text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
LARRY D. VAUGHT, Judge
Appellant Nathan Longeway appeals his conviction by the Pulaski County Circuit Court of interference with court-ordered custody pursuant to Arkansas Code Annotated section 5-26-502 (Repl. 2013). We affirm.
A Pennsylvania court entered a consent decree on November 17, 2015, regarding the custody of Nathan's two children with his former wife, Rebekah Longeway, which stated that it was transferring the case to Pulaski County, Arkansas. Under the terms of the agreed order, Nathan was to have the children from November 20, 2015, until November 25, 2015, was to return the children to Rebekah in North Little Rock, and was then to receive the children again on December 4, 2015.
Nathan picked up the children from Rebekah on November 20, 2015, in North Little Rock and took them to Florida for Thanksgiving. The same day, Rebekah filed an uncertified copy of the Pennsylvania custody order with the Pulaski County Circuit Court. Nathan did not return the children on November 25 as ordered. Nathan later claimed that he had vehicle trouble and was unable to return the children at the scheduled time. Nathan neither attempted to contact Rebekah nor responded to her numerous attempts to contact him. Nathan claimed that he was relying on his lawyer to communicate to her that he could not get back to Arkansas.
Rebekah contacted the police, and on December 2 and 4, 2015, Officer John Trent of the Little Rock Police Department spoke to someone by phone who identified himself as Nathan. The officer asked that person to return the children. Officer Trent also contacted the North Port Police Department in Florida and informed them that an Arkansas warrant had been issued against Nathan. On December 7, 2015, Nathan was arrested in North Port, Florida. The children were returned to Rebekah on December 8, 2015, in Sarasota, Florida.
Nathan was subsequently charged with two counts (one count for each child) of interference with court-ordered custody pursuant to Arkansas Code Annotated section 5-26-502. A bench trial began in May 2016 but was continued until July 2017. At the conclusion of the trial, the circuit court judge convicted Nathan on both counts and sentenced him to sixty days in jail. This appeal followed.
Nathan's first argument on appeal is that the circuit court was without jurisdiction to convict him of interference with court-ordered custody because the act of interference occurred before the Pennsylvania custody order had been registered in Arkansas for ten days, as required by Arkansas Code Annotated section 9-19-305(b)(1) (Repl. 2009). We review questions of law de novo on appeal. Selmon v. Metro. Life Ins. Co. , 372 Ark. 420, 424, 277 S.W.3d 196, 200 (2008) ; Noe v. State , 2011 Ark. App. 155, at 2-3, 381 S.W.3d 915, 917-18. Likewise, the standard of review with respect to statutory and constitutional interpretation is de novo. Fitton v. Bank of Little Rock , 2010 Ark. 280, 365 S.W.3d 888. Nathan's argument has no merit because the statute upon which Nathan relies governs only civil-enforcement actions and does not control criminal prosecutions. Arkansas Code Annotated section 9-19-303(b) (Repl. 2009) specifically states that
[a] court of this [S]tate may utilize any remedy available under other law of this [S]tate to enforce a child-custody determination made by a court of another state. The remedies provided in this subchapter are cumulative and do not affect the availability of other remedies to enforce a child-custody determination.
Moreover, Arkansas Code Annotated section 9-19-315 (Repl. 2009) states that "[t]here is nothing in this Act that would prevent a State from authorizing the prosecutor or other public official to use additional remedies beyond those provided in this Act."
Here, Nathan was convicted of a criminal offense that does not hinge on the registration of the custody order in Arkansas. The relevant statutory language states,
(a) A person commits the offense of interference with court-ordered custody if the person:
(1) Knowing that he or she has no lawful right to do so, takes, entices, or keeps any minor from any person entitled by a court decree or order to the right of custody of the minor.
Ark. Code Ann. § 5-26-502(a)(1). Under the elements of the criminal offense, the only relevant inquiry was whether Nathan was legally entitled to keep the children, regardless of whether the underlying custody order was civilly enforceable in either Pennsylvania or Arkansas.
Nathan's next two points on appeal fail for the same reason. He claims that the Pennsylvania order that Rebekah registered in Pulaski County was not certified and that she had not yet registered it when she initially delivered the children to Nathan. Neither argument has merit because, as discussed above, Nathan erroneously relies on the requirements for civil enforcement of a custody order, while this is a criminal case. He has provided no legal authority or persuasive argument that the criminal offense of interference with court-ordered custody, as defined in Arkansas Code Annotated section 5-26-502, is dependent on the custody order being properly registered and subject to civil-enforcement procedures.
Finally, Nathan argues in his reply brief that the State cannot base jurisdiction on section 5-1-103 (Repl. 2013) of the criminal code, which states that "[a] person may be convicted under a law of this State of an offense committed by him if either the conduct or a result that is an element of the offense occurs within this State or conduct occurring outside this State constitutes an attempt to commit an offense within this State," because he argues that no element of the offense took place in Arkansas. This argument was not raised in Nathan's opening brief. While he argued that the court lacked jurisdiction to convict him of interference with court-ordered custody, his argument was limited to the requirements of the civil custody-enforcement statute discussed above. We have long held that an argument cannot be raised for the first time in a reply brief. State v. McCormack , 343 Ark. 285, 291, 34 S.W.3d 735, 738-39 (2000) ; Jordan v. State , 323 Ark. 628, 917 S.W.2d 164 (1996). Therefore, we do not address this issue.
Affirmed.
