for the jury. Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 163, 15 S.W.3d 320, 324 (2000). However, when the facts relied on to establish probable cause are undisputed, the question of whether probable cause exists is one for the courts. Id., 15 S.W.3d at 324. In Binns, our supreme court stated that if the defendant in a malicious-prosecution ease “believed and had grounds for entertaining ‘honest and strong suspicion’ that [the plaintiff] was guilty” of a crime, it was entitled to a directed verdict. Id. at 163, 15 S.W.3d at 324.
Before criminal charges were-' filed against Taylor, seven members of Tyson management viewed the video. Each concluded that Taylor’s activity in and around the ammonia valve was suspicious and that he was involved in the ammonia-leak incident. After | ^meeting with Tyson management and .viewing the video, separate appellees Woody Doss and Gregory Clark, both Tyson security managers, agreed with management’s conclusion that Taylor had been involved in the leak incident. Based on Tyson management’s interpretation of the video, Doss and Clark interviewed Taylor. In that interview,, it was revealed that Taylor had been convicted of committing arson against a former employer after a dispute. Taylor showed very little emotion during his interview, denied seeing or speaking with Patrick on the day in question, and denied any involvement with the leak. . Doss and Clark found Taylor lacked credibility. Based on the investigation, Tyson terminated Taylor’s employment.
Others reached the same conclusion about Taylor’s involvement in the leak incident as did appellees. Before Charges were filed (and before the Tyson internal report was prepared), Springdale Police Officer Richard Huddler reviewed the video at the Tyson plant and opined that Taylor (and Patrick) engaged in criminal activity (the theft of anhydrous ammonia for drug purposes). Springdale Police Detective Eric Evans also viewed the video and later swore out an arrest warrant for Taylor,' stating that there was probable cause to arrest Taylor for second-degree criminal mischief and third-degree battery. Finally, Prosecutor Lamb, who had possession of the report and video, filed the felony information against Taylor.
These facts are uncontroverted and establish that, based on the information ap-pellees possessed from its internal investigation, they believed and had grounds for entertaining honest and strong suspicion that Taylor was guilty of tampering with the ammonia valve that leaked. Appellees’ beliefs were corroborated by the statements and actions of law enforcement and the’deputy prosecutor. These unrefuted facts would induce' a person of ordinary caution to believe the accused to be guilty. Accordingly, we hold that the- trial court did not err in | r,finding that Taylor’s malicious-prosecution claim could not succeed because there was probable cause for the criminal charges. See Sawada, 2015 Ark. App. 549, at 8, 473 S.W.3d at 65-66 (affirming summary judgment of plaintiffs malicious-prosecution claim where- evidence was undisputed that the information Wal-Mart possessed from its internal investigation and subsequent interview of the plaintiff was enough to cause a person of ordinary caution to believe that the plaintiff committed a theft; therefore, it was sufficient to establish probable cause).
Taylor’s contention that the video and the investigative report can be interpreted differently (he claims that it does not show him engaged in any criminal activity) does not create a factual dispute on the issue of probable cause sufficient to defeat summary judgment. Appellees internally, along with law enforcement and the prosecutor, were of the opinion, mistakenly or not, that Taylor was involved in a nonacci-dental. ammonia leak. Probable cause exists when a person honestly but mistakenly believes someone is guilty of a crime, and that mistaken belief is reasonable. Sawada, 2015 Ark. App. 549, at 9, 473 S.W.3d at 66 (citing Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 214, 29 S.W.3d 754, 756 (2000) (stating that “[t]he test for determining probable cause is an objective one.”)). Here, appellees, based on their thorough investigation, could reasonably have believed that Taylor was involved in purposely tampering with the valve that caused the ammonia leak and injuries to fellow employees. The police and prosecutor concurred. As a matter of law, this evidence satisfied the required element of probable cause. The failure of one element renders a malicious-prosecution case defunct. Jones v. McLemore, 2014 Ark. App. 147, at 5, 432 S.W.3d 668, 671. Accordingly, the trial court did not err in granting appellees’ motion for summary judgment.
|7Assuming arguendo that Taylor had presented a factual question on the element of probable cause, we would also affirm because he failed to present any facts supporting the element of malice. Malice has been defined as any improper or. sinister motive for instituting the suit. Sundeen, 355 Ark. at 147, 133 S.W.3d at 398.
As evidence of appellees’ malice, Taylor again focuses on the misrepresentations he contends are contained in the Tyson report,' arguing that the report did not say that.“it could have been Taylor” or “we think it might have been Taylor” or “here ■ is a list of potential suspects, but we don’t know who did it.” Instead, Taylor argues that appellees’ report stated that he was shown on the video causing the ammonia leak. He contends these statements are not true, which raises a question of fact on the issue of malice. We disagree and hold that Taylor failed to present any facts of an improper or sinister motive of appellees to initiate proceedings against him.
First, as set forth above, based' on their investigation, appellees could have reasonably believed that Taylor was involved in the tampering of the ammonia valve. Second, the evidence was undisputed that Doss and Clark, who authored the report, did not know Taylor before the leak investigation. Third, Taylor testified in his deposition that he knew of no reason why Tyson management personnel (Richardson, Treat, McClung, Smith, Evans, and Abshier) would be motivated to provide false information in order to implicate him in the ammonia leak. Taylor also testified that he knew of no reason why Doss and Clark would dislike him or want to have him arrested.. And fourth, there is no evidence that appellees sought, to have criminal charges filed against Taylor. The undisputed evidence in this case reflects that appellees prepared an internal report in their ordinary course of business and provided it to |sthe police only upon request. Therefore, Taylor has failed to meet proof with proof on the element of malice. Accordingly, we hold that the trial 'court did not err in summarily dismissing Taylor’s malicious-prosecution complaint.
Had Taylor met proof with proof on all the elements of malicious prosecution, we would still affirm. It is a complete defense to an action for malicious prosecution if the defendant in the action instituted the prosecution upon the advice of a prosecutor or counsel learned in the law after truly laying all the facts in his possession before him or them. Jennings Motors v. Burchfield, 182 Ark. 1047, 1049, 34 S.W.2d 455 (1931). The reason for this rule is that where one truly lays all-the facts in his possession before' a prosecutor or an attorney and follows his or their advice, the law conclusively presumes the existehce of probable cause, the lack of which is a necessary element in. a suit for malicious prosecution. Id. at 1049, 34 S.W.2d at 455. In order to avail oneself of this defense, one must have made a full, fair, and truthful disclosure of all facts known to him and acted in good faith on counsel’s .advice. Family Dollar Trucking, Inc. v. Huff, 2015 Ark. App. 574, at 5, 474 S.W.3d 100, 105. The proponent of the defense bears the burden to establish it by a - preponderance of the evidence. Id., 474 S.W.3d at 105.
The trial court found that “[t]he defendants in this case provided all information collected during their investigation, including the security camera video, to the prosecuting attorney for review. This fact is not in dispute;” On appeal, Taylor; has presented no evidence that appellees withheld any information from the police' or the prosecutor in connection with its internal investigation. To.-the contrary, the undisputed facts are that appellees, upon the request of Detective Evans, tendered all of its investigation material. This material included 19not only their internal report, it also included the video, which, according to Taylor, clearly and accurately showed his activities on the morning in question. There is also no dispute that Detective Evans forwarded all of appellee’s investigation information to the prosecutor, who ultimately filed the felony information against Taylor.
It is unrefuted that the police and the prosecutor were provided the security video to compare against appellees’ -internal investigative report. Any perceived contradictions between the conclusions appel-lees reached in their report and Taylor’s actions on the video were for the police and the prosecutor to assess. The fact remains uncontroverted that appellees provided all investigation information in their possession to the police and prosecutor, entitling them to the advice-of-counsel defense. Jennings Motors, 182 Ark. at 1049-50, 34 S.W.2d at 455-56 (reversing a malicious-prosecution judgment and holding that Jennings Motors was entitled to the advice-of-counsel defense where, despite Burchfield’s allegation that Jennings Motors’ officials made untruthful accusations to its own attorney and to the prosecutor, Jennings Motors presented testimony that it provided all of the evidence it had to both attorneys).
| mUnder these circumstances, we cannot say that the trial court erred in finding, as a matter of law, that there was a full, fair, and truthful disclosure of all facts known to appellees to the police and prosecutor. Accordingly, we hold that the trial court did not err in finding that appellees were entitled to the advice-of-counsel defense. We affirm the order of summary judgment.
Affirmed.
Hoofman, J., agrees.
Virden, J., concurs.
. In Patrick, we affirmed the trial court’s order of summary judgment dismissing Patrick’s complaint that alleged causes of action for malicious prosecution, defamation, and the tort of outrage. 2016 Ark. App. 221, 489 S.W.3d 683.
. Tyson management personnel included: Matt Evans, assistant plant manager; David Smith, plant safety manager; Larry Richardson, refrigeration superintendent; ■ Patrick Ab-shier, complex environmental health and safety manager; Donnie Treat, superintendent; Rick McClung, maintenance superintendent; and Hector Gonzales, human resources vice president of operations. ' .
. The internal report contained a timeline of events, a summary of Tyson management personnel’s interpretation of the video, an explanation about how the leak was caused, Taylor's statement denying involvement, statements of other employees, a summary of Taylor’s and Patrick’s interviews, photographs of the area where the valve was located and of the valve itself, and appellees’ conclusion that Taylor and Patrick were involved in the tampering with the ammonia valve.
. Compare Family Dollar Trucking, Inc., 2015 Ark. App. 574, at 6-7, 474 S.W.3d at 105-06 (affirming a malicious-prosecution judgment and holding that the jury could have found that Family Dollar did not make a full, fair, and truthful disclosure of its investigation based on evidence from Family Dollar’s investigator that he did not disclose exculpatory evidence about the plaintiffs to the company attorney, the police, or the prosecutor). | [
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ROBIN F. WYNNE, Associate Justice
| Appellee Eugene. Butler filed suit against appellees Calvin- Johnson, in his official capacity, and. :the Board of Trustees of.the University of Arkansas (collectively, the University or appellants), alleging violation of the Arkansas - Whistle-Blower Act (AWBA), Ark.Code Ann. § 21-1-601 et seq., related to his termination from his job as a police officer at the University of Arkansas at. Pine Bluff (UAPB). The University filed a motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6), asserting that appel-lee’s third amended complaint failed to state a cause of action that is not barred by sovereign immunity, and the circuit court denied the motion. Rule 2(a)(10) of the Arkansas Rules of. Appellate Procedure-Civil permits an appeal from an interlocutory “order denying a motion to dismiss ... based on the defense of sovereign immunity.” We reverse and dismiss because the 12compjaint fails to state a factual basis for Butler’s claim under the ÁWBA and therefore the appellants are entitled to sovereign immunity^
In his third amended complaint, Butler alleged the following. Butler was,hired by UAPB as a police officer in 2001. He was promoted to detective, and under Chief of Police Fred Weatherspoon, lead detective. After Chief Weatherspoon was fired, Major Maxcie Thomas was named interim chief of police. Chief Thomas “verbally attacked” Butler during two meetings “in attempt to provoke him into insubordination.” Butler goes on to allege that there were competing “plans” for the department — the chancellor’s and Chief Thomas’s — and that he (Butler) was appointed to the position of major while Chief Thomas was not working due to health problems. Further,
18. Several employees were lost during this time and the Department was short of staff. The Officers wanted to meet with Chief Thomas and Plaintiff sent him a memo in regards to that. During the meeting, Chief Thomas immediately started verbally attacking Plaintiff in front of the Officers. He accused Plaintiff of being responsible for the shortage; but everyone looked at him in disbelief. Thomas was acting this way because of Plaintiffs reports to Chancellor Davis, who was an appropriate authority under the [AWBA].
19. Another one of Plaintiff[’]s duties was being in charge of security of the Harrold Complex Dormitory. The Chancellor gave Rita Ticey the position of Administrator and she was also the Chancellor’s assistant. Ticey dealt with everything dealing with |amoney. She was also the person that checked all the paper work dealing with time sheets and payroll. Ticey purchased and paid all the bills for the Harrold complex. Due to the fact that Plaintiff was not always around, Ticey would sign his name to time sheets.
20. Sometime later an audit was done of the Harrold Complex in order to determine of [sic] public funds had been wasted or stolen. The auditors asked Plaintiff questions in regards to his signature. They questioned Plaintiff about two of his signatures being on numerous time sheets; Rita Ticey and a worker in the Chancellor’s Office signed Plain-tiffins name. They asked Plaintiff if he gave them permission to sign his name. Plaintiff told them yes. They asked Plaintiff if he signed the signature card for them to sign his name and he said no. They showed Plaintiff some documents and he pointed out his actual signature. They talked to Plaintiff for approximately ten minutes. A few days later the things Plaintiff told them had been changed. They told the Chancellor that Plaintiff did not authorize Ticey to sign his name which was a lie. She had talked to Plaintiff and told him that she was going to sign his name because he was out of place. This was normal for others to sign your name. It was apparent that the auditors were not seeking the truth from Plaintiff. They also wanted to know if Plaintiff was related to Ticey and they were told no. Plaintiff therefore participated in an investigation of waste or violation of the employee code of conduct.
21. During the latter part of December 2011 or the first part of January 2012, Plaintiff was tricked to the University Counsel’s Office by Chief Maxcie Thomas. He told Plaintiff that he needed to meet with him in regards to some cases Plaintiff worked. Plaintiff took the files with him and when he got there, Chief Thomas was there also. The University counsel, Jeff Bell, another Attorney and Maxcie Thomas were in the conference room. At all times. relevant, Jeff Bell was acting within the scope of his employment as a lawyer for the Defendant. After the interview began, they asked Plaintiff a few questions and then the female attorney left. Goswick then entered the room. Attorney Bell and Go-swick immediately started questioning Plaintiff in regards to the audit. ■ The audit was an investigation, hearing, court proceeding, legislative or other inquiry, or in any form of administrative review to determine waste or theft of public money.
22. The information Plaintiff told them was true. Jeff Bell constantly told Plaintiff that he was . lying. Plaintiff kept telling them what he was saying was the truth. They told Plaintiff that the Chancellor was making a fool out of him. They told Plaintiff if he told them what they need to know that he would protect him. There was nothing to tell and he became agitated. At one point he.asked Chief Thomas if Plaintiff did any work for him. Chief Thomas lied and told him that Plaintiff only did work and ran errands for the Chancellor and Ticey.
23. If any money was mismanaged Plaintiff had nothing to do with it. Max-cie Thomas has lied on Plaintiff on numerous occasions. He had made it a point to do everything he could to get Plaintiff fired. Plaintiff had verbally complained on him and filed a grievance on him. This was protected activity as well. Thomas has belittled |,(Plaintiff In front of Dr. Herts, the grievance Officer for the University. This was a violation of the Defendant’s code of conduct.
24. Shortly after the meeting with Bell and Thomas ended, Bell told Plaintiff he would be terminated because of his participation in the investigation and his communication with the auditors. As Bell promised, on February the 24,. 2012 Plaintiff was terminated.
Butler claims that he left personal items, including a printer and refrigerator, at his office and that Chief Thomas has refused to release his property. Butler goes on to state that, pursuant to the AWBA, he was a public employee working for a public employer when he “reported waste or a violation of UAPB’s code of ethics or responsibilities, and was terminated in retaliation for his report and participation in a protected activity.” Finally, he states that he “participated in [an] investigation, hearing, court proceeding, legislative or other inquiry, or in any form of administrative review and was terminated because hé refused to lie.” Butler alleges that as a direct and proximate cause of UAPB’s adverse action, he has suffered wage loss and seeks all remedies available to him under the AWBA, including reinstatement, fringe benefits, and retirement credits. Appellants filed a motion to dismiss the third amended complaint as being barred by the doctrine of sovereign immunity on the grounds that (1) it is an action against the State of Arkansas, -and article 5, § 20 of the Arkansas Constitution expressly prohibits the General Assembly from waiving the State’s sovereign immunity from suit in her own courts; and (2) it fails to state a claim that would permit suit against a state official. The circuit court denied the motion without explanation, and this timely appeal followed.
|fiBefore reaching the merits, we address the concerns raised by the dissenting justices that this court lacks juris diction to hear this interlocutory appeal because the trial court failed to specifically rule on sovereign immunity. Those concerns are misplaced because the sole issue in the motion to dismiss was sovereign immunity, and -the trial court’s order operates as a ruling on that issue. This case is thus distinguishable from Arkansas Lottery Commission v. Alpha Marketing, 2012 Ark. 23, 386 S.W.3d 400, in which the Arkansas Lottery Commission moved for dismissal on multiple grounds, only one of which was based on the defense of sovereign immunity, and the trial court entered a detailed order but did not specifically rule on sovereign immunity. Under those circumstances, this court held that we did not acquire jurisdiction and dismissed the appeal without prejudice, so that the Commission could return to circuit court to obtain a ruling for this court to review. Here, we have a ruling on the issue of sovereign immunity and it is appropriate to address the merits of the appeal See also Ark. Dep’t of Human Servs. v. Fort Smith Sch. Dist., 2015 Ark. 81, 455 S.W.3d 294.
In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Ark. State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, 445 S.W.3d 496. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must' be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id.
|fiOn appeal, appellants argue that the circuit court erred in denying the motion to dismiss Butler’s AWBA law suit because it is barred by sovereign immunity. For their first subpoint, appellants contend that the General Assembly has no legal authority to waive the State’s sovereign immunity set out in article 5, § 20 of the Arkansas Constitution. They cite cases such as Arkansas State Highway Commission v. Nelson Brothers, 191 Ark. 629, 87 S.W.2d 394 (1935) (“It is our settled conviction that the state cannot give its consent to the maintenance of an action against it”; overruling Arkansas State Highway Comm’n v. Dodge, 186 Ark. 640, 55 S.W.2d 71 (1932)), and Fairbanks v. Sheffield, 226 Ark. 703, 706, 292 S.W.2d 82, 84 (1956) (Article 5, § 20 is mandatory and cannot be waived by the General Assembly.). Appellants contend that more recent cases recognizing an exception to sovereign immunity when it has been waived by the General Assembly are contrary to the express dictates of article 5; § 20. E.g., Ark. Dep’t of Fin. & Admin. v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996); Ark. Dep’t of Fin. & Admin. v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Short v. Westark Cmty. Coll., 347 Ark. 497, 504, 65 S.W.3d 440, 445 (2002); Arkansas Dep’t of Cmty. Correction v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731. As set out below, our disposition of this case makes it unnecessary to reach this argument.
Next, appellants argue that Butler’s complaint does not state a factual basis for any equitable exception to sovereign immunity. One exception.to the doctrine of sovereign immunity is that equity has jurisdiction to enjoin or restrain State officials or agencies from acts which are ultra vires, in bad faith, or arbitrary and capricious. See Arkansas Tech Univ. v. Link, 341 Ark. 495, 503, 17 S.W.3d 809, 814 (2000). No such allegations are contained in the third amended complaint, and Butler’s response admits as much by focusing solely onjjthe AWBA. Appellants further argue that even if it were possible for the AWBA to waive the State’s sovereign immunity, Butler, fails to state a claim under its provisions. We agree. The AWBA prohibits retaliation as follows:
(a)(1) A public employer shall not take adverse action against a public employee because the public employee or a person authorized to act on behalf of the public employee communicates in good faith to an appropriate authority:
(A) The existence of waste of public funds, property, or manpower, including federal funds, property, or manpower administered or controlled by a public employer; or
(B) A violation or suspected violation of a law, rule, or regulation adopted under the law of this state or a political subdivision of the state.
(2) The communication shall be made at a time and in a manner which gives the public employer reasonable notice of need to correct the waste or violation.
(b)(1) For purposes of subsection (a) of this section, a public employee communicates in good faith if there is a reasonable basis in fact for the communication of the existence of waste or of a violation.
(2) Good faith is lacking when the public employee does not have personal knowledge of a factual basis for the communication or when the public employee knew or reasonably should have known that the communication of the waste or of the violation was malicious, false, or frivolous. ■
(c) A public employer shall not take an adverse action against a public employee because the employee participates or gives information in an investigation, hearing, court proceeding, legislative or other, inquiry, or in any form of administrative review.
(d) A public employer shall not take an adverse action against a public employee because an employee has objected to or .refused to carry out a directive that the employee reasonably believes violates a ■law or a rule or -regulation adopted under the authority of laws of the state or a political subdivision of the state.
(e) A public employer shall not take an adverse action against a public employee because of a report of a loss of public funds under § 25-1-124. .
Ark.Code Ann. § 21-1-603 (Repl.2004)’
We turn now to the- issue before us in.this interlocutory appeal: sovereign immunity. Sovereign . immunity for the State of Arkansas arises from express constitutional declaration. Grine v. Bd. of Tr., 338 Ark. 791, 796, 2 S.W.3d 54, 58 (1999). Article 5, section 20 of the Arkansas Constitution provides that “[t]he State of Arkansas shall never be made defendant | ¡¡in any of her courts.” Sovereign immunity is jurisdictional immunity from suit, and jurisdiction. must be determined entirely from the pleadings. Ark. Tech Univ. v. Link, 341 Ark. 495, 501, 17 S.W.3d 809, 812 (2000). In Smith v. Daniel, 2014 Ark. 519, 452 S.W.3d 575, this court held that when the legislature authorized a cause of action against a “public employer” in the AWBA, it expressly waived sovereign immunity. Here, the only basis alleged for surmounting the State’s sovereign immunity was that “[tjhe state of Arkansas has waived its sovereign immunity for actions arising under the. [AWBA].” For purposes of a motion to dismiss, we treat only, the facts alleged in a complaint as true but not a party’s theories, speculation, or statutory interpretation. Ark. State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, at 8, 445 S.W.3d 496, 503.
Here, Butler’s complaint does not identify any conduct attributable to either Johnson or the Board that violates the AWBA. While he makes the conclusory statement that he was terminated for reporting waste or a violation of UAPB’s code of ethics, it is unclear what, if anything, he actually reported. Furthermore, it is unclear what he refused to lie about or that he was terminated because he refused to lie. Viewing the third amended complaint in the light most favorable to Butler, he has failed to state facts that would entitle him to relief under the AWBA and that would constitute a waiver of sovereign immunity under that statute.
|3In his response brief, Butler cites Crawford County v. Jones, 365 Ark. 585, 232 S.W.3d 433 (2006). In Jones, this court reversed the grant of a directed verdict on the plaintiffs AWBA claim; the issue for this court to resolve was whether Jones’s actions of reporting alleged misdeeds to quorum court members constituted reporting to the “appropriate authorities.” This court answered that question in the affirmative and held that the evidence in that case created a fact question for the jury. That case is readily distinguishable in that, at the directed-verdict stage, there had been evidence presented that created a fact question under the AWBA.
We hold that the circuit court erred in denying appellants’ motion to dismiss under Rule 12(b)(6) because Butler has failed to state a claim under the AWBA; therefore, no exception to sovereign immunity exists and this suit is barred by the doctrine of sovereign immunity as set forth in Article 5, section 20, of the Arkansas Constitution. Because Butler has failed to state a claim sufficient to establish an exception to sovereign immunity under the AWBA, we need not reach the issue of whether the General Assembly can waive the State’s sovereign immunity.
Reversed and dismissed.
Special Justice R. Margaret Dobson concurs.
Danielson and Hart, JJ., and Special Justice Robert L. Jones III dissent.
Brill, C.J., and Goodson, J., not participating.
. The complaint does not state what Calvin Johnson's official capacity is or allege any -facts specifically against Johnson.
. Butler first filed a complaint in the Jefferson County Circuit Court in August 2012. That court transferred the case to the Pulaski County Circuit Court pursuant to Arkansas Code Annotated section 16~106-101(d). Pertinent to this appeal, the circuit court on June 10, 2013, granted the University’s motion to dismiss under Rule 12(b)(6) on the basis that the facts alleged' in the complaint did not ■ meet the elements for a violation of the AWBA; the order.stated that the motion to dismiss based on sovereign immunity was denied. Butler filed an amended complaint, the University filed a second motion , to dismiss, and Butler responded that he "had no further facts that he can allege other than what is in the complaint.” He stated that the amend ment to the complaint "merely corrected] typographical errors and clarifiefd] the nature of the audit." In March 2015, appellants filed a motion for judgment on the pleadings, expressly seeking a specific ruling regarding appellants’ sovereign immunity. Butler filed a response and a third amended complaint. Appellants filed a motion to dismiss the third amended complaint, as detailed above.
. The third amended complaint erroneously refers to UAMS in'two places.
. This court has stated that a suit against a ' state official in his or her official capacity is . not a suit against that person; rather it is a suit against that official’s office. Ark. Tech Univ., 341 Ark. at 502, 17 S.W.3d at 813. Also, á suit against the board of trustees of a state university is a suit against the State. Id. | [
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CLIFF HOOFMAN, Judge
| Appellant Joshua Caleb .King appeals from the revocation of his probation in case nos. CR-2013-910 and CR-2013-940, for which he received a total of twenty years’ imprisonment. On appeal, King- argues that there was insufficient evidence to support the revocation. We affirm.
On January 15, 2014, King entered a negotiated plea of guilty in case number CR-2013-910 to possession of a controlled substance (psilocybin) with intent to deliv er, possession of a controlled substance (marijuana) .with intent to deliver, and possession of drug paraphernalia. In case number CR-2013-940, King pled guilty to the offense of failure to appear.. He was sentenced to a total of 120- months’ probation, and he received a $1000 fine, plus court costs and fees. He was also ordered to serve nine months in the Community Corrections Center .(CCC) as a condition of his probation. Other conditions of King’s probation required that he not commit a criminal offense punishable by imprisonment; that |¡>he remain on good behavior; that he not drink or possess intoxicating or alcoholic beverages; that he submit to any nonresidential programs deemed necessary by his supervising officer; that he participate in any community-based programs (such as Narcotics Anonymous (NA) or Alcoholics Anonymous (AA)) deemed necessary by his supervising officer; that he pay his fines, fees, and court costs in monthly installments of $100 beginning on February 15, 2014; and that he pay his monthly probation fees.
On March 31, 2015, the State filed a petition to revoke King’s probation, alleging that he had failed to remain on good behavior when he committed the new offenses of domestic battery in the third degree and assault on a household or family member on or about November 8, 2014. The State also alleged, that King had violated the terms of his probation by using alcohol, by failing to show up for his scheduled substance-abuse assessment, by failing to attend AA or Celebrate Recovery (CR) meetings, and by being in arrears on his court-ordered financial obligations.
At the revocation hearing held on April 6, 2015, King’s probation officer, Chrissy Duncan, testified that King had been released from CCC on May 28, 2014, and that his intake appointment was on June 2, 2014. She explained the conditions of his probation to him at that time. Duncan testified that King subsequently violated the conditions by admitting that he had used alcohol in September, October, and November 2014. In addition, although Duncan had ordered King to attend a substance-abuse assessment in order to address his issues with alcohol, he failed to attend the assessment that was scheduled for October 30, 2014. She indicated that King had reported to the probation office on October 30; however, |sshe was not in the office, and he left without signing in to see the substance-abuse counselor. When Duncan questioned King about missing the assessment, King told her that he had forgotten about it. Duncan had also instructed King to attend two AA and CR meetings per week until he had either obtained full-time employment or undergone the substance-abuse assessment. She stated that King did not attend the meetings as ordered because he indicated that he had social anxiety. Duncan testified that she had rescheduled the substance-abuse assessment for November 24, 2014, but that King .was then arrested on new charges on November 8,2014,
Corporal Andrew Hudgens with the Washington County Sheriffs Office testified that he was dispatched to King’s residence-on November 8, 2014, for a domestic-disturbance call. Video and audio from Hudgens’s patrol car,, as well as audio from his body microphone from that night, were played at the hearing over the objection of King. Hudgens testified that King’s father, who had called the police, had a busted lip and red marks on his face from his altercation with King. Hudgens stated that King was uncooperative and “appeared to be under the influence of something.” King admitted to Hudgens that he had been in a physical fight with his father. Hudgens testified that he determined from his investigation that King was the primary aggressor, and King was arrested and charged with third-degree domestic battery and assault.1'
Norma Preston, the deputy circuit clerk for Washington County, testified that King was in arrears on his court-ordered fines, fees, and costs. She indicated that he had made two payments of $110 each towai’d his obligations and that his last payment was on August 6, |42014. Preston stated that the total amount past due was $1,330.
At the conclusion of the hearing, the circuit court found by a preponderance of the evidence that King had violated the terms and conditions of his probation by inexcusably failing to pay his court-ordered financial obligations, by failing to attend AA and OR meetings, by not attending his scheduled substance-abuse assessment, by consuming alcoholic beverages, and by committing the new offenses of domestic battery in the third degree and assault on a family or household member. The court found that all the witnesses who testified for the State were credible. King was sentenced to twenty years’ imprisonment for his conviction for possession of psilocybin with intent to deliver, to ten years’ imprisonment for the failure-to-appear and possession-of-marijuana-with-intent-to-deliver charges, and to six years’ imprisonment on the drug-paraphernalia charge, with all sentences to be served concurrently. The amended sentencing order was entered on April 14, 2015, and King filed a timely notice of appeal from this order.
For his sole point on appeal, King argues that there was insufficient evidence for the circuit court to find that he had violated the terms and conditions of his probation. Pursuant to Arkansas Code Annotated section 16-93-308(d) (Supp. 2015), a trial court may revoke a defendant’s probation at any time prior to the expiration of the period of probation if the court finds by a preponderance of the evidence that the defendant has inexcusably failed-to comply with a term or condition of his probation, 'The burden is on the State to prove a violation of a term or condition by a preponderance of the evidence. Sanders v. State, 2010 Ark. App. 563. On appeal, the trial' court’s findings will be upheld unless they are clearly | ¿against the preponderance of the evidence. Cargill v. Stale, 2011 Ark. App. 322. Because a determination of the preponderance of the evidence turns heavily on questions of credibility and weight to be given to the testimony, thé appellate courts defer to the trial court’s superior position in this re: gard. Id.
The circuit court in this case found that all five violations that were alleged in the State’s petition to revoke were proved by a preponderance of the evidence, and, on appeal, King challenges the sufficiency of the evidence supporting each of these violations. However, only one violation of the conditions of probation must be proved to support a revocation. Robinson v. State, 2014 Ark. App. 579, 446 S.W.3d 190.
Duncan, King’s probation officer, testified that she received an anonymous phone call on September 3, 2014, reporting that King had been drinking alcohol. Duncan then called King, and he admitted that he had started drinking again. Furthermore, during his monthly visits with Duncan, King admitted drinking alcohol in September, October, and November 2014.
Kang argues that there was insufficient evidence to establish that he had used alcohol because Duncan did not witness him drinking. He asserts that she instead relied on the statements of another person who was not present at trial and who was not subject to'cross-examination, which he contends violated his right to confront the witnesses against him. However, Duncan did not rely solely on the statements of a third party. To the contrary, King admitted to Duncan on several occasions that he had been consuming alcohol. Despite his admissions, King also argues that Duncan failed to follow the guidelines required by | (¡Arkansas Community Correction (ACC) because she did not memorialize his admission in a document or test him for alcohol use. Because Duncan failed to follow ACC policy, King contends that this court should conclude that he did not abuse alcohol in violation of his probation. He cites no authority, however, to support this proposition, and we do not address arguments unsupported by convincing argument or citation to relevant authority. Alsbrook v. State, 2016 Ark. App. 8, 479 S.W.3d 584.
The circuit court found Duncan’s testimony regarding King’s admissions to be credible, and we defer to the circuit court in this regard. Cargill, supra. Furthermore, the circuit court also heard the testimony of Corporal Hudgens, who indicated that King appeared to be under the influence of some substance when he arrested him on November 8, 2014. In addition, the- court viewed the video of King from that night. Given this evidence, we cannot say that the circuit court’s finding that King violated the conditions of his probation by consuming alcohol was clearly erroneous. Because we conclude that there was sufficient evidence to support the revocation of King’s probation based solely on his consumption of alcohol, it is not necessary to address his arguments with regard to the other violations. Accordingly, we affirm the revocation of King’s probation.
Affirmed.
Virden and Vaught, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
hOn December 17, 2013, the appellee Arkansas Department of Human Services (“DHS”) took a seventy-two-hour hold on Priscilla Ponder’s children, A.P., E.P., and J.P. after the death of L.C., a ■ sibling. Ponder is the appellant in this matter. DHS and A.P., E.P., and J.P. are joint appellees in this appeal and will be referred to collectively as “DHS.” The children were removed from the home, and A.P. was placed with one set of relatives and E.P. and J.P. with another set of relatives. On May 29, 2014, the circuit court adjudicated the children dependent-neglected, and the goal was set for reunification. The circuit court conducted review hearings on June 16, August 4, and September 29, 2014. On December 1, 2014, the circuit court conducted a permanency-planning hearing and found that it was not lain the best interest of the children to return to Ponder, and the goal was changed to identify permanent custodians. Also, at the permanency planning hearing, the circuit court set a review hearing to set permanent placement of the children for January 5, 2015.
On January .9, 2015, the circuit court conducted. a review hearing and granted permanent custody of the children to family. members. On-January 12, 2015, the circuit court entered the permanency-planning order. On January 26, 2015, the circuit court entered orders with the permanent-custody placement- of the three minor children. From the permanent-custody orders, Ponder appealed to the court of appeals. On January 27, 2016, the court of appeals reversed and remanded the matter to the circuit court. Ponder v. Ark. Dep’t of Human Servs., 2016 Ark. App. 61, 481 S.W.3d 785.
On February 8, 2016, DHS filed a petition for review. On March 31, 2016, we granted DHS’s petition for review and granted supplemental briefing. On April 20, 2016, Ponder filed a “Motion to Disregard DHS’s Documents that Were Tendered, But Not Filed, by the Supreme Court Clerk’s Office” which we took with the case. On May 19, 2016, both parties filed supplemental briefs. On appeal, Ponder presents one issue: the circuit court erred in granting permanent custody of the children to family members because the award is not supported by sufficient evidence. We have jurisdiction pursuant to Arkansas Rule of Appellate Procedure-Civil 2(d) (2016).
This court reviews findings in dependency-neglect proceedings de novo, but we will'not reverse the trial court’s findings unless they are clearly erroneous. Lamontagne v. Ark. Dep’t of Human Servs., 2010 Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, [.¡although there is evidence to support it, the ■ reviewing ■ court, based on the entire evidence, is left with a- definite and firm conviction that a mistake has been committed. Id. Furthermore, we give due deference to the trial court’s superior position to determine the credibility of the witnesses and the. weight to be given,their testimony. However, a trial court’s conclusions of law are given no deference on appeal. Stehle v. Zimmerebner, 375 Ark. 446, 456, 291 S.W.3d 573, 580 (2009).
Turning to Ponder’s sole point on appeal, pursuant to Arkansas Code Annotated section 9-27-334(a)(2)(A) (Repl. 2015), if a juvenile is found to be depen dent-neglected, the circuit court may enter an order transferring custody of the juvenile to a relative or other individual if to do so 'is in the best interest of the juvenile. Ponder argues that the circuit court erred in finding that it was in her three minor children’s best interest to be placed in the permanent custody of relatives and asserts that there is insufficient evidence to support the circuit court’s findings. Specifically, Ponder contends that the circuit court failed to conduct a hearing or take evidence regarding the permanent-custody placement, and the record is void of evidence to support the circuit court’s placement. • ,
' At issue are the circuit court’s January 26, 2015, orders, which stated in pertinent part:- . ,
■ Prom the testimony, exhibits, statements of the parties and counsel, the record herein, and other things and matters presented, the Court, noting the best interests, welfare, health and safety, case plan[,] and appropriate statutory placement alternatives, does hereby order ... :
At this time, return to the custody of the mother is contrary, to the welfare of A.P. and placement in the. permanent custody of •... [the] paternal grandparents- is .in the best, interest of and necessary to the protection of A.P.
The Court finds that it is in the best interest of the juvenile to grant permanent custody of [A.P.] ... to [the paternal grandparents.]
Likewise, with regard to E.P. and J.P., the circuit court entered the following order:. . . ,
From the testimony, exhibits, statements of the parties'and counsel,'the record herein, and other things and matters presented, the Court, noting the best interests, welfare, health and safety, case plan[,] and appropriate statutory placement alternatives does hereby order ...:
At this time, return to the custody of the parents is contrary to the welfare of E.P. and J.P. and placement in the permanent custody of ... [the] paternal aunt is in the best interest of and necessary to the protection of E.P. and J.P.
The Court finds that it is in the best interest of the juveniles to grant permanent custody of [E.P. and J.P.] ..; to [the paternal aunt].
With regard to the orders at issue, Ponder asserts there is no evidence to support the circuit court’s January 26, 2015 permanent-custody placement. The record demonstrates that at the January 9, 2015 hearing, Ponder conceded that there was no new evidence to be presented and stated,
I would assume that the testimony would be the same. That there’s really no new testimony to put on.
Further,’ a thorough review of the record demonstrates that there is nothing in the record in the instant casé to support Ponder’s argument. This court has repeatedly and consistently stated that it is the appellant’s burden to bring up a record sufficient to demonstrate that the trial court was in error. State Dep’t of Career Educ. v. Means, 2013 Ark. 173, at 14, 426 S.W.3d 922, 930-31; Hudson v. Kyle, 365 Ark. 341, 348-49, 229 S.W.3d 890, 895 (2006); Dodge. v. Lee, 352 Ark. 235, 100 S.W.3d 707 (2003); Estates of Seay v. Quinn, 352 Ark. 113, 98 S.W.3.d 821 (2003). When the appellant fails to meet its burden, this court has no choice but to affirm the trial court.- See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); Dodge, supra. When an appellant fails to demonstrate error we affirm. Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992). We will accept as correct the decisions of the trial court which the appealing party does not show to be wrong, Kremer v. Blissard Mgmt. & Realty, Inc., 289 Ark. 419, 711 S.W.2d 813 (1984). Moreover, we have held that “an appellant may riot complain of an action of the trial court which he induced, consented to, or acquiesced. See Missouri Pac. R.R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944); see also Marcum v. Wengert, 70 Ark.App. 477, 20 S.W.3d 430 (2000).” Childers v. H. Louis Payne, D.C., 369 Ark. 201, 205, 252 S.W.3d 129, 132 (2007). Because Ponder has failed to bring a sufficient record demonstrating error, we affirm the circuit court.
Affirmed; Motion to Disregard Department of Human Services’ Documents That Were Tendered, Brit Not Filed, by the Supreme Court Clerk’s Office moot; Court of Appeals’ opinion vacated.
Danielson and Hart, JJ., dissent. | [
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KAREN R. BAKER, Associate Justice
hOn April 4, 1979, Richard W. Green pleaded guilty to murder in the first degree and was sentenced to imprisonment for the rest of his “natural life.”- Green thereafter sought postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1979), claiming his plea of guilty in 1979 was not voluntary because he thought he would serve a seven-year sentence. This court affirmed the denial of relief, finding that Green knew he could be sentenced to life imprisonment at the time of his plea and that, other than the agreement to reduce the charge against him from capital to first-degree murder, no promises had been made to him in exchange for his plea. Green v. State, 297 Ark. 49, 50-51, 759 S.W.2d 211, 211-12 (1988). On June 19, 2014, Green filed in the trial court a petition for writ of error coram nobis or motion to correct clerical error or mistake in judgment-and-commitment order. The trial court denied relief, and Green has lodged an appeal in this |acourt from that denial. Now before this court is Green’s pro se motion for use of record and transcript and for extension of brief time.
When it is clear from the record that the appellant cannot prevail if an appeal of an order that denied postconviction relief were permitted to go forward, we dismiss the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012 Ark. 91, 2012 WL 664259. As it is clear from the record that Green could not prevail on appeal, the appeal is dismissed. The dismissal of the appeal renders the motion moot.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
IsGreen raised the following claims below in his petition for writ of error cor'am nobis: that the trial court made false statements regarding • his sentence during the plea hearing which made his sentence illegal; that trial counsel was ineffective for allowing the trial court to falsely apprise him in this manner; that the penitentiary commitment order was invalid for lack of the judge’s signature and the clerk’s seal; that the commitment order did not state certain language Green deemed pertinent; that the court’s failure to state a minimum sentencing range during his plea hearing entitled him to issuance of the writ; that his plea was either coerced because he was not paroled after seven years’ imprisonment or trial counsel was ineffective for their failure to ensure he was paroled after serving seven year’s imprisonment on his life sentence; and that he found out in 2011 that fingerprints on the murder weapon belonged to Glen Briner. In his petition, Green stated that he did not bring his claims earlier because he has “had at least 20 major surgeries since 2009” and that he was “unaware of the illegal judgment order until 1996[.]” Citing Newman, 2009 Ark. 539, 354 S.W.3d 61, he claimed “this [wa]s the first opportunity he has had to present his case.”
Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Philyaw v. State, 2014 Ark. 130, at 6, 2014 WL 1096201 (per curiam). Due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant after discovering the fact, did not delaying in bringing the petition. Id. at 6-7, 2014 WL 1096201 (citing McClure v. State, 2013 Ark. 306, 2013 WL 4774458 (per curiam)). The requirements are a sequence of events, each of which a petitioner much show to prove due diligence. Id.
|Jt has been over thirty years since Green’s guilty plea. Even if Green were unaware of any alleged illegality until 1996, that is a period of over twenty years after his conviction, and, even presuming any merit to his assertion that he could not raise the. claims until after . 2009, it purportedly took Green over five years to raise his claims. However, Green’s own claims are belied by the fact that.in 1995 Green filed a petition for writ of habeas corpus seeking to have his judgment vacated on the ground that the statute governing the possible sentences for murder in the first degree provided for “life imprisonment” but not imprisonment for the rest of one’s “natural life”—a claim he argued he was unaware of until 1996. Moreover, the majority of his claims regarding any alleged illegality with his guilty plea, plea hearing, or commitment order could have been raised long before now. Green has not established that he exercised due diligence in bringing forth his claims, and his petition would be subject to denial on that basis alone. Philyaw, 2014 Ark. 130, at 7, 2014 WL 1096201.
Even assuming Green had been diligent in bringing his claims, while Green attempted to couch many of his claims in terms of a coerced guilty plea, which would provide a basis for relief in a coram-nobis proceeding, the actual bases for these claims are ineffective assistance of counsel and trial error. See Biggs v. State, 2016 Ark. 125, at 3, 487 S.W.3d 363, at 365-66 (per curiam); see also Wilburn v. State, 2014 Ark. 394, 441 S.W.3d 29 (per curiam) (Appellant did not contend the plea was given as the result of fear, duress, or threats of mob violence, but rather, the crux of his claim was that it was involuntarily | Bgiven due to ineffective assistance of counsel and failure of the trial court to properly advise him of the charges and his rights.). This court has repeatedly held that ineffective-assistance-of-counsel and trial-error claims are not cognizable in error-coram-nobis proceedings. White v. State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288. Error-coram-nobis proceedings are not a substitute for proceedings under Rule 37.1 to challenge the validity of a guilty plea—which encompasses most of Green’s allegations in his petition for writ of error coram nobis—nor are the two proceedings interchangeable. Wilburn, 2014 Ark. 394, at 4, 441 S.W.3d at 32. Green had already sought and appealed the denial of Rule 37.1 relief, see Green, 297 Ark. 49, 759 S.W.2d 211, 459 S.W.2d 11, and any attempt to file a subsequent petition would have been dismissed in accordance with Rule 37.2(b), which precludes the filing of a subsequent petition. See Williams v. State, 273 Ark. 315, 316, 619 S.W.2d 628, 629 (1981) (per curiam) (Where allegations of the original petition were conclusory, subsequent Rule 37 petitions were allowed and decided on their merits; however, the practice resulted in inconsistency in the treatment of subsequent petitions, so the court no longer considered subsequent petitions unless the original was dismissed specifically without prejudice.).
Green claimed that the term for the “rest of his natural life” was a sentence outside the sentencing range granted by the statute for his offense, which was life. There is a provision in Arkansas Code Annotated section 16-90-111 (Repl. 2006) that allows the trial court to correct an illegal sentence at any time because a claim that a sentence is illegal [^presents an issue of subject-matter jurisdiction. Burgie v. State, 2016 Ark. 144, at 1-2, 2016 WL 1274810 (per curiam), reh’g denied (May 5, 2016). While the time limitations on filing a petition under section 16-90-111(b)(1) on the grounds that the sentence was imposed in an illegal manner were superseded by Arkansas Rules of Criminal Procedure 37.2(c), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282 (per curiam). A sentence is illegal on its face when it exceeds the statutory maximum for the offense for which the defendant was convicted. Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19 (per curiam).
Contrary to Green’s assertion, this court has stated that a “life sentence is for the natural life of the person sentenced and is not based upon mortality tables or any other formula.” Campbell v. State, 265 Ark. 77, 92, 576 S.W.2d 938, 947 (1979); see Curry v. State, 276 Ark. 312, 312-13, 634 S.W.2d 139, 139 (1982) (per curiam). Clearly, a sentence for rest of a person’s “natural life” makes no distinction from a life sentence, and Green’s contention that his sentence is illegal fails. Moreover, it appears that Green’s primary contention with the term “natural life” focused more on his claim that the term somehow removed the possibility of parole or clemency rather than addressing the legality of the sentence itself. An inmate sentenced to life imprisonment or for the rest of one’s natural life is not eligible for parole unless the sentence is commuted to a term of years by executive |7clemency. See Ark. Code Ann. § 16-93-604(b)(1) (Repl. 2006); see, e.g., Sansevero v. Hobbs, 2015 Ark. 379, at 4, 2015 WL 6395701 (per curiam) (A sentence of life imprisonment is a sentence of life imprisonment without the possibility of parole unless the sentence is otherwise commuted to a term of years.). Green has presented no argument or evidence that his sentence was intended to be any other sentence but a life sentence for the rest of his natural life, which is not an illegal sentence.
In his coram-nobis petition, Green argued he was entitled to coram-nobis relief because the penitentiary commitment order was invalid because the judge did not sign it; the proper circuit court clerk seal was not affixed to the commitment order; the commitment order did not state that first-degree murder was a felony or “state the magic words imprisonment in the penitentiary[,]” meaning his commitment was for a misdemeanor; and the court’s failure to state a minimum sentencing range during his plea hearing entitled him to issuance of the writ. All of these claims are conclusory without any factual basis, and conclusory claims are not a ground for the writ. Wilburn v. State, 2014 Ark. 394, 441 S.W.3d 29 (per curiam). Notwithstanding the conclusory nature of the claims, they are not cognizable in a coram-nobis proceeding because none of the claims allege 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. Howard, 2012 Ark. 177, 403 S.W.3d 38.
Green contended his plea was coerced because he took the plea to “serve 7 years on the life term. In exchange Ms. [Sue] Green would not be charged [with capital murder].” However, Green further contended that trial counsel was ineffective because they should | shave enforced the parole-eligibility terms that he be released after serving this same seven years of imprisonment on his negotiated guilty plea. Notwithstanding the conclusory nature of Green’s allegations—which again are not grounds for coram-nobis relief— and so far as Green claimed the seven-year agreement was a basis for ineffective assistance of counsel, ineffective-assistance-of-counsel claims are not cognizable in error-coram-nobis proceedings. White, 2015 Ark. 151, at 4, 460 S.W.3d at 288. With respect to the seven-year agreement as a basis for a coerced guilty plea, Green failed to allege that the guilty plea was the result of fear, duress, or threats of mob violence, which would have served as possible grounds for coram-nobis relief, see Wilburn, 2014 Ark. 394, 441 S.W.3d 29, in lieu of the claim he raised which appears, at best, to be based upon miscommunications between counsel and' himself. Green makes no allegation that anyone other than his own trial counsel misadvised him. See Biggs, 2016 Ark. 125, at 4, 487 S.W.3d at 366. Erroneous advice concerning parole eligibility does not automatically render a guilty plea involuntary nor does it support a claim of a coerced plea, providing a basis for coram-nobis relief. Id. Moreover, claims regarding parole-eligibility status do not demonstrate that there was some fundamental error of fact extrinsic to the record and do not fit within one of the four categories for coram-nobis relief. Id.
Green, citing to Newman, 2009 Ark. 539, 354 S.W.3d 61, argued in his coram-nobis petition that he was not told about the fingerprints on the murder weapon belonging to Glen Briner until Dan Harmon’s (the prosecutor’s) first cousin, another inmate, told him about it in 2011. While allegations of a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation fall within one of the four categories of fundamental error that this court has recognized, |gthe fact that a petitioner alleges a Brady violation alone is not sufficient to provide a basis for error-coram-nobis relief. Davis v. State, 2016 Ark. 296, 498 S.W.3d 279 (per curiam). Assuming that the alleged withheld evidence-meets the requirements of a Brady violation and is both material and prejudicial, in order to justify issuance of the writ, the withheld material evidence must also be such as to have prevented rendition of the judgment had it been known at the time of the trial. See Smith v. State, 2015 Ark. 188, at 4, 461 S.W.3d 345, 349 (per curiam). To establish a Brady violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000).
Here, the alleged fingerprint evidence does not warrant eoram-nobis relief. This court is not required to accept the allegations in a petition for a writ of error coram nobis at face value. Smith, 2015 Ark. 188, at 4, 461 S.W.3d at 349. An allegation that an inmate passed along information about fingerprints hardly qualifies as proof of a Brady violation. Nevertheless, the State’s additional response to Green’s coram-nobis petition noted that, when Green pleaded guilty, the trial court asked for Green to establish a basis for his guilty plea with a short recitation of the facts and that Green stated he had borrowed Glen Briner’s gun on his way to the murder victim’s home. Green’s allegation that the prosecution withheld material evidence that Briner’s fingerprints were on a gun admittedly borrowed from Briner—an allegation known at the time of the guilty plea—does not appear to be Immaterial nor exculpatory, and it would not have prevented rendition of the judgment. Green’s claim for relief was properly denied.
Appeal dismissed; motion moot.
, The petition was denied by the trial court, and, after he failed to perfect the appeal, this court denied Green’s request to proceed with a belated appeal of the order of denial. Green v. State, CR-96-572, 1996 WL 391612 (Ark. July 8, 1996) (unpublished per curiam).
. In 1979, first-degree murder was a class A felony. See Ark. Stat. Ann. § 41-1502(3) (Repl. 1977). The sentence for first-degree murder, a class A felony, was not less than five years nor more than fifty years, or life. See Ark. Stat. Ann. § 41-901(a) (Repl. 1977).
. This court noted in Green's Rule 37,1 appeal that the trial court found that the State and defense specifically did not enter into an agreement that Green serve any specific term of years in the penitentiary. See Green, 297 Ark. at 51, 759 S.W.2d at 212. | [
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BART.F. VIRDEN, Judge
liA Hempstead County jury convicted appellant Michael Todd of commercial burglary, second-degree forgery, breaking or entering, and theft of property. He was sentenced as a habitual offender to an aggregate term of seventy-five years’ imprisonment and ordered to pay $32,500 in fines. Todd raises five points on appeal to this court: (1) the trial court erred in permitting the State to strike a potential juror, (2) the trial court erred in denying - his motion to suppress, (3) the trial court erred in admitting Rule 404(b) evidence, (4) the trial court erred in denying his directed-verdict motions, and (5) the trial court erred in denying his motion for Sinew trial. We affirm in part and reverse and dismiss in part.
hi. Jury-Trial Testimony
Ronnie Tucker, an employee at Walmart in Hope, was working in the electronics department on February 19, 2013, when he encountered Todd and another individual, who “kinda stayed in the back.” Tucker testified that Todd expressed interest in a computer and then- presented a check for payment. Tucker testified that Feroyri Sampson’s name was. on the check. Tucker knew, Sampson from working with Sampson’s girlfriend. Tucker said that, when he looked at the name and then looked back at Todd, Todd abruptly said, “I did something for my brother and he gave me this check and told me to take care of it.” Tucker accepted Todd’s explanation because he knew that Sampson had brothers. Tucker testified that Todd se lected the auto-check payment option, meaning that the cash register printed the pertinent information on a check and that the customer was then required to sign electronically using a Signature pad. Once the transaction was complete, Tucker returned the check to Todd and gave him a printed receipt. Tucker explained that the paper check was no longer needed because the transaction was processed electronically-
Karen Duncan, customer-service super-: visor at Walmart, testified that Tucker relayed to hér what he described as a “weird”' transaction. Duncan stated that, about ninety minutes after that transaction, a man returned the computer purchased by Todd, hoping to get cash back. Duncan,- who also knew Sampson, called Sampson’s girlfriend to alert her that someone had bought a computer with a check drawn on Sampson’s account.
Tonya McLannahan, asset-protection manager for Walmart, testified that she reprinted a transaction réceipt using an electronic journal and acquired the electronic signature | ^authorization in- connection with the February 19, 2013 transaction. These documents -were introduced into evidence. ■ McLannahan said that the transaction number on each document was the same. With the date and a description of the item that was purchased, she was able to find surveillance video of the transaction for police. McLannahan further testified that, although Walmart is a commercial business that is open to the public, Walmart does hot grant anyone a license to come into the store and commit crimes. McLannahan said that, to her knowledge, Todd had not been banned from Walmart.
Fallón Langston, Sampson’s fiancée, testified that, after receiving a phone call from Duncan, she went to her car and saw that two DVD players were missing, along with Sampson’s checkbook. - She called Sampson and confirmed that he did not have his checkbook -with.him in his car. Sampson testified that he did not know Todd and. had not given him permission to make a purchase on his behalf. Sampson identified -the last four digits of his checking-account number on a reprinted transaction receipt from Walmart.
Otis Featherston, currently an inmate at the Arkansas Department of Correction, testified that he was with Todd on February 19, 2013, at Walmart in Hope, He said that they planned to purchase a computer, return the item for cash, and split the money. According to Featherston, Todd had the check used in their scheme that day. He specifically denied entering Langston’s, car and giving the checkbook to Todd.
Investigator Justin. Crane with the Hempstead County Sheriffs Office testified that on February 19, 2013, Langston reported that-two portable DVD players and a checkbook were taken from her vehicle in Hope. Langston relayed to Crane the information that she |4had received from Duncan. After viewing surveillance video at Walmart, Crane developed Todd as a suspect. After his- arrest, Todd was interviewed and made incriminating statements. The video of the entire interview was played for the jury.
In the interview, when asked about breaking or entering involving three vehicles in close proximity; Todd denied taking DVD players. With respect to the checkbook, Todd said, “Now, that I might’ve had a hand in.” He said, “[T]here was a lot of shit we got into, and I was like, ‘Man, we supposed to be splitting this and that,’ and, you know, he be done got shit I didn’t know about. I be checking cars, you know.” Later, Todd said, “I ain’t broke into nothing. Them vehicles, I don’t never break into nothing. They be open.” Todd said, “I didn’t go in but one vehicle in Perrytown.” Crane confronted Todd with the surveillance video from Walmart in Hope. Todd said, “I did the cheek. The damn laptop,. I did.” Todd said, “I just cashed the check, brother. I’ll ride with that.” He further said, ‘You caught me ’cause I.was smoking crack and got to slipping and going in Wal-Mart.” Later, Todd said, “But like I say, what you got me on is the Wal-Mart thing. You got me on that.”
Investigator Larry Marion with the Nashville Police Department testified that on March 5, 2013, he received a report from Angela Burgess that someone had stolen checks from her car in Hope and had made unauthorized transactions at Walmart in Nashville. After viewing surveillance video, Marion identified Todd and Featherston as the people responsible for passing the checks. Marion said that Featherston had purchased a computer and that Todd had purchased two Wii' consoles and games. Marion testified that Todd subsequently confessed his involvement.
IsThe jury convicted Todd of commercial burglary and second-degree forgery, for which he was sentenced to thirty years’ imprisonment for each offense and ordered to pay two $10,000 fines. He was also convicted of breaking or entering, for which he was sentenced to fifteen years’ imprisonment .and -ordered to pay a $10,000 fine. On the theft-of-property conviction, which Todd-does not challenge on appeal, he was sentenced to one year in the county jail and ordered to pay a $2,500 fine. The prison sentences were ordered to ran consecutively for a total of seventy-five years.
II.V Arguments and Discussion
A. Sufficiency of the Evidence
Although it is listed as his fourth point on appeal, we address Todd’s challenge to the sufficiency of the evidence first due to double-jeopardy concerns. Fowler v. State, 2015 Ark. App. 579, 474 S.W.3d 120. Todd argues that the trial court erred in denying his directed-verdict motions because there was insufficient evidence to support his convictions. Challenges to the sufficiency of the evidence are considered in the light most favorable to the State, considering only the evidence in favor of the-'guilty verdict. Piper v. State, 2014 Ark. App. 472, 442 S.W.3d 17. The conviction ,is affirmed if supported by substantial evidence; that is, evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial. Id. Circumstantial evidence may be used to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion; this determination is a question of fact for the fact-finder. Id. The finder of fact is also tasked |Hwith determining what portions of - the witnesses’ testimony are credible and must resolve all questions of conflicting testimony and inconsistent evidence. Id. The jury, is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence; it is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter' of law. Id.
1. Commercial burglary
A person commits commercial burglary if he enters or remains unlawfully in a commercial oceupiable structure of another person with the purpose of committing in that structure any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(b)(l) (Repl. 2013). “Enter or remain unlawfully” means to enter or remain in or upon the premises when not licensed or privileged to do so. Ark.Code Ann. § 5-39-101(2)(A). A person who enters or remains in or upon premises “that are at the time open to the public does so with license and privilege, regardless of his or her purpose, unless he or she defies a lawful order not to enter or remain on the premises.” Ark.Code Ann. § 5-39-101(2)(B)(i) (emphasis added).
Todd contends that there was insufficient evidence to support his conviction for commercial burglary because he did not unlawfully enter or remain at Walmart and had not been banned from the premises. We agree.
In discussing the definition of “enter or remain unlawfully” as used in current section 5-39-101(2)(B), the Original Commentary to section 5-39-201 states that
“[e]nter or remain unlawfully’ is defined at § 5-39-101(3) [ (1987) ] so as to exclude entry on premises or parts of premises open to the public. Therefore, contrary to former law, the person who enters a business open to the public for the purpose of shoplifting does not commit a burglary.
|7(Emphasis added.) Our supreme court in Holian v. State, 2013 Ark. 7, noted that the Original Commentary that accompanied the enactment of the Arkansas Criminal Code in 1975 is “highly persuasive.” Id. at 5.
The State elicited testimony from McLannahan that, although Walmart is open to the public, no one has a license to commit crimes there. The State cites Young v. State, 371 Ark. 393, 266 S.W.3d 744 (2007), where our supreme court affirmed a residential-burglary conviction and noted that “although Bill may have been licensed or privileged to enter the trailer, he was certainly not licensed or privileged to remain there after he began stabbing the owner and removing his property.” Id. at 402, 266 S.W.3d at 750. Young, however, is distinguishable in that it involved residential burglary and section 5-39-101(2)(A). Here, we are dealing with commercial burglary, and subsection (2)(B) applies. We hold that there was insufficient evidence to support Todd’s conviction for commercial burglary because Walmart is open to the public, Todd’s purpose in entering the store is not determinative, and there was no evidence that Todd had been banned from the premises. Accordingly, we reverse and dismiss with respect to this conviction.
2. Second-degree forgery
A person forges a written instrument if, with purpose to defraud, the person utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act. Ark.Code Ann. § 5-37-201(a)(l) (Repl. 2013). A person commits forgery in the second degree if he forges a written instrument thatj Sis a check. Ark.Code Ann. § 5-37-201(c). To utter a forged instrument is to put it in circulation, or to offer to do so, with such fraudulent intent. Holloway v. State, 90 Ark. 123, 118 S.W. 256 (1909).
Todd argues that the State failed to prove that he committed forgery because he never had Sampson’s check. Todd points out that the check was not located and that Sampson’s name was not signed on the check.
The surveillance video from Walmart shows Todd presenting a check to purchase a laptop computer. In his interview, Todd said that he “cashed” a check, but the reprinted receipt from the purchase indicated that payment had been made by check. Sampson testified that the receipt displayed the last four digits of his checking-account number. Sampson testified that Todd was not authorized, to sign his checks. Although Todd argues on appeal that Sampson’s name was not signed on the check, in his motion for directed verdict, defense counsel said, “There’s no written instrument for the check, and we ask that that charge be dismissed.” We do not address arguments raised for the first time on appeal. Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358. The check was not located because it had been returned to Todd once the transaction was complete, as is customary, and the check was processed electronically.
In short, Todd was not authorized by Sampson to use his checks, yet he put one of Sampson’s checks into circulation electronically through Walmart’s auto-check payment system. According to Feather-ston, the check was used in an attempt to defraud Walmart, and his testimony was supported by statements Todd made in his custodial interview: We 19hold that there is substantial evidence to support Todd’s conviction for second-degree forgery, and we affirm.
3. Breaking or entering
A person commits the offense of breaking or entering if, for the purpose of committing a theft or felony, he breaks or enters into any vehicle. Ark.Code Ann. § 5—39—202(a)(1) (Repl. 2013). Todd argues that there was no evidence that he entered Langston’s car in order to get Sampson’s checkbook. He contends that Featherston could have entered the car and given him the check at issue.
During his interview, Todd admitted entering an apparently- unlocked car and stated that he “might’ve had a hand in” taking the checkbook. To the extent that Todd accuses Featherston of entering Langston’s car and giving him the check, Featherston specifically denied this. Although Todd attempted to downplay his involvement during the interview,, the jury could infer from the evidence that Todd entered Langston’s car and took Sampson’s checkbook. The jury determines credibility of the witnesses. Piper, supra. We hold that there is substantial evidence to support Todd’s conviction for breaking or entering, and we therefore affirm.
B. ' Exclusion of Potential Juror
During voir dire, a potential juror, Robert Vaughn, said in response to a question by one of the ■ prosecutors that he could not “really figure out what somebody was intent to doing.” The prosecutor moved to strike. Defense counsel said, ‘Tour Honor, we’re making a Batson motion, at this time. She’s never questioned any other witnesses like that, and this | inis the one of color, and we believe that she’s using that as a tool to exclude blacks from the Jury.” Another prosecutor pointed out that, in response to the prosecutor’s question how can one know what someone else’s intent is, Vaughn unequivocally stated, ‘Tou can’t.” After the court noted that the State had articulated a race-neutral reason for striking the potential juror, Vaughn was excused.
The appellant has the burden of making a prima facie case of discrimination in the selection of jurors. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). That is done by showing (1) that the strike’s opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).
Once a prima facie case has been made, the burden shifts to the prose- eutor to give a sufficiently neutral explanation for the peremptory strike. • Id. -The explanation must be more • than a mere denial of discrimination or an assertion that a shared race would render the challenged juror partial to the one opposing the challenge. Id. It need not be persuasive or. even plausible. Id. The reason will be deemed race neutral “[ujnless a discriminatory intent is inherent in the prosecutor’s explanation.” Id. at 398, 978 S.W.3d at 296.
If a race-neutral explanation is given, the trial court must then decide whether the strike’s opponent has proven purposeful discrimination. Id. The strike’s opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product.of discriminatory intent. Id. If the. strike’s opponent chooses to present [nno additional argument or proof but simply to rely on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility. Id.
The appellate courts will reverse a circuit court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Owens v. State, 363 Ark. 413, 214 S.W.3d 849 (2005). Todd argues that he made a prima facie case of discrimination given that the prosecutor “extensively” questioned Vaughn — a black man — but did not question other jurors similarly. Todd' contends that the'prosecutor’s racially-neutral explanation was pretextual. We do not agree.
There was no discriminatory intent inherent in the prosecutor’s explanation, and Todd presented no further argument or proof to persuade the trial court otherwise. .. Further, we note that there were four black panelists already selected to be on the jury. The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is of some significance. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990). We hold that the trial court’s decision permitting the State to strike Vaughn was not clearly against the preponderance of the evidence.
C. Denial of Motion to Suppress
Todd filed a motion to suppress incriminatory statements he made during a custodial interview on the basis that they were not voluntary and were made as a result of a false promise. of reward or leniency. 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 112a custodial statement was given voluntarily and was knowingly and intelligently made. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006). A statement .induced by a false promise of reward or leniency is not a voluntary statement. Id. For the statement to be involuntary, the promise must have' induced or influenced the confession. Id. Furthermore, the defendant must show that the confession was untrue; 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. Id. ■ ■
At the suppression hearing, Investigator Crane .testified that he went over ■ a Miranda rights form with Todd. It contained a waiver that provided, “No promises or threats have been used against me to induce me to waive the rights listed above. With full knowledge of my rights, I hereby voluntarily, knowingly, and intelligently waive them, and agree to answer ques tions.” According to Crane, Todd said that he understood his rights, agreed to speak with Crane, and signed the form. Crane testified that they spoke of drug court or “swift court” because Todd brought it up at the interview.
Todd began the interview saying, “I want some rehab, some drug court ’cause I need some help, brother. Penitentiary ain’t helping me.” Later, the following was said: •
Todd: If I’m looking at, as you say, three or four charges, you gonna help me with some drug — You ain’t gonna help me on nothing. Can we talk about me getting some Drug Court or whatever the case may be?
CRANE: Mr. Todd, I’m not gonna sit here and lie to you. I don’t' have a clue. That’s not my — I don’t work that. I don’t work in Drag Court.
| iaTopp: You ain’t told me you gonna try to help me or nothing. I done helped you out.
Chañe: I told you — What did I tell you?
Todd: But ain’t I done helped you?
Ceane: I told you that was not my line of work. I don’t work-in Drag Court. I told you what you will have to do is speak to the Judge about that. . •
Todd testified that, after his arrest in Walmart, he and Crane were walking outside and that “[Crane]' started telling me how I’d been through this, here,: and maybe I just need some drag court, or something; maybe I need some help.” Todd went on to say, “That led me to believe-that I was going to go to Drag Court. I asked him could he help me get it and he was, like he was gonna see; he gonna do what he can.” Todd testified, “When he said ‘See what he can do,’ to me, I’m thinking, ‘Okay, well, .yeah, you fixin’ to help me try to get me Drag Court or Swift Court or something.’ That is the reason I talked to him.” At the conclusion of the hearing, the trial court denied Todd’s motion to suppress.
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 and reverse only if the trial court’s finding is clearly against the préponderance of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). We defer to the superior position of the trial court to evaluate the credibility of witnesses who testify at a suppression hearing. Montgomery, supra.
On appeal, Todd argues that he gave incriminating statements to Investigator Crane because Crane had led him to believe that he was going to get drag court. He claims that this was a hope for reward in violation, of Ark. R.Crim. P. 16.2 and violated his constitutional | urights.
We are not convinced that Crane made any promise of reward or leniency. See Holley v. State, 2014 Ark. App. 557, 444 S.W.3d 884 (noting that we do not assess a defendant’s vulnerability if we first conclude that no false promise of reward or leniency was made). Crane repeatedly told Todd- that he did not .work with drug, court and thus, it was out of his hands. See Durham, supra (concluding that, following an officer’s example of how appellant could benefit from telling his side of the story, officers repeatedly and clearly stated that they had no power to strike a bargain with appellant and, thus, his confession was voluntary). Crane and Todd had conflicting accounts of what happened, and we. defer to the trial court to evaluate the credibility of witnesses. Montgomery, supra.. Viewing the totality of these circumstances, we cannot say that the trial court’s, decision to deny Todd’s motion to suppress was clearly against a preponderance of the evidence.
We do not address Todd’s argument that his rights were violated under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as under Arkansas’s constitution. He raised only a general assertion in his motion to suppress, did not argue the point to the trial court, and does not elaborate on the alleged violation of his rights on appeal to this court. Appellate courts will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in support, and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001).
l1fiD. Admission of Rule 404(b) Evidence
Arkansas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith; however, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Brasuell v. State, 2015 Ark. App. 559, 472 S.W.3d 499. Such evidence is admissible if it has independent relevance. Id. Rule 404(b) evidence of other crimes must be similar to the charged crime; 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 court and may vary with the purpose for which the evidence is admitted. Id. Our supreme court has repeatedly ruled that trial courts have broad discretion in deciding eviden-tiary issues, including the admissibility of evidence under Rule 404(b), and that those decisions will not be reversed absent an abuse of discretion. Id.
According to Todd, admission of the un-redacted video confession and testimony about his prior conviction in Howard County was more prejudicial than probative under Ark. R. Evid. 403. Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. Evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. As a preliminary matter, the judge did not allow admission of Todd’sJ^conviction in Howard County — only the facts surrounding the investigation and the fact that he subsequently confessed. Of course testimony about the Howard County incident was prejudicial, but its probative value was not substantially outweighed by the danger of unfair prejudice. The testimony about the Howard County incident was independently relevant to show that Todd had established a plan with Featherston to defraud Wal-mart and was admissible to show knowledge, intent, and absence of mistake. As for the video confession, we note that, although Todd objected to its admission on the basis that “some of it should be redacted,” defense counsel said nothing when the trial court declined to admonish the jury to consider only the current crimes. The question of whether the jury should have been admonished came from the prosecutor.
Todd further argues that “the Howard County conviction” was not a part of the same transaction and was therefore inadmissible, relying on Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982). He argues that admission of this evidence led to the jury’s convicting him on evidence that had no connection to this case. We disagree. The only requirement is that the other crime be similar in nature. Here, shortly after Todd’s arrest on the current charges in Hempstead County, an investigation in Howard County revealed a similar plan involving Todd and Feather-ston stealing checks from vehicles near Hope, using those checks to purchase expensive electronics at Walmart, and returning the items for cash that they would then divide. The crimes were similar— virtually the same method of operation and committed very close in time to each other. The trial court had considerable leeway in deciding whether they were similar enough. We hold that the trial court did not abuse its Indiscretion in admitting the Rule 404(b) evidence.
Todd also’ asserts that the Rule 404(b) exception is unconstitutional in that it violates his right to the presumption of innocence and his right to due process. Although Todd raised this contention in a response and objection, he did not pursue the matter or get a ruling at a pretrial hearing and does not expound on this argument on appeal. It is the appellant’s burden to present a case before the trial court that fully and completely develops all of the issues. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). Because Todd failed to properly preserve this argument, we do not address it.
E. Denial of Motion for New Trial
Following the sentencing phase, the jurors were excused and began leaving the courtroom. Defense counsel approached the bench and told the judge that Todd claimed to have seen one of the jurors wink at Ms. McQueen, a prosecutor. The judge asked Ms. McQueen whether she had any connection with the particular juror, and she said that they attended the same church but were not friends. The trial court stated that this connection had been previously disclosed. Defense counsel moved for a new trial based on juror bias, and the trial court denied it.
The decision on whether to grant or deny a motion for new trial lies within the sound discretion of the circuit court. Holloway v. State, 363 Ark. 254, 213 S.W.3d 633 (2005). We will reverse a circuit court’s order granting or denying a motion for new trial only if there is a manifest abuse of discretion. Id. A circuit court’s factual determination on a motion for new trial will not be reversed unless clearly erroneous. Id.
[ ^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. Id. This court will not presume prejudice in such situations. Id. Jurors are presumed unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Id. Whether prejudice occurred is a matter for the sound discretion of the circuit court. Id.
Todd argues that the juror was biased or prejudiced against him in that she winked so “as to indicate that ‘we got him.’” Todd claims that the trial court should have, but did not, inquire further.
The only connection shown between the juror and the prosecutor was attendance at the same church. Defense counsel did not dispute that the connection had already been disclosed and, arguably, waived, and he did not otherwise press the matter. Moreover, Todd has not shown that he was prejudiced by the court’s action or inaction. We cannot say that the trial court abused its discretion in not ordering a new trial.
• III. Conclusion ■
We reverse and dismiss Todd’s conviction for commercial burglary. Accordingly, his aggregate sentence of seventy-five years should be reduced by thirty years, and the total fine he must pay is reduced to $22,500. We affirm Todd’s other convictions and hold that there is no merit in the arguments he raises on appeal.
1 Affirmed in part; reversed and dismissed in part.
Harrison and Kinard, JJ., agree
. In Todd v. State, 2015 Ark. App. 502, we remanded for the circuit clerk to compile separate records for Todd’s appeal of the revocation of his suspended sentences in' six cases and his convictions that are the subject of this appeal. | [
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BRANDON J. HARRISON, Judge
h Malik Gilliam appeals the denial of his motion to transfer his case to the juvenile division of the circuit court. He argues that evidence of his prior history should have been excluded pursuant to Ark. Code Ann. § 9-27-3Q9(k) (Repl. 2015). We disagree and affirm.'
In April 2015, Gilliam was charged in the Pulaski County Circuit Court with sexual assault in the second degree. Gilliam, who was seventeen at the time of the incident, was accused of sexually assaulting his nine-year-old cousin, A.M. In May 2015, Gilliam moved- to transfer his case to the juvenile division of the circuit court. In July 2015, the State filed notice of its intent to introduce evidence against Gilliam pursuant to Ark. R. Evid. 404(b), specifically evidence of alleged sexual misconduct that had occurred in 2010 between Gilliam and A.M.’s sister, S.M., who was seven years old at the time.
|gThe circuit court held a transfer hearing on 5 August 2015. Prior to the commencement of testimony, defense counsel objected to the use of Gilliam’s juvenile court records arising from the 2010 incident, asserting that Ark. Code Ann. § 9-27-309, which governs confidentiality of juvenile records, trumped Ark. Code Ann. § 9-27-318(g)(5), which allows the court to consider the “previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence.” Section 9-27-309(k) requires information “regarding the arrest or detention of a juvenile and related proceedings” to be confidential “unless the exchange of information is (1) For the purpose of obtaining services for the juvenile or to ensure public safety; (2) Reasonably necessary to achieve one (1) or both purposes; and (3) Under a written order by the circuit court.” Defense counsel asserted that disclosure of the 2010 incident was not sought for the purpose of obtaining services or to ensure public safety; that the plain language of § 9-27-309(k) required any information regarding the arrest or detention of a juvenile to remain confidential; and that § 9-27-309(k), as the more specific statute, should take precedence over the more general § 9-27-318(g). Defense counsel conceded that “information about a juvenile’s prior history or arrests that did not come up in juvenile court” would still be allowed under § 9-27-318(g)(5).
In response, the State explained that in investigating the current incident, the investigator learned that there was a previous sexual offense involving the defendant that had been investigated by the sheriffs office. The internal records from the sheriffs office Istliat pertained to the 2010 investigation were then included in the State’s discovery in the present case. The State acknowledged that in 2010 there was a juvenile-court proceeding accusing Gilliam of rape but that the case had been nolle prossed. But the State said that it had no plans to produce any evidence of Gilliam’s previous arrest or detention, so § 9-27-309(k) did not apply. The State did intend to introduce testimony pertaining to the 2010 incident, however, to demonstrate Gilliam’s previous history of antisocial behavior or patterns of physical violence, which is relevant under § 9-27-318(g)(5). The State reiterated that it was not introducing any report or document that was generated by the 2010 juvenile-court case. The circuit court denied defense counsel’s motion.
A.M., now ten years old, testified that she and Gilliam are cousins. She explained that in February 2015, she and Gilliam were alone at their grandmother’s house and that something happened between them in the kitchen. She said that Gilliam asked her to “twerk” for him and that she refused. He then began “bumping his private part ... up against [her] behind.” She said that when she later tried to leave the room, “he had grabbed me .., by my side and pulled my pants down and my panties and started kissing on my behind and starting touching my private and touching my breasts.” She said he stopped only when he thought he heard someone coming through the door. She again tried to leave, but Gilliam “grabbed me by my ankle and sat me down in the chair, and he pulled his pants down and his boxers ... and grabbed my wrist and ... put my hand on his private part.”
Drew Evans, who investigated this incident for the Pulaski County Sheriffs Office, testified that he began his investigation after A.M.’s school counselor reported the incident 14to the Arkansas State Police Crimes Against Children Division. Evans explained that Gilliam was cooperative after his arrest and provided a voluntary statement. In his statement, Gilliam admitted that he and A.M. were alone at their grandmother’s house that day, that A.M. had “rubbed her buttocks around his genital area,” but that “they were essentially dancing” and that “was all that occurred.” He denied the remaining allegations.
S.M., now twelve years old, testified that she was aware of the allegations made by her sister, and she agreed that “something with those similar allegations happened] to [her] several years ago.” At this point, defense counsel “renewed [his] earlier objection.” S.M. testified that five years ago, at her grandfather’s house, she saw Gilliam and five-year-old A.M. go into the computer room, and when she went into the computer room about five minutes later, they both had their pants down. She also testified that later that same day, she was in the computer room with Gilliam and that she dropped something behind the couch. She said, “I bent over to pick it up, and he came behind me and pulled his pants down and pulled my pants down and put his penis in my butthole.”
Scott Tanner, the juvenile ombudsman to the Public Defender Commission, testified that there were outpatient sex-offender treatment programs available for juvenile offenders as well as “a finite number of residential beds to deal with sexual offending issues.” Tanner opined that Gilliam could be eligible for this program, administered through the Division of Youth and Families, provided that he and his family meet certain clinical criteria. Tanner also explained that Gilliam would be ineligible for some programs because he is now eighteen. He stated that the juvenile division could monitor Gilliam’s | ^supervision and services until he reached twenty-one years of age, but the offense of sexual assault in the second degree did not qualify for extended juvenile jurisdiction.
Kimberly Gilliam, Gilliam’s mother, testified that he did not currently live with her because A.M. lived across the street and there was a no-contact order between Gilliam and A.M. Instead, Gilliam lived with a family friend in Rose Bud. She testified that Gilliam was a basketball player and that he hoped to obtain a scholarship and play college basketball. She said that Gilliam was a “typical teenager” and that he attended .church regularly. She agreed that he was “pretty mature” for an eighteen-year-old.
Finally, Sharon Hair, Gilliam’s maternal grandmother, testified that she had always been a part of his life and that she considered. him “sheltered.” She also .said that he was “respectful” and that she had never had any problems with him.
At the conclusion of the hearing, the court made several findings and denied the motion to transfer. A written order was entered on August 5, and Gilliam timely appealed. This court remanded, however, after holding that the circuit court had failed to make proper written findings as required by §, 9-27-318(h)(1). Gilliam v. State, 2016 Ark. App. 297, 2016 WL 3209167. The circuit court entered a new written order in June 2016, and the case is once again before us.
A circuit court’s decision to retain 'jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(h)(2). Clear and convine- ing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). We will not reverse a circuit court’s decision on whether to l e,transfer a case unless it is clearly erroneous. Nichols v. State, 2015 Ark. App. 397, 466 S.W.3d 431. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has .been committed. Id.
Indeciding the motion to transfer, the circuit court is to consider the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being' given to offenses ¿gainst persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
|7Ark. Code Ann. § 9-27-318(g). The circuit court is required to make written findings on all of the above factors. Ark. Code Ann, § 9-27-318(h)(l). But there is no requirement that proof be introduced against the juvenile on each factor; and the circuit court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. D.D.R. v. State, 2012 Ark. App. 329, 420 S.W.3d 494.
Here, Gilliam argues that the circuit court erroneously found that “§ 9-27-318(g)(5) controlled over § 9-27-309(k).” Gilliam contends that, pursuant to § 9-27-309(k), the court should have deemed inadmissible “information about [Gilliam’s] alleged sexual misconduct in 2010 that resulted in a juvenile court proceeding that was dismissed by nolle prosequi.” But, because the court did consider evidence about the 2010 incident, it clearly erred in denying the motion to transfer.
Gilliam offers three reasons why the circuit court’s decision is mistaken. First, under the plain meaning of § 9-27-309(k), information related to juvenile-court proceedings should be kept confidential. He argues that, in this case, “the witness’s testimony describing [Gilliam’s] 2010 alleged rape and sexual misconduct provided knowledge to the circuit court judge concerning the juvenile court proceeding that came about as a consequence” of the alleged misconduct.
Second, Gilliam asserts that because the 2010 incident did not result in an adjudication, it could not be used by the prosecutor as a factor in deciding whether to charge him as an adult, according to Ark. Gode Ann. § 9-27-309(a)(2). It follows, therefore, that the prosecuting attorney should not be allowed to introduce information pertaining to the 2010 juvenile-court procéed-ing at the transfer hearing, either.
| «Third, Gilliam argues that’ the court erroneously accepted the State’s argument that § 9-27-318(g)(5) took precedence over § 9-27-309(k). Gilliam contends that § 9-27-818(g) sets forth categories of facts' for the court to consider but that the facts still have to be admissible pursuant to the rules of evidence; and that in juvenile court transfer hearings,-“the confidentiality provision of § 9-27-309(k) functions as a rule of evidentiary exclusion.”
The State responds that § 9-27-309 is inapplicable to this case because S.M. testified about her own personal experience and not about “the arrest or detention of a juvenile or related proceedings.” The State correctly notes that no witness referred to the previous juvenile proceeding; and no documents or other evidence from the previous juvenile proceedings were introduced (In fact, there were no exhibits introduced at the hearing.). Because the statute does not apply, the circuit court did not clearly err in allowing S.M.’s testimony, which was relevant to Gilliam’s previous history as set out in § 9-27-318(g)(5). The State also argues that even if the evidence of Gilliam’s prior acts was introduced improperly, the circuit court’s decision to deny the transfer was still not erroneous considering the totality of the circumstances and all the factors in § 9-27-318(g).
We agree that § 9-27-309(k) does not apply. S.M.’s testimony was not evidence “regarding the arrest or detention of a juvenile and related proceedings”; in fact, there was no reference at all to the prior juvenile proceedings during the State’s case. Therefore, we hold that circuit court did not err in admitting'S.M.’s testimony and denying the motion to transfer.
IflAffirmed.
Abramson and Kinard, JJ., agree. | [
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RITA W. GRUBER, Judge
h Appellant, Catherine Abram, appeals from an order of the Sebastian County Circuit Court terminating her parental rights to her children A.D., born October 2, 2005, and H.D., born August 29, 2008. She presents three points on appeal: (1) the trial court erred in denying her motion to dismiss the termination proceeding where the case was filed in a previously closed dependency-neglect proceeding; (2) there was insufficient evidence to support the grounds for termination; and (3) there was insufficient evidence that termination was in the children’s best interest. We affirm the circuit court’s order.
A dependency-neglect action was opened regarding A.D. and H.D. in 2011 and was closed by an order entered on April 14, 2014, following appellant’s successful reunification with them. Less than a month after the case had been closed, appellant and her live-in] ¾ boyfriend were arrested on drug-related charges. On May 12, 2014, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect under the same docket number of the case that the court had closed the month before. The children were subsequently adjudicated dependent-neglected in an order entered July 23, 2014, based on neglect and parental unfitness. Specifically, the court found that appellant had been charged with delivery of methamphetamine, possession of methamphetamine, possession of drug paraphernalia, maintaining the premises for the purposes of drug sales, and endangering the welfare of the minors. The court found that appellant had placed the juveniles at substantial risk of serious harm as a result of their exposure to drug sales and to methamphetamine within reach of the juveniles.
Appellant entered a plea of guilty to the criminal charges and was sentenced to imprisonment followed by an eight-year suspended sentence. She was released on parole in March 2015. In a fifteen-month review order entered on November 3, 2015, the court found that the mother had not complied with the case plan and the orders of the court. Specifically, the court found that she did not have appropriate housing or sufficient income, that she had not completed a psychological evaluation or parenting classes, and that she had failed to visit regularly. The court did find that she had submitted to a drug-and-alcohol assessment and to drug screens. The court' set the goal of the case as termination of parental rights and adoption.
After a hearing on January 8, 2016, the court -entered an order on February 29, 2016, terminating appellant’s parental rights. The trial court found three grounds for termination] 3 by clear and convincing evidence: (1) that the children had been out of the home for more than twelve months and that, despite a meaningful effort by DHS to rehabilitate the parents, the conditions causing removal of the children had not been remedied; (2) that other factors and issues had arisen to demonstrate that returning the children to appellant would be contrary to the children’s health, safety, and welfare; and (3) that the children had been subjected to aggravated circumstances, specifically, that there was little likelihood that services to the family would result in successful reunification. The court further found by clear and convincing evidence that termination of appellant’s parental rights was in the children’s best interest, specifically considering adoptability and potential harm.
I.
For her first point on appeal, appellant contends that the trial court erred in denying her motion to dismiss the termination proceeding because DHS erroneously filed the case under the same docket number as a closed dependency-neglect action. At the close of the testimony in the termination hearing, appellant’s attorney made the following oral motion:
Just for the preservation of the record primarily it seems to me that there is some issue with reopening a new case under an old case number, so I would ask that this termination hearing be dismissed because it has been filed under an old case number. I just want to make sure that that request is in the record.
The court denied the motion because it was “reopened prior to my taking the bench” and because the court did not believe that it was divested of jurisdiction to hear the petition.
To support her argument, appellant cites our supreme court’s opinion in Young v. Arkansas Department of Human Services, 2012 Ark. 334, 2012 WL 4163177. In Young, an earlier dependency-neglect action had been closed in 2009 when the juvenile court placed the child in the permanent custody of the Sextons with visitation to the mother. In 2011, the Sextons filed an emergency ex parte petition to modify the mother’s visitation, using the same case name and number from the closed dependency-neglect action. The juvenile court reopened the case and decided the custody issue in a “permanency-planning” format although it was not a dependency-neglect matter. Although the issue does not appear to have been argued by the parties in that case, the supreme court held that the circuit court erred in applying the Juvenile Code because the dependency-neglect case had been resolved, the action had been terminated, and the case could not be reopened. Id. at 2. Noting, however, that the juvenile division is a circuit court—and therefore a trial court of general jurisdiction—with jurisdiction to hear a general child-custody case, the Young court decided the merits of the appeal. Id. at 3-4.
Appellant’s reliance on Young is misplaced. The facts in this case are very different from the facts before the court in Young. Here, the dependency-neglect action had been closed for less than a month when the new petition for emergency custody and dependency neglect was filed, not two years later as in Young. Second, the new petition in this case was not a general-custody matter but a dependency-neglect petition, exactly the type of case heard in juvenile court. Appellant admits that the circuit court in this case had jurisdiction! B over the matter. Appellant argues, relying on Young, that the court improperly exercised its jurisdiction and thus that the trial court erred in not dismissing the case.
We recognize that the supreme court held in Young that the circuit court erred in reopening the two-year-closed dependency-neglect case to entertain a petition for modification of visitation. We do not interpret the court’s opinion, however, as forbidding the reopening of a closed dependency-neglect case in all circumstances, nor do we discern that the court offered a remedy for any alleged error in doing so. Indeed, in Young, where the court specifically held that the circuit court erred in reopening the case, the court then decided the merits of the appeal.
Accordingly, in this dependency-neglect case—decided on its own merits, occurring less than a month after the initial dependency-neglect case had been closed, and over which the juvenile court clearly had subject-matter jurisdiction—we hold that the court did not err in denying appellant’s motion to dismiss. Moreover, appellant did not object to the case having been reopened until the end of the termination hearing, almost a year and a half after the alleged error had occurred. Any error argued on appeal must have first been directed to the circuit court’s attention in some appropriate manner to give the court an opportunity to address the issue. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark. 112, at 10-11, 488 S.W.3d 513, 521 (holding error raised in posttrial motions untimely); see also Smithee v. Ark. Dep’t of Human Servs., 2015 Ark. App. 506, at 5, 471 S.W.3d 227, 230 (holding that, for a circuit court to have committed reversible error, timely and accurate objections must have been made so that the circuit court would have the opportunity to correct the error). A party cannot wait until the outcome of a case to bring an error to the circuit court’s attention, Smithee, supra, particularly an error that could so easily have been remedied by the clerk’s office opening a new case file.
II.
We now turn to the merits of appellant’s arguments challenging the circuit court’s findings supporting termination. We. review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 213, 40 S.W.3d 286, 291 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child’s best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341. In making a “best interest” determination, the trial court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Ford v. Ark. Dep’t of Human Servs., 2014 Ark. App. 226, at 2, 434 S.W.3d 378, 380. Credibility determinations are left; to the fact-finder, here the trial court. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, at 8, 444 S.W.3d 366, 371.
For her second point on appeal, appellant contends that the evidence was insufficient to support the court’s findings on all three grounds for termination. With regard to the first ground, appellant does not contest that the children were each adjudicated dependent-neglected and that they were out of her custody for 12 months—22 months, actually. Rather, she asserts that she did remedy the conditions that had caused their removal: specifically, the drug charges. She contends that she entered a negotiated plea, served the required time on the charges, ánd was re leased on parole. She also completed the required drug-and-alcohol assessment and tested negative on all drug screens. Thus, she argues, there was not sufficient evidence to demonstrate that she had failed to remedy the conditions that caused the removal of her children and the court’s finding was clearly erroneous.
Although appellant’s possession of drugs was one of the reasons for the children’s removal, the children were removed from appellant’s custody based on neglect and parental unfitness. The court found that appellant had been charged with delivery of methamphetamine, possession of methamphetamine, possession of drug paraphernalia, maintaining the premises for the purposes of drug sales, and endangering the welfare of the minors. The court found that appellant had placed the juveniles at substantial risk of serious harm as a result of their exposure to drug sales and to methamphetamine within reach of the juveniles. The problem was bigger than appellant’s personal drug use. Therefore, the resolution of her criminal charges and clean drug screens was not, to the circuit court, sufficient to remedy the neglect and parental unfitness that caused the children’s removal from her custody. Appellant had failed to comply with the case plan by failing to complete a psychological evaluation, failing to complete parenting classes, failing to obtain stable housing or stable income, and failing to attend regular visits with the children. At the termination hearing, the testimony established that she regularly cancelled or failed to show|s up for visitation with her children. We hold that the court’s finding on this ground is not clearly erroneous. Further, because only one statutory ground is necessary to support termination, it is not necessary to address appellant’s arguments regarding the other grounds. Sarut v. Ark. Dep’t of Human Servs., 2015 Ark. App. 76, at 9, 455 S.W.3d 341, 347.
For her third point on appeal, appellant argues that the evidence was insufficient to demonstrate that termination was in the best interest of her children. Specifically, she contends that there was insufficient evidence for the court to consider adopta-bility because the only testimony regarding this issue was from the assigned DHS caseworker, who had never met the children, and that there was insufficient evidence to support the trial court’s conclusion that the children faced a substantial risk of harm if returned to her.
We turn first to appellant’s argument that there was insufficient evidence of adoptability to support the circuit court’s finding of best interest. The circuit court is not required to find by clear and convincing evidence that the children are adoptable but merely must consider the likelihood of adoption if parental rights are terminated. Miller v. Ark. Dep’t of Human Servs., 2016 Ark. App. 239, at 7, 492 S.W.3d 113, 117. While this court has not required that abundant evidence of adopta-bility be introduced—generally a caseworker’s testimony that a child is adoptable is sufficient to support an adoptability finding—we have previously held that “[consideration requires evidence ... or at least some finding by the trial court that other aspects of the best-interest analysis so favor termination that the absence of proof on adoptability makes no legal difference.” Haynes v. Ark. Dep’t of Human Servs., 2010 Ark. App. 28, at 4, 2010 WL 135194. We have affirmed many cases in which the only evidence of^ adoptability was the testimony of the caseworker. Caldwell v. Ark. Dep’t of Human Servs., 2016 Ark. App. 144, 484 S.W.3d 719; Adams v. Ark. Dep’t of Human Servs., 2016 Ark. App. 131, 485 S.W.3d 275; Madison v. Ark. Dep’t of Human Servs., 2013 Ark. App. 368, 428 S.W.3d 555; Reed v. Ark. Dep’t of Human Servs., 2010 Ark. App. 416, 375 S.W.3d 709 (holding that testimony of caseworker’s supervisor, who had little personal contact with the children, was sufficient).
Here, the caseworker testified that the children were adoptable. The CASA report specifically recommended adoption, and, while not evidence, the attorney ad litem stated at the termination hearing that the children were “clearly adoptable.” The court made the following finding in its order:
As to the juvenile’s adoptability, this Court finds that the juveniles are adoptable based on the testimony of Amy Taber and the history of this case, including the fact that the juveniles are healthy and have no conditions that would bar adoption.
The court is not required to find that the children are adoptable but must merely “consider the likelihood that the child will be adopted if the termination petition is granted.” Ark. Code Ann. § 9-27-341(b)(3)(A). We hold that the court did that here.
We turn now to appellant’s argument regarding potential harm. Potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, at 11, 379 S.W.3d 703, 709. The potential-harm analysis is to be conducted in broad terms. Id. It is the “best interest” finding that must be supported by clear and convincing evidence. Wilson v. Ark. Dep’t of Human Servs., 2015 Ark. App. 666, at 13, 476 S.W.3d 816, 824. The court found that appellant did not have stable housing or a stable job. A stable home is one of a child’s most basic needs, and the failure to secure safe and appropriate housing of one’s own is contrary to the child’s well-being and best interest. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, at 9, 378 S.W.3d 290, 295; see also Brumley v. Ark. Dep’t of Human Servs., 2015 Ark. App. 90, 455 S.W.3d 347 (holding that continued uncertainty is itself potentially harmful to children). Moreover, appellant failed to comply with the case plan and did not even demonstrate the ability to visit her children regularly. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Ford, 2014 Ark. App. 226, at 3, 434 S.W.3d at 381. We hold that the court’s finding on best interest was not clearly erroneous.
Affirmed.
WHITEAKER and HOOFMAN, JJ., agree.
. Neither the putative father nor the legal father participated in the case; their rights were terminated, and neither is involved in this appeal,
. The circuit judge changed sometime after the adjudication order had been entered.