Klappenbach and Murphy, JJ., agree. | [
-48,
104,
-3,
28,
26,
65,
58,
52,
103,
-13,
-31,
83,
-85,
-10,
20,
121,
-53,
107,
113,
105,
-56,
-73,
119,
65,
114,
-45,
-79,
-42,
-78,
75,
-3,
-42,
28,
96,
-114,
117,
70,
72,
-17,
88,
-122,
3,
-87,
-27,
83,
3,
36,
-81,
82,
15,
53,
-114,
-76,
46,
26,
-54,
108,
46,
89,
-19,
88,
-46,
-37,
79,
14,
22,
-125,
52,
58,
4,
112,
47,
-120,
49,
33,
-23,
-13,
-106,
-126,
117,
67,
-39,
25,
36,
114,
0,
-115,
-59,
-4,
-88,
78,
62,
11,
-90,
-104,
73,
66,
71,
-74,
-36,
116,
18,
42,
120,
-24,
15,
120,
108,
-94,
-51,
-112,
-111,
12,
56,
-124,
-80,
-29,
5,
96,
81,
-58,
-90,
84,
-58,
49,
-101,
-82,
-78
] |
LARRY D. VAUGHT, Judge
Appellant White River Health System, Inc., d/b/a White River Medical Center (WRMC), appeals from the order entered by the Circuit Court of Independence County on September 13, 2017, denying its motion for summary judgment based on the affirmative defense of charitable immunity.
On appeal, WRMC argues that it presented prima facie evidence demonstrating its entitlement to summary judgment as a charitable entity immune from liability and suit in tort and that appellee, Madeline Long, as special administratrix of the estate of Danielle Toth, deceased (Estate), failed to meet proof with proof to show a genuine issue of material fact. Because WRMC has not appealed from a final order, we lack jurisdiction and must dismiss without prejudice.
On January 20, 2012, Randall Johnson, as special administrator of the estate of Danielle Toth, deceased, filed this action against multiple defendants, including WRMC, asserting claims for wrongful death and medical negligence. WRMC answered the complaint, denied the allegations of negligence, and pled that it was a charitable, nonprofit organization entitled to immunity from liability and suit.
In June 2012, WRMC filed a motion for summary judgment based on the charitable-immunity doctrine. To the motion, WRMC attached a copy of its articles of incorporation as a nonprofit corporation and an affidavit by Gary L. Bebow, the chief executive officer of WRMC. In July 2012, in further support of its motion for summary judgment, WRMC filed its 2009 federal-income-tax records as an organization exempt from income tax. In December 2012, the circuit court held an unrecorded hearing on WRMC's motion for summary judgment; however, no written order was entered disposing of the matter.
On August 18, 2017, the Estate filed a motion for sanctions against WRMC. The motion alleged that WRMC had committed discovery violations from 2012 to 2017 by repeatedly failing and refusing to provide the Estate with a complete set of Toth's medical records and by providing inaccurate information regarding its liability coverage. The Estate requested that it be granted both a default judgment against WRMC and a jury trial on the issue of damages.
On September 8, 2017, a hearing on both WRMC's motion for summary judgment and on the Estate's motion for sanctions was held. At the conclusion of the hearing, the circuit court orally denied WRMC's motion for summary judgment and granted the Estate's motion for sanctions. On September 13, 2017, the circuit court entered an order denying WRMC's motion for summary judgment. The court found
that there are disputed facts as to whether the organization's goal is to break even; whether the organization depends upon contributions and donations for its existence; whether the organization provides its services free of charge to those unable to pay; and whether its directors receive and officers receive any compensation.
Importantly, the court's order bifurcated trial: a trial on the charitable-immunity issue was to be immediately followed by a trial on the medical-malpractice claims. This appeal followed.
On appeal, WRMC argues that the circuit court erred in denying summary judgment because it presented prima facie evidence to demonstrate its entitlement to charitable immunity from liability and suit as a matter of law and that the Estate failed to meet proof with proof to show a genuine issue of material fact on the issue. We are unable to reach the merits of this argument because WRMC has not appealed from a final order.
Our rules of appellate procedure require that an order be final to be appealable. Muntaqim v. Hobbs , 2017 Ark. 97, at 2, 514 S.W.3d 464, 466 (citing Ark. R. App. P.-Civ. 2 (2016); Denney v. Denney , 2015 Ark. 257, at 4, 464 S.W.3d 920, 922 ). Generally, the denial of a motion for summary judgment is neither reviewable nor appealable. Ark. Elder Outreach of Little Rock, Inc. v. Thompson , 2012 Ark. App. 681, at 4, 425 S.W.3d 779, 783. However, our court has routinely reviewed and decided orders in cases where the circuit court refused to grant a summary-judgment motion based on the defense of charitable immunity. Id. at 4, 425 S.W.3d at 783 ; Gain, Inc. v. Martin , 2016 Ark. App. 157, at 2, 485 S.W.3d 729, 731-32 ; Progressive Eldercare Servs.-Saline, Inc. v. Cauffiel , 2016 Ark. App. 523, at 2, 508 S.W.3d 59, 61-62 ; Progressive Eldercare Servs.-Bryant, Inc. v. Price , 2016 Ark. App. 528, 2016 WL 6496651 ; Progressive Eldercare Servs.-Saline, Inc. v. Garrett , 2016 Ark. App. 518, 2016 WL 6495865.
In these cases, appellate jurisdiction was based on Arkansas Rule of Appellate Procedure-Civil 2(a)(2), which provides that an appeal may be taken from "an order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action." Ark. R. App. P.-Civ. 2(a)(2) (2017). Based on Rule 2(a)(2), our court has held that it had jurisdiction in cases where the refusal to grant a summary-judgment motion had the effect of determining that the appellant was not entitled to its defense of charitable immunity from suit, as the right of immunity from suit is effectively lost if a case is permitted to go to trial. Thompson , 2012 Ark. App. 681, at 4, 425 S.W.3d at 783 ; Gain, Inc. , 2016 Ark. App. 157, at 2, 485 S.W.3d at 731-32 ; Cauffiel , 2016 Ark. App. 523, at 2, 508 S.W.3d at 61-62 ; Price , 2016 Ark. App. 528 ; Garrett , 2016 Ark. App. 518.