; "The circuit court shall have exclusive original jurisdiction of and shall be the sole court for” a number of proceedings under the Juvenile Code, including dependency-neglect and termination-of-parental-rights proceedings. Ark. Code Ann. § 9-27-306(a)(1)(B) & (E) (Repl. 2015). | [
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ROBERT J. GLADWIN, Chief Judge
| íAdrian Wooten was convicted of rape and residential burglary- on November 19, 2014, in the Howard County Circuit Court. On appeal, he contends that the trial court erred by allowing the eighty-nine-year-old victim to testify, arguing that she was unable to pass the standard for competency. We affirm.
Wooten was charged by information filed September 11, 2013, alleging that he had committed rape in violation of Arkansas Code Annotated section 5-14-103(a)(l) (Repl. 2013), and aggravated residential burglary in violation of Arkansas Code Annotated section 5-39-204(a)(l), (2) (Repl. 2013). Wooten filed a motion challenging the competency of a witness, M.H., and a hearing was held outside the presence of a jury.
Defense counsel began by asking M.H. questions regarding the night of August 9, 2013. The State objected, complaining that the hearing was not a fishing expedition, but to determine her competency to testify. The trial court stated that it had to “find to the extent |2that the capacity exists to transmit to the fact-finder a reasonable statement of what was seen, felt, or heard. So I need a basis for that. Overruled.” The trial court later clarified, stating that it did not need all the details, but enough to know “whether or not she understands her ability to take the oath and can testify.” M.H. answered questions regarding her statement to police on the night of the alleged incident, admitting that she might have said to the police that a white man had attacked her. She explained that the man’s voice sounded like a white man’s. She -said that he threw a pillow over her head, she could not breathe, and she was fighting for her' life. She said that the attacker said, “Let’s take a walk,” and, “Let’s go to the pond.” She explained that she prayed all the way there that he would not throw her in the pond because she could not swim. She said that, she could not see the man’s face and admitted not knowing whether- had she told the police that the attacker was white.
‘ Due to the State’s objection, the trial court admonished defense counsel to “[g]et to the heart of the competency issue.” Defense counsel said, “This is it, Your Honor[.]” The trial court responded that defense counsel was making a factual argument, but the question was whether M.H. had the capacity to testify. Defense counsel then asked M.H. if she could remember what had happened on the night of August 9. She answered that it was the night [her attacker] said,
‘Let’s walk down to the pond.’ So we did. And then at the pond he raped me, and I prayed all the way down to the pond ... Lord, please don’t let him kill me. Don’t let him throw me in the water because I can’t swim. I just kept on praying that. And I think I’m going to start crying.
She later said that after the rape, officers came, and the attacker left, running toward Mineral Springs. She was asked if she could remember whether it was a white or a black man, and | Sshe said it was dark and she could not see him. She said his voice sounded like a white man’s. She did not know why she told police that it was a white man who had raped her. When defense counsel asked if she had been confused, she answered,
Very confused of why, whoever it was, why would he come and pick me? Uh-huh. So that’s what I was telling him. I said why would he do that to me? I haven’t done nothing to him. So, if I had said- a white man, I couldn’t see that man, not fully. I don’t know. I’m confused. And I’m really tired. I’m really, really tired. And I don’t mean to get anybody in trouble that didn’t do it, but the person that did it, I want him to be punished, because he just kind of turned my life around, whoever did it. Makylah, did I tell you a white man?
The trial court determined that nothing had been shown that M.H. was not competent to testify.
Thereafter, the jury trial was held, and M.H. testified in more detail regarding the attack. She explained that she had been in bed with her great-granddaughter when they were attackéd by two men," and she fought her attacker while he covered her face with a pillow. She said the attacker demanded money. She said that he had come through a window. M.H. said that when her great-granddaughter went to get help from a neighbor, her attacker took ber to. the pond, where he raped her and ran .away., She testified that she walked back to her neighbor’s house and saw policemen swarming the area. She also testified that her attacker was a black man, but she said that was all she could remember to identify him. After prompting, she remembered that she had been taken to the hospital after the incident occurred.
After the remainder of the witnesses testified, the jury found Wooten guilty of rape and aggravated residential burglary. He was sentenced to sixty years’ imprisonment for the 14rape and forty years’ impris- eminent for the burglary, to be served consecutively. Wooten filed a motion for new trial on November 21, 2014. The trial court did not rule, and the motion was deemed denied on the thirtieth day after the motion was filed. Ark. R. Crim. P. 33:3 (2015). This appeal timely followed.
Wooten’s sole argument is that the trial court erred in finding M.H. competent to testify.
The question of competency of a witness is a matter within the sound discretion of the trial court. In the absence of clear abuse of discretion, we will not reverse on appeal. Warner v. State, 93 Ark. App. 233, 238, 218 S.W.3d 330, 333 (2005). Any witness is presumed competent unless proved otherwise. Ark. R. Evid. 601 (2014). The party alleging that a witness is incompetent has the burden of persuasion. Warner, 93 Ark. App. at 238, 218 S.W.3d at 333. The issue of the competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Id., 218 S.W.3d at 333. A witness’s competency may be established by the following criteria: 1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or 2) an understanding of the consequences of false swearing; or 3) the ability to receive accurate impression and retain them to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard. Id. at 238-39, 218 S.W.3d at 333. Further, as long as the record supports a trial judge’s finding of a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold that there has' been a manifest error or abuse of discretion in allowing the testimony. Id. at 239, 218 S.W.3d at 333.
Ward v. State, 2014 Ark. App. 408, at 4-5, 439 S.W.3d 56, 59-60 (2014).
Wooten contends that, under Arkansas Rule of Evidence 601 (2014), M.H. showed a lack of ability to remember the incident and transmit those recollections to the jury. He contends that when she qualified her answers with “thinks so,” and “thinks,” and “might,” ■ and when she claimed that she was confused, it was obvious that “a great deal of [M.H.’s] testimony was guesses[.]” He argues that her inability to remember what she told police on | (¡the night of the attack and her confession that she was “really, really tired,” demonstrated her inability to retain the memories of the events and relay them to the jury. Thus, Wooten claims that M.H. should not have been allowed to testify.
We hold that the trial court did not abuse its discretion by finding M.H. competent to testify. M.H. demonstrated her ability to receive and retain accurate impressions and to relay them to the judge and the jury. At the pretrial hearing, she testified to (1) speaking to the police; (2) the events and location of the rape; (3) having a pillow placed over her face; (4) her pleas that her attacker not throw her in the pond because she could not swim; (5) the direction in which her attacker ran after raping her; and (6) her fight with her attacker before the rape. At trial, M.H. testified as to (1) how her attacker entered her home; (2) her attacker’s demand for money; (3) a description of her property and the pond’s location in relation to her home; and (4) going to the hospital after her attack. M.H.’s struggle to remember whether her attacker was black or white, considering the evidence that it was dark, there had been a struggle,' and she had. been raped, is not dispositive of the issue of her competency. Accordingly, the trial court did not abuse its discretion in finding M.H. competent to testify because she displayed the ability to relay the events of her attack and describe what she saw, felt, and heard.
Affirmed.
Whiteaker and Hoofman, JJ., agree. | [
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COURTNEY HUDSON GOODSON, Associate Justice
11 Petitioners Capital SeniorCare Ventures, LLC, et al. (“Capital SeniorCare”) seek a writ of certiorari to the Pulaski County Circuit Court to quash proceedings in .that court, ■ In support of the petition, Capital SeniorCare argues that the circuit court proceedings 12against it are irregular and erroneous on the face.of the record because - the plaintiff in the lawsuit has commenced three actions alleging the same claims and injuries in violation of Rule 41(b) of the Arkansas Rule of- Civil Procedure. Because Capital SeniorCare had another adequate remedy, we deny the petition.
In the proceedings below, respondent Cindy Clough, as personal representative of the estate of Joyce Lee Vinson, deceased, and on behalf of the wrongful-death beneficiaries of Joyce Lee Vinson, deceased, filed a complaint On January 14, 2013, against Capital SeniorCare and effected timely service upon them. The complaint alleged various acts of negligence, medical negligence, civil conspiracy, and violations of the Arkansas Long-Term Care Residents’ Rights Act. On August 5, 2014, Clough voluntarily dismissed her claims against Capital 'SeniorCare, and the circuit court entered an order closing that case, 60CV-13-230, without prejudice. ’
Thereafter, on December 19, 2014, Clough filed an “amended complaint” in case . 60CV-13-230 alleging the same claims as the'original complaint. Clough did not file a new civil cover sheet or pay a filing fee in connection with the amended complaint, and no new summonses were issued to Capital SeniorCare.
In early July, Clough contacted the circuit court and requested that it set a trial date in 60CV-13-230. The circuit court responded that that case was closed and that no trial could be set. Then, on July 8, 2015, Clough filed a new complaint as a new case, 60CV-15-3046. With this complaint, Clough filed a new civil cover sheet, paid the filing fee, and served new summonses on all defendants.
|sOn September 29, 2015, Capital Senior-Care filed a motion to dismiss the amended complaint in 60CV-13-230 for lack of service. Capital SeniorCare also filed a motion to dismiss the new complaint with prejudice in 60CV-15-3046, arguing that the dismissal of the amended complaint m 60CV-13-230 would operate as a second dismissal and bar any subsequent litigation pursuant to Rule 41(b). Clough responded, arguing that the amended complaint was a nullity and was void, and that consequently, the new. complaint was properly filed as a second action, under the savings statute. Arkansas Code Annotated section 16-56-126 (Repl.2005).
On November 5, 2015, the circuit court denied Capital SeniorCare’s motion to dismiss the new complaint. On November 10, 2015, the circuit court entered an order in 60CV-13-230 finding that the. amended complaint was void because it had been filed in a closed case. Capital. Senior Care did not appeal, but instead filed the instant petition for a writ of certiorari.
A writ of certiorari is extraordinary relief. Ark. Dep’t of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003). In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a CQntro-: versy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. Id. There are two requirements that must be satisfied in order for this court to grant a writ of certiorari. The first requirement is that there can be no other adequate remedy but for the writ of certiorari. Second, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the ^proceedings are erroneous on the face of the record. Ark. Game & Fish Comm’n v. Herndon, 365 Ark. 180, 226 S.W.3d 776 (2006).
In this case, we must deny the petition for the writ because the first requirement of no other adequate remedy at law has not been met. Capital SeniorCare argues that they have met this requirement because the. circuit court’s denial of their motion to dismiss was not appealable. They note our decision in Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006), wherein we granted a writ of certiorari following a circuit court’s denial of a motion to dismiss, holding that the court’s ruling improperly allowed the case to proceed in violation of Rule 41(b), and the petitioner had no other adequate remedy at law because the petitioner could not appeal from the order denying the, motion to dismiss. However, unlike in Jordan, the petitioners in this case do have an order from which they could have properly appealed. The circuit court’s November 10, 2015 order stated, “The ab.ove styled case was closed by order óf this court on August 4, 2014. There is nothing pending in this case, and any pleadings filed subsequent to the case’s closure on August 4, 2014 are void and have no effect.” Because this order effectively discontinues the action, it is appeal-ablé under Rule 2(a)(2) of the Arkansas Rules of Appellate Procedure-Civil. Capital SeniorCare had an opportunity to appeal that order but did not do so. As we have recognized, a writ of certiorari cannot be used as a substitute for appeal. Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d 912 (1978); see also Cooper Communities, Inc. v. Circuit Court of Benton Cty., 336 Ark. 136, 984 S.W.2d 429 (1999). Additionally, a writ of certiorari will not take the place of an appeal unless the right of appeal has been lost by no fault, of the aggrieved party. King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996). Accordingly, because ^Capital SeniorCare had an adequate remedy in the form of an appeal, we deny their petition for a writ of certiorari.
Petition denied. | [
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WAYMOND M. BROWN, Judge
| Appellants James and Britani Murphey had their parental rights to their children, J.M., G.M., C.M.l, and C.M.2, terminated by an order of the Union County Circuit Court. On appeal, both appellants argue— in separate briefs—that the trial court’s order terminating their parental rights was not supported by clear and convincing evidence. We find no error and affirm.
This family’s history with the Arkansas Department of Human Services (DHS) dates back to 2012. On February 8, 2012, J.M. was -removed from appellants for nearly a month due to the home being environmentally unsafe. Services were offered to the family and the case was closed on June 21, 2012. On March 22, 2013, J.M. and G.M. were removed from appellants for approximately two weeks because the house had dog feces all over it and it was | ¡¡unclean and unsafe. Services were again offered to the family, and the case was closed on January 6, 2014.
A third investigation began in May 2014 for allegations of 'environmentally unsafe conditions of the home. A petition was filed on June 19, 20Í4, alleging that all four children were dependent-neglected. When the investigator went to the home she discovered that a dog was in the home, there was little food, trash was all over the floors, there was at least one broken window, the home did not have gas, and the formula for C.M.l and C.M.2 had not been picked up at the DHS office. However, the children remained in appellants’ custody at that time. Before a court date had been scheduled on the dependency-neglect petition, C.M.l had to be airlifted to Arkansas Children’s Hospital (ACH), on July 15, 2014, and was diagnosed with pneumonia and possibly sepsis. Britani -went to the hospital to be with C.M.l; James and his girlfriend, Denise Barbine, moved into the home to take care of the other children. During this time, the condition of the home was improved in -Britani’s absence. DHS filed an amended petition for emergency-custody and dependency-neglect on August 8,' 2014. The court entered an ex parte order for emergency custody on August 8, 2014, finding that C.M.l was dependent-neglected and placing him into the custody of James. In the adjudication order entered on November 10, 2014, the children were placed in the joint legal custody of appellants, with James having primary physical custody. The court ordered appellants to do a number of things, including to: follow the case plan; obtain and maintain lastable, clean, adequate, and suitable housing; keep all utilities on; and attend and participate in individual counseling. Britani was also ordered to complete parenting classes, undergo a psychological evaluation, complete budgeting assistance from DHS, and take all of her prescribed medications. The case’s goal was reunification with Britani with a concurrent goal to remain in James’s custody. . .
In the court report filed by Eugenia Ford on May 1, 2015, DHS made the following recommendation:
Department is recommending the children remain in the home and custody of Mr, Murphey and for the [sic] Mr. Mur-phey to follow all court orders. Mr. Mur-phey needs to ensure the children are clean daily when they go to ECCEL. Mr. Murphey will ensure the children are seen by their POP if the diaper rash continues to re-occur. Mr. Murphey will [get] rid of one dog and make sure the remaining dog is properly secured out of the reach of the children and any other person that makes visits to the home. Mr. Murphey will ensure the home is free of the large quantity of flies -by putting screens on the windows.
The court entered a review and change of custody order on May 20, 2015. In the order, the court found that James’s home had deteriorated to the point that it was no longer safe for the children to remain there. The court noted that the home had “two broken windows, there is a wire hanging from the wall next to [G.M.’s] bed, [C.M.1] was having diaper rash so badly it was bleeding,, there were bumps all over [C.M.2’s] body and evidence of dogs being in the home despite the previous Court order.” The children were placed in DHS custody. The order noted that Britani was incarcerated at that time.
|Jn the court report filed on July 14, 2015, DHS recommended that the case’s goal be changed to adoption “due to the chronic environmental issues in the home.” DHS stated that this was the third removal of the children from either one or both of the parents. DHS filed a petition for the termination of appellants’ parental rights on September 18, 2015. In the petition, DHS noted its previous history with the family, and alleged that appellants had subjected the children to aggravated circumstances, in that a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification. The review order filed on September 23, 2015, set an October 2015 date for the termination of parental rights hearing. The hearing was continued at the request of James. It took place on November 16, 2015.
Quiana McGhee, an assessment unit investigator with DHS, testified that she investigated the family twice, and that as a result of the investigations, one or more children had to be-removed from appellants’ custody. She also stated that she conducted other investigations on the fami ly which did not result in removal. She admitted that she had no involvement in the present case.
Teresa Johnson, a former investigator with DHS, testified that she filed the petition for dependency-neglect and the accompanying affidavit on the family after visiting the home on May 22, 2014. However, she stated that she was not involved with the removal of the children from appellants. On cross-examination, she stated that she filed an affidavit in another case in which it was alleged that James was thé father of one of the children that had [fito be removed due to environmental concerns on May 2, 2015. She said that the children were removed from a home that belonged to James, and that James was present at the timé of the removal.
Carolyn Samuel, County Supervisor for Union County, testified that the children were not initially removed from appellants when this case was filed. She stated that due to the situation concerning C.M.l, DHS took a hold of him on July 31, 2014, after his release from ACH. Appellants were living in separate homes, and James was subsequently given custody of C.M.I. Samuel testified that the children were adoptable and that their foster parents had expressed an interest in adopting them.
On cross-examination, Samuel stated that she was not the main caseworker, but that Eugenia Ford was. She said that she was Ford’s supervisor. She stated that James had continued to visit the children and that those visits were very interactive. She testified that James usually had several members of his family with him at the visits. According to Samuel, the children appeared to love James and to have a stable relationship with James’s parents. However, she stated that she did not think that there was a chance of a possible nurturing relationship between James and the children in the future. She testified that aside from the environmental conditions, James had never physically harmed the children. She testified that James had recently moved into Britani’s grandmother’s home, which was “a better house than what they were living in, but James was asked to leave that same residence before from the grandmother.”
| fiEugenia Ford testified that she was the caseworker assigned to the case since October 2014. She stated that different services had been offered to the family since May 2014. She testified that psychological evaluations were never performed due to DHS having a new contract. Those evaluations were scheduled for December. She stated that Britani was currently incarcerated and that there had not been any significant improvement in Britani’s situation since the beginning 'of this case. She opined that the children would suffer potential harm if placed back in Britani’s custody because of “lack of housing; her arrests, which she’s currently in jail now; she’s been arrested twice in June with threatening harm to her husband and significant other and possibly the children; she’s been in acute placement and hospital twice; ... her inability to manage her finances and not wanting assistance from the Departmént of helping her find housing.” Ford stated that she visited James’s residence the day before the hearing and that the home was “spotless.” She said that James and Denise moved into the residence on October 18, about' a month before the hearing. She stated that James had recently begun his court-ordered individual counseling, although it had been ordered for “as long as [she’d] been a part of this case.” She said that initial issues arose because Melissa Butler performed a mental-health evaluation on James and stated that she did not have enough information to give him counseling sessions. She stated that she explained to James that he was court ordered to. attend counseling and that he started going. She testified that when she visited the home James had the children living in on May 4, 2015, there were issues with the bathroom flooring, there were a “zillion” flies in the house, there were no screens on the window, the back door was half off the hinges, and there were |7multiple dogs present. However, she said that when she returned to the home in August, the house was better in that the house was cleaner, there were fewer flies, screens were on the windows, and new doors were up.
Ford testified on cross-examination that James’s counseling reports were becoming more favorable. She stated that James’s attitude had changed from reluctance to liking to go and talk about what was going on in his life. She said, “In my opinion, as his caseworker, I believe the last couple of months that James is doing all he can do to work services. He’s done.” She stated that James was trying to repair the problems found in the home in- good faith- before he moved in October. She said that James’s visitations with the children went very well. She testified that the chance of a positive relationship between James and the children depended on the court’s order at the end of the hearing. She stated that she visited James’s residence the night before the hearing and that she did not see anything threatening to the children at that time. She said that James had attempted to remedy the problems that were brought to his attention. When asked about possible relatives willing to take the children, Ford stated that “[James] mentioned an aunt but that lady is not at her residence. She’s in California for a couple of weeks so that wouldn’t be possible. [Bri-tani’s] mother has expressed interest.” She stated that DHS would have to go through ICPC to see if there is a possible alterria-tive to termination with possible permanent placement being a consideration.
Upon questioning by the attorney ad litem, Ford stated that when she wrote her report on May 4, 2015, she was not seeking to have the children removed from James’s custody, even though there were flies all over the ceiling and walls. She stated that James was going |sto purchase some fly strips and fix the windows, and that she thought this was an appropriate solution to the problems. She said that ECCEL did hot inform her that the children had to be bathed daily, but that they did tell her that the children were being bathed often. She opined that she was unsure if placing the children back with James would give them permanency, considering the history of the case. Ford stated that there had not been any issues with the children since they were placed in foster care. She said that C.M.l went from being failure to thrive to thriving, walking, and doing everything.
Britani testified that she was currently incarcerated at the Union County Jail for failure to comply. She stated that she was incarcerated earlier in the year for terror-istic threatening. She' said that she and James had lived in multiple residences, and that she had also lived in residences without James. She admitted that she did not have a place to live. She said that she had previously asked Sharon Foster to help her find a place to live and that she asked Carolyn Samuel the same thing right before the hearing. She testified that she was not seeking custody of her children, but that she wanted to get a house where they could come visit her. She conceded that she was not in a position to take custody of the children. She stated that she was presently trying to get her “mental illness together.” She said that she did not know where she would stay once she was released from jail. She testified that she had been trying to get her life back together by going to the hospital when her medicines were not right and by going to counseling on a regular basis. She stated that she had not had her court-ordered psychological evaluation because an appointment was never made for her.
loUpon examination by the attorney ad litem, Britani stated that she and James were still married and that she continued a relationship with him even though he was in a relationship with Denise. She testified that she asked her grandmother to allow James to rent the house he was currently living in. She said. that James and her grandmother did not. get along well once, but that their relationship was a little better. She stated that she lived with James’s brother, Michael, before she went to jail. She admitted that Michael was a sex offender. She said that she understood that DHS did not want her children around Michael, but that she needed a place to stay. She testified that the house was condemned just shortly before she went to jail.
On cross-examination, Britani testified that she had been diagnosed with'post-traumatic-stress syndrome, borderline personality disorder, and manic bipolar. She stated that she used to be a cutter until she met James. She said that she did not think going to Hope House was a good idea because she did not want to grant the person that runs Hope House power of attorney over her SSI check. She admitted that she could have tried to get her grandmother’s house for herself, instead of for James.
James testified that he understood that DHS was asking the court to terminate his parental rights mainly because of environmental neglect. He stated that he had taken steps to rectify the situation and improve his living situation by going to counseling, getting rid of a lot of stuff that was cluttering the house, and getting rid of his dogs. He said that he did not start attending counseling until August although he was court-ordered to go “quite some time ago” because he did not want to talk to anyone. However, he stated that when he started | ingoing, he began to open up a lot more. He stated that the sessions had been going well and that he can talk to people more sihce he learned to 'open up. He said that counseling had helped him realize what he needed to do to regain custody of his children. He stated that he understood that this was the fourth time the children had been removed, but he asked the court for another chance. James testified that he had only missed one visit with the children. He stated* that he would bring his family and Denise to the visits, and that his parents have a healthy, stable relationship with the children. He said that he felt that he was capable of having a positive and nurturing relationship with his children. He stated that he was ready to have the children returned to him and that he did not know of anything at his current residence that would pose a threat to them, James said that he was financially able to support the children. He stated that Denise was a positive influence and that she was going to be a part of his future. He testified that his parents and sister were his support system and that they would help him with the children.
On cross-examination, James stated that he left his previous residence because he heard rumors that Britani was going to get the home condemned. He said that he believed the rumors because Britani had gotten two of his father’s houses condemned. He testified that he received SSI and that he also worked with a friend “underneath the table.” He denied having any dogs but stated that his sister would bring her dog over when she came to visit him. James stated that he was with Denise when the children were removed from his custody. He also said that he was with her in 2014 when DHS initiated this case.
InDenise testified that she lived with James and that their current residence was in good condition. She stated that the house was clean and that all the utilities were on. She said that she got along well with the children and that she attended almost all of the visits with James. She testified that she considered herself to be a positive influence on James and that she has helped him with housekeeping as well as with his children. She stated that there were no dogs, no problem with flies or other bugs, and no broken windows or doors at the house. Shé opined that the children would be “perfectly safe” at the house if they were returned to James. She testified that she would hélp James with the children if his rights were not terminated. Denise stated that she was currently unemployed, but that James was working. She stated that she and the children were bonded and that there was a support system in place if the children were returned.
On cross-examination, Denise stated that she met James online and that they had been living together since June 2014. She admitted that she was living with James when the children were removed from his custody on May 4,2015.
Cathy Noon, James’s mother, testified that before the children were removed, she saw them everyday. She also stated that she would let them spend the night with her every Saturday night so that she could take them to church on Sunday. She said that she and the children were bonded and that they called her GiGi. She testified that she did not believe that James’s parental rights should be terminated because he had done everything DHS asked of him. She stated that if the children were returned to James, she would see them almost daily and keep them on the weekends so that they could attend church with her. Cathy testified |1P,that she had a nurturing relationship with the children. She opined that James’s current residence was clean and suitable for the-children. -
On cross-examination, Cathy stated that she once asked to be considered as a relative placement for the children when they were removed the second time. She said that this was the third time the children had been .removed from James. She testified that she. visited the children every week before they were taken. She stated that she had a problem with the condition of that .house, but that the new house is the “total opposite” of the last one. Cathy testified that she also visited the house that Britani and James shared. She stated that Britani was an average mom and that the children were “sometimes” taken care of.
The court found by clear and convincing evidence that DHS had proven the ground for termination. It also found that the children were adoptable and that the termination was in the children’s best interest. Accordingly, the court granted DHS’s motion , to terminate appellants’ parental rights. Appellants filed timely notices of appeal.
Termination-of-parental rights cases are reviewed de novo. To terminate parental rights, at least one statutory ground must exist, as well as a finding that it is in the child’s best interest for parental rights to be terminated; these must be proved by clear, and convincing evidence. In making a “best interest” determination, the circuit court is required to consider two factors: (1) the likelihood the child will be adopted, and (2) the potential harm to the 11.¡child if custody is returned to a parent. Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established; the appellate inquiry is whether the circuit court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. In resolving the clearly erroneous question, we must give due regard to the opportunity of the circuit court to judge the credibility of witnesses.
Potential harm must be viewed in a forward-looking manner and considered in broad terms. The circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Each factor need not be proven by clear and convincing evidence, rather it is the overall evidence that must demonstrate clearly and convincingly that termination is in the children’s best interest.
The intent behind the termination-of-parental-rights statute is to provide permanency in a child’s life when it is not possible to return the child to the family home because it is contrary to the child’s health, safety, or welfare, and a return to the family home cannot be | ^accomplished in a reasonable period of time as viewed from the child’s perspective. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Finally, a parent’s past behavior is often a good indicator of future behavior.
James argues that the evidence was insufficient to support the aggravated circumstances ground for termination. This argument is without merit. The evidence reveals that the children were removed from James’s custody at least three times. Each time, the removal was due to environmental issues. The children were returned on two occasions and the cases were closed; however, the children were subsequently removed again. James focuses on the efforts he has made to comply with the case plan, but, even full compliance would not determine whether or not his children were returned to him. Here, the court noted that James had only recently started attending his court-ordered counseling, and that it was only in the “past few weeks that James Murphey, Jr. recognized the need to find a more suitable place to live.” Under these facts, we are unable to say that the court’s finding that James subjected the children to aggravated circumstances was clearly erroneous.
James also contends that termination was not in the children’s best interest because there was insufficient evidence to support a finding of potential harm. A parent’s past [15behavior is often a good indicator of future behavior. Here, despite successfully having a child or children returned in two previous cases, the children were removed from James’s custody for the same or similar reason in May 2014. Given the previous history of this family with DHS, we cannot say that the court’s finding that the children would be subjected to potential harm if they were returned to James was clearly erroneous. Accordingly, we affirm.
Britani argues that the evidence did not support the aggravated circumstances ground for terminating her. parental rights. The evidence at the hearing revealed that the children had been removed from Britani’s custody on three separate occasions for environmental issues. At the time of the termination hearing, she conceded that she was in jail, and was not in a position to have the children returned to her custody. She also stated that she had no home to return to when she is released from jail. As part of her challenge, Britani contends that DHS failed to provide her with necessary services (psychological evaluation), failed to provide reasonable accommodations pursuant to ADA, and failed to “fully” attempt to place the children with family. These arguments are either raised for the first time on appeal or were not addressed or ruled on by the trial court. Failure to raise challenges or to obtain a ruling 11fibelow is fatal to the appellate court’s consideration on appeal. Therefore, they are not preserved for our review. The court’s finding that Britani had subjected her children to aggravated circumstances is not clearly erroneous, and we affirm this finding.
Britani also contends that the evidence did not support a finding of potential harm to the children. She admits that she was not in a position to have the children safely returned to her. However, she argues that there was no potential harm if the children were returned to James’s custody. Britani lacks standing to argue James’s position on this issue. Thus, we affirm.
Affirmed.
Vaught and Hixson, JJ., agree.
. This was in violation of a prior court order that no dogs be kept in the home.
. DHS picked up the. formula for the children.
. The court entered the same order on June 17, 2015.
. See Ark. . Code. Ann. § 9-27-341(b)(3)(B)(ix)(fl)(Repl. 2015).
. She stated that the report noted that James had previously fixed the back door.
. Schaible v. Ark. Dep’t of Human Servs., 2014 Ark. App. 541, 444 S.W.3d 366.
. Id.
. Ford v. Ark. Dep’t of Human Servs., 2014 Ark. App. 226, 434 S.W.3d 378.
. Id.
. McFarland v. Ark. Dep’t of Human Servs., 91 Ark. App. 323, 210 S.W.3d 143 (2005).
. Dowdy v. Ark. Dep’t of Human Servs., 2009 Ark. App. 180, 314 S.W.3d 722.
. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290.
. McFarland, supra.
. Ark. Code Ann. § 9-27-341(a)(3).
. Ford, supra.
. Stephens v. Ark. Dep't of Human Servs., 2013 Ark. App. 249, 427 S.W.3d 160.
. Ford, supra.
. Stephens, supra.
. The children were removed from James’s custody a total of three times in less than four years for environmental issues.
. She also make several arguments contending that James’s parental rights should not have been terminated based on aggravated circumstances. However, she does not have standing to contest the termination of James’s parental rights. See New v. Ark. Dep.’t of Human Servs., 2011 Ark. App. 604.
. See Burkhalter v. Ark. Dep’t of Human Servs., 2010 Ark. App. 520.
. New, supra. | [
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WAYMOND M'. BROWN, Judge
| Appellant appeals from his conviction by jury trial of maintaining a drug premises. On appeal, appellant argues that (1) the circuit court erred in failing to grant his motion for a mistrial when appellee shifted the burden of proof during questioning of a witness and (2) there was insufficient evidence to support his conviction for maintaining a drug premises. We affirm.
I. Facts
According to testimony at the jury trial, appellant rented a room at a Motel 6 in Conway for his friend Steve Menzie because Menzie did not have a valid form of identification. After renting the room, appellant took his three-year-old son and seven-1 ¿month-old daughter to the room. Appellant’s estranged wife -contacted him requesting to see the children and visited with them at the hotel room. Following her visit, she contacted the Conway Police Department, and officers were dispatched to check on the welfare of the children.
When Officer Danny Worley and two other officers arrived, appellant answered the door and verified that the room was rented in his name. Menzie and another man were in the room with appellant and his children. As Officer Worley explained that he was there to conduct a welfare check, he noticed what appeared to be an assault rifle near the nightstand behind appellant. Appellant explained that it was an airsoft gun and gave Officer Worley permission to come into the room to inspect the gun. Upon entering the room, Officer Worley noticed a “bong” and a “one hitter,” drug paraphernalia used to smoke marijuana, sitting in plain view on the nightstand between the beds. At Officer Worley’s request, appellant consented to a search of his person whereupon Officer Worley discovered a baggie containing .1566 grams of methamphetamine and a glass pipe with .3198 grams of marijuana residue in appellant’s pockets. Appellant admitted that all of these items belonged to him. Officer Worley also searched Men-zie and the other man finding a pill bottle and two identifications on Menzie—none belonging to him—and a spoon with residue on it on the other man.
| ¡¡After Officer Worley read appellant his Miranda rights,' appellant executed a consent-to-search form authorizing the officers to search the motel room. During his search, Officer Worley found a box underneath the bed containing drugs and drug paraphernalia along with two pipes on the floor next to the box. He also found another box on a shelf that also contained drug paraphernalia. One glass pipe contained .1331 grams of marijuana, and one contained methamphetamine residue. A glass smoking device contained .3198 grams of marijuana. Two clear bags were found: one contained a crystal-like substance, one bag of which was found to contain a total of .4060 grams of methamphetamine, and the other contained a .counterfeit substance.
Appellant was subsequently charged by felony information on May 4, 2015, with one count each of maintaining drug premises, a Class C Felony; possession with purpose to deliver, delivery or manufacture of counterfeit substance, a Class C felony; possession of methamphetamine with purpose to deliver, a Class C felony; possession of drug paraphernalia to ingest, inhale, etc., a Class D felony; and possession of drug paraphernalia, a Class A Misdemeanor. He was also charged therein with two counts of endangering welfare of a minor—II, a Class A misdemeanor. Through multiple filed amended felony in-formations, the last being filed on July 6, 2016, the possession with purpose to deliver, delivery or manufacture of counterfeit substance charge was dropped and replaced with one count of possession of a controlled substance—schedule I/II, methamphetamine, a Class D felony; and one count of failure to appear, a Class C felony, was added.
|4A trial on the matter was held on August 25, 2016, following which a jury found appellant guilty of all remaining charges and the circuit court sentenced him to a total of 192 months in the Arkansas Department of Correction. This timely appeal followed.
II. Sufficiency
The prohibition against double jeopardy requires that we review the sufficiency of evidence before we examine trial error. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence, In a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the conviction. We will affirm a conviction if there is substantial evidence to support it. Substantial evidence may be direct or circumstantial. Evidence is substantial if it is of sufficient force and character to compel | ^reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. This court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses.
Appellant argues that there was insufficient evidence to support his conviction for maintaining a premise, specifically arguing that the location was not kept or maintained by him, and that there was no evidence that the location was used for others to use or obtain drugs. We cannot agree.
It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building or other structure or place or premise that is resorted to by a person for the purpose of using or obtaining a controlled substance or that .is used for keeping a controlled substance. A person acts “knowingly” with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist, and a person acts “knowingly” with respect to a result-of his conduct when he is aware that it is practically certain that the conduct will cause the result.
■ |fA. Keep or Maintain
Appellant argues that the phrase “keep or maintain” is one that “direct[s] a constant and prolonged effort to set up some place, structure or premises for using, obtaining or keeping drugs.” Neither statute nor caselaw defines the phrase “keep or maintain”; furthermore, no minimum-time-period requirement for occupancy or possession of the drug premises is given in the statute.
Where there is joint occupancy of the premises where contraband is found, some additional factors must be present linking the accused to the contraband. Those additional factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. Viewing the evidence in the light most favorable to ap-pellee, there is substantial circumstantial evidence to support appellant’s conviction. The evidence is that appellant opened the door to the hotel room, verified that he rented the hotel room, and consented to a search thereof, though two other adult males were in the room. Officer Worley testified that appellant admitted to ownership of the marijuana-related contraband while disclaiming ownership of all methamphetamine-related contraband, admitting ownership only of the baggie of marijuana found in his pocket.'
|7Before this court, appellant argues that he did not keep or maintain a structure; “[a]t most he borrowed [the hotel room] for a night.” Appellant’s assertion that he borrowed the room at most is an issue of credibility. It is the responsibility of the fact-finder, not the appellate court, to weigh the evidence and to make credibility determinations. The element of criminal intent can seldom be proved by direct evidence and must be inferred from the facts and circumstances of the crime. The fact-finder need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false,, improbable, and contradictory statements made by the defendant' to explain suspicious circumstances when determining criminal knowledge and intent. The jury could have believed that appellant owned or possessed all the contraband, contrary to his assertion that he only owned or possessed part of it. We cannot, on this evidence, find that there was insufficient evidence to prove that appellant kept or maintained a drug premises.
B. Purpose of Use for Others
Appellant then argues that appel-lee failed to prove that the purpose of the room was | sfor others to resort to for drug usage or to obtain drugs. Appellant argues that- the statute “requires proof that the very purpose of the premises is drug use, distribution or storage” and not a “presumption that wherever a drug'happens to be, the property on which it sits is a drug premises.” We disagree.
Officer Tom Kennedy testified that some of the contraband found in the hotel room—specifically the marijuana pipe, “baggies,” syringes, spoons, and Q-tips—were paraphernalia either for the use of a drug or for the distribution or hale of a drug. Tara Lucas, of-the- Arkansas Statd Crime Lab, testified that some of the seized items contained either marijuana or methamphetamine or residue of the same. Appellant admitted that he had been a drug addict, using marijuana and methamphetamine, but denied having used the latter since June of 2015. This denial was in direct contradiction to his almost immediately following statement that he had a small amount of methamphetamine on him at the time of his arrest for personal use. He deriied using any controlled substance, that anyone else’ used a control substance, or that he saw the contraband-containing boxes or the pipes that were discovered in the hotel room. A jury need not lay aside its common sense in evaluating the ordinary affairs of life, -and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. The jury is entitled to draw on Reommon sense and experience in reaching its verdict. Again, this court can find no error. We affirm this point.
III. Mistrial .
Appellant also argues that the circuit court- erred in failing to grant his motion for a mistrial based on appellee’s questioning of a witness, which improperly-shifted the burden of proof. Appellant argues that the circuit court’s admonition was insufficient to cure any prejudice to him because “[t]he evidentiary hole [appellant’s] lawyer pointed out was at the heart of his defense”—the “evidentiary hole” being appellee’s failure to check the evidence, which he defines as a “glaring error.” We disagree.
A mistrial is an extreme remedy that should not be declared unless there has been 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. Our supreme court has held that a cautionary instruction or admonition to the jury can make harmless any prejudice that might occur.- A mistrial is proper only where an error is beyond repair and cannot be corrected by any curative relief. Because the trial court is in a better position to determine the effect of a remark on the jury, it has wide discretion in granting or denying a | inmotion for a mistrial, and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice'to the movant. In reviewing a mistrial motion, we look at all developing circumstances that surround an incident to determine whether a manifest abuse of discretion occurred.
During the trial, appellee asked Officer Danny Worley if he received a request from appellant to send any of the evidence for fingerprinting. Officer Worley stated that appellant did not make such a request. Appellant’s counsel requested that the question be repeated, and he objected ,to the question as it .was being repeated. Noting that he did not hear the question the first time, before Officer Worley answered it, appellant’s counsel argued that appellee was attempting to shift the burden of proof to appellant when the burden of proof did not belong to him, but to appellee. Appellee responded arguing that the Arkansas State Crime Lab is a referral agency to which defense attorneys are allowed to and routinely do refer. . It argued that it was not shifting the burden of proof, but arguing that appellant had the ability to request that the evidence be analyzed for fingerprints, but did not do so. The circuit court sustained appellant’s objection, finding that appellee’s questioning shifted the burden to appellant to prove or disprove something that is an element of the case.
1 t jAppellant then asked for a mistrial, which the circuit court denied. Appellant then requested an instruction to the jury to disregard the question and its answer, and an instruction that appellant had no burden to prove any evidence. The circuit court agreed to give an admonition and stated to the jury “[ljadies and gentlemen, there was an objection to the last question. I’ve sustained that objection. You will disregard the question and any attempt the officer made [sic] answer it.” Appellant made no further arguments thereafter.
Notwithstanding his motion for a mistrial, appellant received the admonition he requested. His failure to object to the sufficiency of the admonition is viewed by this court with the presumption that he found it satisfactory. In light of the circuit court’s admonition to the jury, we cannot say that appellee’s questioning was so prejudicial that it warranted a mistrial. Furthermore, the question at issue was repeated at appellant’s counsel’s request because he failed to hear it; his objection came during the second recitation of the question. We cannot find that the circuit court abused its discretion.
Affirmed.
Virden and Glover, JJ., agree.
. Appellant was convicted of six other charges; however, he does not appeal from those convictions.
. Appellant had sole custody 'of the children.
. The possession of drug paraphernalia charge was nolle prossed.
. Stover v. State, 2014 Ark. App. 393, at 1, 437 S.W.3d 695, 697 (citing Powell v. State, 2013 Ark. App. 322, 427 S.W.3d 782).
. Loggins v. State, 2010 Ark. 414, at 4, 372 S.W.3d 785, 789 (citing Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905).
. King v. State, 2014 Ark. App. 81, at 2, 432 S.W.3d 127, 129 (citing Daniels v. State, 2012 Ark. App. 9, at 1-2, 2012 WL 11276).
. Owens v. State, 2011 Ark. App. 763, at 5, 387 S.W.3d 250, 255 (citing Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147).
. Velasco v. State, 2016 Ark. App. 454, at 3, 504 S.W.3d 650, 652 (citing Matlock v. State, 2015 Ark. App. 65, 454 S.W.3d 776).
. King, supra (citing Heydenrich v. State, 2010 Ark. App. 615, 379 S.W.3d 507).
. Loggins, 2010 Ark. 414, at 4, 372 S.W.3d at 789 (citing Fernandez, supra).
. Curtis v. State, 2015 Ark. App. 167, at 4-5, 457 S.W.3d 700, 703 (citing Ark. Code Ann. § 5-64-402(a)(2) (Supp. 2011)).
. Hoodenpyle v. State, 2013 Ark. App. 375, at 9, 428 S.W.3d 547, 552 (citing Ark. Code Ann. § 5-2-202(2) (Repl. 2006)).
. Loggins v. State, 2010 Ark. 414, at 5, 372 S.W.3d at 790 (citing Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147).
. Id.
. Appellant admitted as much in' his own testimony.
. Singleton v. State, 2011 Ark. App. 145, at 5, 381 S.W.3d 874, 877 (citing Morris v. State, 2011 Ark. App. 12).
. Hoodenpyle, 2013 Ark. App. 375, at 9, 428 S.W.3d at 552 (citing Hicks v. State, 2012 Ark. App. 667, 2012 WL 5949103).
. Id. at 9, 428 S.W.3d at 552-53 (citing Hides, supra).
. Velasco, 2016 Ark. App. 454, at 3, 504 S.W.3d at 652 (quoting Walley v. State, 353 Ark. 586, 594, 112 S.W.3d 349, 353 (2003)).
. Id. (citing Holt v. State, 2009 Ark. 482, at 5, 348 S.W.3d 562, 566).
. Thompson v. State, 2015 Ark. App. 486, at 5, 469 S.W.3d 814, 816 (citing Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997)).
. Id. (citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991)).
. Id. (citing Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002)).
. Williams v. State, 2012 Ark. App. 310, at 8, 420 S.W.3d 487, 491 (citing Moore v. State, 323 Ark. 529, 915 S,W.2d 284 (1996)).
. Id. (citing Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509).
. See Zachary v. State, 358 Ark. 174, 179, 188 S.W.3d 917, 921 (2004) (citing Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982) (appellant deemed to have found given admonitions satisfactory where he did not object to either admonition nor did he seek clarification of the admonitions)).
. It appears that the circuit court also failed to hear the first recitation, of the question or the answer as it initially stated that it was not going to allow the question to be asked before being informed that it had already been asked. | [
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LARRY D. VAUGHT, Judge
| Appellant Baptist Health- Medical Center (BHMC) appeals the Pope County Circuit Court’s denial of its motion to vacate the court’s previously issued guardianship order appointing First Community Bank of Batesville (the Bank) as the guardian,of William Scott Mueller’s estate for the purpose of prosecuting a medical-negligence action on his behalf and managing any assets obtained therefrom. BHMC claims that deficiencies in the original guardianship petition rendered the guardianship void ab initio. We disagree and affirm.
Mueller was severely injured in a motor vehicle accident on June 21, 2012. He was treated at BHMC. Mueller was rendered a quadriplegic, and on July 11, 2012, Mueller executed a durable power of attorney to Amanda Chavers. Chavers then engaged an attorney to prosecute Mueller’s personal-injury claims. On May 29, 2014, Chavers petitioned the circuit court for an order appointing the Bank as permanent guardian of Mueller’s estate for the sole purpose of prosecuting a medical-negligence action on his behalf and managing any |2assets obtained therefrom. The petition alleged that Mueller was incapacitated by virtue of his quadriplegia. Attached to the petition was a life-care plan prepared by Tanya Rutherford Owens, a certified life-care planner and rehabilitation counselor.
The court granted the guardianship petition, and the Bank was then substituted as the plaintiff in the medical-negligence suit. During the medical-negligence trial, Mueller testified that he was the primary caregiver for his young son and handled his own finances, which prompted BHMC to challenge the Bank’s standing as guardian, arguing that Mueller was not incapacitated and that the guardianship was invalid. The Bank voluntarily nonsuited the medical-negligence action before it was submitted to the jury.
In March 2016, BHMC moved to intervene in the probate case in order to challenge the validity of the guardianship. In its motion to vacate the, court’s February 26, 2015 guardianship order, BHMC argued that (1) the original order was not supported by an oral or sworn written statement by a “qualified professional” as that term is defined in the probate code; (2) pursuant to the trial testimony of Mueller and Chavers in the medical-negligence case, Mueller was not “incapacitated”; and (3) there was no evidence that a proper medical evaluation had been conducted before the appointment of a guardian.
In response, the Bank filed an amended guardianship petition and attached the report of Dr. Kristi Ketz, a licensed psychologist. The amended petition provided that Mueller and his sister agreed that the guardianship should - be continued. On April 22, 2016, the court entered an amended guardianship order, again appointing the Bank as Mueller’s guardian. The amended order indicated that there had been a hearing on the amended petition and Lthat BHMC had been present, although the court had not yet rule,d on its motion to intervene.
On July 27, 2016, Mueller filed a motion to terminate the guardianship, claiming that it was no longer necessary. On August 17, 2016, the court held a hearing on BHMC’s motion to vacate the original guardianship order and Mueller’s motion to terminate the guardianship. The circuit court orally granted the motion to terminate and denied the motion to vacate. An order granting the motion to terminate the guardianship was filed on August 31, 201.6. No appeal was taken from this order.
An order denying BHMC’s motion to vacate the original guardianship order was entered on October 21, 2016. That order stated that the original guardianship order was voidable, rather than automatically void, due to deficiencies in the original petition seeking the appointment, of a guardian. The order noted that Dr. Tanya Owen, author of the life-care plan attached as supporting evidence for the original petition, lacked the necessary qualifications required by Arkansas Code Annotated section 28-66-101(8) (Repl. 2012). The court’s order then stated that the amended guardianship petition, which met the statutory requirements, cured the deficiencies in the original petition and that the amended order “relates back” to the time that the original petition was submitted. The order further held that any actions taken by the Bank as guardian in reliance on the original order were valid from the date of the original appointment. BHMC appeals from this order.
|4We review probate proceedings de novo, but we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Donley v. Donley, 2016 Ark. 243, at 6, 493 S.W.3d 762, 766 (citing Graham v. Matheny, 2009 Ark. 481, 346 S.W.3d 273). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. at 6, 493 S.W.3d at 766. When reviewing the proceedings, we give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Id. at 6, 493 S.W.3d at 766. However, we give no deference to the circuit court on matters of law. Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005).
It is undisputed that the original petition failed to meet the statutory requirements - for obtaining a guardianship. BHMC argues that, as a result, the court’s original guardianship order was void ab initio and that the court therefore erred in denying BHMC’s motion to vacate. BHMC relies on Wilson v. Beckett, 95 Ark. App. 300, 236 S.W.3d 527 (2006), and Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978), for the proposition that an order issued in excess of the court’s statutory authority is void. At oral argument, BHMC’s counsel made clear that this was an argument about the circuit court’s jurisdiction to issue 'the original guardianship order, asserting that the petition’s deficiencies meant that the court lacked jurisdiction to issue the order. We disagree. The law has long recognized' a difference • between' a lack of jurisdiction and the-erroneous exercise of jurisdiction. See, e.g., Cato v. Craighead Cty. Circuit Court, 2009 Ark. 334, at 5, 322 S.W.3d 484, 488 (citing Erin, Inc. v. White Cty. Circuit Court, 369 Ark. 265, 268, 253 S.W.3d 444, 446 (2007)). Moreover, in other cases in which we have found that the statutory requirements for obtaining a guardianship were not met, we have | ^reversed rather than dismissed for lack of jurisdiction, indicating that a deficiency in the evidence presented to obtain the guardianship order does not strip the court of jurisdiction. See Autry v. Beckham, 2014 Ark. App. 692, at 7, 450 S.W.3d 247, 251.
Here, it is undisputed that the, circuit court had jurisdiction over the, parties and subject matter at issue in this case, and BHMC has provided us no persuasive argument or authority as to why the guardianship petition’s acknowledged" deficiencies should be treated aá. a. jurisdictional bar. As a result, we see no .error in the circuit court’s determination that the original guardianship order was simply voidable rather than void ab initio.
BHMC’s next argument is that, if voidable rather than void ab initio, the original guardianship order should have been vacated. In its order denying BHMC’s motion to vacate, the circuit court found that the original guardianship petition lacked the necessary statutory qualifications for obtaining a guardianship. It then found that the amended petition met all statutory requirements, that it “relates back to the date of the original pleading, pursuant to Ark. R. Civ. P. 15,” and that the amended petition “effectively addresses and cures any deficiencies in the guardianship appointment.” It goes on to state that “any and all actions taken by [the guardian] in reliance on this Court’s orders were and are hereby declared valid from the date of appointment until the termination of the guardianship on August 31, 2016.”
BHMC argues that the circuit court’s reliance on Rule 15 of the Arkansas Rules of Civil Procedure was misplaced because a petition for the appointment of a guardian is not a “pleading” as designated by Rule 7(a). We agree that the amended petition and second order appointing guardian could not “cure,” by means of relation back, the shortcomings of the | (¡first petition. However, we note that the erroneous relation-back language is not the only basis the court provided for denying BHMC’s motion to vacate.
First, the court found that the amended guardianship petition sufficiently addressed the shortcomings of the original petition. Dr. Kristi Ketz’s supplemental professional-evaluation form specifically stated that, in her professional opinion, after reviewing the case file and examining Mueller, the original guardianship “was appropriate and necessary when established” and “should be continued.” BHMC relies on Pope v. Pope, 213 Ark. 321, 210 S.W.2d 319 (1948), and Lord v. Mazzanti, 339 Ark. 25, 29, 2 S.W.3d 76, 79 (1999), for the proposition that a court may not issue a nunc pro tunc order to cure fatal, substantive defects in a previous order. BHMC argues that nunc pro tunc orders are appropriate to remedy clerical errors but not to address substance. This line of analysis is misplaced, however, because the circuit court’s order we are tasked with reviewing in this appeal was the denial of a motion to vacate, not an order purporting to retroactively amend the initial guardianship.
Second, the circuit court’s order denying BHMC’s motion to vacate was also based on the Bank’s reliance on the previous guardianship order. This consideration is especially pertinent because the relevant guardianship statute, Arkansas Code Annotated section 28-65-216, specifically mandates that “The letters, when so issued, until revoked or cancelled by the court, shall protect persons who, in good faith, act in reliance thereon.” Ark. Code Ann. § 28-65-216. While the validity and effect of the Bank’s prosecution of the underlying 17medical-negligence claim on Mueller’s behalf are matters to be decided in the medical-negligence case and are not before us in this appeal, we recognize that the circuit court could properly consider the statute’s explicit intent to preserve and validate the actions taken by a guardian when deciding whether to vacate the original order. Given the fact that the original guardianship order was voidable but not void ab initio, and given the unique statutory preference for preserving the validity of actions taken by guardians in circumstances such as this, we see no error in the court’s denial of BHMC’s motion to vacate based on its finding that the amended guardianship petition provided sufficient evidence to address the shortcomings of the original petition.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
. On June 24, 2016, the circuit court held a hearing on BHMC’s motion to intervene and subsequently granted its request for intervention, both as a matter of right and permissively. ■ ■ ' •
. Additionally, our appellate courts have repeatedly applied similar language in Arkansas Code Annotated section 28-11-115 to uphold the actions of personal representatives even when the appointment of such representatives was subsequently found to be statutorily deficient and the representatives removed. In re Estate of L.C. Taylor v. MCSA, LLC, 2013 Ark. 429, 430 S.W.3d 120; See also Taylor v. MCSA, LLC, 2013 Ark. 430, 430 S.W.3d 113 (companion case); Nickles v. Wood, 221 Ark. 630, 255 S.W.2d 433 (1953). | [
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JOSEPHINE LINKER HART, Justice
hThe Vera Lee Angel Revocable Trust, through trustees Johnny Angel and Paula Napper (Angel) appeal from an order of the Garland County Circuit Court permanently enjoining them from using for short-term rentals a house situated on a lot in the Jeffries and Norvell Subdivision. On appeal, Angel argues that the circuit court’s rulings were clearly erroneous. We reverse and dismiss.
The facts in this case are not in dispute. The house in question is a fully furnished 125000-square-foot structure that sits on a 6.07-acre lot located in the Jeffries and Norvell Subdivision in Garland County. The 26-acre subdivision, which is adjacent to Lake Hamilton, was platted in 1953. In pertinent part, the subdivision’s bill of assurance states:
None of the lots shall be improved, used or, occupied for other than residence purposes and specifically none of the lots shall be used for any commercial purpose, inclúding motels, tourist courts, motor hotels, hotels, garage apartments, apartments, etc. and no commercial boat landings, docks or facilities of any kind for commercial and fishing boats for hire, shall be erected on or attached to said lots and no stores shall be erected thereon.
In 2006, a restriction on condominiums was added.
Initially the house was the home of John Angel’s and Paula Napper’s mother and father. Later, it was placed in a trust. For a time, John Angel and his wife also lived in the house, but thereafter, the house was vacant. According to Angel, he subsequently allowed friends and neighbors to “use” the house on a “short-term basis,” but he denied offering the house for rent before 2015.
Angel decided to- list the property on VRBO.COM. VRBO is the acronym for “Vacation Rentals By Owner.” VRBO. COM connects private individuals with vacationers seeking short-term rentals' of properties located in resort areas. Appel-lees attached to their complaint a copy of Angel’s VRBO.COM posting, which stated that the rental rate for the property was $329 per night, with a .two-night-minimum stay required.
On March 23, 2016, appellees',, who are the other landowners in the Jeffries and Norvell Subdivision, filed a complaint seeking to enjoin Angel from “offering the premises to those who do not .reside there, from carrying on a commercial business, from engaging in 1¡¡short-term rentals, and from similar activities that constitute a nuisance to the Plaintiffs.” Angel answered the appellees’ complaint and counterclaimed for declaratory judgment,- asking the circuit court to find that “there were no restriction^] on rentals and that short-term rentals are not prohibited by the covenants contained within the Bill of Assurance.”
After a hearing in which several of the property owners in the subdivision testified, primarily on the issue of whether short-term rentals affected the enjoyment of their property, the circuit court granted a preliminary injunction. The circuit court reasoned that Dunn v. Aamodt, 695 F.3d 797 (8th Cir. 2012) is “controlling;” the bill of assurance for the | ¿subdivision in which the house is located is not ambiguous; using the property for short-term rentals violated the covenants found in the bill of assurance; and continued violation of the bill of assurance will cause the other residents of the subdivision irreparable harm. Angel filed a notice of appeal. However, by joint motion, the parties asked the circuit court to make the injunction permanent. The circuit court granted this request, finding that the bill of assurance was not ambiguous; Angel’s use of the property “for overnight and weekly rentals .is in violation of the Jeffries and Norvell Subdivision Bill of Assurance”; and the property had been used for “other than residential purposes and has been used for a commercial purpose.” The circuit court ordered that Angel “refrain from renting the subject property.” The circuit court also dismissed Angel’s counterclaim. Angel again timely filed a notice of appeal.
On appeal, Angel argues that the circuit court clearly erred for several reasons. First, he contends that the circuit court’s construction of the bill of assurance was erroneous because it did not strictly construe the instrument in favor of unfettered use of the land. Angel asserts that the restrictions in the bill of assurance are not “clearly apparent.” In this vein, he first challenges the finding that his use of the property was “commercial.” -
Angel argues that the language in the bill of assurance makes “no reference whatsoever to rentals.” While he acknowledges that the plain language proscribes “commercial structures such as motels, hotels and tourist courts,” he notes that one of the appellees “admitted” that the house “did not appear to be a hotel in the traditional sense.” Furthermore, he asserts that | Bwhile it was “obvious” that the developer intended to restrict commercial venues such as motels and hotels, stores, and ma-nnas, the actual use of the property or the length of time one can rent the property is not restricted.
Angel urges us to find persuasive a number of cases from foreign jurisdictions where short-term rentals have been held to not violate a restrictive covenant. Quoting at length from an Alabama Court of Civil Appeals case, Slaby v. Mountain River Estates Residential Ass’n, Inc., 100 So.3d 569 (Ala. Civ. App. 2012), Angel asserts that Slaby illuminates the “inherent problem” with the circuit court’s construction of the bill of assurance in the case before us. He argues that, like the covenants in Slaby, the bill of assurance does not address “rentals in any form, short or long-term.” Consequently, Angel argues that the circuit court’s restriction on nightly and weekly rentals seems “arbitrary” because there is nothing in the bill of assurance to indicate when the length of a rental converts the use of the property from residential to commercial. Further, citing Lowden v. Bosley, 395 Md. 58, 909 A.2d 261 (Md. Ct. App. 2006), he urges this court to disregard the fact that he derived income for short-term rentals because, as the Maryland Court of Appeals noted in Rowden, “there is no inherent inconsistency between a residential use by a tenant and a commercial benefit for the landlord.” Finally, Angel argues that the circuit court order is “simply too expansive” because there was no testimony regarding weekly rentals, and the bill of assurance contained no specific restriction on “weekly rentals.”
We note first our standard of review. Because the issuance of a permanent injunction sounds in equity, our review is de novo. See generally Ark State Game & Fish Comm’n v. 6Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001). We review the circuit court’s factual findings leading to the issuance of the injunction under the clearly-erroneous standard. See S. Coll. of Naturopathy v. Beebe, 360 Ark. 543, 203 S.W.3d 111 (2005). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, upon viewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. See Ligon v. Stewart, 369 Ark. 380, 255 S.W.3d 435 (2007).
Arkansas law does not favor restrictions on land. Royal Oaks Vista, L.L.C. v. Maddox, 372 Ark. 119, 271 S.W.3d 479 (2008). Accordingly, courts must strictly construe restrictive covenants against limitations on the free use of land. Id. Any restriction on the use of land must be clearly apparent in- the language of a restrictive covenant. Id. However, when the language of the restrictive covenant is clear and unambiguous, application of the restriction will be governed by our general rules of interpretation: the intent of the parties governs in accordance with the plain language of the restriction. Id. Furthermore, our rules of construction should not be applied in such a way as to defeat the plain and obvious purpose of the restriction. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996).
Accordingly, in- our de novo review of the case before us, it is our task to strictly construe the pertinent part of the bill of assurance for the Jeffries and Nor-vell Subdivision, which we have quoted earlier in this opinion. The basic doctrine of strict construction means taking the plain meaning of the language employed. Id. Here, the bill of assurance forbids use of the property for “other than residence purposes” and “any commercial purpose, including motels, tourist courts, motor-hotels,. hotels, garage apartments, apartments,- etc.”
17“Residence” is defined in Black’s Law Dictionary in pertinent part as “[t]he place where one actually lives as' distinguished from domicile.” Black’s Law Dictionary 1502 (10th ed. 1995). In the case before us, there is absolutely no evidence, or even a suggestion, that renting the property in any way changed the essential character of the house as a “residence:” Whether owner-occupied or rented for a weekend, the house remained a “residence.”
A closer question is whether short-term rentals violate the restriction on “any commercial purpose.” “Commercial” is defined in Black’s Law Dictionary in pertinent part as “resulting or accruing from commerce or exchange ... employed in trade; engaged in commerce ... of, relating to, or involving the ability of a product or business to make a profit.” Id. at 325. Further, the bill of assurance cited specific examples of the types of “commercial purposes” that were contemplated by the restriction—“including motels,, tourist courts, motor-hotels, hotels, garage apartments, apartments, etc.” Each of these examples connotes ventures that have an outward appearance and character of operation that is readily distinguishable from a single-family dwelling.
We have carefully considered all of the authority from the foreign jurisdictions that Angel has cited. While none of the cases construed restrictive covenants that were identical to those found in the Jef-fries and Norvell Subdivision bill of assurance, some of the reasoning in these cases is persuasive. The covenants construed in Dunn, Scott v. Walker, 274 Va. 209, 645 S.E.2d 278 (2007), and Lowden, supra, contained no restriction against using the respective subdivision properties for a “commercial purpose.” However, in each of these cases, the courts determined that short-term, rentals did not offend restrictions that limited the use of the | sproperty for residential purposes.
Regarding the restriction on “commercial” purposes, the discussion in Slaby, supra, is particularly helpful. The Slaby court was tasked with construing covenants for the lots in the Mountain River Estates subdivision in DeKalb County, which state, in pertinent part, “The subject property is restricted to single family residential purposes only. No commercial, agricultural or industrial use shall be permitted.” The Slaby court acknowledged that the Slabys received rental income from the property but held that receiving rental income did not “transform the character” of the surrounding subdivision. Id. In essence, the Slaby court recognized that the dwelling in the subdivision was still being used for residential purposes regardless of whether the persons dwelling there were renters or owners.
While we are mindful that the bill of assurance for the Jeffries and Norvell.Sub-division prohibits using the property for any “commercial purpose,” it is silent with regard to rental of the property. Certainly, if the drafters of the bill of assurance intended to prohibit renting of property in the subdivision, they could have done so with an express provision. As noted previ ously, under Arkansas law, any restriction on the use of land must be clearly apparent in the language of a restrictive covenant. Maddox, supra. Furthermore,, like the dwelling in Slaby, the short-term rentals in the case before us did not transform the character of the subdivision. Therefore, consistent with our duty to strictly construe the bill of assurance in favor of the unfettered use of property, we hold that the lack of a specific restriction against rentals of the property compels us to reverse and ..dismiss the circuit court’s injunction.
Reversed and dismissed.
. In construing the complaint, we determined that appellees’ assertion in the prayer for relief that the short-term rentals constituted a “nuisance” was not meant as an alternative theory for granting an injunction. Rather, it was directed at whether appellees were irreparably harmed by the breach of the covenants contained in the bill of assurance. It appears that appellees have used the word "nuisance” in its colloquial sense, rather than as a term of art. In the law, "nuisance" is defined as "conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Aviation Cadet Museum, Inc. v. Hammer, 373 Ark. 202, 283 S.W.3d 198 (2008). While it is true that actions in equity are the primary legal mechanism for abating a nuisance, in the case before us, appellees have not separately pleaded this cause of action. We note further that the circuit court made no findings regarding whether short-term rentals constituted a "nuisance.” Accordingly, we have before us a final order and thus have appellate jurisdiction.
. John Stansel Harvey, Robert Louis Gladfel-ter, trustee of the Gladfelter Trust, Jim Earl O’Bryant, and Glen Perciful
. The circuit court was incorrect when it found that Dunn was "controlling,” which we interpret to mean “mandatory authority” in this case. See Waller v. Banks, 2013 Ark. 399, 2013 WL 5603930. While we have found some aspects of Dunn to be helpful in our analysis, it by no means disposes of the issues before us. In Dunn, the Eighth Circuit affirmed a federal district court’s denial of a petition by landowners in a subdivision that sought to prevent a fellow landowner from renting his dwelling as a vacation home. The plaintiffs alleged that the rental activity violated a restrictive covenant that stated, “Sites must be used for residential purposes only except Lots #1, #2, and # 4, which are designated as commercial or residential.” Id. The federal court, while applying Arkansas law, which requires that restriction on land be "clearly apparent,” declined to prohibit the rentals because it found ambiguity in the restriction. | [
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WAYMOND M. BROWN, Judge
[ Appellants Robert and Tina VanMatre appeal from the order of the Marion County Circuit Court granting appellees Larry and Jason Davenport injunctive relief prohibiting appellants from any use of the easement granted to the appellees and finding that the appellants were responsible for replacing a fence they removed from the easement. Appellants argue on appeal that the trial court’s interpretation that the easement was exclusive was in error as well as the court’s determination that appellants were responsible for the restoration of a fence they removed from the easement property. We reverse and remand.
12This case involves a twenty-five-foot easement appellees inherited when they purchased property from their predecessor, Charles W. Halliday. Halliday had purchased the land from Timothy Kille-brew, and as part of their agreement, Halliday was to put up a fence to keep Killebrew’s cattle off the easement. When appellees purchased the land, the fence was still erected. At some point, appellants removed the fence and appellees filed a petition for injunctive relief against appellants for removing the fence and coming onto the easement property.
At trial, Halliday testified that the fence had been there for eight or nine years. He stated that without the fence, Killebrew’s cattle would not stay in the field. He testified that it would be hard for him to say ^vhether the removal of the fence would expose the easement to damage, other than the appellants not being able to pasture and use their property without the fence. Halliday admitted that the fence’s removal did not impair ingress and egress to the appellees’ property. He stated that’ he sold the land and fence to appellees, but admitted that the easement did not say anything about the fence, which was a private agreement between him and Kille-brew.
Appellee Larry testified that he purchased his property in either 2008 or 2009. fie stated that at the time, appellants were running cattle on the adjacent land. He testified that it was his understanding that the fence’s purpose was to keep cows off the easement. He said that prior to the fence’s removal, he and appellant Jerry had a conversation about the fence in which Jerry expressed an interest in using the grass of the easement. He stated that he had told Jerry that' maybe they could work something out, but the fence was ^subsequently removed without his permission. He testified that his problem with the fence’s removal was that he believed it would cause a problem in the future with Jerry. He said that he did not think that he and the appellants were going to be able to get along and that he wanted the fence back up because that is how it was. He also stated that he would not have purchased the property if he had known that it was not his “own place to drive in and out of there.” He said that he did not want to have to deal with anyone else, and that he just wanted to “turn off at [his] gate and ... go onto [his] property.” He admitted that there were no cattle- on the easement.
On cross-examination, Larry stated that the appellants did not erect the fence on the easement. He complained that Jerry burned trash to the right of the easement. He maintained that when he purchased the property, his deed stated that he had a permanent exclusive easement, which he took as being his. He admitted that appellants had never blocked the easement, run cattle on it, or interfered with his use of the easement.
On redirect, Larry stated that he did not live on the property but that he purchased it so that he and his sons could go'-out there and hunt or whatever they wanted to do. He stated that he was not at the property a lot.
On recross, Larry testified that he believed the fence was up nearly seven years before appellants tore it down. However, he stated that he was unaware if Halliday built the fence before Halliday owned the property.
The trial court issued a decree on February 27, 2017, granting appellees’ petition for injunction against appellants, ordering appellants to restore the fence -they removed within |4forty-five days, and granting appellants a limited right to enter the easement to restore the fence. Appellants filed a timely notice of appeal on March 8, 2017.
Our standard of review following a bench trial is whether the circuit court’s findings are 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 definite and firm conviction that a mistake has been made.
The deed in this case granted a “permanent and exclusive twenty-five (25) foot wide easement for ingress-egress and utilities,” Appellants maintain that, as long as they are not interfering with the purpose of the easement, they may enjóy the twenty-five feet also. However, appellees contend that since the deed contains an exclusive grant in the language, the easement excludes appellants from any use or enjoyment of the twenty-five feet.
In Howard v. Cramlet, this court held: The rule in this state is that the owner of an easement may make use of the easement compatible with the authorized use so long as the use is reasonable in light of all facts and circumstances of the case. The owner of the servient tenement may make any use thereof that is consistent with, or not calculated to interfere with, bthe exercise of the easement granted. 3 Tiffany, Law of Real Property, § 811 (3rd ed. 1939); see Natural Gas Pipeline Company of America v. Cox, 490 F.Supp. 452 (E.D. Ark. 1980),
The basic rule in the construction of deeds is to ascertain and give effect to the real intention of the parties, particulax;ly of the grantor, as expressed by the language of the deed, The intention of the parties must be gathered from the four corners of the instrument itself, if that can be done, and when so done, it will control. The intention of the parties is to be gathered not from some particular clause, but from the whole context of the agreement. Every part of the deed should be harmonized, and reconciléd so that all may stand together and none be rejected. We will not resort to rules of construction when a deed is clear and contains'no ambiguities, but only when the language of the deed is ambiguous, uncertain, or doubtful.
Although the easement deed contained the words permanent and exclusive, it also contained a limited purpose of ingress-egress and utilities. Thus, based on the four corners of the instrument, it was not the parties’ intent to create an easement to the exclusion of the servient estate. Therefore, appellants could use and enjoy the easement so long as they |fidid not interfere with appellees’ use of the easement. Here, appellees testified that appellants had not interfered with their use of the easement. We hold that the trial court erred in finding an exclusive easement in this case and reverse. However, we remand to the trial court to consider whether appellants are still responsible for the restoration of a the fence in light of our decision.
Reversed and remanded.
Virden and Glover, JJ.-, agree.
. Appellants also filed a motion for new trial and a brief in support of the motion on the same day. Appellees filed a response on March 22, 2017. The court never ruled on the motion, and there was no amended -notice of appeal to cover the deemed denial of that motion.
. Paschal v. Paschal, 2011 Ark. App. 515, 2011 WL 3925381.
. Id.
. 56 Ark. App. 171, 939 S.W.2d 858 (1997).
. Barton Land Servs., Inc. v. SEECO, Inc., 2013 Ark. 231, 428 S.W.3d 430; Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974).
. Gibson, 256 Ark. 1035, 512 S.W.2d 532.
. Id.
. Barton Land Servs., 2013 Ark. 231, 428 S.W.3d 430.
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PER CURIAM
| ¶ This is a pro se appeal from the denial of appellant Adrian Dewayne Wooten’s pro se petition for postconviction relief filed pursuant to Rule 37.1 (2015) of the Arkansas Rules of Criminal Procedure. For the reasons set forth below, the order of the trial court is affirmed.
In 2014, Wooten was found guilty by a jury of rape and aggravated-residential burglary. Wooten was sentenced as an habitual offender pursuant to Arkansas Code Annotated section 5-4-501(A)(C)(ii)(2)(A) (Repl. 2013) to 720 months’ imprisonment for rape and 480 months’ imprisonment for aggravated-residential burglary to be served consecutively. Wooten’s trial counsel filed a motion for new trial pursuant to Rule 33.3 (2014) of the'Arkansas Rules of Criminal Procedure and contended, among other things, that the victim was incompetent' to testify and that the prosecutor made prejudicial comments during the course of the entire trial and during closing remarks. The trial record 12reveals that a hearing had been conducted on the new-trial motion, and the trial court orally denied the motion at 'the conclusion of the hearing. Thereafter, new counsel was appointed for the purpose of appeal, and a timely notice of appeal was filed. The post-trial motion was deemed denied on the thirtieth day after it had been filed. Ark. R. Crim. P. 33.3(c)(2014). Wooten’s sole argument on appeal challenged the trial court’s finding that the victim was competent to testify. The Arkansas Court of Appeals affirmed the convictions finding no error in the trial court’s ruling on the victim’s competency. Wooten v. State, 2015 Ark. App. 568, 494 S.W.3d 434.
Wooten filed a timely pro se petition for posteonviction relief in the trial court contending that both trial counsel and appellate counsel had provided ineffective assistance of counsel. Wooten alleged that his trial counsel failed to secure an order from the trial court that denied the motion for a new trial and that appellate counsel had failed, on direct appeal, to challenge the trial court’s failure to issue an order. In addition, Wooten set forth allegations of prosecutorial misconduct and asserted that his appellate counsel failed to raise the issue on direct appeal. Finally, Wooten alleged that Arkansas’s habitual-offender statute, Arkansas Code Annotated section 5-4-501, is unconstitutional under the holding announced by the United States Supreme Court in Johnson v. United States, — U.S. - 135 S.Ct. 2551, 192 L.Ed.2d 569(2015), and that appellate counsel failed to supplement the argument on direct appeal to include a constitutional challenge to Wooten’s sentence enhancement based on his status as a habitual offender.
The trial court denied relief without conducting a hearing and entered written findings that concluded that Wooten’s allegations of prosecutorial misconduct were not cognizable under Rule 37.1 and that the failure to obtain an order denying Wooten’s motion for a new trial was a strategic decision supported by reasonable professional judgment that had no prejudicial effect on the outcome of Wooten’s appeal. Finally, the trial court concluded that Wooten’s constitutional challenge to Arkansas’s habitual-offender statute was conclusory in that Wooten failed to allege facts establishing that Arkansas’s statute is similar to the federal statute reviewed by the United States Supreme Court in Johnson, — U.S. -, 135 S.Ct. 2551. The trial court did not address Wooten’s allegations of ineffective assistance of his appellate counsel with regard to an alleged failure to raise arguments on appeal challenging the prosecutor’s conduct or the constitutionality of Wooten’s sentence enhancement.
On appeal, Wooten reiterates the ineffective-assistance-of-counsel claims raised in his petition and enumerated above. However, Wooten contends that the prose- cutorial-misconduct allegations set forth in his Rule 37.1 petition and rejected by the trial court as not cognizable were raised solely in connection with Wooten’s claim of ineffective assistance 14of appellate counsel. Finally, Wooten contends that the trial court erred by failing to conduct an evi-dentiary hearing on his Rule 37.1 petition and by failing to make findings of fact addressing all of Wooten’s claims of ineffective assistance of appellate counsel.
This court does not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous. Watson v. State, 2014 Ark. 203, at 2-4, 444 S.W.3d 835, 838—39. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the totality of the evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. We assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. First, a petitioner raising a claim of ineffective assistance must demonstrate that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls 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. Second, the petitioner must show that the deficient performance prejudiced the defense, such that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
| {Wooten’s ineffeetive-assistanee-of-counsel claims based on the failure of trial counsel and appellate counsel to challenge the absence of a written order denying the new-trial motion is without merit because the new-trial motion and lack of an order denying the motion is wholly irrelevant to the outcome of Wooten’s appeal, especially in view of the fact that appellate counsel failed to amend the notice of appeal to include an appeal from the denial of the posttrial motion. Ayala, 365 Ark. at 194, 226 S.W.3d at 768. First, a motion for new trial cannot be used as an avenue to raise new allegations of error that have not already been raised and preserved at trial. Tosh v. State, 278 Ark. 377, 381, 646 S.W.2d 6, 9 (1983) (a litigant may not await the outcome of the case before bringing alleged errors to the attention of the trial court). Thus, the motion for new trial did not create new issues that were ripe for appellate review which had been waived by appellate counsel. Second, even if appellate counsel had chosen to appeal the denial of this posttrial motion, the failure to obtain an order on the motion for new trial would not preclude appellate review of the issues raised therein. See Smith v. State, 354 Ark. 226, 249, 118 S.W.3d 542, 556, (2003) (issues raised in a motion for new trial are properly before the appellate court if the trial court fails to enter a ruling either denying or granting the motion). Wooten did not explain in his petition or in his argument on appeal how he was prejudiced by trial counsel’s failure to obtain a written-order on a motion that had been deemed denied and which appellate counsel chose not to appeal, and he fails to explain how such an appeal would have inured to his benefit. The burden is entirely on Wooten to provide facts that affirmatively support his claims of prejudice, and neither conclusory statements nor allegations without factual substantiation warrant granting postconviction relief. Abernathy v. State, 2012 Ark. 59, at 5 386 S.W.3d 477, 482 (per curiam). Wooten does not provide any factual or legal basis in support of his claims of ineffective assistance of counsel with respect to litigating the issue raised in the motion for a new trial either before the trial court or on appeal, and the trial court did not clearly err by rejecting this specious claim for relief.
Wooten next argues that appellate counsel was ineffective for failing to raise allegations of prosecutorial misconduct on direct appeal. In his Rule 37.1 petition, Wooten alleged that, during the course of the trial, the prosecutor appeared to be motivated by personal animus and persistently made improper suggestions and verbal quips. Wooten further contended that during closing argument, the prosecutor characterized Wooten as a “thing,” suggested that Wooten’s trial counsel considered the jurors to be stupid, and commented on Wooten’s silence. Wooten argues on appeal that the cited conduct deprived him of a fair trial and should have been challenged on direct appeal.
With regard to ineffectiveness claims of appellate counsel, this court has recognized that a criminal defendant is entitled to the effective assistance of counsel on direct appeal. Taylor v. State, 2015 Ark. 339, at 5-6, 470 S.W.3d 271, 275-76. Additionally, this court has explained that counsel’s failure to raise a specific issue must have amounted to error of such magnitude that it rendered appellate counsel’s performance constitutionally deficient under the Strickland criteria. Id. The petitioner must show that there could have been a specific issue raised on appeal that would have resulted in the appellate court’s declaring reversible error. Id. It is petitioner’s responsibility in a Rule 37.1 petition to establish that the issue was raised at trial, that the trial court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. | fid. The failure to make a meritless argument on appeal does not constitute ineffective assistance of counsel. Id.
As stated, Wooten alleged in his petition and argues on appeal that the prosecutor displayed open hostility during the course of the trial which was manifested through persistent inappropriate suggestions and verbal quips. However, Wooten failed to describe in his petition or in his appellate argument the content or context of the comments, or to establish that meritorious objections were made at trial such that the issue was properly preserved. A court is not required to research or develop arguments contained in a petition for postconviction relief, and generally referencing alleged misconduct without identifying the specific statements or behavior that warranted grounds for appeal is not sufficient to support a claim for ineffective assistance of appellate counsel. See Cunningham v. State, 2013 Ark. 304, at 8, 429 S.W.3d 201, 208 (per curiam) (general allegation that trial counsel failed to object to hearsay was insufficient to establish ineffective-assistance-of-counsel claim). Wooten failed to state sufficient facts in support of his claim that appellate counsel had failed to raise an issue on appeal that had been preserved at trial and which constituted reversible error on appeal. Taylor, 2015 Ark. 339, at 5-6, 470 S.W.3d at 275-76.
With respect to comments made by the prosecutor during the closing argument, Wooten provided specific examples of allegedly inappropriate comments made by the prosecutor but failed to demonstrate that an objection was raised or ruled on at trial. The trial record confirms that the prosecutor made statements during his rebuttal suggesting that Wooten should not be considered a man, and implying that Wooten’s trial counsel had talked to jurors- as if they were stupid, but there is no support for Wooten’s assertion that lathe prosecutor commented on Wooten’s silence. The record further reveals that no objection was made with respect to the specific comments cited by Wooten, and that long after these remarks had been made to the jury, Wooten’s trial counsel made the following statement to the court: “I would appreciate it if [the prosecutor] would refer to Mr. Wooten as Mr. Wooten or the Defendant and stop those verbal asides.” However, there was no ruling or admonishment from the trial court and none was requested. We have repeatedly held that the failure to obtain a ruling on an issue at the trial court level precludes review on appeal. Travis v. State, 371 Ark. 621, 633, 269 S.W.3d 341, 350 (2007). Moreover, absent a contemporaneous objection at trial, we will not review alleged errors in the State’s closing argument. Lard v. State, 2014 Ark. 1, at 26, 431 S.W.3d 249, 268. We have explained that when no objection is made during closing argument, an appellant cannot predicate error upon the failure of the trial court to make a ruling that had not been requested, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. Id. at 27, 431 S.W.3d at 268. Finally, it is well settled that closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Rohrbach v. State, 374 Ark. 271, 280, 287 S.W.3d 590, 597 (2008). Wooten failed to allege in his petition or to provide sufficient argument on appeal establishing that an objection was made during the prosecutor’s closing remarks, that the trial court erred in its ruling on the issue, and that an argument concerning the issue could have been raised on appeal to merit appellate relief. Taylor, 2015 Ark. 339, at 5-6, 470 S.W.3d at 275-76.
IflWooten next challenged the constitutionality of his sentence enhancement and also faulted appellate counsel for failing to supplement the appellate argument by raising the issue on direct appeal. Wooten’s constitutional claim is based on a ruling issued by the United States Supreme Court in June 2015 after Wooten’s trial and during the pendency of Wooten’s direct appeal. The holding in Johnson applied to language contained in a “residual clause” of a specific federal sentencing enhancement statute that defined “violent felony” as a crime that “involves conduct that presents a serious potential risk of physical injury to another.” Johnson, 135 S.Ct. at 2555. The United States Supreme Court found that the definition of a “violent felony” as set forth in the federal statute’s residual clause to be unconstitutionally vague. Id. The holding in Johnson was ruled to be retroactive in a subsequent decision handed down in March 2016. Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).
-Unlike the federal statute addressed by the United States Supreme Court, Arkansas’s habitual-offender statute does not contain- a vague definition of what constitutes a “serious felony involving violence.” Rather, Arkansas’s statute clearly enumerates the specific crimes that fall within that definition. See Ark. Code Ann. § 5-4-501(c)(l)(2)(A)(i-xi) (Repl. 2013). However, Wooten asserts that Arkansas’s habitual-offender statute was unconstitutionally applied in his case because his prior felony convictions had occurred in Oklahoma, and Wooten contends that Ar kansas’s sentencing scheme does not clearly define a “violent felony” with regard to prior out-of-state felony convictions. Wooten is mistaken—his sentence was not enhanced because his prior out-of-state felony convictions involved violence. Rather, he was sentenced under Arkansas Code Annotated section 5-4-^Jj^SOllAXCXiiXBXA), which imposes an enhanced sentence on a defendant who had previously been convicted of more than one felony but fewer than four, regardless of the nature of the crime. Thus, there is no showing that the United States Supreme Court’s holding ..in Johnson, 135 S.Ct. at 2555, is applicable to Arkansas’s habitual-offender statute or that the statute was unconstitutionally applied in Wooten’s case. Wooten does not demonstrate that appellate counsel was ineffective by failing to raise a meritless constitutional challenge on direct appeal. Taylor, 2015 Ark. 339, at 5-6, 470 S.W.3d at 275-76. The trial court did not clearly err by rejecting Wooten’s constitutional challenge as conclusory and unsupported by legal authority.
Wooten finally argues on appeal that the trial court erred by failing to conduct an evidentiary hearing before denying relief pursuant to Rule 37.1 and by failing to enter sufficient findings in the absence of a hearing. It is undisputed that the trial court has discretion pursuant to Arkansas Rule of Criminal Procedure 37.3(a) to decide whether the files and records are sufficient to sustain the court’s findings without a hearing. Sanders v. State, 352 Ark. 16, 25-26, 98 S.W.3d 35, 41 (2003). Moreover, this court has affirmed the denial of a Rule 37.1 petition notwithstanding the trial court’s failure to make sufficient findings under Rule 37.3(a) when it can be determined from the record that the petition is wholly without merit, or when the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Turner v. State, 2016 Ark. 96, at 8, 486 S.W.3d 757, 763. Here the trial court’s findings on most, but not all, of Wooten’s claims for relief were sufficient for review. With respect to Wooten’s claims of ineffective assistance of appellate counsel, a review of the petition itself, together with a consideration |1Tof the record on appeal, • conclusively shows that Wooten’s claims do not merit postconviction relief. The trial court did not abuse its discretion when it denied relief without a hearing, and Wooten offers no argument on appeal demonstrating that the trial court’s findings were clearly erroneous;
Affirmed.
. The motion was filed on November 21, 2014, and was deemed denied thirty days later on December 21, 2014. The notice of appeal had been previously filed on December 18, 2014, and appellate counsel did not amend the notice of appeal to include a challenge to the trial court’s denial of the new-trial motion. See Ayala v. State, 365 Ark. 192, 194, 226 S.W.3d 766, 768 (2006) (an argument raised in a posttrial motion that is deemed denied is not preserved for appellate review unless the notice of appeal is amended).
. The United States Supreme Court issued the above-cited opinion on June 26, 2015, during the pendency of Wooten’s direct appeal before the Arkansas Court of Appeals, which issued its opinion affirming Wooten's conviction on October 21, 2015. Wooten, 2015 Ark. App, 568, 494 S.W.3d 434. | [
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KENNETH S. HIXSON, Judge
| Appellant Sandra Williams appeals from a January 8, 2016 opinion by the Arkansas Workers’ Compensation Commission (Commission) affirming and adopting the findings of fact and conclusions of law made by the Administrative Law Judge (ALJ) in favor of appellees the Ar kansas Department of Community Correction and the Arkansas Insurance Department, Public Employee Claims Division. On appeal, appellant contends that the Commission’s assignment of permanent partial-disability (PPD) benefits was not supported by substantial evidence. We disagree and affirm.
Appellant injured both arms and left knee on April 16, 2012, in a fall during her employment at the Arkansas Department of Community Correction. Appellees contested the claim. The ALJ found in a March 11, 2013 opinion that the injuries were compensable |2and that appellant was entitled to temporary total-disability (TTD) benefits. Appellees did not appeal that decision.
After reaching maximum medical improvement, appellant sought PPD benefits arising out of her compensable injuries. Dr. J. Adam Smitherman, appellant’s treating physician, assigned a forty-seven percent impairment rating to her right upper extremity and a five percent impairment rating to her left upper extremity. On the other hand, Dr. Bruce Randolph, who was retained by appellees to perform an independent medical examination on appellant, assigned only a four percent impairment rating to appellant’s right wrist, a two percent impairment rating to appellant’s right elbow, and a six percent impairment rating to her left wrist. A hearing was held before the ALJ on March 12, 2015, to determine the extent of appellant’s permanent impairment.
At the hearing, appellant testified that Dr. Smitherman was her treating physician and that she had seen him several times. She saw Dr. Randolph on only one occasion after appellees had requested an independent medical evaluation. Appellant testified that both doctors conducted range-of-motion testing,- which included testing where she moved her extremities (active range of motion) and testing where the doctor moved her extremities with her relaxed (passive range of motion).
The ALJ reviewed the medical records of each physician. The pertinent medical records reflect that Dr. Smitherman issued a written physician’s statement opining that appellant had a forty-seven percent impairment rating to her upper extremity and a five percent impairment rating to her left wrist. Dr. Smitherman’s statement additionally provided that the objective and measurable findings that formed the bases for the ratings | ^included “[l]oss of motion in Right Elbow, wrist & hand; Loss of motion Left elbow & wrist.” Furthermore, Dr. Smitherman cited to Figures 32 and 35 and Tables 3 and 15 of the American Medical Association’s Guides' to the Evaluation of Permanent Impairment, Fourth Edition (AMA Guidelines), in support of his findings. Lastly, Dr. Smither-man checked the corresponding box on the report form indicating that he used passive range-of-motion criteria in assigning appellant’s impairment.
Dr. Randolph examined appellant on February 10, 2015. In a very detailed report with charts and calculations, Dr. Randolph assigned a four percent upper-extremity impairment rating for appellant’s right wrist, a two percent upper-extremity impairment rating for appellant’s right elbow, and a six percent upper-extremity impairment rating for appellant’s left wrist. Using the AMA Guidelines, Dr. Randolph calculated that these ratings translated to a seven percent whole-person impairment rating due to the loss of motion in appellant’s right wrist, right elbow, and left wrist. He further explained that these ratings were based on passive range-of-motion criteria and were “given within reasonable medical certainty.”
After the hearing, the ALJ filed its opinion on June 9, 2015, wherein it adopted the impairment ratings of Dr. Randolph and found that the appellant sustained a four percent upper-extremity impairment rating for appellant’s right wrist, a two percent upper-extremity impairment rating for appellant’s right elbow, and a six percent upper-extremity impairment rating for appellant’s left wrist, and that appellant did not sustain her burden of proving additional impairment.
|4In resolving the conflicting medical opinions between Dr. Smitherman and Dr. Randolph concerning áppellánt’s impairment rating, the ALJ specifically made the following findings:
The Commission is authorized to accept or reject a medical opinion and is authorized to determine its medical soundness and probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999). Based on my review of the evidence, I credit that both Smith-erman and Randolph used only passive range-of-motion testing in assigning their ratings that they represented were based only on such testing.
That said, in examining Dr. Smither-man’s findings, there is no way to tell if the impairment ratings he assessed are valid ones based on his testing. When asked to cite the objective and measurable findings that he used, the doctor simply responded: “Loss of motion in Right Elbow, wrist, & head; Loss of motion Left elbow & wrist.” These are not quantified in the evidence at bar. One cannot determine if the findings of his passive range-of-motion testing comport with Figures 32 and 35 and Tables 3 and 15—which Smitherman stated that he used—without resorting to speculation and conjecture. But speculation and conjecture cannot serve as a substitute for proof. Dena Construction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979). That said, I cannot, and do not, credit his findings regarding the degree of Claimant’s alleged impairment.
Dr. Randolph’s findings, on the other hand, are extensively documented and comport with those portions of the AMA Guides he cited in support of the ratings he assigned under them. I thus credit his findings and find that the evidence preponderates that Claimant is entitled to impairment ratings of four percent (4%) to her right wrist, two percent (2%) to her right elbow, and six percent (6%) to her left wrist.
However, as the parties have stipulated, Respondents have already accepted the above ratings. For that reason, Claimant has not proven by a preponderance of the evidence that she is entitled to additional permanent partial disability benefits.
Appellant appealed the ALJ’s decision, and on January 8, 2016, the Commission, in a two-to-one majority opinion, affirmed and adopted the ALJ’s opinion as its own. Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s ^findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id.
On appeal, appellant contends that the Commission erred in rejecting Dr. Smitherman’s impairment ratings, that Dr. Smitherman’s ratings were objectively based, and that the Commission’s conclusion that she failed to meet her burden of proof is not supported by substantial evidence. We disagree.
In appeals involving claims for workers’ compensation, the appellate court views the evidence in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id. Additionally, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony, and we defer to the Commission’s authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container, 2009 Ark. App. 800, 373 S.W.3d 347. When there are contradictions in the evidence, it is within the Commission’s province to reconcile conflicting evidence and determine the facts. Id. The Commission hás the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Finally, this court will reverse the Commission’s decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Prock, supra.
The Commission here was confronted with two opposing medical opinions—Dr. Smitherman’s and Dr. Randolph’s differing impairment ratings. It is within the Commission’s province to reconcile conflicting evidence, including the medical evidence. Id.; Boykin v. Crockett Adjustment Ins., 2013 Ark. App. 157, 2013 WL 828582. The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. See Ark. Human Dev. Ctr. v. Courtney, 99 Ark. App. 87, 257 S.W.3d 554 (2007). It is well settled that the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Id. This is a classic “dueling-doctors” case in which this court is bound by the Commission’s findings. Thus, we cannot say that there is not substantial evidence to support the Commission’s decision.
Affirmed.
VAUGHT and BROWN, JJ., agree. | [
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DAVID M. GLOVER, Judge
| j Jeffery Russell was convicted by a Sebastian County jury of possession of drug paraphernalia and sentenced to six years in prison. On appeal, he argues the evidence was insufficient to support his conviction. We affirm.
At trial, Cody Elliott, a K-9 officer with the Fort Smith Police Department, testified he and his canine, Chico, were working on January 22, 2016, when he noticed a vehicle that had a cracked windshield. After running the tag, Elliott learned the vehicle had no insurance, so he immediately turned around and pursued the vehicle. When Elliott turned around, the vehicle accelerated around the corner. Elliott momentarily lost sight of the vehicle but then observed it traveling down an alley at such a high rate of speed that the vehicle was leaving the ground and “bouncing” down the alley. When Elliot stopped the 12vehicle, the driver and the passenger initially would not give their correct names; however, Russell, the driver, eventually gave Elliott his name. Elliott’s request for consent to search the vehicle was denied; so he had Chico conduct a free-air narcotic sniff around the circumference of the vehicle. Chico indicated the presence of a narcotic odor emanating from the vehicle. Once Chico alerted, Elliott searched the yehicle, where he located what he believed to be a broken methamphetamine pipe between the driver’s and passenger’s seats. Both Russell and the passenger denied the pipe belonged to them. Elliott then placed both of them under arrest.
On cross-examination, Elliott testified he did not recall whose vehicle it was, but both Russell and the passenger told him the vehicle was not theirs. Elliott said he found the pipe in plain view between the seats.
Claire Desrochers, a forensic chemist with the Arkansas State Crime Lab, testified she tested the broken smoking device, and the tests indicated methamphetamine had been used in the pipe. The State rested after Desrochers’s testimony.
Russell’s counsel moved for a directed yerdict, arguing that the State failed to present sufficient evidence Russell possessed the contraband or that he was in a position to exercise dominion and control over the contraband. The circuit court denied the motion. Russell rested without calling any witnesses and renewed his motion for directed verdict, which was again denied. The jury found Russell guilty and sentenced him to six years in prison. Russell filed this timely appeal.
| sAn appeal from the denial of a motion for directed verdict is a challenge to the sufficiency of the evidence. McCastle v. State, 2012 Ark. App. 162, 392 S.W.3d 369. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Wells v. State, 2017 Ark. App. 174, 518 S.W.3d 106. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused; that determination is a question of fact for the finder of fact. Holland v. State, 2017 Ark. App. 49, 510 S.W.3d 311. On appeal, the evidence is viewed in the light most favorable to the State, and only the evidence supporting the verdict is considered. McCastle, supra. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Holland, supra.
It is not necessary for the State to prove literal physical possession of drugs to prove possession; possession may also be proved by constructive possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some other factor linking the accused to the drugs:
Other factors to be considered in cases involving automobiles occupied by more than one person are (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found onjjthe same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest.
Id. at 48, 14 S.W.3d at 493.
Russell argues that Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002), is directly on point with the facts of his case. We disagree, as Walker is clearly distinguishable from the present case. The appellant in Walker, was driving the vehicle, but the vehicle belonged to the passenger, Darlene Abies. While a clear plastic bag found on Ables’s person during a search tested positive for methamphetamine residue, a search of Walker did not reveal any contraband on his person. A canine search of the vehicle revealed a pair of work gloves under the driver’s seat that contained a ball of tinfoil with methamphetamine inside of it. Appellant was convicted in a bench trial of possession of a controlled substance and possession of drug paraphernalia. Our court reversed the conviction, holding that while the glove was found on Walker’s side of the vehicle ■and Walker was the driver,, neither of those factors raised a reasonable inference that Walker had knowledge of the. presence of the contraband. Although Walker was the driver, the vehicle belonged to passenger Abies; no contraband was found on Walker’s person, but contraband was found on Ables’s person; and Walker was cooperative and did not act suspiciously.