In Thompson , Gain , Cauffiel , Price , and Garrett , the orders denying summary judgment on charitable immunity did not bifurcate trial on the issues of charitable immunity and liability; therefore, it appeared on the record in those cases that the charitable-immunity issue and the merits of the action were to be tried together, in which case the appellants/defendants would have "effectively lost" their rights to immunity from suit if their cases were permitted to go to trial. Therefore, our court had jurisdiction in those cases. Ark. R. App. P.-Civ. 2(a)(2).
There is a significant distinction in the case at bar. Here, the circuit court's order denying summary judgment found that there were questions of fact regarding the charitable-immunity issue and it bifurcated trial. The court's order provided: "The issue of charitable immunity will proceed to trial. The Court orders that the charitable immunity issue be bifurcated, with a separate trial on that issue to proceed immediately preceding the commencement of the trial on the malpractice action."
Based on this bifurcation language, it is clear that the charitable-immunity issue and the malpractice claims will not be tried together. It is also clear that-on the charitable-immunity issue-the circuit court's order has not determined the action or prevented a judgment from which an appeal might be taken. In other words, WRMC's right of immunity from suit has not been "effectively lost"-because a jury must first resolve disputed questions of fact regarding the factors that the circuit court must consider when determining whether WRMC is entitled to charitable immunity. Therefore, we do not have an "order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action" as required in Rule 2(a)(2). Ark. R. App. P.-Civ. 2(a)(2). Accordingly, the general rule applies, and WRMC's appeal from the denial of a motion for summary judgment is neither reviewable nor appealable. We do not have jurisdiction under Rule 2(a)(2), and we must dismiss WRMC's appeal without prejudice.
Dismissed without prejudice.
Gruber, C.J., and Abramson and Virden, JJ., agree.
Harrison and Whiteaker, JJ., dissent.
In July 2015, the appellee Madeline Long was substituted as the special administratrix of the estate.
In this order, the circuit court also granted the Estate's motion for sanctions, ordering WRMC to pay the Estate's costs and attorney's fees associated with the taking of the depositions of Toth's treating physicians and of all expert witnesses through September 8, 2017.
In Robinson v. Beaumont , the interplay between qualified immunity and Rule 2(a)(2) was discussed:
The principle defense was that the appellants were entitled to a "good faith" or qualified immunity from suit. There would be no further proceedings if the appellants were entitled to the claimed immunity. The refusal to grant the motion amounted to a denial of appellants' claimed defense which would have, if allowed, discontinued the action. The qualified immunity claim is a claim of right which is separable from, and collateral to, rights asserted in the complaint. Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The refusal to grant this summary judgment motion had the effect of determining that the appellants were not entitled to immunity from suit. The right of qualified immunity from suit is effectively lost if a case is permitted to go to trial. Mitchell v. Forsyth , 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
291 Ark. 477, 482-83, 725 S.W.2d 839, 842 (1987). In Low v. Insurance Co. of North America , 364 Ark. 427, 440, 220 S.W.3d 670, 680 (2005), our supreme court held that a charitable entity is immune from suit as well as liability. See also Seth v. St. Edward Mercy Med. Ctr. , 375 Ark. 413, 418, 291 S.W.3d 179, 183 (2009).
Whether an entity is entitled to charitable immunity is a question of law for the circuit court. Carnell v. Ark. Elder Outreach of Little Rock, Inc. , 2012 Ark. App. 698, at 7, 425 S.W.3d 787, 792 (holding that the issue of whether a party is immune from suit is purely a question of law). | [
-44,
-20,
-43,
-100,
8,
99,
48,
10,
66,
-93,
119,
19,
-19,
-30,
-127,
63,
-29,
125,
-15,
113,
-63,
-77,
79,
32,
-10,
-45,
-86,
-57,
-78,
-49,
-12,
-4,
77,
48,
-117,
-75,
102,
2,
-17,
16,
12,
10,
-103,
-19,
81,
-61,
48,
-17,
84,
3,
113,
-114,
-19,
46,
60,
66,
105,
42,
121,
41,
-55,
-71,
-63,
-121,
95,
2,
-95,
20,
-112,
-61,
-24,
56,
-104,
49,
24,
-55,
83,
-74,
-126,
116,
107,
-39,
41,
98,
98,
-125,
28,
-27,
-80,
-98,
15,
30,
31,
-91,
-109,
41,
66,
15,
-106,
-99,
120,
94,
3,
124,
-84,
-60,
91,
108,
1,
-114,
-41,
-95,
-113,
-4,
-120,
-25,
-1,
19,
50,
17,
-51,
82,
94,
-122,
49,
59,
-34,
-77
] |
BRANDON J. HARRISON, Judge
Rema Bailey appeals the termination of her parental rights to four of her children. She argues that the circuit court erred in finding that she posed a risk of potential harm to her children and that the Arkansas Department of Human Services (DHS) failed to provide adequate services. We affirm.
On 9 January 2017, DHS petitioned for emergency custody of Bailey's five children, who ranged from three months to seven years of age. The affidavit attached to the petition explained that DHS was notified in October 2016 after the infant, K.B., was born with amphetamines in his system. DHS opened a protective-services case in November and discovered that K.B. had been admitted to Arkansas Children's Hospital (ACH) on December 25. ACH voiced concern over the parents' fighting at the hospital and their refusal to participate in the case, including not assisting in changing or feeding K.B. On 4 January 2017, Bailey was drug-screened and was positive for methamphetamine. She denied using drugs and blamed her husband for possibly putting drugs in her food. At that time, a seventy-two-hour hold was placed on the other four children; K.B. was discharged and a hold was placed on him the next day. DHS discovered that three of the children were heavily infested with lice. The affidavit also noted a previous protective-services case, which was opened due to environmental neglect and the parents' testing positive for methamphetamine.