In the present case, although both Russell and the passenger claimed the vehicle did not belong to them, Russell was driving the vehicle and thus exercised dominion and | ^control over it; Elliott testified the pipe was in plain view between the driver’s and passenger’s seats; and the pipe was in near proximity to Russell in the vehicle. Additionally, Russell acted suspiciously when he.attempted to evade Elliott by quickly turning -down an alleyway after Elliott began to pursue him and by initially giving Elliott a false name. All the linking factors, with the exception of the contraband being found in Russell’s personal effects, were present. We hold that the State established a clear nexus between Russell and the contraband; therefore, we affirm the conviction,
Affirmed.
Gladwin and Hixson, JJ., agree. | [
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KENNETH S. HIXSON, Judge
| Appellant Lisa Webster was denied workers’ compensation benefits. Appellant appeals from a November 22, 2016 opinion by the Arkansas Workers’ Compensation Commission (Commission) affirming and adopting the findings of fact and conclusions of law made by the administrative law judge (ALJ) in favor of appellees Arkansas Department of Correction (ADC) and Public Employee Claims Division. On appeal, appellant contends that substantial evidence does not support the Commission’s decision that she was not performing employment services at the time of her injury. We affirm.
The facts of this case are largely undisputed. Although no one contests that appellant sustained an injury to her left knee when she slipped on ice and fell in the parking lot of her employer, there is a dispute as to whether she was performing employment-related services Rat the time of the injury. A hearing was held before the ALJ, and only appellant testified at the hearing.
Appellant was fifty-two years old at the time of the hearing and was a correctional officer at the Varner unit of ADC. On the day of the incident, February 23, 2015, appellant had commuted to work from Mississippi with a coworker. The inclement-weather policy was in effect, which meant that employees would receive their full salary even though they were given extra time to report to work. Appellant arrived late but within the time allotted under the inclement-weather policy; she was wearing her uniform as there were no changing rooms or lockers provided in the prison. Appellant testified that when she stepped out of the car, she slipped on “black ice” and injured her left knee. Af-terwards, she proceeded from the parking lot to the checkpoint, walked through the gate, clocked in, and was assigned to her post. Because the prison was short staffed that day due to the weather, there was no one to help her fill out workers’—compensation forms. Appellant worked a full shift that day and continued to work until March 14, 2015. Appellant additionally testified that it was her understanding from her training at the academy that she was held responsible for her actions while wearing her uniform even if she was not working at the time.
After the hearing, the ALJ found that at the time of the injury, appellant was going to work and injured herself in the parking lot. -Therefore, the ALJ found that she was not performing any work-related duties at-the time of the injury, found that she had failed to prove she . was performing employment services at the time of her injury, and denied her, claim for benefits.
13Appellant appealed the ALJ’s decision, and on November 22, 2016, • the Commission, in'a 2-1 majority opinion, af~ fírm'ed and adopted the ALJ’s opinion as its own. Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id.
In appeals involving claims for workers’ compensation, the appellate court views the evidence in the light most favorable to the Commission’s decision and affirms the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court ‘ might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission. Id. Additionally, the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness’s testimony, and we defer to the Commission’s authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson v. Smurfit Stone Container, 2009 Ark. App. 800, 373 S.W.3d 347. When there are contradictions in the evidence, it' is within the Commission’s province to reconcile conflicting evidence and determine the facts. Id. Finally, this court will reverse the Commission’s decision only if it |4is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Prock, supra.
In order for an accidental injury to be compensable, it must arise out of and in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). A compensable injury does not include an injury incurred at a time when employment services were not being performed. .Ark. Code Ann. § 11-9-, 102(4)(B)(iii). An employee is performing, employment services when he or she is doing something that is generally required by his or her employer. Cont’l Constr. Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762. We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The test is whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose or advancing the employer’s interest, either directly or indirectly. Id. Moreover, whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Centers for Youth & Families v. Wood, 2015 Ark. App. 380, 466 S.W.3d 422.
The going-and-coming rule ordinarily precludes compensation to an employee while he or she is traveling between his or her home and his or her job because employees who have fixed hours and places of work are generally not considered to be in the course of their employment while traveling to and from work. Nabors, supra. In order to determine whether an injured employee was performing employment services, we must analyze | ¿whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer’s purpose or advancing the employer’s interest, either directly or indirectly. Id.
On appeal, appellant contends that substantial evidence does not support the Commission’s decision that she was not performing employment services at the time of her injury. She argues that she was, at the very least, indirectly benefiting her employer because she was going to work despite the inclement weather; was wearing her uniform; was paid for her entire shift; and could have been required to assist with prisoners in the parking lot even though she was not clocked in. We disagree.
In support of her argument, appellant cites three cases that merit discussion. In Coffey v. Sanyo Manufacturing Corp., 85 Ark. App. 342, 154 S.W.3d 274 (2004), we held that an employee who had presented a security badge at two guard shacks and had entered the manufacturing plant but who had not yet clocked in when she slipped and fell in the hallway was performing employment services because her employer required her to go through those obstacles before getting to her work station. In Nabors, supra, we held that an employee who -had swiped1 his access card at a gate and had donned his personal-protective equipment pursuant to regulations, but who had not yet clocked in when he slipped on his way to the employer’s work trailer was performing employment services. Nabors had taken affirmative steps to satisfy the general contractor’s safety and security requirements to enter the job site; we therefore, held that Na-bors was clearly advancing his employer’s interests when he complied with the general contractor’s rules .regarding access to the job site. Id. Finally, in North Little Rock School District v. Lybarger, 2009 Ark. App. 330, 308 S.W.3d 651, RLybarger was a teacher’s aide at Boone Park,Elementary School. On the date of her injury, she was at the Lakewood campus for staff-development day. Id. After she had heen released for lunch and instructed to report to Boone Park Eleipentary for further meetings afterwards, Lybarger broke her right leg while climbing stairs en route to the parking lot but before she had left the premises. Id. We affirmed the Commission’s finding that she-was performing employment services. Id, Although she was released to lunch, she was required during that time to exit the building and travel from one campus where she was performing employment services to another campus where she would perform employment services. Id. Moreover, in order to report to Boone. Park Elementary, Lybarger first had to. walk through and exit the Lakewood buildings. Id. Therefore, by walking through the Lakewood campus, we held that she was carrying out the employer’s purpose and advancing her -employer’s interest in that she was leaving Lakewood and preparing to report to Boone Park Elementary. Id.
The cases cited by appellant, however, are distinguishable from the facts of this case. In both Coffey and Nabors, the case went “beyond, the situation in which an employee is injured while walking to or from his vehicle in the parking lot before or after work.” Nabors, 2015 Ark. App. 60, at 5, 454 S.W.3d at 766. In Caffey, the claimant had already proceeded through required guard shacks, and in Nabors, the claimant had already proceeded through the required gate check, and each were thereby advancing their employer’s interests. Here, appellant had not entered through a required guard shack or gate check but merely slipped when she was exiting the car. Furthermore, unlike the claimant in Lybarger, appellant was |7not traveling between places at the direction of her employer and injured on the employer’s premises while en route.
Appellant additionally argues that she was performing employment services because she was wearing her uniform; however, her argument lacks merit as we rejected a similar argument in Linton v. Arkansas Department of Correction, 87 Ark. App. 263, 190 S.W.3d 275 (2004). Although appellant further argues that she would have performed a job-related duty in the parking lot if she had been asked, appellant admitted that she was not performing any kind of job duty in the parking lot at the time of her injury nor had she ever been asked to do so. Therefore, appellant’s injury occurred in a similar manner as the claimant in Hightower v. Newark Public School System, 57 Ark. App. 159, 943 S.W.2d 608 (1997). There, we affirmed the Commission’s finding that the claimant, who fell on ice in the parking lot of a day-care center where she worked, was not performing employment services. Id, Similarly, appellant was injured in the parking lot of her employer before she had clocked in or had any job-related responsibilities. See also Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007). Thus, the Commission’s decision that appellant was not entitled to compensation for her injury is supported by substantial evidence and is affirmed.
Affirmed.
Gruber, C.J., and Murphy, J., agree. | [
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BRANDON J. HARRISON, Judge
hThe State alleged that Willie Lee Doby shot Lewis Thompson during an argument on Doby’s front porch in the wee hours one morning in August 2014. A’St. Francis County jury convicted Doby of first-degree murder. Doby was then sentenced to twenty-seven years’ imprisonment in the Arkansas Department of Correction. He appeals and argues five points why the circuit court should be reversed:
1.. The circuit court erred in excluding a defense investigator pursuant to Arkansas Rule of Evidence 615.
2. The circuit court erred in permitting the State to bolster Khalilah Thompson’s testimony by playing a recording of her prior consistent statement to the jury that was inadmissible hearsay.
3. The circuit court erred in denying Doby’s mistrial motion after the jury heard Thompson’s recorded statement that Doby .used bleach to wash gunshot residue from his hands and hid the murder weapon.
|24. The State produced insufficiént evidence to support Doby’s first-degree murder conviction.
5. The felony information was fatally flawed because the State “failed to set forth the principal language of the first-degree murder statute.”
Doby’s fourth point on appeal, which we must address first because of potential double-jeopardy concerns, is that the circuit court erred by denying his motion for a directed verdict because the evidence does not sufficiently support his murder conviction. Rankin v. State, 329 Ark. 379, 385, 948 S.W.2d 397, 400 (1997). At the end of the State’s case Doby argued that the murder charge should not be submitted to the jury because “[t]he facts have not been established.” This general statement does not .preserve the motion for appellate review under our case law or Rule 33.1(b) of the Arkansas Rules of Criminal Procedure, which requires that a directed-verdict motion based on insufficient evidence must specify in what manner the evidence is deficient; a motion merely stating that the evidence is insufficient does not preserve the issue for appellate review. Merchant v. State, 2017 Ark. App. 576, at 3, 532 S.W.3d 136.
We now turn to Doby’s first point on appeal and hold that the circuit court abused its discretion in excluding a member of the defense team under Arkansas Rule of Evidence 615.- And because we cannot say that the error was harmless, we must reverse and remand the case for proceedings consistent with this opinion. To be dear, we remand the case for further proceedings rather than dismiss it because our reversal is not related to Doby’s guilt or innocence. See generally United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (The successful appeal of a judgment of conviction, except on the ground of insufficiency of the evidence to support the verdict,, does not bar further prosecution on the same charge.).
|aI. Background
On the first day of trial, in front of the entire jury pool, the circuit court introduced the defendant and the parties’ attorneys. The court instructed the jury on the basics of reasonable doubt and the charges Doby faced. The court next stated, “I would ask the State to, to call the witnesses who may be expected to testify in this matter.” The prosecutor replied:
Micah Lacy, Leslie Summers, Khalilah Thompson, Travis Williams, Angelo Banks, Dominic Madden, Dr. Charles P. Kokes, and Angela Hirtzel, a criminologist with, the .Arkansas Crime Lab. In addition, various members of the Forrest City Police Department, including: Jeff Nichols, Cassandra Applewhite. These are officers, Your Honor. Darren Smith, Preston Gracy, Adrian Winfrey, Eric Varner, Morris McNutt.
Defense counsel then confirmed to the court that he did not expect to call any witness and that the prosecutor had “named all the possible witnesses.” The court then asked the jurors, “Are any of you personally, or any immediate member of your family related to, or acquainted with, any of the attorneys, witnesses, or the Defendant?” Eventually, the jury was selected.
After the jury was empaneled but before opening arguments began, Doby requested a bench conference outside the jury’s hearing. Defense counsel explained that he requested the conference because the prosecutor had asked that “the Rule” be applied to Investigator Speir, an investigator that the Public Defender Commission had hired to assist in Doby’s defense. In defense counsel’s words, Investigator Speir was his “work product ... an extension of me, as the attorney, doing the investigation.” The prosecuting attorney denied that he intended to call Investigator Speir to testify about anything that could be considered work product. The prosecutor, in particular, stated:
|4[W]e have several instances here where people have said that things were said to them in the presence of other people that they considered to [be] intimidating. Now if I have to set about to prove that, I want the witnesses available to do it.
Next came this colloquy:
Court: What does that have to do with Mr. Speir?
Prosecutor: Well, Mr. Speir would have been present at the time some of these conversations were had.
Court: Is that speculation? Or is that something that you’re pretty sure of?
Prosecutor: It’s something I was told, ■ not under oath, while this case was being tried. I have not been in a position to go put together that case. But in case I ever have to do, have to introduce testimony about that incident in this case, I want the witnesses available to do it with.
Court: Mr. Coleman [defense counsel]?
Defense: Once again, Your Honor, I don’t know what he’s talking about. But the thing is, even if the Court were to say, ‘Okay, well he might have some evidence,’ he was not listed as a witness. He was not voir dired to the jury. Nobody brought him up. He’s been sitting here. He’s here to assist me.
Court: Do you agree with me that if John Doe was sitting back in the back that Mr. Long [prosecutor] could call him as a witness, if he wanted to? Whether he’s subpoenaed or not?
Defense: No, Your Honor. We, that’s why we have witness lists ahead of time and we talk about the witnesses. You’re opening it up—
Court: No, I’m not opening anything. I’m just asking you a question.
Defense: No, I don’t think so. Especially cause you, that’s why we voir dire the jury. Have you, do you know any of Ifithe witnesses? Do you know anything about the witnesses? And I’m just, like I said, neither one of us know what he’s talking about. But the thing is, I do not think that there’s anything he could talk about, if he’s doing stuff.
Court: ... Anybody else want to say anything?
Prosecutor: Judge, again, it has to do with conversations had in the presence of certain [of] our witnesses, about consequences of testifying. Mr. Speir was present at the time of the conversations. If this all has to come up, you have to make an evidentiary ruling based on it. Then he’s going to be called as a witness. And at that point in time Mr. Coleman [defense counsel] will be able to say, “He’s under the Rule, he can’t testify.” And he would be right. I’m trying to protect myself against that. And furthermore, most of it I find out about at noon, some of it I found out about this morning.
Court: Okay. Well, of course I have no idea what you’re talking about.
Defense: Well, and Your Honor, I would ask for a continuance. Or, you know, if he’s bringing up new issues, with new witnesses, that I haven’t heard about either, then I, I have a right to know what kind of witness, evidence he’s talking about. Mr. Long is talking about starting a different kind of case than one that I’ve been given Discovery.
Court: What about, Mr. Long, the issue that where professionals are allowed to stay in court?
Prosecutor: What, what’s, what’s his job in this court?
Court: I, I just asked you a question.
Prosecutor: I mean, I’m asking that rhetorically. I’m not being querulous, I’m asking that rhetorically. What’s his job in this court? Is he going to write a brief?
Defense: They’ve got their investigator sitting right there.
| (-.Prosecutor: No, he’s not. How are we going to have him here and—
Defense: Well, that’s what—I’m not calling Mr. Speir as a witness.
Court: How are you going to call him as a witness, if he’s not been disclosed?
Prosecutor: How are we going to call? Alright. What if a witness says, “I’m not testifying because it’s been suggested that if I do, I might be dead?” And one of the people that was allegedly present when that conversation was had is Mr. Speir. And I’m asking you for a mistrial and I call Mr. Speir as a witness and Mr. Coleman says, T object.’
Court: Alright, I’m going to leave the Rule in effect. Alright, let’s call the jurors back in.
Investigator Speir was not allowed to remain in the courtroom. On the second day of trial defense counsel renewed his objection to Investigator Speir’s being excluded from the trial. Then this colloquy occurred:
Court: ... Mr. Coleman, the defense attorney, asked to come back here to put something on the record. So, Mr, Coleman, you may proceed.
Defense: I want to renew my objection to my investigator, Steve Speir, being excluded under the Rule. Your Honor, he has been investigating for me, as I argued before, his work product. But the two witnesses, the two eye witnesses are supposed to testify today. And he’s the person who interviewed them on my behalf. And I need him there to help me prepare the cross, after they testify. And it’s denying my client effective assistance of counsel. And I want the Court to change its ruling.
Court: Alright. Mr. Easley.
Prosecutor: Your Honor, as was argued yesterday, in front of the Court, we have reason to believe that Mr. Speir was a witness to potential witness intimidation or—tampering is not the right word—but, but potential witness |7intimidation. And if it becomes, comes out at trial the State wants to reserve the ability to call him, as a witness in this case, to testify regarding the potential witness tampering or intimidation. If he is allowed, under the Rule, if he’s allowed to stay in the courtroom, he would not be allowed to be called.
Court: Well, of course he can be allowed to be called if I rule that he can stay in the courtroom. What I need to know is what harm is it going to be • for him to stay in the courtroom? Are you alleging that he may change his testimony, based upon what somebody might say?
Prosecutor: ' I’m sorry your honor.
Court: Are you saying that he may change his testimony if he’s in the courtroom and he hears what was said?
Prosecutor: No, Your Honor.
Court: Well, his testimony is going to be the same regardless. Is it not?
Prosecutor: I don’t know what his testimony is going to be, Your Honor. I can’t tell you what it’s going to be. I don’t know whether it will change. I, that would be pure speculation on my part.
Court: . But what I’m saying is, is that Mr. Speir is a type of person that seems to me, as the Court and as an observer of Mr. Speir, that he’s not going to change his testimony one way or the .other. .
Prosecutor: We believe so, Your Honor.
Court: Why?
Prosecutor: Because it would hamper the State’s ability to call him as a witness.
Court: Tell me why.
| «Prosecutor: Because the. rule, the Court has ruled, under Rule 615, that he should be excluded. The Court has made that ruling.
Court: Well, if the Court rules that he should stay in the courtroom—this is a renewal- of the motion—if the Court rules that he should stay in the courtroom, how will that hurt the purpose for which you would call him? .
Prosecutor: Judge, what if it, what if you let him stay in the courtroom—if I could answer your question—what if you let him stay in the courtroom and then we get into some kind of hearing on a motion for mistrial—I, don’t know what is going to happen—or something along those lines—cause something’s been said by one of those witnesses—and we find it necessary to call Mr., Mr. Speir, as a witness. And Mr. Coleman, at that time, says, “Judge, he’s, been in the courtroom, the witnesses are under a Rule. The rule says “shall not be allowed to testify.” It doesn’t say “ought not to be,” it says “shall not to be.” What are you going to do then?
Court: Well the Court, in its discretion, first of all can allow him not to be under the Rule and that would be not a real good argument. And second of all, I’m sure if Mr. Coleman had him in the courtroom, he, it would be with the idea that [he’d] waive any issues with the Rule. Is that right, Mr. Coleman?
Defense: Yes, sir, that’s right, your Honor.
Prosecutor: Your, Your Honor, furthermore, if, if Mr., if these witnesses testify, subject with what, with how, with'what I’m expecting them to say, based on what’s been told to me, then there would be, they would, make statements that I would not want Mr. Speir to hear, because his testimony might change, based upon what is heard in the courtroom. If, if it comes to that.
Court: So you’re saying that you do think that Mr. Speir may alter his testimony if he is allowed to stay in the courtroom.
| ¡Prosecutor: There is certainly that possibility, Your Honor. If he hears what a witness said, there’s certainly a possibility that it would hamper our ability to question Mr. Speir about what actually happened. Because he would be able to alter his testimony based upon what the witnesses say.
Court: Alright, Now what do you say to the argument that Mr. Coleman has made that he is the investigator and he needs him for cross examination of those witnesses?
Prosecutor: Your Honor, under, under my understanding of, of the need for an investigator, the investigator goes and takes statements, reports those statements to the attorney prior to the trial of the matter. That’s my understanding of the purpose of an investigator. An investigator that goes out and takes statement from witnesses, statements from witnesses, their job is to report back to the attorney prior to trial.
Court: Well, I’m just looking at this case particularly, right now. But I try to treat everybody the same. That’s why I’m asking all these questions. Mr. Coleman, why would your cross examination. or your examination of your, of this, this witness, how could it be hampered by- somebody, when, when I’m not going to be allowing them to whisper and talk to you while in the, standing up asking your questions?
Defense: Well, it’s not when I’m standing up. It’s that he’s done the-investigation. I'do have a report of what he says they said. But—
Court: Okay.
Defense: —they might say something else and I’ll, and he will be able to say, “Well, when I talked to them they said this” or, you know, I, I did not speak to these people. My investigator did.
Court: Alright, the Court is going to remain with its ruling.
I mil. Discussion
Doby’s first point is that the court erroneously applied Arkansas Rule of Evidence 615 when it prevented his investigator from remaining in the courtroom during trial. In Doby’s .view, Investigator ápeir was not a witness and therefore the court erred in excluding him under the Rule. Doby is correct. The State responds ■ that it “gave opposing counsel notice and, essentially, verbally amended its witness list at the first moment it could do so. Therefore, the trial court did not abuse its discretion to subject Speir to the rule.”
Some other rules are pertinent before we dig into the Ark. R. Evid. 615 issue. Arkansas Rule of Criminal Procedure 17.1(a)(1) requires prosecuting attorneys to - disclose to defense counsel the names and addresses of persons the prosecutor intends to call as witnesses.- If a witness is properly a rebuttal witness, however, then the State is not required to disclose his or her identity before trial. DeLowry v. State, 364 Ark. 6, 24, 216 S.W.3d. 101, 113 (2005). And if the State does not comply with the rules of discovery, then the circuit court may permit discovery of the material not previously disclosed, grant a -continuance, prohibit the party from introducing the undisclosed evidence, or- enter any other order deemed proper under the circumstances. Ark. R. Crim. P. 19.7. When evidence is not disclosed during the pretrial-discovery phase, the appellant must prove that the omission was sufficient to undermine the confidence in the trial’s outcome. Scroggins v. State, 312 Ark. 106, 116-17, 848 S.W.2d 400, 405 (1993).
Rule 615 is an evidentiary rule that sets out the witness-exclusion rule. It states:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize the exclusion of (1) a |nparty who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Rule 615’s purpose is to aid in exposing inconsistencies in the testimony of different witnesses and to prevent, or at least reduce, the possibility of one or more witnesses from shaping testimony to match other -witnesses’ testimony that has been elicited during a trial. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. By its plain terms, Rule 615 applies to -witnesses. “The term ‘witness,’ in its strict legal sense, means one who gives evidence in a cause before a court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affiants as well as persons delivering oral testimony before a court or jury.” 97 C.J.S. Witnesses § 1, at 350 (1957) (cited in Witness, Black’s Law Dictionary 1838 (10th ed. 2014)). Exclusion is mandatory when requested by either party unless a specific exception is triggered that allows witnesses to remain in the courtroom. Id.
So circuit courts, as a basic proposition, have no discretion to apply Rule 615’s exclusion given the rule’s mandatory language. Martin v. State, 22 Ark. App. 126, 127, 736 S.W.2d 287, 288 (1987) citing Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987) (use of the word “shall” makes exclusion , of the witnesses mandatory). A circuit court may, however, exercise a narrow amount of discretion to exclude or not exclude a witness’s testimony for noncompliance with Rule 615. Mooney v. State, 2009 Ark. App. 622, at 12, 331 S.W.3d 588, 595. Our supreme court has held that prejudice is not presumed when Rule 615 is violated. Jones v. State, 2017 Ark. App. 286, at 4, 524 S.W.3d 1, 4. Consequently, a complaining party must do more than allege prejudice, “he must | ^demonstrate it,” whatever that means. Adams v. State, 2013 Ark. 174, at 14, 427 S.W.3d 63, 72.
Here, the “Investigator Speir as potential witness” issue did not even arise until after the jury had been empaneled. The State’s brief on appeal argues that the prosecutor “essentially verbally amended its witness list at the first possible moment it could do so” during the trial. Appellee’s Br. at 9. We disagree with this characterization of the colloquy, though the back- and-forth is admittedly unclear at times. What is clear, however, is that the circuit court did not rule that any party could amend the witness list. Rule 615 is concerned with the possibility that a witness present in court might modify his or her testimony to bolster or collude with other witness testimony. But those considerations were never substantially in play in this case. Simply put, Investigator Speir was never named as a potential witness; and there was no reasonable indication that he might be called as one for some legitimate purpose. The circuit court delved into the State’s concern as best it could in the circumstances through the long colloquies, much of which is included in this opinion. The State, however, was not clear enough on why it had a legitimate concern that the trial process would be infected if a member of .the defense team was permitted to sit through the trial and assist defense counsel. The circuit court therefore abused its discretion by excluding Investigator Speir as a witness under Rule 615.
III. No Harmless Error
As we stated earlier, Arkansas places the burden of proving prejudice on a defendant when Rule 615 was violated. See Johnson v. State, 2017 Ark. App. 373, at 8, 523 S.W.3d 908, 913 (“Johnson cannot demonstrate prejudice for two reasons.... Because Johnson 113has not demonstrated that the court’s failure to exclude Boone pursuant to Rule 615 was prejudicial, reversal is not warranted.”); see also Clark v. State, 323 Ark. 211, 216, 913 S.W.2d 297, 300 (1996) (failing to show that any prejudice resulted when witness should have been excluded from the courtroom during trial); Lard v. State, 2014 Ark. 1, at 24, 431 S.W.3d 249, 267 (“[Tjthis court has consistently held that it will not reverse the circuit court’s decision regarding this issue [Rule 615] absent a showing of prejudice, as prejudice is not presumed. However, to hold as harmless an error occurring in the penalty phase of a capital-murder trial, we must be able to reach the conclusion that the error was harmless beyond a reasonable doubt.”) (internal citations omitted).
The usual “rule violation” cases we have cited above fall short of deciding this case as a matter of stare decisis because here, as a technical matter, the circuit court' did not violate Rule 615. It did not technically violate the rule because it did not fail to exclude a witness from the courtroom. What we have here is a decision that excluded an identified member of the defendant’s trial team for a reason that, at best, was unclear and underdeveloped when the separation was imposed..
Despite the circuit court’s wéll-in-téhtioned but mistaken decision, we may declare an error harmless if the evidence of guilt is overwhelming and the error slight. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002). Our supreme court has said that, before declaring that an error is harmless, it must conclude beyond a reasonable doubt that the error did not contribute to the verdict. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). We must therefore ask whether the circuit court’s decision to exclude Investigator Speir from the courtroom was a harmless error. The State, for its part, does not argue on appeal luthat the Rule 615 decision was harmless to Doby. It instead argues that Doby has failed to demonstrate he was prejudiced by the court’s Rule 615 decision, but as we stated, this really is not a typical Rule 615 case.
The general harmless-error standard for a nonconstitutional error asks whether the error materially affected the verdict. See generally Sparkman v. State, 91 Ark. App. 138, 148, 208 S.W.3d 822, 829 (2005) (reversing the circuit court and holding that the error could have materially affected the verdict). Cf. Ark. R. Civ. P. 61 (court must disregard any error or defect 'in the proceeding that does not affect the substantial rights of the parties). The Supreme Court of the United States has described what it means to affect substantial rights regarding preserved claims of nonconstitutional error:
If, when all is said and done, the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the.error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”
Kotteakos v. United States, 328 U.S. 750, 764, 66 S,Ct. 1239, 90 L.Ed. 1557 (1946); see also O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (reversing when “the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error”). .
Looking at the entire record in this case, we cannot say that excluding Investigator Speir from the trial was a harmless error. Doby maintains that Investigator Speir had direct knowledge of the witness testimony and was necessary to effectively cross-examine the State’s witnesses and critical to help determine whether their testimony was consistent or 1 ^inconsistent with prior statements. Regarding the right to cross-examination, our supreme court has held that a defendant’s right to confront witnesses against him or her is guaranteed by the Sixth Amendment to the United States Constitution and article 2, section 10, of the Arkansas Constitution. See Bowden v. State, 301 Ark. 303, 308-09, 783 S.W.2d 842, 844-45 (1990). No one can reasonably dispute that the right to cross-examine witnesses is a core.trial-court process in a criminal case.
On the details, Doby states that Investigator Speir would have been able to assist him in meeting “trial surprises” like when the State played Khalilah Thompson’s (the victim’s widow) prior recorded statement. Because we must determine whether an error was harmless, here is a summary of the trial testimony, which we recite solely for the purpose of'evaluating whether the circuit court’s decision to exclude Investigator Speir was harmless given the entire record.
A. Trial Testimony
Forrest City police officer Darren Smith testified that he had responded to a “shots fired” call at 615 North Gorman Street but did not find anyone at that location. He did, however, find an incoherent male (later identified as Lewis Thompson) with a severe gunshot wound lying under a tree near 629 Gorman. Thompson was! transported by ambulance but later died. Officer. Smith said he was not able to “find any evidence of consequence,” that he did not find any shell cases, that he did not find a gun, and that he was unable to locate any suspects. Officer Kathy Riggins testified that Doby’s address was 629 Gorman and that Doby was a suspect. Through the testimony of Detective Cassandra Apple-white, . the • State introduced pictures of what it claimed was the consequence of a | ^“gunshot” next door to the house where Doby lived. It also introduced pictures of a bottle of bleach and of bullets that Detective Applewhite testified she had retrieved from Doby’s house.
Angela'Hirtzell Evans, a criminologist at the Arkansas State Crime Lab, testified that she received four items from Doby: (1) a gunshot-residue kit; (2) red and black shorts; (3) a white 'Shirt; and (4) a swab from underneath Doby’s fingernails. She reported that she found particles characteristic of gunshot residue on Doby’s shorts and shirt. She said the residue could mean that the person wearing the clothing discharged a firearm, that the person was close to a firearm when it was discharged, or that the person came into contact with something carrying gunshot residue and the residue transferred to his or her clothing.
Pathologist Charles Paul Koches, M.D., testified that Lewis Thompson did not suffer a “close range fire” discharge from two feet or less away. The gunshot entrance wound, according to the doctor, was on Thompson’s right mid-back area, and the bullet traveled downward through the torso, hitting the liver, duodenum, and aorta. Dr. Koches said that there was no exit wound and that he did not find a bullet because, perhaps, it had been inadvertently removed during emérgency surgery; He concluded that Thompson died from á gunshot wound to the torso. On cross-examination, Dr. Koches could not say what caliber of weapon caused the fatal injury.
Khalilah Thompson testified that she was Lewis Thompson’s wife and that her late husband and Doby were cousins. She said that she initially went to the police station and gave a statement that she was not there but at the store. She explained that she was scared for her life because Doby had told her not to say anything. She then told the jury that she 117gave another statement to the police at 10:55 a.m., the morning after the shooting, during which she “told the truth.” Thompson testified that Doby had shot her husband on Dob/s front porch. She said' that her husband didn’t realize that he had been shot after the first shot, and after the second shot, Lewis grabbed the area where he had been shot, turned around, and said, “Cuz, dang, you shot me for real.” As Lewis “proceeded off’ the porch, Thompson said that Doby “went off the porch behind and was continuously shooting him.” She said there were three shots and that the “gun jammed or, or was out of bullets or something.” She denied that her husband had threatened Doby. On cross-examination, she confirmed that she-went to the police station to tell, them that she was at the . store before she went to Memphis -to see her dying husband. She also said there were multiple people on the porch. The court then allowed the prosecutor, over Dob/s objection, to play a video recording of Thompson’s 10:25 a.m. statement to the police. The recorded statement included allegations about bleach and a gun about which Thompson had not previously testified. This was the basis for a mistrial motion by Doby, which the court denied.
Micah Lacy, who was subpoenaed by the State, testified that “Silly Willie” a/k/a Doby shot Lewis Thompson and that the gun was “a little bull* * * * twenty-two.” According to Lacy, Doby shot Lewis Thompson when. Thompson was off the porch and then “he shot him again, in the back, standing right behind him.” On cross-examination, Lacy described various threats that he said he had heard Thompson make, including that he would blow Dob/s head off. He stated that he did not know if the fight between Thompson and Doby was about how Thompson was treating his wife. According to Lacy, Khalilah went to where Lewis was lying under the tree and said, “That was good that you | iSgot shot.- You need to quit f* * * *n’ with me. I don’t want you.” Lewis reportedly told Khalilah that he was going to “f* * * her up” when he got to his feet.
Leslie Summers testified in Doby’s defense that everyone on the porch that night was doing cocaine, smoking weed, and drinking and that the “scale of anger” was high between Lewis and his wife (Summers’s sister). He relayed a series of events and threats that Lewis had made against Doby and vice versa. He said that everyone was on the porch when they heard a gunshot and ran. Summers said he did not see anyone get shot but knew Lewis Thompson had been shot. He testified that he did not shoot Thompson, that his sister was not the shooter because “[s]he ain’t got the guts,” and that he did not know if Doby’s wife had shot Lewis. Summers stated that Doby and his wife had “put the murder charge” on him (Summers).
B. Analysis
Given the summary of the testimony recited above, that the murder weapon (a gun) was never found, that Dr. Koches could not identify the caliber of the bullet that killed Thompson, that there was no known confession, and that there was no audio or visual recording of the incident, the strength of the State’s case against Doby turned primarily on the credibility of the witnesses’ testimony. On the whole, we cannot conclude beyond a reasonable doubt that excluding Investigator Speir from the courtroom did not influence the verdict or Doby’s substantial right to effectively cross-examine some of the witnesses who testified against him. We therefore reverse and remand for proceedings consistent with this opinion.
ImBeversed and remanded for proceedings consistent with this opinion.
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LARRY D. VAUGHT, Judge
11 Appellant State Farm Mutual Automobile Insurance Company (State Farm) appeals the amount of attorney’s fees that the Benton County Circuit Court awarded to appellee Alvaro Esparza pursuant to Arkansas Code Annotated section 23-89-208(f) (Repl. 2014) after a jury found in favor of Esparza on his claim for delayed payment of covered medical expenses. We affirm the fee award.
Alvaro Esparza and his two children were involved in a motor-vehicle accident on October 15, 2013. Esparza was insured by State Farm, and his policy included medical-payment coverage of $5,000 per person. Esparza and his children were injured in the accident, and he subsequently submitted their medical expenses to State Farm for payment under the policy. State Farm refused to pay. He and his children then brought suit, through their attorney Ken Swindle, to recover the unpaid medical expenses. Swindle also | represented Esparza and his children in their personal-injury lawsuit against the other motorist, and they had entered into written attorney-client agreements with Swindle in which they agreed to pay him a percentage of their recovery.
After a two-day trial, the jury awarded Esparza and his children a combined total of $12,535 in delayed medical-expense payments. Esparza and his children then filed a motion for attorney’s fees pursuant to section 23^89—208(f), which provides:
(f) In thé event the insurer is required by the action to pay the overdue benefits, the insurer shall, in addition to the benefits received, be required to pay the reasonable attorney’s fees incurred by the other party, plus twelve percent (12%) penalty, plus interest thereon from the date these sums became overdue.
The court awarded $21,197.50 in attorney’s fees based on an hourly rate calculation. On appeal, State Farm does not contest that Esparza is entitled to an award of attorney’s fees or that the fee award represented a reasonable rate and number of hours worked. The only issue on appeal is whether an hourly fee award was permissible when Esparza and his children had entered into a contingency-fee agreement.
Under the American rule, parties bear their own litigation expenses, and attorney’s fees are not allowed except when expressly provided for by statute or contract. Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). An award of attorney’s fees will not be set aside absent an abuse of discretion by the circuit court. Nissan N. Am., Inc. v. Harlan, 2017 Ark. App. 203, at 12-13, 518 S.W.3d 89, 97 (citing Chrisco, 304 Ark. 227, 800 S.W.2d 717). While the decision to award attorney’s fees and the amount awarded are reviewed under an abuse-of-discretion standard, we review factual findings by a circuit court on the existence of the Is Chrisco factors under a clearly errone ous standard of review. Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004). Due to the circuit court’s intimate acquaintance with the record and the quality of service rendered, we also recognize the superior perspective of the trial judge in assessing the applicable factors.
State Farm argues that, because Esparza and his children entered into a written attorney-client agreement in which Swindle agreed to represent them for a set percentage of what they recovered, and because the award of fees exceeded that percentage, the fee award violated the statute’s authorization to award the “fees incurred” by the party. While this argument is persuasive, it fails for one very simple reason: the contingency-fee contract on which State Farm relies was applicable only to Swindle’s representation of the Esparzas in their personal-injury case and did not apply to the Esparzas’ claim for delayed medical payments.
The circuit court was presented with ample evidence to conclude that the contingency-fee contract did not apply to Swindle’s work on the Esparza’s delayed medical-payments claim. The contract specifically refers to “damages sustained,” and it references the date of the motor-vehicle accident. The contract also anticipates that a copy of the | ¿agreement may eventually be served on “the defendant or any insurance company of the defendant” for purposes of establishing an attorney’s, lien, which seems to indicate that the anticipated defendant is the tortfeasor, not an insurance company. Most telling, however, is the fact that Esparza executed an affidavit, which was submitted to the circuit court, explicitly stating that the contingency-fee contract was solely for the purposes of representation in the personal-injury case and that “it was never my intention that my attorney take as an attorney fee a percentage of my medical bills won in [this] case.” Esparza also submitted a letter from Swindle to State Farm’s attorney ' that specifically warned of the hours Swindle had already expended working on this case, the additional hours he would likely incur if the case went to trial, and the type of hourly fee he had previously been awarded in a similar delayed medical-payments case against State Farm. Swindle’s letter invited State Farm to settle the delayed medical-payments case and warned of the potential for a high hourly fee award if the case went to trial. This letter clearly indicates that it was Swindle’s understanding and intention to pursue this case on an hourly fee basis. Therefore, we hold that it was not an abuse of discretion for the circuit court to award attorney’s fees based on an hourly fee calculation rather than a contingency-fee calculation.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
. In Chrisco, the Arkansas Supreme Court held that a circuit court’s award of fees, while discretionary, should be informed by consideration of the experience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed on the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. Chrisco, 304 Ark. at 229, 800 S.W.2d at 718.
. The contingency-fee agreement entitled Swindle to forty percent of the amount recovered if the case went to trial. | [
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MIKE MURPHY, Judge
bA Hempstead County jury convicted appellant James Pafford of two counts of rape and two counts of sexual assault in the second degree. Pafford was sentenced to twenty-five years’ imprisonment in the Arkansas Department of Correction on each rape conviction, to run consecutively to each other, and five years’ imprisonment on each sexual-assault conviction, to run concurrently with the rape convictions. Pafford timely filed a motion for new trial, and the circuit court denied the motion by order. From that order, Pafford appeals. We affirm.
|2A. Facts and Procedural History
Pafford sexually abused then twelve-year-old M.W. on two occasions in February 2015. Both encounters took place at Pafford’s home. M.W. confided in his grandmother and a child-abuse-hotline call was made. Because M.W. lived primarily in the same home as Pafford, the call was of high priority and M.W. was immediately interviewed. From there, the investigation continued and was handed over, to the state police. Pafford was charged with two counts of rape and two counts of sexual assault in the second degree. On February 9, 2016, the case proceeded to a jury trial ydiere the following testimony was taken.
Odia Russette, a sexual-assault nurse examiner, testified as an expert witness that she examined M.W. pursuant to the sexual-assault allegation. She first took.his assault history when M.W. explained that hiá “[uncle had] been messing with [his] private parts.” He' detailed the two incidents to Russette. She read the report from the assault-history portion of the exam to the jury:
On the night of the Super Bowl, he told me to go in the bathroom and get it hard and come back and show him. He started messing with it, He started jerking me off. Last Monday I was staying the night with them. He woke me up. He said come here and feel this. He went and got the white pump.... He used it to make his stuff, his private parts bigger. He didn’t have any clothes on. He pulled my underwear down and started jacking me off and started sucking on it. Then, he started putting his stuff in my face and ... it was purple and swollen.
After she read the history, Russette testified that she performed, a full head-to-toe exam and she opined that the results neither refuted nor confirmed the history.
IgM.W.’s older brother, G.H., testified. He explained that the Paffords lived three or four houses down from their house and that they celebrated birthdays and holidays together. He testified that when M.W. and,his mom were not getting along, M.W. would stay with the Paffords. G.H. said that Pafford told him he could come live with the Pafford family and that he would buy G.H. a truck when he got older. However, G.H. felt uncomfortable and did not want to be there because Pafford would show him “guys’ stuff’ on Pafford’s phone. Another time, G.H. said that he was taking a shower in Pafford’s shower that had a clear glass door and that Pafford walked in wanting to see his “stuff.” G.H. also cited .other conversations in which Pafford would bring up inappropriate sex talk like “[talking] about [G.H.’s] .pecker growing a lot.”
James Hardman, now twenty-four years old and married with four children, testified that he used to work for the Paffords because he needed money to pay off a fine. Pafford gave him a $1500 advance, a truck, and a phone. The relationship turned sexual when Pafford asked Hardman to make a video exposing his genital area; Pafford would try to touch Hardman’s .private area over his clothes, and he would ask to suck Hardman’s genitals. He also testified to an event where he, Pafford, and a woman were engaged in sexual activity. Hardman was at the house while one of the incidents between M.W. and Pafford took place but was unaware it was happening. He further testified that Carrie Harris, M.W.’s mom, shot him in the arm when she found out he was there. After he had been shot, he quit working for Pafford.'
| ¿Harris explained that the Paffords had taken care of her and her children by paying the house note, bills, and whatever else they needed. She said that on the night of one of the encounters, she picked up M.W. from Pafford’s house and that he smelled like . “sexual lubricant.” • She approached M.W. about the issue, but he became upset and said no.: Harris expressed her concerns to her mother (M.W.’s grandmother) and the grandmother approached M.W. about' the issue and he confided in her.
Jamien Crozier, now thirty-five years old, testified that when he was a teenager he lived with the Paffords because he came from a broken home. Crozier noted multiple incidents in which he walked in on Pafford and Crozier’s friend, Greg Fitcher, during sexual activity. He said he was about, fifteen or sixteen when the first sexual act between him and Pafford happened. He explained,
[It] was almost every day that he was giving sexual advances.... [If] I came in and asked him for something, he always expected something in return. He would always say, “You owe me now.” I’d have my shirt off, or something, in the game room, and he’d come over there and try to rub my back and it would steadily advance until I would say, “Get away from me,” or “I am not gay.” He responded, “I’m not gay, either. This is what friends do for each other.”
Corwin Battle also testified for the State, explaining that he works for the Arkansas State Police and is a computer forensic certified examiner. He was called to investigate the claims against - Pafford. He testified that the police decided they needed to apply for a search warrant due to M.W.’s allegations that things were photographed and that he was shown things on an electronic device. When the police executed the warrant, they came across a cell phone and retrieved a picture of Paf-ford’s erect penis from the phone. The | ^photograph was admitted but not published to the jury. Battle additionally identified a picture of sex toys that were seized during the search of Pafford’s home.
M.W. testified and corroborated the previous testimony. He identified Pafford in the courtroom as his “Uncle James.” M.W. explained the two incidents in more detail. M.W. authenticated the picture that Battle had found on the phone by describing the penis as “swole up,” “purple and’bruised,” and he recognized Pafford’s body-because he was “always in them white socks.” The State then published the picture to the jury.
The defense put on three witnesses. The first, Evonne White, had been Pafford’s housekeeper for twelve years. She testified that she never saw or suspected any suspicious sexual activity. G.G., Pafford’s grandson, testified that his maternal grandfather had never done anything of a sexual nature to him or, to the best of his knowledge, his friends. Lastly, Jamie Pafford Gresham, Pafford’s daughter, testified that her parents were always helping people in need.
After the jury found Pafford guilty of all counts, he acquired new counsel and timely moved for a new trial. Pafford’s arguments in support of a new trial were that there was jury misconduct; that an expert should not have been permitted to testify as to the credibility of the victim and his allegations; and that the trial court erred in allowing the introduction of a picture of an erect penis into evidence. He also raised several ineffective-assistance-of-counsel claims.
At the motion hearing conducted on April 1, 2016, Pafford called Latisha James, a juror from the original trial. She explained that her mother had worked for the Pafford | ¿family for ten or eleven years and that she would occasionally provide transportation for her mother to and from work. Juror James testified that she divulged this information after the voir dire process, but not that it was for ten or eleven years; that information came out at the motion hearing. Her mother was eventually terminated, but James did not discover the reason until a day before the motion hearing—she had failed a drug test. James testified that her sister also worked for the Paffords for a couple of years. She explained that she was honest and forthcoming with the information she had at the original trial.
Lastly, Pafford called, his original attorney, Jeff Harrelson. Harrelson testified that he did not think James was as candid as she should have been regarding her connection with Pafford. Harrelson was asked about the inappropriate picture discovered on Pafford’s phone to which he responded that he did his best to keep it out of evidence. He explained that there were several pretrial motions, hearings, and objections regarding the introduction qf the picture. Harrelson also answered other questions regarding his trial strategy-
On April 6, 2016, the circuit court'denied Pafford’s motion for a new trial. Pafford timely appealed from the February 16, 2016 order convicting him on all counts and the April order denying his motion. Pafford raises four points on appeal: (1) jury misconduct prejudiced his chances for a fair trial; (2) the circuit court erred in allowing expert testimony concerning the truthfulness of the victim’s statements; (3) the circuit court erred in allowing a photo of Pafford’s erect penis into evidence; and (4) the circuit court erred in riot granting his new trial based on ineffective-assistance-of-counsel claims.
|7B. Jury Misconduct'
For the first point on appeal, Paf-ford argues that jury misconduct prejudiced his chances for a fair trial. Specifically, he asserts that James engaged in misconduct because she was not candid regarding her family’s relationship to Paf-ford.
Our supreme court'has held that following an allegation of juror misconduct, the moving party bears the burden of proving both the misconduct and that a reasonable possibility of prejudice-resulted from -it. State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000). We will not presume prejudice in such situations. Id. The moving party must show that the alleged misconduct prejudiced his chances for a fair trial. Id. Whether unfair prejudice oc curred is a matter for the sound discretion of the circuit court. Dimas-Martinez v. State, 2011 Ark. 515, at 9, 385 S.W.3d 238, 244.
A claim of jury misconduct raised for the first time in a motion for new trial must be accompanied by an affirmative showing that the defense was unaware of the misconduct until after the trial. See Dimas-Martinez, supra; see also Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). In Dimas-Martinez, the supreme court addressed whether the issue of juror misconduct related to a sleeping juror was preserved for appeal. 2011 Ark. 515, 385 S.W.3d 238. There, the appellant’s counsel put the court on notice that she was concerned that a juror had slept through some technical testimony, and there was no way for that juror to recoup that testimony. Id, Appellant’s counsel asked three times that the juror be removed based on the fact that he had fallen asleep and missed testimony. Id, The circuit court denied the requests. Id. On appeal, the supreme court held that the issue was Improperly preserved for review because the appellant properly raised a challenge to the juror’s sleeping and obtained a ruling on the request for the juror to be removed. Id.; cf. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996) (explaining that where the defense was aware of the sleeping juror and did nothing to correct the situation, the issue was not preserved for appeal).