The circuit court granted emergency custody and later found probable cause to continue custody with DHS. In its probable-cause order, the court ordered that the parents be referred for a drug-and-alcohol assessment and marital counseling and that both parents submit to a drug screen that day (12 January 2017) and as requested by DHS.
In March 2017, the court adjudicated the children dependent-neglected. The parties stipulated to the adjudication "based on parental unfitness due to parental drug use." The court ordered the parents to obtain and maintain stable and appropriate housing, income, and transportation; complete parenting classes; complete a drug-and-alcohol assessment and follow the recommendations; complete domestic-violence classes; resolve all criminal issues; and submit to random drug screens and hair-follicle testing. The court noted in a September 2017 review order that the parents had submitted to a drug-and-alcohol assessment but needed to follow the recommendations of that assessment.
The circuit court conducted a permanency-planning hearing on 30 November 2017. The permanency-planning order, which was not entered until 5 January 2018, continued the goal of the case as reunification. The court found that the four older children had begun a trial placement with Bailey, while K.B., who is medically fragile, remained in his foster placement. The court also found that Bailey had obtained housing, income, and transportation and had completed a drug-and-alcohol assessment along with the recommended treatment.
On 25 January 2018, a fifteen-month review hearing was held, and the resulting written order, entered on February 2, noted that Bailey had completed parenting classes and domestic-violence classes. Bailey had also submitted to drug screens, which had been negative. Bailey was ordered to maintain order and cleanliness in her home, to not have overnight visitors, and to not use any caregivers for the children unless approved by DHS. It appears that another review hearing was held four days later, on January 29, but the written review order was not entered until April 24. In that order, the court found that it was in the "best interest of the juveniles that the goal of the case shall continue to be adoption following termination." Prior to this order, the goal of the case had been reunification. However, on February 1, DHS removed the children from their temporary placement with Bailey after it discovered that she had been evicted from her housing, had lost her job, and had been living in motels. DHS had also received the results of a hair-follicle test submitted on January 25, which showed that Bailey was positive for methamphetamine "well over the cutoff which indicated a fairly serious relapse."
On 20 April 2018, DHS petitioned to terminate Bailey's parental rights, alleging three statutory grounds for termination: failure-to-remedy, subsequent-factors, and aggravated-circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(i), (vii), & (ix) (Supp. 2017). DHS also identified potential harm from Bailey's lack of stability, her relapse in drug use, and her inability to meet the needs of the children. After a two-day hearing, the circuit court accepted Bailey's voluntary termination of her parental rights to K.B. and found that it was in the other four children's best interest that her parental rights be terminated. In its written order, the court found that DHS had proved the failure-to-remedy and aggravated-circumstances grounds, that the children were adoptable, and that the children would be at substantial risk of harm if returned to Bailey because she had "not demonstrated the necessary stability." The court also found that "the domestic violence and the on again, off again relationship between the parents is a risk for the children given they [the parents] are not able to stay away from each other." Bailey has now appealed the termination order.
A circuit court's order that terminates parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017); Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is proof that will produce in the fact-finder a firm conviction on the allegation sought to be established. Dinkins , supra. On appeal, we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit court to assess the witnesses' credibility. Id.
While Bailey's argument on appeal is somewhat jumbled, it can be divided into two primary issues: (1) whether DHS failed to provide adequate services, and (2) whether the circuit court erred in finding that she posed a risk of potential harm to her children.
I. Adequate Services
Bailey asserts that DHS did not sufficiently inform her that she could request help, did not provide adequate budgeting assistance, and did not offer services tailored to "how to complete the requirements of the case plan while maintaining employment and caring for the kids." However, Bailey did not appeal from the orders in which the circuit court specifically found that DHS had made reasonable efforts to provide services, and she is now barred from challenging those prior findings. Martin v. Ark. Dep't of Human Servs. , 2017 Ark. 115, 515 S.W.3d 599. In addition, only one of the statutory grounds relied on by the circuit court requires as an element of proof meaningful reunification services by DHS-the failure-to-remedy ground. Aggravated circumstances, on the other hand, does not require proof that DHS provided meaningful or appropriate reunification services to Bailey. Because Bailey's argument does not apply to the aggravated-circumstances ground, and thus that ground is not challenged by her, we affirm on that unchallenged ground alone. Benedict v. Ark. Dep't of Human Servs. , 96 Ark. App. 395, 242 S.W.3d 305 (2006).
II. Potential Harm
Under Arkansas law, to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). This potential-harm inquiry should be conducted in broad terms, and the focus is on the potential harm to the health and safety of a child that might result from continued contact with the parent. Tadlock v. Ark. Dep't of Human Servs. , 2009 Ark. App. 841, 372 S.W.3d 403. The circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id.
Bailey contends there was no evidence that clearly showed she was incapable of taking her children home and adequately caring for their health, safety, and welfare. She claims that the trial placement had been ended for "minor issues" and that if DHS had provided adequate services, the likelihood of the children being removed from the trial placement "would have significantly decreased." She argues that she made "measurable progress" toward obtaining reunification.
Our case law is clear that 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. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182. The evidence presented to the circuit court showed that Bailey had four different vehicles since November 2017; had lived in five different locations throughout the pendency of the case; had no housing, income, or transportation when the trial placement ended, which was over twelve months into the case; and had tested positive for methamphetamine in January 2018, which was twelve months into the case. Under these circumstances, we affirm the circuit court's finding that Bailey's lack of stability posed a risk of potential harm to the children if returned to her custody.
Affirmed.
Klappenbach and Glover, JJ., agree.
The circuit court also terminated the rights of the children's father, James Bailey, but he is not a party to this appeal. | [
48,
108,
-11,
108,
26,
-31,
88,
26,
83,
-125,
103,
115,
-89,
-25,
21,
-23,
-54,
111,
112,
105,
-61,
-73,
87,
0,
66,
-13,
-72,
-47,
-77,
79,
108,
-34,
76,
81,
-114,
-15,
70,
-62,
-17,
64,
-126,
3,
-118,
101,
83,
-126,
45,
99,
26,
6,
53,
-97,
-110,
-84,
24,
-54,
12,
110,
89,
-76,
-40,
-6,
-101,
23,
-1,
18,
-127,
116,
-69,
-123,
114,
119,
-36,
48,
1,
-24,
115,
-74,
-118,
52,
65,
-103,
5,
52,
-30,
-128,
12,
-25,
-8,
8,
-65,
-82,
-81,
-90,
-101,
121,
67,
13,
-74,
-76,
108,
20,
14,
-4,
107,
13,
100,
108,
-60,
-53,
28,
-111,
-116,
-119,
28,
59,
-25,
-57,
48,
117,
-57,
-32,
84,
-121,
115,
-101,
-82,
-78
] |
LARRY D. VAUGHT, Judge
Cody Byrd appeals the Randolph County Circuit Court's order terminating his parental rights to his two children. We affirm.
The Arkansas Department of Human Services (DHS) exercised an emergency hold on Byrd's two children, eighteen-month-old A.B.1 and seven-month-old A.B.2, on June 5, 2017, following a motor-vehicle accident that killed their mother. Byrd was driving at the time of the accident and admitted that he had been drinking whiskey. Moreover, evidence indicated that he had disabled an interlock device that had been installed on his vehicle based on a prior DWI conviction.
On May 21, 2018, DHS filed a petition to terminate Byrd's parental rights alleging that termination was in the children's best interest and was warranted based on five statutory grounds: "failure to remedy" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) (Supp. 2017), "failure to maintain meaningful contact" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ii)(a) , "abandonment"
pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(iv), "other subsequent factors" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) , and "aggravated circumstances" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a) . The circuit court held a termination hearing on August 21, 2018, and subsequently terminated Byrd's parental rights on four grounds. This appeal follows.
We review cases involving the termination of parental rights de novo. Griffin v. Ark. Dep't of Health & Human Servs. , 95 Ark. App. 322, 236 S.W.3d 570 (2006). While we review the factual basis for terminating parental rights under a clearly erroneous standard, no deference is given to the circuit court's decision with regard to errors of law. Id. An order forever terminating parental rights must be based on clear and convincing evidence that termination is in the child's best interest and that a statutory ground for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(A). "Best interest" includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the juvenile to the parent. Roberts v. Ark. Dep't of Human Servs. , 2016 Ark. App. 226, at 7, 490 S.W.3d 334, 337.
Byrd does not challenge the court's best-interest finding. He challenges only the sufficiency of the evidence supporting the court's finding that the failure-to-remedy and other-subsequent-factors grounds supported termination. We need not reach the merits of his arguments because he has not alleged error in the court's finding that termination was appropriate under two other statutory grounds: failure to maintain meaningful contact and aggravated circumstances. Our case law is clear that an unchallenged ground for termination is sufficient to affirm the statutory-ground element of the court's termination order. Phillips v. Ark. Dep't of Human Servs. , 2018 Ark. App. 565, 567 S.W.3d 502, 508-09. "When an appellant fails to attack the circuit court's independent alternative basis for its ruling, we will not reverse." Id. , 567 S.W.3d at 508.
Affirmed.
Gruber, C.J., and Whiteaker, J., agree.
The court found that DHS had proved all alleged grounds except for abandonment. | [
49,
-20,
-11,
12,
26,
-31,
88,
20,
83,
-125,
103,
115,
-81,
-10,
21,
121,
-21,
99,
113,
105,
-61,
-73,
85,
32,
74,
-13,
-80,
-41,
-78,
75,
100,
-106,
28,
112,
-118,
85,
68,
64,
-17,
-40,
-94,
3,
-117,
125,
17,
-109,
60,
115,
82,
15,
49,
-113,
-61,
46,
30,
-62,
44,
78,
-39,
-71,
88,
114,
-53,
7,
-33,
2,
-93,
4,
-102,
4,
80,
63,
-100,
57,
41,
-24,
114,
54,
-118,
116,
75,
-103,
-123,
117,
-26,
-128,
13,
-59,
-12,
8,
-82,
-82,
-99,
-122,
-102,
121,
3,
7,
-97,
-76,
94,
20,
14,
124,
106,
-115,
116,
108,
4,
-50,
22,
-127,
-50,
-95,
20,
51,
-21,
-29,
48,
117,
-57,
-26,
85,
87,
115,
-103,
-58,
-10
] |
BART F. VIRDEN, Judge
Tambre Qualheim seeks to reverse the Craighead County Circuit Court's denial of her motion to set aside the adoption decree regarding her biological child, SR. We affirm.
I. Relevant Facts
Jason Roush and Tambre Qualheim are the biological parents of SR (born 9/28/10). In 2011, Jason and Tambre were divorced by order of the Poinsett County Circuit Court. In 2012, Jason married April. In 2015, the circuit court awarded Jason legal custody of SR and granted Tambre visitation subject to her submission to drug testing. On February 15, 2017, the Roushes filed a petition for adoption in the Craighead County Circuit Court requesting that April be named the parent of SR. In the petition, the Roushes asserted that Tambre's consent to adoption was not necessary because she had abandoned SR and that for a period of at least one year, Tambre had failed significantly and without justification to communicate with SR or provide for her care and support. The Roushes contended that because Tambre had abandoned SR, she was unreasonably withholding consent to adoption. On the same day, the summons regarding the petition for adoption was issued. The summons stated that Tambre had thirty days to respond with a written answer or motion and that failure to respond would result in a default judgment. Proof of service was returned showing that the complaint and summons were hand delivered to Tambre on February 21, 2017.