Here, appellant did not make any allegations of juror misconduct at trial; the issue was first presented to the circuit court by way of a motion for new trial. Before any evidence was presented in the original case, but after voir dire, James asked to speak to the court, and she informed it that she recently remembered that her mother used to work for appellant.
The following colloquy occurred on the record:
James: Okay, after she got to talking about how where their (sic), I guess their office is on 16th Street, I got to thinking after I left, and I called my mom. My mom used to work for ’em. She used to work for Pafford that’s on 16th Street.
Prosecutor: Do you think that if there was sufficient evidence because, you know, I’m not trying to say anything about your mother, I’m just saying if there was sufficient evidence to vote guilty and you did and he was convicted, would that cause any problem or awkwardness between you and your mother?
James: No, no.
Prosecutor: Has she told you anything? Do you have some information about Pafford, like his history or how—
James: Well, as far as him, I don’t. You know, I don’t know anything, really, about them. I just know of ’em just like everybody, else, in town.
IsProsecutor: Do you—any of that knowledge, would that have any effect on you one way or the other?
James: No, ma’am.
Court: Do you have any questions?
Defense: Just one. The information that you gained after talking to your mother, would that change any of the answers that you gave us during your questioning, yesterday?
James: No, I just asked her—I just come out and asked her, I said, “Didn’t you used to work on 16th Street?” She said, “Yes.” “What was the name of that place?” ‘Cause it never clicked in my head until she said 16th Street.
Prosecutor: Did your mother, did she say anything to you about what she hopes the results are or—
Jambs: No, I didn’t even tell her what I’m here for. Yeah, she don’t know what I’m here for.
Court: I think that you’ll be fine. You were straightforward coming to us, and I appreciate it.
Following this interaction, James remained on the jury with no objection from Pafford. Because Pafford did not object, even despite having alternate jurors available at trial, this issue is not preserved for appeal.
Regardless, Pafford fails to justify any misconduct and merely repeats unfounded accusations that require speculation. Nothing in the record indicates that James had reason to be upset with Pafford. James, on her own, brought the connection to the court’s attention rather than covering up the relationship. We find no prejudice or abuse of | indiscretion because James was straightforward that she had a connection with Pafford and that she was rehabilitated.
C. Expert-Witness Testimony
For the second point on appeal, Pafford argues that the circuit court erred by allowing expert witness Russette—the nurse who conducted M.W.’s sexual assault examination—to “testify that the victim was telling the truth regarding the sexual assault.” At trial, Russette testified that she is a board-certified, registered nurse with a master’s degree in nursing. She further explained that she is a certified sexual-assault nurse examiner. Based on these credentials, the State moved to qualify Russette as an expert in the field of sexual assault. With no objection from Paf-ford, the circuit court granted the State’s motion.
We review the admission of expert testimony under an abuse-of-discretion standard. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264. In discussing our standard of review for evidentiary rulings, the Arkansas Supreme Court has said that circuit courts have broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Id. To qualify as an abuse of discretion, the circuit court must have acted improvidently, thoughtlessly, or without due consideration. Id. Additionally, this court will not reverse an evidentiary ruling absent a showing of prejudice. Purdie v. State, 2010 Ark. App. 658, at 7, 379 S.W.3d 541, 546.
It is error for the court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999). Pafford likens 11his case to Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987). In Johnson, the supreme court reversed a conviction, holding that the admission of a physician’s opinion that a child had been sexually abused was prejudicial error. The physician’s opinion was based only on the history given to him by the child and was not corroborated by his physical examination of the alleged victim. Id. There, the physician testified .that he found no physical evidence of the alleged anal intercourse that the boy said had taken place that day. Id. The doctor testified that his opinion was based on the history the child gave him and his experience dealing with children through the years. Id. The appellant argued that the negative physical exam and the oral history were the only bases the physician could have had for his opinion. Id. The supreme court ruled that the circuit court erred in admitting the testimony. Id.
Unlike Johnson, however, Russette explained her encounter and procedure with M.W. in an objective manner. She read from her report and stated her conclusion from the physical examination, which she explicitly testified “neither confirmed or refuted” the oral history M.W. provided her. Pafford mischaracterizes Russette’s testimony as bolstering M.W.’s credibility. Instead, her testimony was clinical in nature. Upon Pafford’s objection to the testimony at the trial, the court conducted a bench conference to discern both arguments and ultimately overruled the objection. Based on these facts, we cannot say the circuit court acted thoughtlessly and abused its discretion.
D. Prejudicial Photo
|12For the third point on appeal, Pafford argues that the circuit court erred in allowing a photo of his penis into evidence. Matters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court; such a ruling will not be reversed absent an abuse of that discretion nor absent a showing of prejudice, which is not presumed. Coger v. State, 2017 Ark. App. 466, at 13, 529 S.W.3d 640, 649.
Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401. Arkansas Rule of Evidence 402 further provides that “[e]vidence which' is not relevant is not admissible.” 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. Ark, R. Evid. 403. However, the State is entitled to prove its case as conclusively as it can. Turner v. State, 2014 Ark. App. 428, at 3, 439 S.W.3d 88, 89. Merely cumulative evidence is not prejudicial, and corroborating evidence may withstand Rule 403’s balancing test. Id.
Pafford argues that the probative value of the photo was outweighed by the danger of unfair prejudice. The State asserts that the photo corroborated M.W.’s statement that he was sexually abused. We agree. Though most of the evidence in this case was inflammatory to a certain extent, the photo is relevant to bolster M.W.’s allegations and testimony; it helps prove his truthfulness. While the photo is shocking and prejudicial, it corroborated |1aM.W.’s testimony that Pafford used a pump, which made his penis swollen and purple. Notably,, the photo featured unique characteristics that M.W. authenticated.
Additionally, Pafford argues that the picture was introduced to show that he was engaged in a homosexual act with another man. We are not persuaded by this speculation, because the record is rife with. testimony from more than one witness who discussed Pafford’s sexuality. Overall, we cannot say the court abused its discretion in allowing this picture.
E. Ineffective Assistance of Counsel
For the final point on appeal, Pafford asserts two ineffective-assistance-of-coun-. sel claims. Particularly that (1) counsel should have objected to Crozier’s testimony about Greg Fitcher because it violated the Confrontation'Clause and (2) counsel failed to object and move for mistrial when prejudicial statements were made. In the interest of judicial economy, this court will review claims of counsel’s ineffectiveness on direct appeal provided that the allegation is raised before the circuit court (i.e., in a motion for new trial) and that the facts and circumstances surrounding the claim have been fully developed. See Dodson v. State, 326 Ark. 637, 642, 934 S.W.2d 198, 201 (1996).
We do not reverse a denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Harris v. State, 2017 Ark. App. 381, at 4, 526 S.W.3d 43, 47. A finding is clearly erroneous when, although there is 'evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction .that a mistake has been committed. Id.
1 uThe benchmark question to be resolved in judging a claim of ineffective assistance of counsel is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Norris v. State, 2013 Ark. 205, 427 S.W.3d 626. A Rule 37 petitioner’s ineffective-assistance-of-counsel claims are analyzed under the two-prong standard as set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6. Under the Strickland test, a claimant must show that counsel’s performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is unnecessary to examine both components of the inquiry if the petitioner fails to satisfy either requirement. See Pennington v. State, 2013 Ark. 39, 2013 WL 485660 (per curiam). A petitioner claiming ineffective assistance must first show that counsel made errors so serious that counsel was not functioning as. the “counsel” guaranteed to the petitioner by the Sixth Amendment to the United States Constitution. Walton v. State, 2013 Ark. 254, 2013 WL 2460191 (per curiam). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and an appellant has the burden of overcoming this presumption'by identifying specific acts or omissions of trial counsel that, when viewed from counsel’s perspective at the time of the trial, could hot have been the result of reasonable professional judgment Id.
I iiyln order to meet .the second prong of the test, a claimant, must show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Delamar v. State, 2011 Ark. 87, 2011 WL 693579 (per cu-riam). A reasonable probability is a probability sufficient to undermine, confidence in the outcome of the trial. Id.
F. Confrontation Clause
Pafford asserts that his counsel made a variety of hearsay objections during Crozier’s testimony concerning Fitch-er—whp was unavailable to testify because he died before trial—but that counsel failed to object on the basis that Crozier’s testimony violated . the Confrontation Clause. In a criminal prosecution, a defendant has a right to confront the witnesses against him or her. See, e.g., Brisher v. State, 2016 Ark. App. 488, 505 S.W.3d 223. For hearsay statements to be admissible against a defendant at a criminal trial, two separate requirements must be met. See Crawford v. Washington, 541 U.S. 36, 60, 124 S.Ct. 1354, 158 L.Ed.2d. 177 (2004) (noting statements- that fall under firmly rooted hearsay exceptions are not exempt from scrutiny under the Confrontation Clause). First, an exception to the general rule prohibiting hearsay must be demonstrated. Second, the admission of the hearsay cannot violate the defendant’s Sixth Amendment right “to be confronted with the witnesses against him.” U.S. Const. amend. 6.
Here, the Confrontation Clause was not at issue. Crozier testified that Greg Fitcher was one of his best friends and was the one who introduced him to Pafford. At one point, both Crozier and Fitcher lived with the Paffords. Crozier testified that a few times he would walk into a room and Fitcher and Pafford would be under the covers together. He | ^explained that while he never saw them masturbate each other, whenever he walked into a room they would stop and act guilty. Additionally, Crozier said that anytime Fitcher walked into a room and saw Pafford messing with him that Fitcher would push Crozier out of the way and “would take the grunt of the force.” Crozier explained that Pafford would make him and Fitcher participate in “masturbation contests.” He testified that he and Fitcher “cried on each other’s shoulders many nights,” but Crozier’s testimony did not include hearsay statements made by Fitch-er. Crozier testified to what he had seen and experienced personally; not what someone else had told him. Thus, Pafford’s trial counsel was under no obligation to make a Confrontation Clause objection because Crozier’s testimony did not repeat anything Fitcher had said.-
G. Motion for Mistrial
For the second ineffective assistance of counsel claim, Pafford asserts that in certain situations, a statement can be so prejudicial that a mistrial is the only remedy when the error cannot be cured by an instruction. Pafford points to Crozier’s testimony that alluded to the fact that there were other victims; for example, Crozier testified, “I’ve seen things happen with other people that will not testify against him,” and “Every person that I named has had something happen to them. They just do not want to be up here.” Harrelson, Pafford’s trial counsel, testified at the motion-for-new-trial-hearing that he did not object to these statements because he did not want to draw more attention to the fact that there were other victims. He noted that he did make some objections and approached the bench but that he thought it better strategy at times not to do so. This was not | ^unreasonable for counsel to do. Regardless, the record contains testimony from more than just the victim to corroborate the allegation, and Pafford fails to analyze how this prejudi-cially affected him. Thus, the circuit court properly found Harrelson’s conduct did not constitute ineffective assistance of counsel.
Affirmed.
Abramson and Brown, JJ., Agree.
. We note that we originally remanded this case to settle and supplement the record, and the deficiency has now been cured. See Pafford v. State, 2017 Ark. App. 281, 2017 WL 1731633. | [
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Wendell L. Griffen, Judge.
Leon Thomas Fusher appeals from a judgment awarding his ex-wife, appellee Shelly Ann Fusher, child support of $52,500, based on a $247,858.17 lump-sum malpractice settlement that he received. He argues that the circuit court erred in excluding evidence that he received the settlement as payment for pain, suffering, and disability, and evidence that one-half of the settlement was paid to his current wife for loss of consortium. Relatedly, he argues that the circuit court erred in counting the entire malpractice settlement as income for child-support purposes. We disagree and affirm the circuit court’s order.
The parties in this case were divorced in 2001, and appellant was ordered to pay child support for their two minor children. Appellee subsequently filed a motion to modify appellant’s child-support obligation, alleging that he had received a settlement in a lawsuit, which constituted a change in circumstances warranting a lump-sum payment of child support.
A hearing on appellee’s motion was held, during which appellant testified that he received a net settlement of $247,858. Appellant’s attorney conceded that the settlement was simply a lump-sum settlement that did not apportion damages for pain and suffering or future medical expenses “or anything else.” The circuit court rejected as irrelevant appellant’s numerous proffers of evidence to prove that the medical-malpractice settlement was not income but compensated him for pain, suffering, and disability; that his medical bills totaled approximately $644,000; that his current wife was required to sign the settlement release; that the settlement was paid jointly to him and his wife due to her loss of consortium; and that she received one-half of the proceeds.
The circuit court determined that the entire amount of the net settlement, $247,858, was income for child-support purposes. It awarded 21% of that amount, or $52,500, as a one-time child-support payment for the parties’ two children. Appellant filed a motion for reconsideration only of the court’s determination that the entire amount of the settlement was income for child-support purposes. He attached a copy of the settlement check showing that the check was made payable to him and his wife, and he requested that the court enter judgment for appellee in the amount of $26,250 (one-half of the judgment ordered). The circuit court summarily denied the motion, and this appeal from only the original judgment followed.
The issues in this case are, whether the circuit court erred in excluding the proffered evidence regarding the nature of the settlement and in determining that the entire amount of the settlement was income for child-support purposes. As these issues are closely related, we address them together.
Child-support cases are reviewed de novo on the record. See Cole v. Cole, 89 Ark. App. 134, 201 S.W.3d 21 (2005). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Id. When the amount of child support is at issue, we will not reverse the trial judge absent an abuse of discretion. Id.
Income for child-support purposes is defined by Administrative Order Number 10 as “any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest.” (Emphasis added.) The definition of income under Order No. 10 is intentionally broad and is designed to encompass the widest range of sources consistent with this State’s policy to broadly interpret income for the benefit of the child. See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002).
Sums paid due to money judgments are considered income for child-support purposes. See Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005) (awarding child support based on money judgments received in a malicious prosecution suit and assault suit); Stuart v. Stuart, 99 Ark. App. 358, 260 S.W.3d. 740 (2007) (holding that proceeds from a class-action medical-malpractice suit, when received, would constitute income for child-support purposes). Given these authorities, the circuit court here did not abuse its discretion in determining that the appellant’s net malpractice settlement was income for child-support purposes.
To the extent that appellant argues the malpractice-settlement proceeds should not be considered income because the money was paid to compensate for his disability, that argument fails because disability is expressly listed as a source of income in Order No. 10. Moreover, appellant seemingly concedes that whatever portion of the settlement that was not apportioned for loss of consortium is income for child-support purposes. Because appellant did not ask the circuit court to reconsider its finding that his portion of the settlement was income for child-support purposes, the real issue is whether the circuit court erred in excluding the proffered evidence that one-half of the settlement was paid for loss of consortium.
We agree that if any part of the settlement was paid for loss of consortium, it would have been error for the circuit court to base the child-support award on the entire settlement. Appellant testified, without objection, that his wife was required to sign the settlement documents. He also proffered additional evidence to prove that his wife was required to provide extensive care for him during his recovery; that the check was issued to both of them; and that he deposited one-half of the proceeds into his wife’s separate bank account.
We hold that the circuit court did not err in excluding the proffered evidence. In the absence of a settlement apportioning payment for loss of consortium, the proffered evidence did not have any tendency to prove that any portion of the settlement was issued for that element of damages. See Ark. R. Evid. 401. The settlement documents are not part of the record before this court, so we defer to the circuit court’s observations regarding the terms of the settlement. The circuit court observed, and appellant’s attorney conceded, that the settlement “agreed to settle a case for with [sic] no attribution, no injury award that sets amount of pain and suffering or future medical or anything else.” (Emphasis added.)
The circuit court also observed, without objection, that the “settlement documents” did not set forth specific elements of damage for which the settlement was made. Accordingly, the terms of the settlement belie appellant’s claim that any portion of the settlement was specifically based on his wife’s loss of consortium.
Affirmed.
Vaught, J., agrees.
Robbins, J., concurs.
In his brief, appellant requested oral argument, but none was scheduled because he failed to file a contemporaneous request, separate from his brief, with the Arkansas Supreme Court Clerk’s Office. See Ark. Sup. Ct. R. 5-1 (a).
The settlement check was addressed to appellant, his wife, and his attorney’s law firm, and was apparently deposited into the law firm’s trust account. The trust account ultimately issued the setdement check in the amount of $247,858.15 to appellant and his wife, with no explanation of the purpose of the check cited in the “for” blank. | [
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Larry D. Vaught, Judge.
This appeal is taken from the divorce decree ending the fifteen-year marriage of appellant Barbara Jenkins and appellee Timothy Jenkins. The decree incorporated a property-settlement agreement that was recited to a court reporter prior to trial. For reversal, appellant takes issue with the trial court’s ruling that the settlement agreement was binding and enforceable. She argues that the agreement should be construed under contract law; that there was no meeting of the minds; and that the Statute of Frauds required the agreement to be in writing. We reverse and remand.
The facts of this case are simple. Appellant filed an action for divorce on February 22, 2005. Appellee filed his answer and counterclaim on March 10, 2005. The parties, and their respective attorneys, appeared on August 25, 2005, for a scheduled deposition of appellee at the offices of appellant’s attorney, Harold King. However, instead of taking depositions, the parties began to negotiate a settlement of the divorce action. Appellant’s attorney proposed a settlement to the divorce. The same day, Mr. King recited the terms of the parties’ agreement to a certified court reporter.
The parties’ agreement was subsequently reduced to a writing prepared by Mr. King. The writing, dated September 20, 2005, purported to be the “1st ‘rough’ draft” of the agreement. And, indeed, there were several hand-written modifications to the “draft,” presumably (but not clearly) made by appellee. Further, the writing contained several additional terms of the settlement that were not recorded in the August 25 agreement. These additional terms included the parties’ proposed visitation for their minor children, the disposition of an investment account, and the decision to quit-claim deed several jointly owned properties. There was a final, written property-settlement agreement submitted to the trial court. However, this document was not signed by appellant.
On September 22, 2006, appellee filed a motion to enforce the parties’ property-settlement agreement (which he identified as the statements made on the record in the proceeding before the court reporter on August 25, 2005). Appellant responded to the motion alleging that the agreement was not enforceable because there was no mutual agreement; and no “signed writing establishing an agreement.” She further argued that because the agreement involved the transfer of real property the Statute of Frauds required that the settlement be in writing. The trial court rejected appellant’s position and concluded that the parties were bound by the oral agreement they had entered into on August 25, 2005. The court also recognized that the written recitation of the agreement varied in both terms and scope from the original oral agreement but concluded that such modifications “in no way invalidate [d]” the parties’ prior agreement. The court then entered a final divorce decree, incorporating the terms of the written document purporting to be a recitation of the prior oral agreement.
Appellant filed a notice of appeal, arguing that the trial court erred in its conclusion that the parties had previously entered into an enforceable settlement agreement because there was no signed writing and no meeting of the minds. We review these allegations of error using a de novo standard, and begin our legal analysis by examining the statutory rules relating to the enforcement of separation agreements. Arkansas Code Annotated section 9-12-313 (Repl. 2008) provides:
Courts of equity may enforce the performance of written agreements between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the property of either party, or that of his or her sureties, or by such other lawful ways and means, including equitable garnishments or contempt proceedings, as are in conformity with rules and practices of courts of equity.
(Emphasis added.) However, oral stipulations dictated in open court have the force and effect of a binding agreement. Bishop v. Bishop, 60 Ark. App. 164, 961 S.W.2d 770 (1998); Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988); Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983). But, in order to be bound by the oral stipulations, the parties affected by the stipulations must express their assent to the terms of the agreement in open court. See Baker v. Daves, 83 Ark. App. 145, 119 S.W.3d 53 (2003) (holding person not bound by agreement read into record without expressing assent in open court).
Here, the parties had no written agreement under which the trial court could order performance. The parties initial recitation of their agreement was unilateral and was not conducted in open court — appellant’s attorney outlined the general terms of the agreement to a court reporter, prior to the court hearing. Appellant never assented to the “oral stipulations” of the agreement in open court, and vigorously refuted the existence of an agreement at the hearing before the circuit judge. Therefore, the trial court erred in its conclusion that appellant was a party to a binding agreement.
Reversed and remanded.
Robbins and Griffen, JJ., agree. | [
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Sam Bird, Judge.
Patricia Kimbrell appeals a decision of the Workers’ Compensation Commission denying her benefits. An agreed upon record with an attached joint medical exhibit was submitted to the administrative law judge, without a hearing, on the sole issue of whether a compensable injury had been established by medical evidence supported by objective findings. The administrative law judge held that it had not. The Commission affirmed and adopted the decision of the law judge.
It was stipulated that appellant was an employee of the Arkansas Department of Health on July 17, 1997. Appellant contended that she had sustained a compensable injury to her back while sweeping and mopping under a bed in a patient’s home, as she was performing her duties as an “in-home service aid.” The employer, represented by its insurance carrier, the Arkansas Insurance Department, Public Employment Claims Division, claimed that appellant’s injury was not demonstrated by objective medical evidence.
The medical records indicate that appellant presented to her family physician, Dr. Victor S. Chu, at the Eagle Heights Clinic in Harrison, on July 17, 1997, complaining that she had hurt her back “while bending over doing something underneath a bed at Boone County Home Health.” An x-ray revealed “no evidence of any obvious deformity.” Appellant was diagnosed with “mus-culoskeletal back pain,” prescribed medication, and told to come back if necessary.
On July 24, appellant reported that her back was improving, and she began a course of physical therapy. An MRI performed on August 13, 1997, indicated “minimal changes of degenerative disc disease at L4-5 and L5-S1 limited to disc desiccation. There is no evidence of significant disc bulge or focal herniation.” An August 14 entry in the appellant’s progress record at Eagle Heights Clinic states that the patient was notified of her normal MRI and told to resume physical therapy three times a week for two weeks.
A September 15, 1997, letter from Dr. Carl M. Kendrick, an orthopedist in Fayetteville, concluded that appellant was having muscular back pain, that she had sustained a “lumbosacral strain,” and he prescribed continued physical therapy and walking.
Reports of Dr. William L. Money, of the Center for Pain Management at Washington Regional Medical Center in Fayette-ville, indicate that appellant had mild lumbar degenerative disease, and lumbar facet syndrome. He treated her with medication and injections.
The administrative law judge’s opinion reviewed the medical evidence, then stated:
[T]he medical evidence, supported by objective findings, fails to show that these degenerative problems, or any physical harm, were caused by the incident at work. The record shows that the claimant’s medical care is related to her subjective complaints and the existence of pre-existing pathology, but fails to demonstrate the existence of a compensable injury causing physical harm, as required by the Act.
As previously stated, the Commission affirmed and adopted the opinion of the law judge.
Arkansas Code Annotated section 11-9-102 (Repl. 1996) provides in pertinent part:
(5) (A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence;
(D) A compensable injury must be established by medical evidence, supported by “objective findings” as defined in § 11 — 9— 102(16).
(16)(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provider, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg-raising tests or range-of-motion tests shall not be considered objective findings.
Appellant cites Dr. Chu’s original observations that “palpation of back reveals palpable musculoskeletal tenderness, negative straight leg raise bilaterally,” and argues that palpable muscle spasms are an “objective finding.” Indeed, this court has held that muscle spasms constitute an objective finding, see Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998); High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998), and in University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), we approved the following definition of a muscle spasm:
1. An involuntary muscular contraction. ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.
Stedman’s Medical Dictionary 1304 (23d ed. 1976). Webster’s New Complete Medical Dictionary (1995) defines the word “spasm” as “1: an involuntary and abnormal contraction of muscle or muscle fibers or of a hollow organ (as the esophagus) that consists largely of involuntary muscle fibers 2: the state or condition of a muscle or organ affected with spasms.”
In the case at bar, however, Dr. Chu’s note does not state that he found muscle spasms. The language he used is muscle tenderness. The twenty-third edition of Stedman’s Medical Dictionary defines “tender” as “[s] ensitive, painful on pressure or contact,” and “tenderness” as “[t]he condition of being tender; painfulness to pressure or contact.” The word “tender” is defined in Webster’s New Complete Medical Dictionary (1995) as “sensitive to touch or palpation — tenderness.”
From these definitions it is obvious that a muscle spasm is not under the control of the patient, because involuntary muscle contractions are just that, involuntary. On the other hand, tender or tenderness is measured by the patient’s subjective reaction to stimuli, and can be controlled by the patient.
We affirm the Commission’s finding that appellant failed to demonstrate a compensable injury by objective medical evidence.
Affirmed.
Neal and Crabtree, JJ., agree. | [
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Terry Crabtree, Judge.
Patricia Patterson appeals the decision of the Workers’ Compensation Commission reversing the administrative law judge’s finding that she sustained a compensable bilateral knee injury as a result of rapid repetitive motion. Appellant argues that the Commission erred in finding: (1) that the activities performed were not rapid and repetitive; (2) that the work activities of the appellant were not the major cause of her gradual-onset injury; and (3) that there was no basis for finding that the testimony of the appellant and her corroborating witnesses was not credible. We agree and therefore reverse and remand the findings of the Workers’ Compensation Commission.
The appellant worked as a store representative for Frito Lay beginning in late November 1994. For a year prior to that, she worked as a swing store representative before her promotion to her current position. Goldie Powell, appellant’s supervisor, explained that a store representative has more overall responsibilities than a swing store representative. Appellant contends that she developed her bilateral knee problems as a result of her employment after her promotion in November 1994. She discontinued working in March of 1995 due to the problems she was experiencing with her knees and sought medical treatment for her knee conditions at that time. Although she was having problems with both knees, only the left knee is at issue here.
At the hearing held on June 27, 1997, appellant contended that her left knee problems resulted from rapid repetitive motion of her left knee and were therefore a compensable injury. Conversely, the appellee contended that appellant’s left knee problems were not compensable under Act 796. The full Commission found that the appellant did not meet all requirements for gradual-onset injuries. Such injuries are controlled by Ark. Code Ann. § 11-9-102(5)(A)(ii) (Supp. 1997), which states that an employee must prove by a preponderance of the evidence that she sustained internal or external damage to her body as a result of an injury that arose out of and in the course of employment, the employee must establish the compensability of a claim with medical evidence, and that evidence must be supported by objective findings. Arkansas Code Ann. § 11-9-102(5)(A)(ii) sets forth exceptions in which the employee must also prove that the “resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment.” Furthermore, Ark. Code Ann. § ll-9-102(5)(A)(ii)(a), the specific provision governing this claim, requires the appellant to prove that the injury was caused by “rapid repetitive motion.”
This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this Court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. This court will not reverse the Commission’s decision unless fair-minded persons considering the same facts could not have reached the same conclusion. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998). It is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). However, the Commission may not arbitrarily disregard any witness’s testimony. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted, and when it does so, its findings have the force and effect of a jury verdict. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). The Commission is not required to believe the testimony of the claimant or any other witness. The testimony of an interested party is always considered to be controverted. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). Even though the Commission is insulated to a certain degree from appellate review, its decisions are not insulated to the degree it would make appellate review meaningless. Jordan v. J.C. Penney Co., 57 Ark. App. 174, 944 S.W.2d 174 (1997). Furthermore, benefits are not always denied to a claimant who has been untruthful. Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987).
The appellant asserts that the Commission erred when it found that the appellant’s work activities were not “rapid and repetitive” as required by statute. The Commission evidently took the testimony of the appellant as true that she spent forty percent of her time on her knees moving back and forth stocking the lower shelves. However, because the appellant went to four different stores, the Commission concluded that she only spent ten percent of her time on her knees. This logic is flawed and there is no basis in the record for the conclusion reached by the Commission. The appellant and two other witnesses testified to a greater percentage of the time that the appellant was required to work on her knees. Even the sole witness for the appellee indicated a higher percentage. We are firmly convinced that this conclusion of the Commission was in error. Based on our opinion that the Commission’s determination that the appellant was not in a position putting pressure on her knees for more than ten percent of the time was error, we must now turn to whether the appellant’s movements were rapid and repetitive.
The Commission concluded that the appellant’s testimony concerning the number of back and forth movements was not credible, but even if it were, the Commission opined that the facts are more similar to the facts in Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 (1997) than in other cases, namely, Kildow v. Baldwin Piano & Organ, 58 Ark. App. 194, 948 S.W.2d 100 (1997) (reversed on other grounds Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998)), and Rudick v. Unifirst Corp., 60 Ark. App. 173, 962 S.W.2d 819(1998). The facts in the Lay case are dissimilar to the facts of this case. In Lay, the UPS driver had long periods of time that he had to drive between locations. Further, the appellant’s injury was to his elbow, which was not placed and used in an unusual position. While the appellant in this case had breaks in between the times that she was on her knees stocking the shelves, the times that she was on her knees she was, out of necessity, moving back and forth. Just as in Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996), we feel the Commission’s interpretation of what is rapid and repetitive is too restrictive. The Commission must consider the positioning of the part of the body as well as the number of movements the claimant has to undergo to determine if the movement is “rapid and repetitive.” In this case, the Commission’s analogy of the appellant’s movements to that of a person “standing on one’s feet taking small steps from side to side to side” is clearly not applicable to the facts of this case. While stepping from side to side on one’s feet is a normal function, resting on one’s knees moving back and forth is not a normal function of the knee.
We are concerned with the statement in the Commission’s opinion that the claimant’s testimony is never considered uncontroverted (citing Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994); Lambert v. Gerbert Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985)). We recognize that we have held on numerous occasions that a party’s testimony is never considered uncontroverted. However, the Commission’s opinion seems to indicate that only the claimant’s testimony is never considered uncontroverted. We would point out that Act 796 of 1993 requires that neither party be given the benefit of doubt. To consider one party’s testimony always controverted without considering the same for the opposing party would fly in the face of this clear mandate.
Considering the flawed logic upon which the Commission based its opinion as to whether the appellant’s movements were rapid and repetitive, we find that fair-minded people could not reach the same conclusion as the Commission and reverse the Commission’s decision as to the first issue.
The appellant also asserts that the Commission erred in finding that the appellant failed to prove that the work activities were the major cause of her gradual-onset injury. The Commission stated in its opinion, “Rather, all opinions addressing causation refer directly to claimant’s work of standing on concrete floors 12 to 15 hours per day.”
The appellant sought treatment from Charles W. Himmler on March 24, 1995. Dr. Himmler noted that the appellant suffered from rheumatoid arthritis and prescribed anti-inflammatory medication as well as rest for two weeks. In a follow-up letter of April 27, 1995, Dr. Himmler again referred to rheumatoid disease and opined that the arthritis flared up because of excessive work hours. On June 23, 1995, Dr. Himmler noted that the appellant’s knees were worse and that the original diagnosis of rheumatoid arthritis might have been incorrect. He also noted that there was no other joint involvement and that the problem might be overuse syndrome.
On August 8, 1995, the appellant consulted Dr. Abraham. Dr. Abraham agreed with Dr. Himmler that the appellant suffered from overuse syndrome and noted that the problem might have been triggered by her excessive standing on concrete floors.
Dr. Martin saw the appellant on October 24, 1995. Dr. Martin stated in a report that while the appellant was working for Frito Lay, she was required to do a lot of walking, standing and climbing. He also noted that the appellant’s pain was much worse when she would get up from a sitting position with squatting, standing or stair climbing.
In his deposition, Dr. Martin testified as to the nature of the appellant’s injury:
She had chondrosis, which means that the cartilage is disrupted, just on the back of the kneecap. The kneecap articulates with the end of the femur on the thigh bone, and anytime the knee is bent there is an increasing pressure on the knee cap at that articulation, sometimes a force up to six times the body weight just across the joint. The cartilage on the kneecap had cracks in it and was roughened up. It almost looks like crab meat that is hanging on the back side of the kneecap as opposed to the smooth cartilage surface. . . .The condition was chondrosis, which is a degeneration of sorts of the cartilage on the back of the kneecap due to wear and tear.
Sometimes we see this condition as a result of normal activities, but most often it’s overuse, for example someone training for a marathon or someone working on weights and doing too many squats or just too many stairs, too many up-and-down motions, squatting.
When asked about causation, Dr. Martin testified that he could state with a reasonable degree of medical certainty that it “would be her work and the squatting activities that she was doing at the time.”
We well understand that the Commission makes determinations of credibility. When the determination must be made between competing medical opinions, the Commission decides which to believe. However, in this case, the medical opinions are not opposed. Dr. Himmler initially diagnosed the appellant as suffering from arthritis but later determined that because the appellant’s problem did not have other joint involvement, he questioned that diagnosis and felt it was more of an overuse syndrome. Later, this was substantiated by Dr. Abraham. The appellant was finally seen by Dr. Martin, who performed surgery on the appellant. He clearly stated that the overuse was due to activity that involved bending the knee. The medical opinions are not in conflict but demonstrate the development of a diagnosis that was appropriate for the appellant. There is no testimony whatsoever that Dr. Martin’s diagnosis and treatment was incorrect. It is notable that Dr. Martin testified that the pressure on the knee where it articulated with the thigh femur was often six times greater than the person’s body weight and that the injury was at the knee where the patella is next to the thigh femur. It is abundantly clear that the injury was a direct result of the appellant’s work activities. We do not believe that fair-minded people could reach the same decision as the Commission on the second issue, and therefore reverse.
The final issue argued by the appellant is that there is no basis for the Commission’s finding that the appellant and the appellant’s witnesses were not credible. We agree. Again, we are well aware of the long-standing rule of law that the determination of the credibility of the witnesses and the weight given their testimony are matters exclusively within the province of the Commission. Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998). However, the Commission is not totally insulated from judicial review on credibility issues. Jordan v. J.C. Penney Co., 57 Ark. App. 174, 944 S.W.2d 547 (1997). The Commission may not arbitrarily disregard the testimony of any witness. See Boyd v. Dana Corp., 62 Ark. App. 78, 966 S.W.2d 946 (1998). Where, as here, the appellant alleges that the Commission arbitrarily disregarded the testimony of witnesses, there must be some articulated fact in the Commission’s opinion that supports its findings. In this case, there is none. The Commission merely stated that it had reviewed the record and determined that the appellant lacked credibility.
The Commission is limited to reviewing the record and, thus, the demeanor of the witnesses is not an issue. The Commission must glean from the record an indicia of credibility. Because it is limited to the record, the Commission must be able to clearly state the reasons for its determination of credibility, especially when that determination is contrary to the findings of the ALJ who actually observed the witnesses. We cannot discern from the abstract any indication that the witnesses were untruthful. In fact, the contrary is true. The testimony was reasonably consistent throughout, including the testimony of the sole witness for the appellee. Due to the fact that the Commission failed to state its reasons for its determination that the appellant lacked credibility, and the lack of evidence in the record to support such a finding, we conclude that the Commission arbitrarily disregarded the testimony of the witnesses and reached its conclusion based on speculation and conjecture.
Even if we were to conclude, which we do not, that the Commission properly found that the appellant lacked credibility, that would not end our inquiry. We must then look to the remaining evidence to see if the decision of the Commission is supported by substantial evidence and whether fair-minded people could reach the same decision as the Commission. Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996). We cannot conclude that they would. The remaining evidence would not support the decision of the Commission. As discussed supra, the Commission’s analysis is flawed regarding its interpretation of whether the work activities of the appellant were rapid and repetitive and whether the injury was supported by objective medical findings. Considering the remaining evidence, it is clear that there is insufficient evidence to support the Commission’s decision and that fair-minded people could not reach the same result.
We reverse the decision of the Commission and remand for an award of benefits.
Griffen and Neal, JJ., agree.
This standard of review has been challenged several times but has been left unresolved by the Arkansas Supreme Court because the issue was not raised before the Commission. See Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991).
The fact that the ALJ’s decision is not to be considered, even in regard to the credibility of witnesses, may very well be a violation of due process of law. However, we do not consider that issue because it was not raised below. See Scarbrough, supra.
Obviously, if the claimant was untruthful regarding one of the essential elements of the claim, the claimant would not be able to meet his burden of proof | [
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John B. Robbins, Judge.
This is the second appeal in this workers’ compensation case. In the first appeal, we reversed and remanded the Commission’s decision denying compensability for a mental injury, and instructed the Commission to address appellant Linda Parson’s claim that she suffered a closed-head physical injury. See Parson v. Arkansas Methodist Hospital, CA 06-1223 (Ark. App. June 20, 2007) (unpublished). In that opinion, we advised the Commission to analyze the claim under Wentz v. Service Master, 75 Ark. App. 296, 57 S.W.3d 753 (2001), and Watson v. Tayco, Inc., 79 Ark. App. 250, 86 S.W.3d 18 (2002). On remand, the Commission found that Ms. Parson failed to establish a compensable physical injury to her brain, and Ms. Parson again appeals. In this appeal, Ms. Parson argues that the Commission erred in fading to find that she sustained a physical injury to her brain, and erred in fading to award related medical benefits as wed as benefits for a permanent impairment and permanent partial wage-loss disability. We affirm.
The standard of review for appeals from the Workers’ Compensation Commission is well-settled. On appeal, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission’s decision displays a substantial basis for the denial of relief. Id. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Id.
As we recited in our initial opinion, appellant Linda Parson sustained an admittedly compensable injury while working as a nurse for appellee Arkansas Methodist Hospital on October 29, 2001. On that date, she fell and hit her head on a desk, resulting in bruising and black eyes. The appellee provided medical treatment for Ms. Parson’s injuries through 2004, but subsequently controverted her claim that she suffered a brain injury and was entitled to permanent disability benefits.
Ms. Parson testified that she continues to suffer from memory loss and attention-span problems as a result of the accident. She also stated that she has experienced near-syncope episodes and that she has headaches every day, which she did not have prior to October 29, 2001. Ms. Parson indicated that she can no longer perform her duties as a nurse due to her memory problems.
Dr. Demetrius Spanos, a neurologist, has been treating Ms. Parson since February 2002. Dr. Spanos assigned a 35% permanent impairment rating based on Ms. Parson’s cognitive decline, and an additional 35% for her headaches. Dr. Spanos explained that the cognitive decline was measured by two neuropsychological examinations conducted by Dr. Dan Johnson in 2002 and 2004. Dr. Spanos testified that “each test is three and one half hours long and I don’t understand how they do it because I don’t perform them, but there is a validity portion to make sure the patient is not malingering or trying to fake symptoms.” The tests measure such things as verbal skills, memory skills, and the intelligence quotient, which are evaluated through a question-and-answer session. Dr. Spanos stated that these neuropsychological tests “are so lengthy and so convoluted in the way they are done that I accept them as objective.” Dr. Spanos conceded that “obviously [Dr. Johnson] can be fooled” but thought it would be hard for a patient to fool him.
An MRI of the brain was performed subsequent to Ms. Parson’s accident, and Dr. Spanos acknowledged that the MRI results did not show an objective sign of a traumatic injury. He further testified that an EEG test revealed no abnormalities. However, Dr. Spanos explained:
Just because there was no abnormal result shown on the MRI does not mean there was no injury to the brain or nervous system. Closed head injuries often show normal results .... MRI’s and EEG’s can be normal and yet the patient has symptoms from the head injury. There is some semblance of taking the patient at face value.
Arkansas Code Annotated section ll-9-102(4)(D) (Supp. 2007) provides, “A compensable injury must be established by medical evidence supported by objective findings as defined in subdivision (16) of this section.” Objective findings are defined as “those findings which cannot come under the voluntary control of the patient.” Ark. Code Ann. § 11-9-102(16)(A)(i) (Supp. 2007). The Commission found that Ms. Parson failed to prove compens-ability for a brain injury because there were no objective findings to support the injury as required by statute. Consistent with our directive on remand, the Commission analyzed this case under Wentz, supra, and Watson, supra, and noted our holding in Watson that neuropsychological testing standing alone is not sufficient evidence of a brain injury; there must be some other objective evidence of such an injury. Because the two neuropsychological tests performed by Dr. Johnson do not constitute objective findings under our Watson holding, and there were no other objective findings to support the existence of a brain injury, the Commission denied compensability.
The Commission’s decision further denied Ms. Parson’s claim for any permanent anatomical impairment, finding that she failed to satisfy the provisions of Ark. Code Ann. § 11 — 9— 704(c)(1)(B) (Repl. 2002), which provides, “Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” Because Ms. Parson failed to prove that she sustained any com-pensable permanent anatomical impairment, the Commission accordingly found that she was not entitled to any wage-loss disability. See Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000).
On appeal, Ms. Parson argues that the Commission erred in finding that she failed to establish a compensable brain injury. Ms. Parson submits that, contrary to the Commission’s decision, there were objective findings to support her claim. She notes that the original emergency-room report documented a soft-tissue injury to the head and knees, resulting in a hematoma to the left forehead and facial contusions. These are objective findings because they cannot come under the voluntary control of the patient. Ms. Parson further relies on the medical diagnosis that she suffered a concussion as an objective finding to support an injury. She asserts that this case is more like Wentz, supra, than Watson, supra. In Wentz, we held that there were objective findings to support a compensable brain injury beyond the results of the neuropsycho-logical testing, and indicated that the diagnosis of a concussion was among those objective findings. In the present case, Ms. Parson argues that reasonable minds could only conclude that she suffered a compensable brain injury in light of the objective findings and results of the neuropsychological tests.
We hold that the Commission committed no error in denying appellant’s claim for a compensable closed-head injury. Neuropsychological testing, without more, is not adequate to establish an organic brain injury by “objective findings” within the meaning of Ark. Code Ann. § 11-9-102(4)(D). Rippe v. Delbert Hooten Logging, 100 Ark. App. 227, 266 S.W.3d 217 (2007) (citing Watson, supra). In the present case, the facial hematoma (swelling containing blood) and contusions (bruising) are undisputedly objective findings, but they only support the injury to appellant’s head for which the appellees have already paid compensation. These findings are not sufficient to support a compensable injury to appellant’s brain. Ms. Parson correctly asserts that she was also diagnosed with a concussion after the accident, but such a diagnosis without more does not constitute an objective finding. A concussion is “a jarring'injury of the brain resulting in disturbance of cerebral function.” Webster’s Ninth New Collegiate Dictionary 273 (1991). There was nothing about Ms. Parson’s diagnosis ofa concussion to demonstrate that the diagnosis was based on anything other than subjective criteria. The evidence suggesting that Ms. Parson sustained a closed-head injury was found in the neuropsychological testing and appellant’s own testimony regarding her symptoms, but because there was no other objective evidence establishing a brain injury, we hold that there was a substantial basis for the Commission’s denial of compensability. Because our decision is contrary to the holding in Wentz, Wentz is overruled.
Ms. Parson also argues on appeal that the Commission erred in failing to award benefits for a permanent anatomical impairment and permanent wage-loss disability. However, even had Ms. Parson proved a compensable brain injury, which she did not, the Commission correctly ruled that she failed to support any permanent impairment with objective findings as required by Ark. Code Ann. § ll-9-704(c)(l)(B). And wage-loss disability cannot be awarded without first establishing the existence of a permanent impairment. See Wal-Mart Stores, Inc. v. Connell, supra.
Finally, Ms. Parson urges this court to credit Dr. Spanos’s opinions addressing compensability and permanent impairment because they were stated within a reasonable degree of medical certainty, which is a requirement pursuant to Ark. Code Ann. § 11-9-102(16)(B) (Supp. 2007). However, compensation must be denied if the claimant fails to prove any of the elements required for establishing a compensable injury. See Rippe, supra. Because Ms. Parson failed to establish a compensable injury with medical evidence supported by objective findings, it is immaterial whether Dr. Spanos’s opinions were stated within a reasonable degree of medical certainty. As appellant notes, in Wentz, supra, we did state in our opinion that objective findings are also defined as medical opinions stated with a reasonable degree of medical certainty. However, these are clearly two distinct considerations in workers’ compensation law, and our statement in Wentz to the contrary was erroneous.
As we indicated under similar facts in Rippe, supra, we recognize appellant’s dilemma in attempting to prove objectively a condition that is undetectable with objective tests. However, Ark. Code Ann. § 11-9-102(4)(D) requires that a compensable injury be established by medical evidence supported by objective find ings, and we see no way for this dilemma to be addressed other than by legislative action.
Affirmed.
Gladwin, Bird, Glover, Vaught and Baker, JJ., agree. | [
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David M. Glover, Judge.
Appellants James and Holly Knox appeal from a summary-judgment order that dismissed their claims against appellee Regions Bank for breach of fiduciary duty, breach of contract, and interference with contractual relations. Appellants contend that the circuit court erred in granting summary judgment because there are issues of material fact to be tried as to each claim. We affirm in part and reverse and remand in part.
Factual Background
On December 18, 2001, appellants contracted with Michael Stewart, d/b/a Stewart Construction, to build a home. The price was to be $120,000. Appellants obtained a construction loan from Regions Bank up to the amount of $128,560. The construction-loan agreement, which is dated January 16, 2002, contained the following provisions relevant to this appeal:
DISBURSEMENT OF LOAN FUNDS. The following provisions relate to the disbursement of funds from the Loan Fund.
Application for Advances. Application shall be stated on a standard AIA payment request form or other form approved by [Regions], executed by [appellants], and supported by such evidence as [Regions] shall reasonably require. [Appellants] shall apply for disbursement with respect to work actually done by [Stewart] and for materials and equipment actually incorporated into the Project. Each application for an Advance shall be deemed a certification of [appellants] that as of the date of such application, all representations contained in the Agreement are true and correct, and that [appellants are] in compliance with all of the provisions of this Agreement.
Payments. At the sole option of [Regions], Advances may be paid in the joint names of [appellants] and [Stewart], subcontractor^), or suppfier(s) in payment of sums due under the Construction Contract. At its sole option, [Regions] may directly pay [Stewart] and any subcontractor^) or other parties the sums due under the Construction Contract. [Appellants] appoint [Regions] as [their] attorney-in-fact to make such payments. This power shall be deemed coupled with an interest, shall be irrevocable, and shall survive an Event of Default under this Agreement.
Construction began shortly after the construction-loan agreement was signed. In May 2002, appellants received a telephone call from Chris Roberts, a Regions vice president, informing them that the loan was overdrawn by $10,615.16. Sometime thereafter, Stewart ceased work on the project.
Appellants filed suit against Regions and Stewart, alleging that Regions breached the construction-loan agreement by disbursing funds directly to Stewart without a request for payment; that Regions assumed a fiduciary duty toward them and breached that duty by failing to complete the house after Stewart abandoned the project; and that Regions interfered with their contract with Stewart because Stewart ceased work after being informed by Regions that the loan was overdrawn and there would be no more money to proceed with construction. Regions denied the material allegations of the complaint, as amended.
On January 29, 2004, Regions filed a counterclaim seeking foreclosure of its mortgage on the property. The circuit court granted summary judgment to Regions on its counterclaim and, on March 17, 2006, entered a foreclosure decree. The property was sold on April 4, 2006, and the court entered an order confirming the sale on that date. Appellants do not appeal from the foreclosure order or the order confirming the sale.