Also on February 15, Jason filed a motion to modify or suspend the visitation set out in their ongoing domestic-relations case. In the petition, Jason asserted that a change of circumstances had occurred; namely, that Tambre had refused multiple drug screens and that she had falsely stated that her visitation was being supervised, which was required if she refused to submit to drug screening. Jason requested that the court order immediate drug testing. The notice of hearing was issued on February 15, and it erroneously stated that a hearing on the matter was scheduled for March 6 at 9:30 at the Craighead County Courthouse. In fact, because the case was a continuation of the divorce proceedings, the hearing was to be held at the Poinsett County Courthouse.
On March 6, 2017, Tambre arrived late to the hearing due to the mistake in the summons. In the order entered the same day, the Poinsett County Circuit Court found that Tambre had failed to appear and that she was ordered to submit to urine, hair-follicle, and nail testing no later than March 9. The circuit court found that if she failed to submit to testing, she would be deemed to have failed the test, and her visitation would be suspended.
On March 24, 2017, the decree of adoption was entered by the Craighead County Circuit Court. In the order, the circuit court found that Tambre had been served with the adoption petition by process server and that she had not responded. The circuit court also found that Tambre's consent to the adoption was not necessary because she had unreasonably withheld her consent contrary to SR's best interest.
On August 3, 2017, Tambre filed a motion to set aside the decree. In her motion she stated that on February 15, 2017, the Roushes filed a petition to suspend or modify the visitation set out in their continuing domestic-relations case in the Poinsett County Circuit Court, and on the same day the Roushes also filed a petition for adoption in the Craighead County Circuit Court. The notice of hearing for the petition to modify visitation erroneously indicated that the hearing would be held at the Craighead County Courthouse, and Tambre was late to the hearing because she had relied on the summons and initially had gone to the wrong courthouse. Tambre asserted that when she appeared at the hearing on the motion to modify visitation, she believed she was there, in part, to contest the petition to adopt. Tambre explained that the circuit court held the hearing when she arrived, that she agreed to submit to drug testing, that she was ordered to refrain from clipping her nails, and that her nails were photographed. Tambre stated that she "passed" the drug screen; however, after the hearing, the Poinsett County Circuit Court erroneously entered an order finding that Tambre had failed to appear.
Tambre asserted that at the adoption hearing on March 24, the Roushes misrepresented to the court that she had failed to answer the adoption petition or otherwise appear and that she was in default. Tambre argued that
[p]etitioners manipulated the procedural status of the case(s) to obtain a decree of adoption on March 24, 2017, via default despite the fact that Tambre Qualheim did not consent, appeared on March 6, 2017, for the only hearing for which she was given notice, thought she was there to also defend against the adoption petition and submitted herself to, and complied, with other orders of the Court in the related, ongoing custody case.
Tambre contended that she should have been given notice of the adoption hearing because she had appeared in court to contest the adoption, and her consent to the adoption was necessary. Tambre asserted that under Arkansas Rule of Civil Procedure 55(c), the court should set aside the default judgment based on "procedural irregularities," the lack of required notice, the fundamental rights at stake, the absence of her required consent, and the Roushes' misrepresentations to the court.
On September 1, 2017, the Roushes responded to the motion to set aside the default judgment. They agreed that Tambre had appeared late at the hearing regarding the petition to suspend visitation; however, they denied that Tambre passed the drug test because she had failed to submit to nail testing. The Roushes contended that any error in the court's statement that she had failed to appear was harmless because the court had held the hearing, and the outcome of the hearing-that Tambre was ordered to undergo drug testing-was the same as it would have been if she had not appeared. The Roushes denied making any false representation to the court, explaining that Tambre was in default as to the adoption petition because she had never filed a written response or otherwise appeared in the case. The Roushes contended that they were not required to give Tambre notice of any further hearings on the matter because she was in default. Due-process requirements were met, according to the Roushes, by serving Tambre with a valid summons and a copy of the petition for adoption.
On February 6, 2018, a hearing was held on Tambre's motion to set aside the adoption decree. Tambre did not testify at the hearing. The court noted that Tambre did not file a response to the petition for adoption; thus, it had entered the order granting the petition by default judgment. The circuit court stated that "[t]he question today is really whether or not there's a requirement that a separate hearing notice of hearing be sent." Counsel contended that when Tambre appeared in court on March 6, 2017, she believed that she was there to address the petition to modify visitation as well as the adoption petition. Counsel explained that on February 21, 2017, Tambre received a copy of the motion to modify visitation and a notice of a hearing on that motion. On the same day, she also received the petition for adoption and a summons for the petition, which did not give notice of a hearing. Essentially, counsel argued that Tambre was confused by the number of documents she received in one day, which led her to reasonably believe that she had appeared in the case when she arrived at the March 6 hearing. It was undisputed that Tambre did not file a response to the petition for adoption, but counsel asserted that she was not represented by an attorney, and that "she showed up, she argued it and she thought that was all." Counsel argued that the Roushes misrepresented to the court that Tambre did not "otherwise appear" for the adoption petition and that setting aside the default judgment was warranted because she had appeared in a related case.
The Roushes denied that they misrepresented facts to the court because it was true that Tambre had not filed an answer to the petition for adoption and that she had not otherwise appeared in the matter. Additionally, the Roushes asserted that because Tambre did not file an answer to the petition for adoption she was in default, and no notice of the adoption hearing was required. The court acknowledged that it did not consider the lack of a notice requirement under these circumstances ideal; however, it stated that
[p]eople file multiple lawsuits all the time. Would it have been better to serve them separately? Yeah, probably. It would have been clearer but people serve them all the time. As long as there was a separate summons, I don't know there was anything irregular about that. They were wanting to go both ways. Had she filed an answer in the adoption, they were going to need to proceed in the other one. They don't know when they serve her if she will file an answer or not.
The court orally denied Tambre's motion to set aside the judgment, finding that Tambre had been properly served with the petition for adoption and that she admitted that she had failed to answer the petition. The court noted that Tambre did not file an answer to the motion to modify visitation either, and that had she done so, the court might have thought she was confused about whether she needed to file an answer in both. The court stated, "I would be in a better position to reverse this if she had filed a timely response in either one of them." Ultimately, the court found "I cannot find a factual basis on which I can order this set aside. True, the court has discretion, but I'm also a judge by abuse of discretion standard. In order for me to set this aside, I need to find something, some error, some lack of notice, and I don't see it."
On April 24, 2018, the circuit court entered a written order denying Tambre's motion to set aside the decree of adoption. In the order, the circuit court accepted the parties' joint stipulation of facts, and it found that Tambre had been properly served with process, that she had failed to answer the petition, and that she had not provided sufficient proof to set aside the adoption decree. An amended order was entered on May 2, 2018, in which the circuit court stated that it had considered Tambre's argument that her consent to adoption was required, that it should set aside the default judgment pursuant to Rule 55(c), and that her due-process rights had been violated by the entry of the decree of adoption but that Tambre had failed to provide a sufficient basis to set aside the adoption decree. Tambre timely filed her notice of appeal.
II. Issues on Appeal
A. Arkansas Rule of Civil Procedure 55(c)
Tambre asserts that she mistakenly-but reasonably-believed that she appeared in court on March 6 to contest the adoption petition as well as the petition to modify visitation; thus, the circuit court erred in denying her motion to set aside the adoption decree pursuant to Arkansas Rule of Civil Procedure 55(c)(1). In a closely related argument, she contends that the Roushes misrepresented to the court that she had not responded to the petition to adopt and that the circuit court should have set aside the adoption decree pursuant to Rule 55(c)(3). Also under this heading, Tambre argues that the circuit court failed to exercise its discretion and that it based its decision, in part, on a misapprehension of the law. Tambre does not present a meritorious argument for reversal, and we affirm.
The standard by which the appellate court reviews the granting of a default judgment and the denial of a motion to set aside the default judgment is whether the circuit court abused its discretion. Nissan N. Am., Inc. v. Harlan , 2017 Ark. App. 203, at 6, 518 S.W.3d 89, 93. The abuse-of-discretion standard is "a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration." Gulley v. State , 2012 Ark. 368, at 10, 423 S.W.3d 569, 576.
A petitioner is entitled to default judgment when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend against the complaint. Ark. R. Civ. P. 55(a). The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. Ark. R. Civ. P. 55(c).
As we stated above, Tambre's assertions of mistake and misrepresentation are closely related, so we address them together. Tambre argues on appeal that she reasonably yet mistakenly failed to respond to the adoption petition because she was confused by the various court documents delivered to her on the same day; thus, her appearance in the domestic-relations case constituted an appearance in the adoption case, and the Roushes misrepresented to the court that she had not appeared.
At the hearing, the circuit court did not find Tambre's assertion of mistake and misrepresentation persuasive, stating that
[i]t's not contested or denied that an answer was not filed. It's not contested that there was a separate summons in the other lawsuit. There's no evidence before the court of something that prevented her from filing a response in either lawsuit. Had she filed a response in the divorce case, then I could probably see why she didn't file one in the adoption. I could say, oh well, she was confused. She thought that covered both of them or whatever, and it would also be evidence of her intent to contest it. But in this instance, she didn't file a response in either one. I would be in a better position to reverse this if she had filed a timely response in either one of them.
The circuit court determined that Tambre had not offered sufficient proof of mistake to merit setting aside the decree. Essentially, the court found that Tambre's assertion that she believed she had appeared in court regarding the adoption petition was not credible. Tambre admitted that she had been properly served and that she had failed to file a response in either matter, and the court explained that without a response to either the petition to adopt or the petition to modify visitation, it would not infer that she intended to contest the petition to adopt. As the Roushes point out in their brief, there is no evidence that the petition to adopt was mentioned at the hearing on the petition to modify. The stipulated facts agreed to by the parties and incorporated into the court's order do not recount any testimony or argument regarding the adoption petition. Rather, the stipulated facts set forth that the Poinsett County Circuit Court ordered drug testing and performed certain drug tests, and counsel took photographs of Tambre's fingernails for future drug-testing purposes.
Tambre characterizes the court's rejection of her assertions of mistake and misrepresentation as failing to employ any discretion. We disagree. The court stated,
I can't find a factual basis on which I can order this set aside. True, the court has discretion, but I'm also a judge by an abuse of discretion standard. In order for me to set this aside, I need to find something, some error, some lack of notice and I don't see it. To me the strongest argument is that maybe in adoption cases you should have to notice them up of the default hearing, but I do not think that is the law right now. I think maybe it should be, but I don't think that is the law right now. Other than that she missed the deadlines and this is her child, I don't have a good argument.
The circuit court clearly considered the events leading up to the entry of the default judgment, and it found that there was insufficient proof that Tambre intended to contest the petition to adopt. We hold that the circuit court appropriately exercised its discretion and affirm. See West v. West , 103 Ark. App. 269, 273, 288 S.W.3d 680, 684 (2008).