In addition, Regions also filed a motion for summary judgment on appellants’ complaint, as amended. In its supporting brief, Regions asserted that it did not owe appellants any fiduciary duty because the relationship between it and appellants was merely a debtor-creditor relationship. Regions also argued that appellants’ claim for breach of contract was not based on the construction-loan agreement provision regarding application for advances of funds but rather on the fact that Regions paid Stewart directly. Regions argued that the construction-loan agreement specifically gave it the right to do so and, as a result, Regions could not be in breach of the contract for paying Stewart directly. As to the tortious-interference claim, Regions argued that it was entitled to summary judgment because appellants realized that the loan from Regions would be insufficient to pay for both the land and the construction of the home.
Appellants responded by arguing that the provision regarding applications for advances must be read with the provision allowing Regions to make payments directly to Stewart. They also asserted that Regions assumed a fiduciary relationship by paying the money directly to Stewart.
On February 22, 2006, the circuit court issued a letter opinion in which it granted Regions’s motion for summary judgment on appellants’ amended complaint. The court found that there was no basis for the breach-of-fiduciary claim as there was no allegation that would create a fiduciary relationship beyond the construction-loan agreement. The court then addressed the breach-of-contract claim and found that there was no breach because Regions was allowed to pay Stewart directly. The court issued a second letter opinion clarifying its intention to grant summary judgment in favor of Regions on all of appellants’ claims. The court’s order granting summary judgment was entered on March 22, 2006. After this court dismissed appellants’ attempted appeal, see Knox v. Regions Bank, No. CA 06-1198 (Ark. App. Sept. 12, 2007) (unpublished), the circuit court entered a final order that incorporated the prior letter opinions and order granting summary judgment. This appeal followed.
Standard of Review
A motion for summary judgment should be granted when, in light of the pleading, and other documents before the circuit court, there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56(c). When reviewing whether a motion for summary judgment should have been granted, this court determines whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. at 127, 251 S.W.3d at 239. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id.
Arguments on Appeal
Appellants first argue that the circuit court erred in granting summary judgment on their breach-of-contract claim. The court ruled that Regions did not breach the contract because it had the contractual right to pay Stewart directly. We hold that the court erred in granting summary judgment.
Appellants’ argument is not, as Regions argues, that Regions breached the construction-loan agreement by paying the funds directly to Stewart. Rather, the argument is that Regions breached the contract by paying the funds without first requiring that appellants execute an application for the advance, resulting in appellants being unable to monitor the progress of the construction and in Stewart’s being paid for more work than he performed. Regions did not address appellants’ breach-of-contract claim at the hearing on the motion for summary judgment.
Regions’s argument that it was entitled to summary judgment because the construction-loan agreement allowed it to pay Stewart directly is overbroad and ignores the provision requiring an application for the advance to be made by appellants. Regardless of whether Regions could pay Stewart directly, it still needed a request for an advance in order to know when to make the payments to Stewart. Once a request for an advance was made, Regions then had the discretion under the contract to make the payment directly to Stewart. 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. Byme, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006). The circuit court’s conclusion that Regions was entitled to summary judgment on appellants’ breach-of-contract claim ignored the provision regarding requesting advances.
Appellants offered proof to support their claim that Regions breached the contract by failing to require an application for advances to be made. Chris Roberts, Regions’s vice president, testified in his deposition that there was no request by appellants to make disbursements from the loan funds. By example, copies of the disbursement checks indicate that, among them, Regions paid $5,533.89 on February 11, 2002, and $8,549.06 on February 25, 2002. Regarding these particular payments, Roberts testified that there was no request for either payment to be made but that there was an inspection sheet showing the work done to date. This testimony establishes that Regions disbursed money without a request from appellants and creates a factual issue that precludes entry of summary judgment in Regions’s favor.
In their second point, appellants argue that the circuit court erred in granting summary judgment to Regions on their claim that Regions breached its fiduciary duty to them by making payments directly to Stewart. In response, Regions argues that there is nothing to show that a fiduciary relationship was created between it and appellants.
Ordinarily, the relationship between a bank and its customer is one of debtor and creditor. Mans v. Peoples Bank, 340 Ark. 518, 10 S.W.3d 885 (2000). For a fiduciary relationship to exist, our supreme court has emphasized the necessity of factual underpinnings to establish a relationship of trust between a bank and its customers. Id. at 526,10 S.W.3d at 889. Regions argues that there is no provision or facts creating a fiduciary relationship between it and appellants. This argument is wrong. The construction-loan contract itself created a fiduciary relationship between Regions and appellants because the construction-loan agreement appointed Regions as appellants’ attorney-in-fact with respect to Regions’s making payments directly to Stewart. A person who holds power of attorney is an agent, and it has long been recognized that a fiduciary relationship exists between principal and agent in respect to matters within the scope of the agency. Dent v. Wright, 322 Ark. 256, 909 S.W.2d 302 (1995); Yahraus v. Cont’l Oil Co., 218 Ark. 872, 239 S.W.2d 594 (1951). The circuit court erred in granting summary judgment because the agreement itself created that relationship.
For their third point, appellants assert that the circuit court erred in granting Regions summary judgment on their claim that Regions tortiously interfered with their contractual expectations that Stewart would construct their home. We disagree. The elements of tortious interference have been well developed by the Arkansas Supreme Court and include: (1) the existence of a valid contractual relationship or a business expectancy; (2) the defendant’s knowledge of the relationship or expectancy; (3) intentional interference by the defendant that induces or causes a breach or termination of the relationship or expectancy; (4) resultant damage to the party whose relationship or expectancy has been disrupted; (5) improper conduct on the part of the defendant. Vowell v. Fairfield Bay Cmty. Club, Inc., 346 Ark. 270, 58 S.W.3d 324 (2001).
The summary-judgment proof on this issue shows that Michael Stewart learned that the loan was overdrawn in a May 2002 joint meeting with Chris Roberts and appellants. James Knox testified that he and his wife knew that they would have to come up with approximately $20,000 to $22,000 to complete the project. Roberts testified that $32,000 of the funds from the construction loan was used to pay for the land. He denied that he told Stewart that there was no more money from the loan. He also testified that he and Stewart had a conversation after the May meeting where Stewart said that he underbid the contract. Stewart testified that he knew that appellants had other funds available to pay for the shop and that he worked on the project for another week or two until appellants told him that they would not pay any more money. He also denied telling appellants that he would not finish the project.
The circuit court properly granted summary judgment on this point because appellants failed to offer any proof that Stewart ceased work upon learning that there were no more loan funds available. Stewart testified that he stopped working only after appellants repudiated the contract by telling him that they would make no further payments. When a party to a contract has, either by words or conduct, definitely manifested an intention not to perform, the other party may treat the contract as ended. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). Here, Stewart testified that he continued to work until appellants told him there would be no more payments. Appellants offered no proof to the contrary. Therefore, summary judgment was proper because appellants cannot prove causation, an essential element of their claim. See Allen v. Allison, 356 Ark. 403, 155 S.W.3d 682 (2004).
Affirmed in part, reversed and remanded in part.
Pittman, C.J., and Gladwin, J., agree.
By separate contract executed on the same date, Stewart agreed to construct a shop for appellants for $11,600.
Appellants also amended their complaint to allege that Regions and Stewart conspired against them and that their conduct was outrageous, but they do not appeal the circuit court’s dismissal of those claims.
The circuit court did not specifically address the tortious-interference claim in its letter opinions, other than to announce its intention to grant summary judgment to Regions on all claims. In its order, the court stated that it was granting the motion on the tortious-interference claim “for the reasons argued by Regions in its motion for summary judgment and at the hearing.” | [
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John Mauzy Pittman, Chief Judge.
Appellee filed a complaint praying for a decree of divorce from appellant and stating that there were unspecified issues regarding marital property and debt to be adjudicated. Appellant filed an untimely answer. A hearing was scheduled, at which appellant appeared. Upon appellee’s motion, a judgment of default was entered on the day of the hearing. However, although appellant was present at that hearing, the trial judge denied his request to cross-examine appellee and submit evidence relevant to the issues of marital property and debt. After entry of the default judgment, appellant filed a motion to vacate on the grounds that the trial court improperly refused to permit him to present evidence and cross-examine appellee on the issue of damages. The trial court denied the motion. On appeal, appellant argues that the trial court erred in so doing. We agree, and we reverse and remand.
Initially, we note that appellant’s motion to vacate was nominally based on Ark. R. Civ. P. 60. Appellee argues that the motion was of no effect because Ark. R. Civ. P. 55(c) is the only method for setting aside a default judgment. We do not agree that the motion was without effect. Although styled as a motion to vacate pursuant to Rule 60, appellant’s motion expressly stated that he did not wish to set aside the judgment of divorce, but instead sought only to vacate the judgment “as to all issues except jurisdiction and grounds” and “hold a hearing wherein [both parties] may present evidence as to those vacated issues subject to cross-examination by each other.” In effect, appellant was not seeking to have the default judgment set aside, but instead merely requested a new trial on the issues relating to damages because he had not been allowed to participate in the trial of those issues at the original hearing.
Appellant was entitled to participate in the hearing with respect to the amount of the monetary award sought by appellee. In Arkansas, a default judgment establishes the liability, but not the amount of damages. A hearing is required to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). Except in cases where the claim is for a sum certain, where the party against whom judgment by default is sought has appeared in the action, default judgment may be entered by the court only after the defaulting party is given notice of a hearing on the issue of damages. Ark. R. Civ. P. 55(b). An “appearance” under this rule is any action on the part of a defendant, except to object to jurisdiction, that recognizes the case as in court. Trelfa v. Simmons First Bank, 98 Ark. App. 287, 254 S.W.3d 775 (2007).
Here, appellant’s answer, although untimely, recognized the case as being in court and indicated a desire to defend, and therefore constituted an “appearance” for purposes of Rule 55(b). See United States v. Time Equipment Rental & Sales, Inc., 983 F.2d 128, 130 (8th Cir. 1993). Furthermore, in cases where judgment is entered by default, a party is expressly precluded from obtaining any relief not demanded in his pleadings. Ark. R. Civ. P. 54(c). Here, the only relief requested by appellee was a decree of divorce and an adjudication of marital property and debt; no amount was specified. Thus, the marital property and debt award necessarily exceeded in amount that which was prayed for in the demand for judgment. We recently held that it was an abuse of discretion for a trial court to refuse to permit a defendant in default from offering a defense as to damages when the defaulting defendant did not respond to the complaint but did appear at the hearing on damages. Brooks v. Farmers Bank and Trust Co., 101 Ark. App. 359, 276 S.W.3d 727 (2008). We hold that the trial judge abused her discretion by refusing to allow appellant, who had appeared, to present a defense to the property division and debt claims, and we reverse and remand for retrial of those issues.
Reversed and remanded.
Marshall and Heffley, JJ., agree. | [
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Larry Vaught, Judge.
This is an appeal from an order granting appellee Barbara Billingsley a judgment for past-due child support owed by appellant Terry Jones. On appeal, appellant argues that the trial court erred (1) in denying a motion to transfer to the proper court where there was a previous order of transfer in effect, and (2) in granting a judgment against appellant for past-due child support where his sole source of income was supplemental security income (SSI) from the Social Security Administration. We affirm.
On July 10, 1995, Judge Stephen Choate of the Independence County Chancery Court ordered that appellant pay $112.70 per month in child support to appellee, beginning in July 1995. The child support was based on appellant’s monthly $451 SSI check. Appellant filed a timely motion to vacate that order on the ground that the order violated federal law and was inconsistent with Arkansas guidelines. We assume that the motion was deemed denied because no order appears in the record, and appellant did not file an appeal.
On April 29, 2003, appellee filed a petition for judgment alleging that appellant had not paid any child support and was in arrears in the amount of $10,593.80. The case was assigned to Judge Harkey’s court. On June 6, 2003, appellant filed a motion to transfer the case to Judge Choate’s court on the basis that the parties had been before Judge Choate on numerous occasions, that he was familiar with the parties, and that a transfer would be in the interest of judicial economy. Appellee responded that the action was a civil action for a money judgment, that transfer would not be in the interest of judicial economy, that the issue was simple, and that there was no reason to transfer the case. On August 29, 2003, appellant filed a counter-complaint, alleging that SSI is not subject to collection of child support and that he was entitled to reimbursement of any funds taken from him since the date that he was approved for SSI.
The trial court entered an order granting appellee judgment for $10,816 past-due child support, plus interest in the amount of $4,867.20. The court found that appellant’s defense that “[SSI] income is not subject to the collection of support” was “untenable.” The trial court also ordered that appellant was liable for July 2003 and August 2003 child support, which amounted to $225.40. The total amount of child-support arrearages and interest was $15,908.60. The court also awarded appellee an attorney’s fee in the amount of $1500. The court noted that although the case was submitted on appellee’s motion for judgment on the pleadings, appellant had the opportunity to offer evidence in court, but declined to do so. In addition, the trial court denied appellant’s motion to transfer and his counterclaim. Appellant filed a timely notice of appeal.
Appellant first contends that the trial court erred in denying the motion to transfer the case from Judge Harkey’s division to Judge Choate’s division. This argument is based on the fact that “Chancellor Carl McSpadden entered an order on December 5, 1991, transferring this case to . . . the court of Judge Stephen Choate.” Therefore, appellant suggests that the present case was improperly before Judge Harkey, and thus the motion to transfer should have been granted.
The transfer order to which appellant refers is not in the addendum. The order is, however, contained in the record, and it merely states, “Comes now the court and for good cause shown transfers this case to the court of Honorable Stephen Choate where all matters of custody may be decided as to the child of the marriage, subject to Judge Choate’s approval to transfer.” At the hearing below, appellant’s counsel argued that the case should be transferred because of this order and because Judge Choate had handled the case for twelve years and was familiar with the parties. Appellee’s counsel responded that it was a simple case with one issue — whether appellant owed child support pursuant to a court order. Counsel for appellee further added that appellant admitted in request for admissions that he had paid no support. Judge Harkey apparently agreed with appellee and denied the motion to transfer.
The standard of review on appeal of a denial of a case-transfer request is the same as in cases of judicial disqualification, which is whether the trial judge abused his discretion. Osborne v. Power, 318 Ark. 858, 865 S.W.2d 635 (1994) (setting forth the standard of review in a judicial disqualification case). Because this was a one-issue case, which was tried on the pleadings and did not involve child custody, we cannot say that the trial judge abused his discretion in denying the motion to transfer.
For his second point, appellant contends that the trial court erred in awarding appellee a judgment for past-due child support because his sole source of income was SSI benefits. In support of this argument he cites Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000). The Davis case involved an appeal from the trial court’s order of child support that was based on appellant’s SSI income. The supreme court reversed the court of appeals decision holding that appellant’s SSI income was income for purposes of child-support and subject to child-support payments. The supreme court stated that although SSI falls within the definition of income for child-support purposes, it is not subject to state court jurisdiction. Ultimately, the supreme court held that Arkansas courts cannot order child-support payments based on income from federal SSI-disability benefits.
Here, the order of support was made in 1995 and entered in 1996, prior to the ruling in Davis, supra. Appellee argues that appellant made no motion to modify the child-support order and that Ark. Code Ann. § 9-14-234 (Repl. 2002) provides that a support order shall be a final judgment subject to writ of garnishment or execution as to any payment accrued until the time either party moves to alter or modify the order. Here, appellant has filed no motion to modify the 1995/1996 order on the basis that Davis, supra, prohibits child-support payments based upon income from SSI.
Before a child-support obligation can be modified, it is the burden of the party seeking the modification to show that there has been a change in circumstances. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998). One of the considerations in determining whether a modification is warranted is a change in income of a party. Id. Because Ark. Code Ann. §§ 9-12-314 (Repl. 2002) and 9-14-234 specifically provide that a child-support decree shall be a final judgment until either party files a motion to modify such decree, see Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993), the child-support order at issue remained in effect at the time of the hearing because there had been no filing of a motion to modify. Accordingly, we hold that the trial court did not err in awarding appellee the judgment for past-due child support.
Affirmed.
Gladwin and Robbins, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Michael Pollard sustained a compensable injury to his lower back while working for appellee Meridian Aggregates in late March 2000. On October 10, 2000, he underwent a decompressive lumbar laminectomy at L2-3 and L3-4. Although Meridian Aggregates accepted responsibility for medical benefits and temporary total disability benefits, it controverted Mr. Pollard’s claim to benefits for a permanent anatomical impairment and permanent wage loss. Because Mr. Pollard had a pre-existing back condition and had two prior surgeries, appellee Second Injury Fund was made a party to the case.
In determining whether Mr. Pollard was eligible for permanent benefits, the Workers’ Compensation Commission applied Ark. Code Ann. § 11-9-102(4)(F)(ii) (Supp. 2003), which provides:
(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
“Major cause” is defined as more than fifty percent of the cause, and a finding of major cause shall be established according to the preponderance of the evidence. Ark. Code Ann. § 11-9-102(14) (Supp. 2003). The Commission found that Mr. Pollard had a preexisting stenosis condition that was asymptomatic prior to the work injury, and that the work injury caused the stenosis to become symptomatic, resulting in surgery. The Commission concluded:
While it does not appear that the Arkansas courts have ever addressed this precise question stated in this precise manner, we understand Section 102(4)(F)(ii)(a) to require the claimant to establish that a work injury in fact caused some degree of identifiable abnormality at issue, and that the claimant has not established his burden of proof where the preponderance of the evidence instead establishes that the work injury only aggravated a preexisting stenosis condition. Accord Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 141 (1998). Since the claimant has failed to establish by a preponderance of the evidence that his work-related injury caused the stenosis which required surgery, we find that the claimant has failed to establish that his compensable injury was the major cause of [his permanent anatomical impairment].
Based on its decision that Mr. Pollard failed to establish that he sustained a compensable anatomical impairment, the Commission also denied his claim for permanent disability benefits.
Mr. Pollard now appeals, arguing that the Commission erred in finding that he failed to prove that his work injury was the major cause of his impairment rating. Because the Commission denied benefits pursuant to its finding that the claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires us to affirtn if the Commission’s opinion displays a substantial basis for the denial of relief. See Daniels v. Arkansas Dep’t of Human Servs., 77 Ark. App. 99, 72 S.W.3d 128 (2002). We agree with Mr. Pollard that the Commission’s opinion fails to display a substantial basis for denying permanent benefits, and we reverse.
Mr. Pollard testified that he began working for Meridian Aggregates in 1999 and that he was required to operate various types of equipment. He stated that in March 2000 he was operating a track hoe and that the whipping action of the track hoe began to aggravate his back. Mr. Pollard stated that his back pain continued to get worse as a result of his job duties. He testified that by April 4, 2000, it got to the point where he could not even straighten up, and his employer told him to take off work until he got the problem fixed. Mr. Pollard visited a series of doctors, and ultimately came under the care of Dr. Guy Danielson, who performed the decompressive lumbar laminectomy at L2-3 and L3-4 on October 10, 2000.
Mr. Pollard testified that he had prior back problems in 1985 related to the L4-5 and L5-S1 discs. As a result of these problems, Dr. Danielson performed a decompressive lumbar laminectomy and fusion. Mr. Pollard testified that after the 1985 surgeries he was off work for almost a year. However, he indicated that the surgeries were successful, and that after returning to work he had no further soreness or problems with his back until March 2000. During this time span, he worked at different jobs including as a security guard, logger, and equipment operator. Mr. Pollard maintained that his back did not cause him to miss any work between 1986 and 2000.
Mr. Pollard testified that, since his most recent injury, he has experienced numbness and pain. He stated that he cannot stand or sit for long periods of time and uses a cane to walk. Mr. Pollard stated that he is physically unable to return to any of his prior jobs, and he could think of no job that he could perform on a full-time basis.
Mr. Pollard argues on appeal that the Commission erred in finding, as a matter of law, that he failed to prove his compensable injury was the major cause of his impairment that resulted from the October 10, 2000, surgery. He contends that this was a fact question to be considered by the Commission, and that he established the major-cause requirement by a preponderance of the evidence.
In support of his argument, Mr. Pollard cites Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002). In that case, the appellee suffered a work-related aggravation of a pre-existing rotator-cuff tear. The claimant’s treating physician, Dr. Lipke, assigned a 30% impairment rating to the body as a whole, and gave the opinion that 10% of the impairment was caused by the work-related injury, and 90% by the pre-existing injury. The Commission awarded compensation for a 3% impairment, and in affirming we stated, “Dr. Lipke’s exacting testimony provided the Commission with a preponderance of the evidence from which to determine that the compensable injury was the major cause of appellee’s 3% impairment.” Wal-Mart Stores, Inc. v. Westbook, 77 Ark. App. at 173, 72 S.W.3d at 893.
In light of our decision in Wal-Mart Stores, Inc. v. Westbrook, supra, we agree that the Commission erred in finding that an aggravation of a pre-existing condition is not capable of meeting the major-cause requirement. Moreover, the evidence in this case demonstrates that the March 2000 work-related aggravation was the major cause of some anatomical impairment, and there is no evidence to the contrary.
While it is undisputed that Mr. Pollard had a preexisting back condition, this condition was causing him no problems prior to the March 2000 compensable injury. On September 6, 2000, Dr. Danielson directly addressed causation and reported, “The patient was relatively [a]symptomatic prior to his injury, therefore, the injury would be considered the cause of his present condition.” It is clear that the need for surgery and resulting impairment would not have occurred but for the work-related aggravation.
The only physician to assign an impairment rating in this case was Dr. Kent Hensley. In a May 14, 2002, letter, Dr. Hensley stated:
This patient has had a spinal fusion with two additional surgeries at a total of five levels. This results in a 19% permanent partial impairment of the whole man. He has loss of range of motion that results in a 14% permanent partial impairment of the whole man. He has no radicular symptomatology or radicular signs. Combining the above according to the Guides results in a total of 30% permanent partial impairment of the whole man. In my opinion apportionment is appropriate. As a result of his prior two surgeries, the patient is felt to have a 15% permanent partial impairment of the whole man. As a result of his more recent surgery following his claimed injury during his employment for Meridian Aggregates, he is felt to have an additional 15% permanent partial impairment of the whole man regarding his lumbar spine.
In response to a letter from Meridian Aggregates’ counsel, Dr. Hensley wrote on August 28, 2002:
Please note that previously I had combined 19% and 15% according to the guides, which gave only 30% as provided by the table in the guides. Given that range of motion is not to be utilized he; therefore, is felt to have a total of 19% permanent partial impairment of the whole man regarding his lumbar spine. According to your note it is also a fact under Arkansas law that an injury is compensable only if it is the “major cause” of the disability or impairment. Major cause is defined as greater than 50% of the cause. Clearly the “major cause” of this patient’s disease process was his preexisting disease. In my opinion his preexisting disease accounted for 80% of his disease process and at most 20% was as a result of any aggravation secondary to the “jarring” that occurred during his employment. Therefore, under Arkansas law, it is my opinion that his claimed injury is not compensable based on the above instructions.
Dr. Hensley’s first letter indicates that the most recent surgery resulted in an impairment rating independent of the prior surgeries. In his second letter, Dr. Hensley asserts that appellant’s “preexisting disease accounted for 80% of his disease process,” but this does not resolve whether or not the compensable injury was the major cause of an impairment. Significantly, Mr. Pollard’s back disease did not require surgery, or any other medical treatment, prior to the compensable aggravation.
While the Commission relied on Needham v. Harvest Foods, 64 Ark. App. 141, 987 S.W.2d 141 (1998), in reaching its decision to deny benefits, that case is distinguishable. In Needham v. Harvest Foods, Inc., we affirmed the denial of permanent benefits where the appellant was given a 4% anatomical impairment rating for a condition that predated the aggravation. In the present case, there is no evidence that Mr. Pollard was assigned any rating for his pre-existing stenosis, and there is evidence that his impairment resulted from the aggravation that caused the need for surgery.
Appellee Second Injury Fund argues that the Commission’s opinion must be affirmed pursuant to Ark. Code Ann. § ll-9-704(c)(l)(B) (Repl. 2002), which provides, “Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” However, we disagree because there were objective findings to support an impairment. Spinal stenosis, or narrowing of the spine, was detected on a myelogram and CT scan, and this finding clearly is not within the voluntary control of the patient. Furthermore, decompression surgery was performed October 10, 2000, to provide Mr. Pollard some relief.
We reverse and remand this case because the Commission erred in finding that Mr. Pollard’s compensable aggravation was not the major cause of a physical impairment. On remand, it is within the Commission’s authority to assess its own impairment rating using the AMA Guides to the Evaluation of Permanent Impairment (4th ed. 1993), rather than rely solely on its determinations of the validity of the ratings assigned by a physician. See Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003). We direct the Commission to Table 75 on page 113 of the AMA Guides, where it prescribes an impairment rating of 8% for spinal stenosis treated by a single-level lumbar decompression, without fusion and without residual signs and symptoms. Notably, the applicable AMA Guides provide no permanent impairment rating for spinal stenosis that has not been operated on. Because we reverse on the issue of anatomical impairment, the Commission must also address Mr Pollard’s argument that he is entitled to permanent wage-loss disability.
Reversed and remanded.
Griffen and Baker, JJ., agree.
Dr. Danielson’s report contains the word “symptomatic,” but by context this is obviously a typographical error. | [
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Melvin Mayfield, Judge.
The appellants J. W. Stacy, Nan Stacy, and The Great Wall of China Restaurant, Inc. appeal a judgment of the chancery court that granted specific performance of a contract for the sale of The Great Wall of China Restaurant, Inc. for a price of $40,000.00, and awarded appellee Hsi-Chi Lin damages in the amount of $9,451.00 and attorneys fees.
On September 8, 1989, appellee filed a complaint alleging that on or about August 18,1989, he entered into a contract with the appellants to purchase the business known as The Great Wall of China Restaurant; that pursuant to the contract, appellee paid appellants $2,000.00 earnest money; that the contract provided that the balance of $38,000.00 was to be paid on August 31 or September 1, 1989; and that on September 1, 1989, appellants refused to accept the balance owed and refused to consummate the sale of the business. Appellee asked that the court grant specific performance of the contract and award damages for “incurred expense and damage as a result of defendants’ failure to timely perform.” Appellants answered denying that a binding contract existed between the parties, but alleging in the alternative that should the trial court find a binding agreement was executed it should be for $80,000.00. On September 20, 1989, appellee filed an amended complaint alleging that because of a lease assignment executed by appellants to the appellee on August 28, 1989, he was entitled to possession of the premises upon which the business was located.
There was evidence at trial that two sets of documents were executed by the parties concerning the sale of the business and that each set consisted of two separate documents, one in English and the other in Chinese. (Mr. Lin and Mrs. Stacy speak English and Chinese; Dr. Stacy speaks only English.) Mrs. Stacy testified that her husband wrote the initial document on August 18; that she copied it in Chinese; and that each document was signed on August 18. Under the terms of that agreement, the purchase price was $80,000.00. Dr. Stacy testified that when the appellee came to the house on August 18, it was clearly understood that the appellee was making an offer of $80,000.00 and that half would be paid “above the table” and half “under the table.”
On August 27, 1989, the second set of documents was prepared and signed. The English version of the document, signed by Dr. J.W. Stacy, Nan Stacy, and Hsi-Chi Lin, was attached to appellant’s complaint and introduced into evidence. It states as follows:
BUSINESS:: The Great Wall of China Restaurant, Inc.
Owners: Dr. J. W. Stacy and Mrs. Nan Stacy
Location: 1509 Market Place, Jonesboro, AR 72401
Buyer: Mr. Hsi-Chi Lin
Today, August 18, 1989, Mr. Lin gives as ernest money $2,000.00 for purchase of the business for $40,000.00. The business consists of various equipment and fixtures recorded in a list. The purchase price excludes inventory on hand at date of sale.
The deposit of ernest money will be forfeited by Mr. Lin if he decides not to buy the business. This deposit guarantees that the owners of the business will not sell the business to anyone other than Mr. Lin.
The balance of $38,000.00 will be paid on August 31 and/ or Sept. 1, and at that time Mr. Lin will own the business completely.
The list of the various equipment and fixtures referred to above, signed by Dr. Stacy and the appellee, was not attached to the complaint but was introduced into evidence.
The appellee testified that the first set of documents represented an agreement to purchase the restaurant and an employee house for $80,000.00; but they changed the “deal” and the second set of documents constituted an agreement to purchase the business alone for $40,000.00. The appellants denied the house was included in either agreement and they testified the purchase price was always $80,000.00. Dr. Stacy testified the $40,000.00 agreement was written because he was afraid appellee might cause Mrs. Stacy to go through with a sale in which half of the purchase price was paid under the table, and he did not want appellee carrying around something which said the sale had been for $80,000.00; that would look bad to the “IRS.”
On August 28,1989, the appellants assigned to the appellee the lease of the land on which the restaurant was located. Dr. Victor Stepka, one of the owners of the land, testified that he, the appellants, and the appellee signed an addendum to the lease assigning it to the appellee. Stepka also testified he collected from the appellee for the September, October, and November rent. The record also contains a letter dated August 18,1989, from Dr. Stacy to Dr. Stepka which states that “Nan has found a buyer for the restaurant”; that the last time the lease was renewed “we indicated that we would probably sell the restaurant before the lease expired”; and “we agreed that the buyer who assumed the duration of the lease would maintain continuity of the restaurant operation.” The letter also stated that appellee had demonstrated he had enough operating capital to continue the restaurant operation without interruption; that appellee was familiar with the restaurant’s operation because he worked “a stint here” two years ago; that appellee had arranged for support personnel to arrive in Jonesboro on September 1 to begin working in the restaurant; and that appellee intends to retain the main chef.
Based upon the evidence and exhibits introduced at trial, and after reviewing briefs submitted by the parties, the trial court made specific findings of fact and conclusions of law in a letter opinion dated November 22, 1989, which was later incorporated by reference into the judgment of the trial court. The court specifically found that the original purchase price was for $80,000.00, which included a house that was appraised at $40,000.00, but that the price was reduced to $40,000.00 for the restaurant without the house. The court also found that the sale of the established and ongoing business constituted a sale subject to specific performance, and that the appellee was entitled to damages in the amount of $9,451.00.
The appellants first argue the trial court erred when it ordered specific performance of a contract for the sale of personal property. Appellants contend the subject matter of the alleged contract was the operational equipment of the business known as “The Great Wall of China Restaurant” and that there was no proof that it was unique.
Equity will not enforce by specific performance a contract relating to personalty unless special or peculiar reasons exist which make it impossible for the injured party to obtain relief by way of damages in an action at law. Morris v. Sparrow, 225 Ark. 1019, 287 S.W.2d 583 (1956). However, in Chamber of Commerce of Hot Springs v. Barton, 195 Ark. 274, 112 S.W.2d 619 (1937), the court held that specific performance for the sale of personal property may be decreed under proper conditions. The Barton case involved the sale of a radio station; specific performance was allowed by the trial court; and this was affirmed on appeal in an opinion which stated:
A judgment for a bit of lumber from which a picture frame might be made and also for a small lot of tube paint and a yard of canvas would not compensate one who had purchased a great painting.
By the same token Barton would not be adequately compensated by a judgment for a bit of wire, a steel tower or two, more or less, as the mere instrumentalities of KTHS when he has purchased an organized business, including these instrumentalities, worth perhaps not more than one-third of the purchase price. Moreover, he has also contracted for the good will of KTHS which is so intangible as to be incapable of delivery or estimation of value. So the property is unique in character and so far as the contract is capable of enforcement the vendee is entitled to relief.
195 Ark. at 286.
The appellee has also cited the case of Cochrane v. Szpakowski, 355 Pa. 357, 49 A.2d 692 (1946), which involved the sale of a restaurant and retail liquor business. In that case, the appellees argued that equity was without jurisdiction. The court affirmed the trial court’s decree of specific performance on the following reasoning:
In the instant case, it is obvious that equity does have jurisdiction because a similar restaurant and liquor business to the one in question could not be purchased in the market, and therefore could not be reproduced by money damages. In this connection, the learned chancellor properly said: “The contract involved here is one for the sale of a certain restaurant and liquor dispensing establishment at a definite location, and the possession of the premises on which the same is located. There are no other premises nor is there any other restaurant which is exactly like the one involved here, and it would, for all practical purpose, be impossible for * * * [appellee] to prove what money he would lose if * * * [appellant] were permitted to breach this contract* * *.
49 A.2d at 694. Se also Madariaga v. Morris, 639 S.W.2d 709 (Tex. Ct. App. 1982) (specific performance allowed for sale of business that made and sold Albert’s Famous Mexican Hot Sauce). And in 81 C.J.S. Specific Performance § 81(b) at 903 (1977) it is said:
Specific performance of a contract of sale of personality may be available where the subject matter of the sale is a going business, such as an automobile agency, a dry cleaning business, a liquor business, or a restaurant business.
In the instant case, the parties executed a written contract to “purchase the business known as The Great Wall of China Restaurant located at 1509 Market Place Drive, Jonesboro, Arkansas.” The contract states that the appellee gave earnest money for “purchase of the business” which deposit guaranteed that the owners would not sell “the business” to anyone else and after payment of the balance appellee will “own the business completely.” Shortly after the contract was signed, the appellants executed an assignment to the appellee of the lease on the premises upon which the business was located, and the assignment (which was agreed to by the landlord) states appellee is “purchasing the business that operates on the leased premises.” The testimony of Dr. Stacy refers to “the purchase of the restaurant” and buying “this business,” and his letter to the landlord states that Mrs. Stacy has found a buyer for the restaurant who could continue it without interruption.
We first point out that the evidence clearly shows that the contract to sell the business in this case involved an agreement to assign the lease of the real property upon which the business was located. In Dickinson v. McKenzie, 197 Ark. 746, 126 S.W.2d 95 (1939), the court allowed specific performance of an option to extend the time to cut timber. The court said that where land or “any estate or interest in land” is the subject of an agreement, the right to specific performance is absolute. Secondly, even if the contract in the instant case did not involve the transfer of a leasehold interest, we think it would be putting form over substance to say it involved only “the operational equipment of the business.” Although it states that “the business consists of various equipment and fixtures recorded in a list,” it is clear that the contract — not written by an attorney — was intended to provide for the sale of a “going business.” Appellants argue that the cases relied upon by the appellee involved businesses that were in some manner “special” or “unique.” However, those cases involved a radio station, a restaurant and liquor business, and a hot sauce business. The general rule as stated in C.J.S., supra, indicates that the sale of a “going business” may be subject to specific performance. The cases relied upon by appellee show that specific performance has been granted where the agreement to sell a “going business” included its good will “which is so intangible as to be incapable of delivery or estimation of value,” Barton, supra; where there was the sale of a business “the value of which cannot be accurately determined in an action at law,” Cochrane, supra; and where the “plaintiff would not be adequately compensated . . . by an award of money,” Madariaga, supra.
In the instant case, Dr. Stacy wrote a letter to the agent for the owners of the building in which the restaurant was located and reported that the appellee would “maintain continuity in the restaurant operation” and that appellee “intends to retain main chef, Mr. Wang, whose cooking is so popular here in Jonesboro, in order to insure continuity.” Obviously, Dr. Stacy recognized that the sale involved the “good will” of the business. It is argued that the appellee did not testify that the business was unique, but it is not clear from the record that appellee really understood the meaning of the word “unique.” However, he did say he wanted to buy the business because he knew it “pretty good.” There was also a great deal of evidence introduced in regard to the income and profit of the restaurant. We believe, under all the circumstances, that whether the court should have ordered specific performance of this contract to sell the Great Wall of China Restaurant in Jonesboro, Arkansas, was a question of fact for the chancellor to decide. And when we consider that the contract involved a lease of real property, the continuation of a restaurant under the same name, with the same popular chef, at the same location, and (as we will discuss) that it would be difficult to fix damages for a breach of the contract, we cannot say the judge’s decision to grant specific performance was clearly erroneous.
Appellants next argue that the trial court erred in awarding appellee damages in the amount of $5,000.00 for the delay in obtaining possession of the business. The court also allowed appellee $4,451.00 for the three months rent he had paid on the building lease which had been assigned to him. Appellants do not argue that the rent award was erroneous. The trial judge’s reasoning with regard to the $5,000.00 award is explained in his letter opinion as follows:
(5) Plaintiff" argues that he is entitled to damages in the amount of $21,700.00. He testified that he paid the owner of the property three months rent or a total of $4,451.00. He then took the tax return of defendants for 1988 and calculated their net profit for that year and testified that by reason of being deprived of the business for the three months just past that he has lost $17,250.00 in profit. In making these calculations, plaintiff did not take into consideration a number of factors. . . . There are so many variables in the calculation of his damages for lost profits that the Court is simply unable to arrive at a conclusion based upon what he estimates his damages to be. Plaintiff is entitled to recover damages from defendants because the time of performance has passed and he was ready to pay them the balance due under the contract and they refused to perform. He is certainly entitled to receive the sum of $4,'451.00 for rentals. . . . Rather than speculate upon the lost profits, the Court finds the prudent course to take is to award damages based upon a reasonable percentage of the profit less taxes as reflected in the 1988 return of defendants, P-19. The Court concludes that a reasonable amount is the sum of $5,000.00. Plaintiff is, therefore, entitled to recover as damages from defendants the sum of $9,451.00.
Appellants cite First Service Corporation v. Schumacher, 16 Ark. App. 282, 702 S.W.2d 412 (1985), where we said that a party seeking to recover lost profits must present proof sufficient to remove the question of profits from the realm of speculation and conjecture. In the instant case, appellants point to the trial judge’s finding that there are so many variables in the calculation of appellee’s damages for lost profits “that the Court is simply unable to arrive at a conclusion” based upon what appellee “estimates” those damages to be. Of course, the difficulty in assessing damages is a reason for granting specific performance. However, in McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), the court said:
Although, strictly speaking, legal damages are not awarded when specific performance is decreed, a decree should, as nearly as possible, require performance in accordance with the terms of the contact, one of which is the date fixed by it for completion; and, when that date is past, the court, in order to relate the performance back to it, gives the complainant credit for any losses occasioned by the delay.
263 Ark. at 32-33. But in Miller v. Estate of Dawson, 14 Ark. App. 167, 686 S.W.2d 443 (1985), we said “the money payments to equalize losses occasioned by the delay have been referred to as ‘equitable compensation,’ and are to be distinguished from damages awarded for breach of contract.” We cited Loveless v. Diehl, 236 Ark. 129, 364 S.W.2d 317 (1963), where, as in the instant case, the seller remained in possession of the premises during the period of delay in performance, and we summarized the holding in Loveless as follows:
In ordering specific performance of the contract the chancellor awarded the purchaser the fair rental value of the land occupied by the seller during the period of delay. On appeal the Supreme Court declared that the chancellor was correct in charging the seller with the rental value of the land where he had retained possession beyond the closing date but should have gone further and charged the purchaser with interest at the legal rate upon the unpaid portion of the purchase price in the same period.
14 Ark. App. at 172.
We, therefore, believe that the trial court was in error in the instant case in attempting to award appellee damages based upon a percentage of lost profits. In both Loveless and Miller, it was held that where specific performance is granted the purchaser is entitled to damages for delay in obtaining possession of the premises based upon the fair rental value of the property; however, those cases also hold the purchaser must be charged with interest at the legal rate upon any unpaid portion of the purchase price. “To hold otherwise would give the purchaser the use of both the land and the money during the entire period of delay.” Miller, 214 Ark. App. at 173. As was done in Loveless and Miller, we think the instant case must be remanded for the amounts of the rental value and interest to be determined “so that the account may be stated in accordance with this opinion and a final decree entered.” Id.
Finally, appellants contend the trial court erred when it refused to allow Dr. Stacy to testify that appellee’s attorney called Dr. Stacy on Tuesday, September 5, 1989, and said appellee would pay $80,000.00 for the restaurant. At trial, during direct examination, Dr. Stacy testified that on Friday afternoon, just prior to September 5, appellee’s attorney had called him and asked whether Dr. Stacy was willing to accept a cashier’s check in the amount of $38,000.00 as payment for the restaurant. Dr. Stacy testified that his response was “categorically no”; that the price under discussion from the very beginning was $80,000.00, not $40,000.00. Dr. Stacy said that appellee’s attorney then said he would get back with Dr. Stacy and that he had done so with the call that Stacy received on Tuesday, September 5.
At trial, appellants’ counsel then asked Dr. Stacy:
Okay. And, during that conversation tell us what he said concerning Mr. Lin’s willingness to pay.
Appellee objected on the basis that the conversation was an offer to compromise and settle and was not admissible. The trial court sustained the objection. At that time appellants made the following proffer: When appellee’s counsel called, counsel said appellee wanted “to go ahead and buy the restaurant for $80,000.00,” and Dr. Stacy’s response was that the probability of selling to the appellee was nearly zero because of the appellee’s actions on Friday, September 1 in which appellee tried to get the restaurant for $40,000.00.
Appellants cite Missouri Pacific Railroad Co. v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983), and argue the trial court erred in not admitting this evidence because it was not an offer to compromise, but even so, (1) the evidence was admissible as relevant to the reasonableness of a $40,000.00 purchase price; and (2) was admissible for impeachment purposes to show appellee’s claim that the parties agreed upon a value of $40,000.00 was false.
We first note that even if evidence is improperly excluded, error is no longer presumed prejudicial, and unless the appellant demonstrates prejudice accompanying error, we do not reverse. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). See also Ark. R. Evid. Rule 103(a) (no error in admitting or excluding evidence unless a substantial right of a party is affected).
So, even if appellants are correct in the contention that the evidence was admissible to show that a $40,000.00 purchase price was unreasonable, we do not see what difference it makes since inadequacy of consideration will not preclude a contract between the parties. Landmark Savings Bank v. Weaver-Bailey Contractors, Inc., 22 Ark. App. 258, 739 S.W.2d 166 (1987). And as to impeachment, we cannot say that the statement made in appellants’ proffer was inconsistent with any statement made by the appellee at trial. At trial appellee testified that the initial agreement for $80,000.00 included the restaurant and a house, and the later agreement for $40,000.00 was for the restaurant only. We simply do not know from appellants’ proffer whether the offer to “go ahead and buy the restaurant for $80,000.00” included the house or not.
Therefore, on the record before us, we are satisfied that appellants were not prejudiced by the exclusion of the proffered testimony.
Affirmed as modified and remanded.
Rogers and Danielson, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Charles Newsome appeals from an order of the Arkansas Workers’ Compensation Commission holding that his claim was barred by the so-called Shippers Transport doctrine. He contends that the evidence in this case does not support application of that doctrine. We find no error and affirm the order of the Commission.
In Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), the supreme court recognized that public policy places an obligation on an employee to give truthful answers to a prospective employer’s questions about his pre-employment health condition. The court held that a false representation on an employment application will bar recovery under our workers’ compensation act if the following test is met by the employer:
(1) the employee must have knowingly and willfully made a false representation as to his physical condition;
(2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; and
(3) there must have been a causal connection between the false representation and the injury.
Here, the record shows, and appellant admits, that in January 1986 he injured his back while working for Kenworth Trucking Company, was awarded compensation benefits equal to ten-percent permanent partial disability to the body as a whole, and subsequently received $16,000.00 pursuant to a lump-sum settlement agreement of his workers’ compensation claim. On February 3, 1988, however, appellant submitted to appellee an employment application, on which appeared the following questions and appellant’s answers:
Q. Have you ever received workers’ compensation or disability income?
A. No.
Q. If yes, for what reason did you receive workers’ compensation or disability income?
A. None.
Appellant was hired to do heavy-lifting work in appellee’s shop on the same day that the employment application was submitted.
On February 22, 1988, appellant reinjured his back while working for appellee and sought benefits therefor. Appellee denied appellant’s claim for workers’ compensation benefits and asserted the Shippers Transport defense. The Commission found that appellee had proven all three of the requirements outlined in Shippers and denied benefits.
On appeal, appellant challenges the Commission’s findings only with respect to whether appellant knowingly and willfully made a false representation as to his physical condition and whether appellee relied upon the false representation. Whether or not those factors existed were questions of fact for the Commission to resolve. Therefore, we will not disturb the Commission’s findings unless we find that they are not supported by substantial evidence. In making this review, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. Mack v. Tyson Foods, Inc., 28 Ark. App. 229, 771 S.W.2d 794 (1989).
Appellant first contends that appellee could not have relied upon the information contained in the employment application because appellant had been hired before the written application was submitted to the employer. We cannot agree.
William L. Landers testified that he was general manager of the appellee company and the person who had actually hired appellant. He stated that he first examined the written application and then called appellant’s references listed therein. When he completed this, Landers informed appellant that he was hired and could report to work for the three o’clock shift that afternoon. Landers testified that the answers given in the application played a very substantial part in his determination to hire appellant, as the job for which appellant was being considered involved the lifting of heavy tires and equipment weighing as much as 200 pounds. He stated that, due to the nature of the work, had he known that appellant had previously suffered a disabling work-related back injury, he would not have hired appellant for this job. He also stated that he had declined in the past to employ persons who had the same type of back injury. On conflicting evidence, the Commission found that the employer had relied upon appellant’s representations in the employment application, and we cannot conclude that that finding is not supported by substantial evidence.
Appellant next contends that his answers were not knowingly and willfully false. He testified that he had incorrectly answered the questions about prior workers’ compensation claims and the reasons therefor because he misunderstood them and was in a hurry to fill out the application. As we said in Knight v. Industrial Electric Co., 28 Ark. App. 224, 771 S.W.2d 797 (1989), however, such questions are neither hard to understand nor difficult to answer. Moreover, the Commission was not bound to accept appellant’s testimony. Shock v. Wheeling Pipe Line, 270 Ark. 57, 603 S.W.2d 446 (Ark. App. 1980). On the record before us, we cannot conclude that the Commission erred in finding that appellant’s false responses were, in fact, knowingly and willfully given.
Appellant finally contends that, in any event, the questions contained in the application were insufficient to support the Shippers Transport defense, in that they did not call for factual information regarding appellant’s “physical condition” or “health history.” We cannot agree.
In Shippers Transport, supra, the supreme court held that, as our workers’ compensation act requires an employer to take an employee as it finds him, it is only fair that the employer have a right to determine a prospective employee’s health history before hiring him. It is true that in Knight v. Industrial Electric Co., supra, we reversed the Commission’s denial of benefits, holding that questions calling for self-diagnosis or opinions of one’s health, as opposed to those that seek to ascertain factual information about one’s health history, are too broad and general to support the Shippers Transport defense. There, however, the Commission had denied benefits based upon the claimant’s negative response to the following question: “Do you have any physical condition which may limit your ability to perform the job applied for?”
Here, on the other hand, appellant was asked whether he had ever received workers’ compensation benefits and, if so, for what reason. Had he truthfully answered these two questions, appellee would have known that appellant had previously suffered a work-related back injury that caused disability. It seems clear to us that questions such as those asked here seek factual information that, as clearly demonstrated by the facts in this case, bears directly on one’s health history. See Shippers Transport of Georgia v. Stepp, supra; Baldwin v. Club Products Co., 270 Ark. 155, 604 S.W.2d 568 (Ark. App. 1980). See also Knight v. Industrial Electric Co., supra.
Affirmed.
Jennings and Cooper, JJ., agree. | [
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Melvin Mayfield, Judge.
In 1962, appellee, Missouri Pacific Railroad Company, Inc. (MoPac), and appellant, Kop-pers Company (Koppers), entered into an agreement whereby Koppers contracted to treat crossties, switch ties, bridge lumber, timbers, and other lumber materials used by MoPac in its railway system. MoPac contracted to deliver the materials to Koppers by opentop railroad car, and Koppers agreed to unload and treat the lumber and reload the materials onto a railroad car to be returned to MoPac. The contract also contained a paragraph in which Koppers agreed to indemnify MoPac against any and all claims, judgments, and losses incident to or in any way connected with Koppers’ operations under the agreement. In accordance with its provisions, the contract was terminated by MoPac effective March 10, 1984.
On October 14, 1982, a Koppers employee was injured on Koppers’ premises when he fell between moving railroad cars owned by MoPac. In August 1984, the employee sued MoPac for injuries sustained, and that suit was settled on April 23,1987. On June 10,1985 (subsequent to suit being filed by the employee but prior to the settlement agreement), MoPac made written demand on Koppers to defend, indemnify and hold MoPac harmless. Koppers refused to do so. On August 22, 1988, MoPac brought suit to enforce the indemnity provision in the parties’ contract. The trial court entered judgment for MoPac in the amount of $300,000.00, finding that the indemnity clause survived the March 10,1984, expiration of the contract and required Koppers to indemnify MoPac. Koppers brings this appeal from that ruling. We affirm.
Under the indemnity clause in the contract, Koppers agreed:
On behalf of itself, its successors and assigns to fully protect, indemnify and save harmless the Railroad, its successors and assigns against any and all claims, demands, suits, judgments, losses and expenses incident to, or in any way connected with the Contractor’s operations under this agreement and howsoever arising, whether by reason of the infringement or alleged infringement of patent rights covering or relating to treating processes, machinery, apparatus, appliances or facilities, or by reason of loss or injury of whatsoever nature, to persons or property or otherwise, excepting loss by fire or by the acts of the employees of the Railroad.
Appellant and appellee stipulated that, at the time of the injury, the contract between the parties was in force. The parties further agreed that the contract terminated prior to suit being filed by the injured Koppers employee against MoPac. They also agreed that the only issue before the trial court was whether appellee’s right to indemnification from appellant survived the termination of the agreement between the parties.
In holding that the indemnity clause survived, the trial court stated that, although it had not found a case precisely on point, it was “most persuaded” by Kentucky Fried Chicken Corp. v. Collectramatic, Inc., 547 A.2d 245 (N.H. 1988). That case involved an indemnity clause by which Collectramatic agreed to protect Kentucky Fried Chicken Corporation (KFC) “from any claim or action ... for products liability based upon this [agreement.” The agreement was entered into in August of 1972 and specifically provided that the provisions of the indemnification paragraph would survive the termination of the agreement. In 1974, the parties entered into a second agreement which did not contain an indemnity clause and which provided that “this agreement contains the entire understanding between [the parties] concerning the subject matter hereof and supersedes all prior and contemporaneous understandings or representations between the parties relating thereto.”
Collectramatic sold a pressure cooker to KFC pursuant to the 1972 agreement. In 1980, a KFC employee was injured while using this pressure cooker. The employee sued KFC and Collec-tramatic, and both defendants settled. Then, KFC attempted to recover from Collectramatic the portion of the settlement KFC had paid, basing its claim for indemnity on the 1972 agreement. The court held that KFC was entitled to indemnification under the 1972 agreement and found the parties intended in the 1974 contract to merge only their prior agreements as to terms governing purchases and sales yet to be made, and the parties intended it to have no effect at all on vested rights and concomitant duties with respect to sales already concluded. In regard to the 1972 agreement, the court said:
One would typically expect that the agreement in effect at the time equipment was bought and sold would determine the parties’ rights and duties with respect to that equipment.
Id. at 247. And in response to Collectramatic’s argument that a provision in the 1974 agreement clearly indicated that the parties intended that the 1974 agreement would supersede all previous agreements, including the 1972 agreement, the court said:
For a party to abandon, in a later contract of this type, a right previously bargained for and acquired would certainly be unusual.
Id. at 248.
Koppers, however, argues that the Kentucky Fried Chicken case is only marginally on point and would distinguish that case on the basis that the 1972 agreement provided that the indemnity clause “shall survive the termination of this agreement.” The court in that case did not regard this provision to be controlling. It said: “The language of each of these agreements is entirely prospective and makes no reference to vested rights and duties.” So, although the 1972 agreement provided that the indemnity clause “shall survive the termination of this agreement” and the 1974 agreement provided that it “contains the entire understanding between [the parties] ” and that it “supersedes all prior and contemporaneous understandings or representations” between them, the court looked to the intent of the parties and said:
We therefore hold that the parties did not intend, by the 1974 agreement, to extinguish KFC’s right to indemnification for transactions already completed under the 1972 agreement, . . .
Id. at 249.
The appellant concedes that “a contract of indemnity is to be construed in accordance with the rules for the construction of contracts generally.” Arkansas Kraft Corporation v. Boyed Sanders Construction Co., 298 Ark. 36, 764 S.W.2d 452 (1989). If there is no ambiguity in the language of the contract, then there is no need to resort to rules of construction. Id. And “the first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended.” Sutton v. Sutton, 28 Ark. App. 165, 771 S.W.2d 791 (1989). The appellant argues, however, that in contracts of indemnity the losses to be indemnified must be clearly stated and the intent to indemnify against them must be expressed in clear and unequivocal terms. Weaver-Bailey Contractors, Inc. v. Fiske-Carter Construction Company, 9 Ark. App. 192, 657 S.W.2d 209 (1983), is cited in support of this argument. The Weaver-Bailey language is taken from Pickens-Bond Construction Company v. North Little Rock Electric Company, 249 Ark. 389, 459 S.W.2d 549 (1970), and Hardeman v. J.I. Hass Co., 246 Ark. 559, 439 S.W.2d 281 (1969). Pickens-Bond explains that the reason for the requirement of a clear statement agreeing to indemnify a party against the consequences of his own conduct is the natural aversion of the courts to hold one liable for the acts or omissions of another over whom he has no control. 249 Ark. at 395.
In the present case there is no question that appellant Koppers agreed to indemnify appellee MoPac “against any and all claims, demands, suits, judgments, losses and expenses incident to, or in any way connected with the Contractor’s [Koppers’] operations under this agreement and howsoever arising. . . .” The intent to indemnify is clear enough and the parties stipulated that the only issue for the trial court, to decide was whether MoPac’s right to indemnification “survived the termination of the 1962 agreement between the parties.”
The appellant cites Jones v. Sun Carriers, Inc., 856 F.2d 1091 (8th Cir. 1988), in support of its contention that MoPac’s right to indemnification did not survive the termination of the 1962 agreement. In that case, Sun Carriers, Inc. purchased from Harvey Jones all the stock of Jones Truck Lines, Inc. The sale was closed on April 29, 1980. The stock purchase agreement provided that Jones agreed to indemnify and hold harmless Sun Carriers and Jones Truck Lines against “any and all damages, losses, deficiencies, liabilities, claims, costs and expenses . . . arising out of any misrepresentation, breach of warranty or nonfulfillment of any covenant . . . under this Agreement . . . .” 856 F.2d at 1092. The indemnity provision further provided that Sun Carriers had to assert any claims for indemnity within three years after the sale of the stock was closed. Within that time period, Sun learned that the Environmental Protection Agency had informed Jones Truck Lines that its terminal in St. Louis may have been sprayed with waste oils contaminated with dioxin. In fact, in 1970 or 1971, Jones Truck Lines had employed an independent contractor to spray the terminal with waste oil for dust control purposes. Therefore, on April 20, 1983 (nine days before the three-year indemnity cutoff date), Sun notified Jones that it was asserting “potential” liabilities relating to the dioxin contamination. It was not until after the indemnity cutoff date that the EPA actually required the terminal to be vacuumed and washed down. Subsequently, workers’ compensation claims were filed for two Jones Truck Line employees alleging they had developed cancer from exposure to the dioxin.
Harvey Jones filed suit against Sun seeking a declaratory judgment that he was not required to indemnify Sun for the dioxin contamination. The trial court granted Jones’ motion for summary judgment and the Eighth Circuit Court of Appeals affirmed. The appellant in the present case contends that the Eighth Circuit Court’s reasoning is applicable here and that it leads to the conclusion that Koppers is not obligated to indemnify MoPac in the present case.
We do not agree with appellant’s interpretation of the Sun Carriers case. Although the Eighth Circuit Court cited two cases for the statement that, “[generally, no claim arises under an indemnity agreement until a specific demand is made for something as a legal right or until notice of a lawsuit is given,” the court then said: “Here, no potential plaintiffs had made any claims against Sun or JTL by the cutoff date.” 856 F.2d at 1096. Thus, it is clear that the reason the court granted Harvey Jones’ motion for summary judgment was not because no claims had been made but because the contract provided that Sun Carriers had to assert any claims for indemnity within three years after the sale of the stock was closed.
Obviously, the Sun Carriers case involved a different situation from the case at bar. Here, the contract between the parties required Koppers to indemnify MoPac for losses and expenses “incident to, or in any way connected with” Koppers’ operations under that contract; however, the contract did not have a specified cutoff date within which claims for indemnity had to be made. Loss or expense was sustained by MoPac because of an injury sustained by an employee of Koppers while the agreement between Koppers and MoPac was in effect. Even though the employee did not file suit against MoPac until after MoPac terminated its agreement under which Koppers treated crossties, bridge timbers, and other wood materials, we think the trial judge was correct in holding that MoPac’s obligation to the employee, which it settled, was an “expense incident to” or “connected with” Koppers’ operations under the agreement while it was in force.
Affirmed.
Cooper and Rogers, JJ., agree. | [
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Judith Rogers, Judge.
The parties in this post-decree action were divorced in October of 1979. They had a daughter, Jennifer, who was born with Downs Syndrome, and appellant, Noneluna Waldon, was granted custody of the child. In addition to paying child support, appellee, Ronald Waldon, was ordered in the decree to be responsible for all extra-ordinary medical, dental and hospital bills, and all ordinary medical bills incurred by the child associated with Downs Syndrome. In this regard, the appellee was also ordered to provide medical insurance coverage for the child. In 1987, appellant obtained an increase in child support to $120 to be paid every two weeks.
Appellant filed the present action in February of 1989, seeking to further increase the amount of child support, and to hold appellee in contempt for the non-payment of medical bills. After a hearing on November 8,1989, the chancellor declined to hold appellee in contempt, but ordered him to pay the six medical bills submitted. The chancellor increased child support to $85 per week, and ruled that each party would bear their own costs and attorneys’ fees. It is from these findings that appellant brings this appeal. We affirm.
Appellant first argues that the chancellor erred by not citing appellee for contempt, and in not awarding her attorney’s fees. On the issue of contempt, appellant testified that she had forwarded six bills totalling $544.40 for payment to the Veteran’s Administration in Fort Worth, Texas, appellee’s employer, through which he has medical insurance. She said that these bills were not paid. On cross-examination, it was pointed out that at the last hearing in 1987, appellant was directed to submit all claims to appellee at his home address, which was read into the record. Appellee testified that he had received bills from only two doctors, one for a general check-up, and two others from an eye clinic for glasses. Appellee stated that he was informed by his insurance carrier that the glasses were not covered, as nearsightedness was common to any child. He said that he believed that these three bills were for ordinary expenses unrelated to the condition of the child, and thus he thought that he was not responsible for them.
The refusal of a trial court to punish an alleged contemnor will be reviewed by an appellate court only to determine whether there has been an abuse of discretion. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). The chancellor found that the medical bills were routine expenses, but nevertheless ordered appellee to pay them. We think the chancellor was in a better position to evaluate the willfullness of appellee’s conduct, and we find no abuse of discretion on this record.
On appeal, appellant seems to make a further argument that the history of this case reveals a course of conduct of appellee’s failure to inform appellant of his job and pay status, as ordered. As appellee points out, there is no current order requiring appellee to keep appellant apprised of these things. One cannot be held in contempt for the failure to do something which he or she has not been ordered to do. See Dees v. Dees, 28 Ark. App. 108, 771 S.W.2d 299 (1989).
Attorney’s fees in divorce and support cases are not awarded as a matter of right, but rest within the chancellor’s discretion, whose decision will not be disturbed unless that discretion is abused. See Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983). There was testimony that appellee had travelled from Texas to appear at trial. Under the circumstances, we cannot say the chancellor abused his discretion in not awarding attorney’s fees to appellant.
Under her second claim of error, appellant combines two arguments concerning the amount of increased child support set by the chancellor. First, she argues that the chancellor erred in calculating appellee’s net income by including a deduction for appellee’s retirement plan. Second, she contends that the chancellor improperly applied the chart by including as dependents appellee’s two children of his present marriage. We address these contentions in the order in which they are stated.
In its per curiam, In re: Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990), the supreme court stated that weekly take home pay, as it relates to the Family Support Chart, refers to the definition of income in the federal income tax laws, less proper deductions for the following items: (1) Federal and state income tax; (2) Social security (FICA) or railroad retirement equivalent; (3) Medical insurance; and (4) Presently paid support for other dependents by Court order. The appellee’s statement of earnings reflects that he is paid on a bi-weekly basis, and that $139.10 is withheld from each check for a retirement plan. Appellee testified that, as a federal employee, he is not a participant in the general social security system, and that his participation in the federal retirement plan is mandatory, and is set at a minimum of seven percent of his gross earnings.
We agree with the chancellor that this was a proper deduction in calculating appellee’s take home pay. Appellee’s contribution to the retirement plan is involuntary, and can be likened to amounts automatically withheld from earnings as listed in categories one and two mentioned above. To have included this in appellee’s take home pay would not have accurately reflected his disposable income. We find no error on this point.
In setting the amount of child support at $85 a week, the chancellor, noting that appellee had two other children, applied appellee’s income to the chart based on three dependents. He then divided that amount by three, and added “a small amount for this child.” Appellant contends that it was error for the chancellor to have included appellee’s other children as dependents, and that appellee’s income should have been applied to the chart for Jennifer alone.
Ordinarily, the amount of child support lies within the sound discretion of the chancellor. Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989). Arkansas Code Annotated § 9-12-312(2) (Repl. 1991) provides:
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 support chart, shall the presumption be rebutted.
Although the courts are required to refer to the family support chart, there are numerous matters which have a strong bearing in determining the amount of support. Ross v. Ross, supra. A chancellor’s finding as to support will not be disturbed on appeal unless it is shown that the chancellor abused his discretion. Borden v. Borden, 20 Ark. App. 52, 724 S.W.2d 181 (1987).
We agree with appellant that the chancellor should not have applied the chart based on three dependents. Although this may be a proper consideration bearing perhaps on a payor spouse’s ability to pay, the chart should be applied to the child that is before the court. The result of applying the chart as the chancellor did here is that the amount of support for the one child was diluted, as the chart is structured so that the amount of support per child decreases in proportion to the number of added dependents.
While there is a rebuttable presumption that the amount of support according to the chart is correct, the chancellor in his discretion is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case. As explained by the supreme court, the presumption may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate. See Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The relevant factors include food, shelter and utilities, clothing, medical and education expenses, accustomed standard of living, insurance and transportation expenses. Id. See also In re: Guidelines for Child Support Enforcement, supra. However, when deviating from the chart, the chancellor must explain his or her reasoning by the entry of a written finding or by making a specific finding on the record. See Scroggins v. Scroggins, supra; Ark. Code Ann. § 9-12-312(2) (Repl. 1991).
By our calculations, the chart amount of support for one child was $97 per week. While the chancellor should not have determined the amount of support in the manner in which he did, we find no abuse of discretion in the amount of support he ordered. In setting the amount, the chancellor explained that he was not only taking into account appellee’s other children, but also appellee’s considerable obligations relative to the medical expenses of this child, which, in addition to the payment of support, would continue beyond the age of majority. In this regard, appellee is required to maintain insurance coverage, and is responsible for payment of the deductible. Additionally, appellee is responsible for paying medical expenses that are not covered by insurance. Although it would have been preferable for the chancellor to have applied the chart based on one child before making any adjustments, the end result reached by the chancellor represents only a slight deviation from the correct chart amount. We believe the findings made by the chancellor on the record were sufficient to rebut the presumption, and we cannot say that he abused his discretion.
We note, however, that the chancellor relied on an unpublished opinion of this court as authority for considering the other children as dependents. While appellant does not claim this as a predicate for error, we take this opportunity to again point out that citing, quoting or referring to unpublished opinions of this court is prohibited by Rule 21 of the Rules of the Arkansas Supreme Court and Court of Appeals. See Yockey v. Yockey, 24 Ark. App. 169, 750 S.W.2d 420 (1988); Aaron v. Everett, 6 Ark. App. 424, 644 S.W.2d 301 (1982).
Affirmed.
Danielson and Mayfield, JJ., agree.
Although there is no indication that the list is exhaustive, we note that other dependents of a payor spouse is not included. The per curiam does provide a deduction for “presently paid support for other dependents by court order,” in arriving at the payor spouse’s income to be applied to the chart. (Emphasis ours.) However, that is not the situation before us as the other dependents at issue here are the appellee’s children by his current marriage.
We further note that the case referred to by the chancellor involved a reduction in child support based partially on the circumstance that custody of two of the parties four minor children was changed to the payor spouse, and is thus not directly supportive of the chancellor’s ruling. | [
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Melvin Mayfield, Judge.
Appellants Wilson and Laverne Mathis appeal a Faulkner County Chancery Court decision that dismissed their adverse possession complaint.
The record shows that certain property in Faulkner County was platted into blocks and lots as the Hayes Addition to the City of Conway, Arkansas, and filed for record on December 4,1917. In September 1961 the Hayes Addition was annexed to the City of Conway. The plat provided for a forty-foot easement to be known as Maple Street to run between Blocks 8 and 1, but Maple Street was never opened and a portion of that street is the property at issue in this case. Appellants own Lots 1,2,3,4,5,27, 28, 29, 30, 31, and 32 of Block 8. Lots 1 and 32 are adjacent to Maple Street. It was stipulated that appellants have used, maintained, mowed, and planted trees and shrubs on the area between Blocks 1 and 8 known as Maple Street since 1952.
On May 9, 1989, appellants filed suit to claim this strip of land by adverse possession. The chancellor held, on stipulated facts, that Ark. Code Ann. § 14-301-113 (1987), passed in 1907, prohibited the acquisition of any city street by adverse possession and that Ark. Code Ann. § 22-1-201 (1987), passed in 1923, prohibited the acquisition of any public thoroughfare, road, or highway by adverse possession, and dismissed appellants’ complaint.
Arkansas Code Annotated § 14-301-113(a) (1987) provides in part:
No title or right of possession to any alley, street, or public park, or any portion thereof, in any city or incorporated town in this state shall or can be acquired by adverse possession or adverse occupancy thereof.
And Arkansas Code Annotated § 22-1-201 (1987) provides:
(a) No title or right of possession to any public thoroughfare, road, highway, or public park, or any portion thereof, shall or can be acquired by adverse possession or adverse occupancy; and the right of the public or of the proper authorities of any county to open or have opened any such public thoroughfare, road, highway, park, or parts thereof shall not be defeated in any action or proceeding by reason of adverse possession or adverse occupancy of any such public thoroughfare, road, highway, or park, or any portion thereof where adverse possession or occupancy commenced after the passage of this section.
(b) Any thoroughfare, road, or highway that may be platted by any landowner and dedicated to the public as a public thoroughfare, road, or highway where the plat shows or the bill of assurance states the width of the road or highway or any park dedicated by any landowner to the public as a public park for the use and benefit of the public shall not be acquired by adverse possession or adverse occupancy of any such land so dedicated to the public, or any portion thereof, where the adverse possession or occupancy commenced after the passage of this section.
But appellants argue on appeal that these statutes are not applicable because the street was not accepted by the public until 1961 when the subdivision was annexed into the city, and even then, the dedicated property was never opened as a street, and therefore, their adverse possession of the portion of Maple Street at issue ripened into ownership between 1952 and 1961, prior to public acceptance of the property.
Appellants argue that there are two essential elements of a dedication: the owner’s appropriation of the property to the intended use and its acceptance by the public. City of Jonesboro v. Kirksey, 239 Ark. 205, 388 S.W.2d 78 (1965), Fitzhugh v. Goforth, 228 Ark. 568, 309 S.W.2d 196 (1958); Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S.W.2d 231 (1950). Appellants rely heavily on Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221 (1917), for the proposition that unless the city accepts the dedication and puts the property to public use, the landowner can recall the dedication or the property can be adversely possessed. Appellants’ reliance on Mebane is misplaced. The court in Mebane held there had been an acceptance of the street portions of the dedication, and stated:
This court has steadily adhered to the rule that “an owner of land by laying out a town upon it, platting it into lots and blocks intersected by streets and alleys, and selling lots by reference to the plat, is held to have dedicated to the public use the streets and alleys and other public places marked on the plat and such dedication is irrevocable.” City of Hope v. Shiver, 77 Ark. 177; Davies v. Epstein, 11 Ark. 221; Dickinson v. Arkansas City Improvement Co., 77 Ark. 570; Brewer v. Pine Bluff, 80 Ark. 489; Stuttgart v. John, 85 Ark. 520; Paragould v. Lawson, supra [88 Ark. 478]; Balmat v. City of Argenta, 123 Ark. 175.
127 Ark. at 370.
More recently in Wenderoth v. City of Ft. Smith, 256 Ark. 735, 510 S.W.2d 296 (1974), the Arkansas Supreme Court stated:
It is well established that whenever a dedicator-owner of land makes and files a plat and thereafter lots are sold with reference to it, as here, such constitutes an irrevocable dedication of any street or passageway for public use shown or indicated on the plat. Furthermore, whenever a dedication becomes irrevocable, a public authority can accept the dedication for public use whenever the necessity occurs.
256 Ark. 736-37 (citations omitted).
Applying this rule, the plat of Hayes Addition to the City of Conway was recorded and the land dedicated in 1917, and when the first lot was sold in reference to the plat, the streets became irrevocably dedicated. The two statutes prohibiting adverse possession of public property were enacted prior to appellants’ purchase of their property and, therefore, appellants could not adversely possess Maple Street.
Affirmed.
Cooper and Rogers, JJ., agree. | [
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JUDITH Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant failed to prove that her work was the major cause of her disability. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision and that the Commission erred as a matter of law in applying Ark. Code Ann. section 11-9-102(5)(E)(ii) (Supp. 1997). We agree with appellant’s second point and reverse and remand.
Appellant began working for appellee in August of 1995, primarily as a cashier. In December of 1995, appellant began developing numbness in her right hand, and she noticed a decrease in her ability to grip. When her symptoms interfered with her sleep, she sought medical attention and was referred to Dr. Ken Carpenter. Dr. Carpenter diagnosed carpal tunnel syndrome. Appellant was referred to orthopedic surgeon Dr. Larry Mahon, who performed a surgical release on March 28, 1996. Appellee denied compensation, and a hearing was held.
The Commission found that Dr. Mahon’s opinion did not provide any definitive guide to whether the claimant’s work was the major cause of her disability and:
Dr. Mahon can only state that it is compatible with the disability and need for treatment but he cannot state that it is or is not the major cause. Accordingly, we cannot find that Dr. Mahon’s opinion is sufficient to establish the major cause requirement necessary to prove the compensability of her claim. When claimant has failed to submit sufficient evidence to overcome the major cause requirement. . . the claim is not compensable.In our opinion, we should be guided by Dr. Mahons’ educated medical opinion. Dr. Mahon cannot state within a reasonable degree of medical certainty that the claimant’s work accounts for more than fifty percent of her disability or need for treatment. If Dr. Mahon cannot render such an opinion, we cannot see there is sufficient evidence in the record to allow us to make such a finding.
Arkansas Code Annotated section ll-9-102(5)(E)(ii) provides that the burden of proof for injuries falling within the definition of compensable injury that are not caused by a specific incident or are not identifiable by time and place of occurrence, such as carpal tunnel syndrome, shall be by a preponderance of the evidence, and the resultant condition is compensable only if the alleged compensable injury is the major cause of the disability or need for treatment. Thus, in the present case, appellee had the burden of proving by a preponderance of the evidence that her carpal tunnel syndrome injury was the major cause of the disability or need for treatment. Tyson Foods, Inc. v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (1998). However, the Commission erred as a matter of law in its application of Ark. Code Ann, section 11-9-102(5)(E)(ii) because it required a finding that appellant’s work, as opposed to her injury, was the major cause of the disability or need for treatment. It appears that the Commission has mistakenly confused the requirements for establishing a causal connection between a claimant’s work and his/her injury, and the added requirement after 1993 that an alleged compensable injury must be the major cause of the claimant’s disability or need for treatment where the injury is not caused by a specific incident or is not identifiable by time and place of occurrence. These are two distinct requirements that do not coincide with each other. A causal connection must be established in every case; however, the requirement that an alleged compensable injury must be the major cause of the disability or need for treatment only comes into play when an injury is not caused by a specific incident or is not identifiable by time and place of occurrence. Because of the Commission’s misapplication of Ark. Code Ann. section 11 — 9-102(5)(E)(ii), we must reverse and remand for the Commission to reconsider the facts of this case not inconsistent with this opinion. We do not reach appellant’s challenge to the sufficiency of the evidence because of our resolution of the previous issue.
Reversed and remanded.
Jennings and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
Continental Express, Inc. (Continental), appeals a decision of the Workers’ Compensation Commission reversing an administrative law judge and finding that appellee Marty Freeman had met his burden of proving by objective medical evidence that he had sustained a compensable injury. On appeal, Continental argues: 1) the Commission erred in its interpretation and application of Ark. Code Ann. § 11-9-102 (Supp. 1997), the portion of our workers’ compensation statute that defines a compensable injury; and 2) the Commission failed to consider the record as a whole in finding that Freeman had suffered a compensable injury. We affirm.
Freeman began work for Continental as a trailer mechanic on March 4, 1996. On March 25, 1996, he injured his lower back while steadying a ladder that had slipped out from under a coworker who had climbed to the top to change a light on a trailer. While the co-worker was hanging from the top of the trailer, Freeman angled the ladder under him and held it while he climbed down.
According to Freeman, his back started hurting, and his right leg “started feeling kind of funny.” He immediately reported the accident to his supervisor. He presented that day to Dr. Darien Wilbourn at the Medistat Clinic in Little Rock and was diagnosed with lumbar strain. Dr. Wilbourn took Freeman off work, prescribed physical therapy, and referred Freeman to orthopaedic surgeon Dr. Joe W. Crow, who concurred with the diagnosis. Dr. Crow treated the injury with steroid injections and additional physical therapy. Reports from the physical therapist who treated Freeman indicated the presence of muscle spasms. Freeman was subsequently referred to neurosurgeon Dr. Steven L. Cathey who, based in part on an MRI conducted on May 14, 1996, concluded that Freeman would not benefit from lumbar disc surgery.
Continental initially accepted the injury as compensable and paid temporary total disability benefits (TTD) through December 4, 1996. However, when Freeman sought additional TTD, Continental controverted the claim. A hearing was held before an administrative law judge (ALJ) in which Freeman’s testimony and his medical records were the only evidence submitted. Included in the medical records was the report of an MRI conducted on February 1, 1990, which was substantially similar to the report from the MRI that was conducted on May 14, 1996. The ALJ denied Freeman benefits in an order that stated in pertinent part that he failed to prove by objective medical evidence that he sustained a compensable injury.
The Commission reversed, finding that the physical therapist’s report of muscle spasms constituted objective medical evidence. It, however, denied Freeman additional benefits, finding that he failed to present any evidence that he was still within his healing period; Freeman did not file a cross-appeal.
Continental first argues that the Commission erred in its interpretation and application of Ark. Code Ann. § 11-9-102(16), in finding that Freeman’s injury was compensable, because it misinterpreted the physical therapist’s chart in concluding that Freeman exhibited muscle spasms on March 29, 1996, and April 2, 1996. Continental asserts that the chart was “sloppy” and specifically cites the misalignment of the “S” and “O,” which respectively designate subjective and objective information for the March 29 entry. Continental further contends that the March 29 entry which states: “R (right) lumbar and gluteal pain and spasm” provides no objective evidence because “[p]ain is obviously a subjective complaint, and it is logical to conclude that on 3-29-96, the Appellee merely complained of spasms, since the physical therapist included the word ‘spasm’ in the same sentence with the purely subjective pain complaints.” Regarding the April 2, 1996, entry on the physical therapist’s chart, which begins with “Ms. (Muscle) spasm,” Continental argues that “[i]t is logical to conclude that this is a subjective complaint by Appellee since the physical therapist has consistendy followed a pattern of recording subjective complaints first for each day’s entries, and because this entry is followed by another entry regarding subjective complaints of pain.”
In the alternative, Continental argues that even if the physical therapist did “opine” that Freeman had observable muscle spasms, the physical therapist is not qualified to state a medical opinion within a reasonable degree of medical certainty, as required by Ark. Code Ann. § 11-9-102(16)(B). Continental further claims that the Arkansas Workers’ Compensation Commission has held that a chiropractor is not qualified to state a medical opinion within a reasonable degree of medical certainty and that the same principle should apply to physical therapists. It asserts that chiropractors and physical therapists have very similar levels of training, and neither occupation is as well trained and educated in medical science as a medical doctor. These arguments are unpersuasive.
To be compensable, Freeman’s injury to his back had to be established by medical evidence, supported by “objective findings.” Ark. Code Ann. § 11-9-102(5) provides in pertinent part:
(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place of occurrence
Ark. Code Ann. § 11-9-102(5) (D) provides that a compensable injury must be established by medical evidence, supported by “objective findings” as defined in section 11-9-102(16). “Objective findings” are defined as findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i); see Daniel v. Firestone Bldg. Prods., 57 Ark. App. 123, 942 S.W.2d 277 (1997). In University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997), this court held that muscle spasms can constitute objective medical evidence. The court in Hart cited the following definition of muscle spasm contained in Stedman’s Medical Dictionary 1304 (23d ed. 1976): “1. An involuntary muscular contraction. ... 2. Increased muscular tension and shortness which cannot be released voluntarily and which prevent lengthening of the muscles involved; [spasm] is due to pain stimuli to the lower motor neuron.”
When we review workers’ compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Commission’s findings, and we affirm if those findings are supported by substantial evidence. High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (1998). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue on appeal is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm the Commission’s decision. Id. We hold that there is substantial evidence to support the Commission’s decision.
Regarding Continental’s argument that the Commission erred in interpreting the physical therapist’s progress notes, our review is hindered by the way that it abstracted these documents. The progress notes are not completely abstracted. Of particular note, the alleged misalignment of the “S” and “O” is not reflected in the abstract. It is the appellant’s burden to abstract the record to demonstrate error, and we will not go to the record to determine whether reversible error occurred. Couch v. First State Bank, 49 Ark. App. 102, 898 S.W.2d 57 (1995). Furthermore, contrary to Continental’s assertion, the progress notes as abstracted do not reveal any consistent pattern for fisting whether pain or spasm or both were present. The entries for 4-3-96 and 4-4-96 state only that there were no muscle spasms present. The entry for 4-1-96 states only: “Movement Sunday aggravated symptoms. Felt good until then.” The entry for 3-29-96 fists the location of pain first, then the presence of spasm, and the entry for 4-2-96 notes the presence of spasm first, then identifies the location of the pain. Under these circumstances, a conclusion by this court that the Commission’s interpretation of the progress notes was error would be nothing more than an impermissible substitution of our opinion for that of the Commission. High Capacity Prods. v. Moore, supra.
Also unpersuasive is Continental’s alternative argument that the findings of muscle spasms by a physical therapist cannot constitute objective findings because a physical therapist is unqualified to state a medical opinion to a reasonable degree of medical certainty. In the first place, Continental’s argument rests on the faulty premise that an objective finding is somehow synonymous with or otherwise based on medical opinion. No Arkansas court has ever made such a connection. In Keller v. L. A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992), we held that “objective findings” are based on observable criteria perceived by someone other than the claimant. See Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). We cannot disagree with the Commission’s statement in the instant case that a “physical therapist would surely be trained in techniques designed to detect muscle spasms during physical therapy.”
Continental next argues that by finding that Freeman sustained a compensable injury, the Commission failed to consider the record as a whole. Continental cites the similarity between the results of the MRIs conducted before and after the injury, and it asserts that when the record as a whole is considered, Freeman failed to produce objective findings establishing that he sustained a compensable injury. This argument also fails to persuade.
As noted above, the Commission correctly found that muscle spasms constituted objective findings for the purpose of establishing compensability. Accordingly, the similarity between the 1990 and 1996-MRI results are of no moment. It is well settled that an employer takes an employee as he finds him and employment circumstances that aggravate preexisting conditions are compensable. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).
Affirmed.
Jennings and Neal, JJ., agree. | [
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Wendell L. Griffen, Judge.
Sarah Ellison has appealed the decision by the Workers’ Compensation Commission concerning her claim for permanent disability benefits associated with a compensable back injury governed by the Workers’ Compensation Law that pre-dated Act 796 of 1993. Ellison contends that the Commission erred in its determination that she is entitled to permanent benefits on account of her anatomical impairment equal to a rating of 1% to the body as a whole, that she was entided to wage-loss disability benefits of 3% to the body as a whole, and that the Second Injury Fund (SIF) was not Hable pursuant to Ark. Code Ann. § 11-9-525 (Repl. 1996). We agree that the Commission erred; therefore, we reverse and remand so that the Commission can determine Ellison’s entitlement to benefits according to the correct legal standards.
Ellison sustained a work-related back injury on May 8, 1991, while employed by Therma-Tru, arising from her work pulling a load of door styles. Therma-Tru accepted the injury as compen-sable and paid indemnity and medical benefits related to it. Ellison continued working for Therma-Tru until July 1, 1993, and has not returned to work elsewhere since that time. She filed a claim for additional compensation benefits in which she contended that she was permanently and totally disabled due to the combined effects of the May 8, 1991 injury and recurrences sustained in December 1992 and June 1993, as well as her pre-existing degenerative back condition and a pre-existing condition of chronic obstructive pulmonary disease. The SIF was joined as a party and denied any liability for benefits, while Therma-Tru denied Elli son’s claim of being permanently and totally disabled. The Commission denied Ellison’s claim for permanent and total disability benefits arising from her May 1991 compensable back injury and compensable recurrences in December 1992 and June 1993. Instead, the Commission found appellant entitled to 1% anatomical impairment, found that she was entitled to wage-loss disability benefits of 3% to the body as a whole, and held that the Second Injury Fund was not hable pursuant to A.C.A. § 11-9-525 and Midstate Construction Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988).
It is settled law that on appellate review of workers’ compensation cases, we view the evidence and all reasonable inferences from it in the light most favorable to the Commission’s findings. Johnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989). A decision of the Commission is reversed only if we are convinced fair-minded persons using the same facts could not reach the conclusion reached by the Commission. Mikel v. Engineering Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). In our review, we defer to the Commission in determining the weight of the evidence and the credibility of the witnesses. Id. The issue is not whether we may have reached a different conclusion or whether the evidence might have supported a contrary finding. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996).
Ellison argues that the Commission erroneously focused on deposition testimony by Dr. Stephen Heim, an orthopaedic surgeon, who acknowledged that Ellison had pre-existing back problems before the May 8, 1991 injury, concluded that she sustained some permanent impairment due to the job-related injury, and assessed her permanent anatomical impairment at 6% to the body as a whole due to her overall condition without dividing the impairment between the job-related and the pre-existing condition. When pressed during his deposition to apportion what part of the impairment rating was attributable to the traumatic work injury, Dr. Heim testified:
With the trauma that has been relayed to me and knowing the condition of her back, if she has injured her back on the date that you mention, several times, in 1991 and 1992 and was taken off work in 1993, I think that it is likely that if she is incurring ongoing trauma that it has contributed at least 1% to her back.
The Commission evaluated Dr. Heim’s testimony and his written opinions regarding a 6% impairment rating in the following words:
Based on Dr. Heim’s written opinion and deposition testimony, we find that the greater weight of the evidence establishes that only 1% of the claimant’s anatomical impairment rating to the body as a whole is attributable to her work-related injuries and recurrences in 1991, 1992 and 1993. . . Dr. Heim is of the opinion that the claimant’s work-related injuries in 1991 with recurrences in 1992 and 1993 have aggravated claimant’s preexisting abnormality at L5-S1, to the extent that the claimant has experienced an additional 1% impairment (on top of the 5% impairment attributable to the preexisting disc abnormality) attributable to her work-related injury.
Regarding the Commission’s determination that Ellison is entitled to only 1% anatomical impairment based on Dr. Heim’s statement that if she has “ongoing trauma that it has contributed to at least 1% to her back,” this case is governed by workers’ compensation law as of 1991, the date of the compensable injury for which appellant seeks permanent disability benefits. Thus, Ark. Code Ann. § 11-9-522 (1987) applies. That statute and case law pertinent to it such as Bates v. Frost Loggins Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992), and Lockeby v. Massey Pulpwood, Inc., 35 Ark. App. 108, 812 S.W.2d 700 (1991), show that although a workers’ compensation claimant must prove a causal connection between the work-related accident and the later disabling injury, it is not essential that the causal relationship between the accident and the disability be established by medical evidence, nor is it necessary that employment activities be the sole cause of a worker’s injury in order to receive compensation benefits. By focusing on Dr. Heim’s statement regarding the extent that “ongoing trauma” from the 1991 employment injury and its recurrences contributed to appellant’s back condition, the Commission resorted to Act 796 of 1993 analysis based on Ark. Code Ann. § 11-9-102(F) (1987) which states, in pertinent part, as follows:
(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.
(b) If any compensable injury combines with a preexisting disease or condition or the natural process of aging to cause or prolong disability or a need for treatment, permanent benefits shall be payable for the resultant condition only if the compensable injury is the major cause of the permanent disability or need for treatment.
The Commission did not refer to § ll-9-102(F)(ii)(a) and (b) in its opinion; however, its decision regarding Ellison’s permanent physical impairment demonstrates that Act 796 reasoning was employed in deciding her impairment. Under the law in 1991 when Ellison was injured, it was not necessary that employment activities be the “major cause” for permanent disability.
We must also reverse the Commission’s determination that Ellison is only entided to wage-loss disability benefits of 3% to the body as a whole. The Commission only factored the work-related injury into its analysis and made no reference to Ellison’s pre-existing degenerative back condition and her chronic obstructive pulmonary disease. Both conditions were clearly established by the record. Concerning Ellison’s pre-existing degenerative back condition, the Commission’s opinion acknowledged Dr. Heim’s opinion and deposition testimony that Ellison had some degree of permanent impairment. Ellison’s testimony regarding her chronic obstructive pulmonary disease was uncontradicted and corroborated by medical records from her doctors.
Under the law in effect when Ellison’s claim arose, where the claim is for permanent disability based on incapacity to earn, the Commission is supposed to consider all competent evidence relating to the incapacity, including the age, education, medical evidence, work experience, and other matters reasonably expected to affect the claimant’s earning power. Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978); Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985). Although the Commission cited the seminal case of Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), and its progeny, which recognize that these factors are properly considered in determining wage loss disability, it did not consider the effect of Ellison’s pre-existing degenerative condition and her respiratory problem in concluding that Ellison’s wage-loss disability is 3% to the body as a whole.
The Commission also erred when it failed to address the wage loss disability issue and Ellison’s claim that she is permanently and totally disabled from the perspective of the “odd lot” doctrine. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992), supp. op., 40 Ark. App. 113, 846 S.W.2d 188 (1993), and similar cases provide that an employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. This employee is said to fall within the odd-lot category of disabled workers. Act 796 of 1993 abolished the odd-lot doctrine for permanent disability claims based on injuries that occurred after July 1, 1993 (see A.C.A. § 11-9-522(e) (Repl. 1996)); however, the doctrine was alive and applicable to Ellison’s disability claim stemming from her 1991 compensable injury and its recurrences.
Finally, the Commission erred when it held that the Second Injury Fund is not hable pursuant to Ark. Code Ann. § 11-9-525 and Midstate Const. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), and concluded that Ellison failed to prove the third factor required by the Midstate Construction opinion (that her prior disability or impairment combined with the additional permanent disability or impairment caused by the 1991 compensable injury to result in the current disability status). Even if Ellison’s anatomical impairment from the 1991 injury and its recurrences was only 1%, the combined effect of that impairment and her pre-existing degenerative disease and pre-existing respiratory condition resulted in her current disability status by all the medical evidence. While the Commission’s opinion concludes at page 9 that “the greater weight of the evidence establishes the claimant’s respiratory problems in no way ‘combined’ with the claimant’s most recent back problems to cause her present wage loss disability,” the employer’s physician even opined after the December 1992 episode, “I really think that this lady is going to need to find another line of work.” The October 11, 1993 medical report from Dr. Sills includes a statement that Ellison “is unable to work due to her severe chronic obstructive pulmonary disease and back pain.” Dr. Harford, the company physician, concluded in a July 21, 1993 report that appellant was “[n]ot able to do factory work. She needs to change occupations.” Likewise, Dr. Heim, the orthopaedic surgeon deposed by the parties, testified that “Mrs. Ellison is probably not a good candidate for vigorous activity that requires a lot of bending, stooping and lifting. She should have a sedentary job.” This and other proof in the record shows that fair-minded people could not agree with the Commission that the combined effect of Ellison’s work related 1991 injury and her pre-existing respiratory condition and preexisting degenerative back condition did not combine to produce her current disability.
Reversed and remanded.
Hart, Bird, Rogers, and Stroud, JJ., agree.
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Wendell L. Griffen, Judge.
Henry Rogers appeals from a decision on April 10, 1998, by the Arkansas Workers’ Compensation Commission that dismissed his appeal from the Administrative Law Judge’s (ALJ) decision. Appellant maintains that the dismissal of his appeal was error because the filing of his motion for reconsideration extended the time allowed for his notice of appeal. We affirm the dismissal of the claim.
Appellant filed a claim with the Workers’ Compensation Commission for injuries to his neck and lower back suffered on May 21, 1993. Appellant was towing a large piece of heavy equipment when the equipment struck the vehicle he was driving. In an opinion filed on January 14, 1998, the ALJ denied temporary total benefits to the appellant from June 4 to July 12, 1993. Appellant received this opinion on January 15, 1998.
Appellant filed a motion before the ALJ for reconsideration on January 20, 1998. The ALJ denied appellant’s motion on January 28, 1998. Appellant then appealed the decision to the Full Commission on February 23, 1998. Appellee filed a motion to dismiss, asserting that the notice of appeal was untimely. The Commission dismissed the appeal based upon Ark. Code Ann. § 11-9-711(a) (Repl. 1996).
Appellant argues that a timely motion for reconsideration or rehearing extends the time to file a notice of appeal to thirty days from the ruling on the motion. He also contends that because there is no provision in the statute for postjudgment motions, the procedure of Rule 4 of the Rules of Appellate Procedure regard ing postjudgment motions should apply. The appellee contends that the appellate rules do not apply to cases before the Workers’ Compensation Commission, and that any confusion regarding postjudgment motions and time for appeals was resolved by the latest case discussing the issue: Hill v. Travenol Labs., Inc., 24 Ark. App. 116, 748 S.W.2d 356 (1988).
Initially, it should be noted that the Arkansas Rules of Civil Procedure do not apply to proceedings before the Workers’ Compensation Commission. Tracor/MBA v. Artissue Flowers, 41 Ark. App. 186, 850 S.W.2d 30 (1993). Arkansas Code Annotated section 11-9-711, as a special statute governing appeals only in workers’ compensation cases, was intended to remain in force as an exception to the later and more general enactment of the Rules of Appellate Procedure. Sunbelt Couriers v. McCartney, 31 Ark. App. 8, 786 S.W.2d 121, aff'd 303 Ark. 522, 798 S.W.2d 92 (1990). Moreover, the Rules of Appellate Procedure “govern the procedure in civil appeals to the Arkansas Supreme Court or Court of Appeals.” See Rule 1, Rules of Appellate Procedure. Thus, we are not persuaded by appellant’s argument that Rule 4 of the Rules of Appellate Procedure applies to his appeal to the Commission from a decision rendered by an Administrative Law Judge.
The Commission found that appellant’s notice of appeal was not timely based upon Ark. Code Ann. § 11-9-711 (1996), which provides: .
(a) Award or Order of Administrative Law Judge or Single Commissioner •— Review. (1) A compensation order or award of an administrative law judge or a single commissioner shall become final unless a party to the dispute shall, within thirty (30) days from the receipt by him of the order or award, petition in writing for a review by the full commission of the order or award.
No provision of the statute addresses any changes in the time for the notice of appeal where a post-award motion has been filed. We have stated that the time for appeal in workers’ compensation cases is a matter for the legislature, and accordingly, we have rejected arguments for a more liberal view of timely appeals. Lloyd v. Potlatch Corp., 19 Ark. App. 335, 721 S.W.2d 670 (1986).
Our cases have stated the blanket rule that “[i]f a notice of appeal is not received by the Commission within thirty days, the decision becomes final and the Commission is without authority to review the case.” Tracor/MBA, 41 Ark. App. at 189, 850 S.W.2d at 32. No exceptions have been made. In Hill v. Travenol Labs., Inc., 24 Ark. App. 116, 117-18, 748 S.W.2d 356, 356 (1988), we stated that even though “the Commission has the authority to consider a motion for rehearing which is filed within the thirty days allowed for an appeal. . . the fifing of a motion for reconsideration . . . does not extend the time to file the notice of appeal.” (Citations omitted.) The timeliness argument in that case involved an appeal from the Commission to this court, not an appeal from the ALJ to the Commission.
The rule seems to have been muddled somewhat in the past by the statement in cases such as Lloyd, supra, that “there was no timely appeal from the law judge’s decision [awarding claimant permanent partial disability], or from his denial of the petition for rehearing of that decision.” 19 Ark. App. at 342. In none of the cases cited by appellant did the court hold that the motion for reconsideration extended the time for appeal. The court in those cases simply noted that the notice of appeal was not timely because it was not within thirty days from either date considered. The language cited by appellant amounts to dicta.
The provisions regarding appeals from the ALJ to the Commission and appeals from the Commission to this court are identical: the lower decision becomes final if no appeal is sought within thirty days. See Ark. Code Ann. § 11-9-711(a) and (b). Thus, the rule in Hill, supra, is applicable to this case involving an appeal from the ALJ to the Commission. Any confusion created in Lloyd, supra, and similar cases, was clarified by our decision in Hill. Lastly, the language of the statute clearly states that an award is final where no notice of appeal is sought within thirty days of its receipt. See Ark. Code Ann. § 11-9-711 (1996). The clear language of the statute controls. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). Accordingly, we find no error in the' Commission’s dismissal of appellant’s claim.
Affirmed.
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