Tambre also contends that the circuit court based its decision on a misapprehension of law; specifically, that an order granting a motion to set aside is an appealable order. The circuit court stated from the bench that "[t]hey're going to appeal it if I set it aside now because they're going to say this is what the rule says." However, in the written order, the circuit court found that Tambre was properly served with the petition for adoption and that she failed to timely file an answer. The circuit court denied her motion to set aside, determining that Tambre had "failed to provide a sufficient basis to set aside the Adoption Decree entered, herein, on March 24, 2017."
In the written order, the court did not repeat its statement regarding the Roushes' possible appeal. Pursuant to Arkansas Supreme Court Administrative Order No. 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed. Baxley v. Baxley , 86 Ark. App. 200, 204, 167 S.W.3d 158, 160 (2004). This rule eliminates or reduces disputes between litigants over what a circuit court's oral decision in open court entailed. Id. The circuit court clearly based its decision on Tambre's failure to prove any of the grounds for setting aside the default judgment and not on a misinterpretation of law. On this point we affirm.
B. Meritorious Defense
Tambre asserts that she met the requirement of Arkansas Rule of Civil Procedure 55 that the petitioner must present a meritorious defense to the challenged default judgment; thus, the circuit court erred by denying her motion to set aside the default judgment. Specifically, Tambre argues that her consent to adoption is required by Arkansas Code Annotated section 9-9-207 (Repl. 2015), and the Roushes failed to obtain her consent. Tambre also argues that notice of the hearing on the petition for adoption is required by the Fourteenth Amendment, and her due process rights were violated because she did not receive notice. Tambre's argument that she is able to present a meritorious defense is not well taken, and we affirm.
According to Rule 55, the party seeking to set aside a default judgment must demonstrate a meritorious defense to the action; however, the fact that Tambre may have offered a meritorious defense to the underlying claim is not sufficient to support setting aside the default judgment. McGraw v. Jones , 367 Ark. 138, 143-44, 238 S.W.3d 15, 19 (2006). In McGraw , our supreme court held that "[w]hile it is true that defendants wishing to set aside default judgments must demonstrate a meritorious defense to the action, the defense in and of itself is not sufficient without first establishing one of the grounds laid out in Ark. R. Civ. P. 55(c)." Id. 238 S.W.3d at 19. Because Tambre did not prove that one of the grounds for setting aside the judgment was valid and supported reversal, we do not address her claim of a meritorious defense to the default judgment.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Case number 56DR-11-81.
Case number 16JPR-17-62. | [
-46,
-12,
-60,
12,
42,
-32,
59,
22,
90,
-21,
103,
83,
-17,
-22,
20,
107,
-54,
15,
97,
121,
-45,
-78,
93,
97,
97,
-13,
-10,
-41,
-14,
-53,
116,
-44,
88,
48,
-118,
-43,
66,
-88,
-89,
-40,
-122,
-123,
-87,
101,
-111,
-125,
44,
99,
18,
15,
53,
14,
-106,
111,
60,
-61,
108,
106,
-41,
-71,
-48,
-16,
-70,
7,
-34,
14,
-95,
-108,
-78,
-60,
120,
107,
-112,
25,
-64,
-24,
115,
54,
-122,
116,
72,
-99,
13,
112,
-18,
0,
28,
-25,
25,
-120,
-34,
62,
25,
-90,
-45,
121,
98,
14,
-74,
-67,
120,
16,
122,
-6,
111,
-52,
76,
-24,
-96,
-18,
-98,
-103,
-105,
-80,
-120,
19,
-13,
84,
0,
117,
-49,
-12,
116,
-30,
113,
-101,
-10,
-6
] |
MIKE MURPHY, Judge
On February 16, 2018, appellant AJ Bradford Lunsford, Jr., was convicted of possession of a firearm by a felon at a bench trial in the Pulaski County Circuit Court. On appeal, he argues that this court should revisit our holding in Smith v. State , 2011 Ark. App. 439, 2011 WL 4067400, and conclude that the expungement of his felony restored his right to possess a firearm. We affirm.
On January 27, 2017, while serving Lunsford with a warrant for aggravated assault, police officers found Lunsford in possession of a loaded pistol. The aggravated-assault charges were later dropped, but the felon-in-possession charge went forward. At the bench trial, Sheriff Jeffrey King testified about serving the warrant on Lunsford and finding the gun. The State then introduced evidence of Lunsford's 2002 felony conviction and rested. Lunsford moved to dismiss, arguing the evidence was insufficient; the motion was denied. Lunsford then introduced the 2005 order to seal his 2002 felony conviction and argued that the expungement of his felony conviction restored his right to possess a firearm. Lunsford again moved to dismiss the felon-in-possession charge. The circuit court denied that motion as well, and Lunsford now appeals.
As he did below, Lunsford argues on appeal that the expungement of his felony restored his right to possess a firearm. He acknowledges that his argument goes directly against the holding in an earlier case by this court, Smith v. State , 2011 Ark. App. 439, 2011 WL 4067400, but he argues that Smith was incorrectly decided and that we need to revisit that holding.
Here, as in Smith , the order sealing the record of Lunsford's conviction was entered pursuant to the expungement provisions found in Arkansas Code Annotated sections 16-90-901 et. seq. (Repl. 2006). The relevant statute, section 16-90-902(a), provides that an individual whose record has been expunged "shall have all privileges and rights restored and shall be completely exonerated, and the record which has been expunged shall not affect any of his or her civil rights or liberties unless otherwise specifically provided by law." In other words, the clean-slate effect of expungement is not absolute: if specifically provided by law, an expunged criminal record could affect an individual's civil rights or liberties. Jones v. Huckabee , 369 Ark. 42, 46, 250 S.W.3d 241, 244 (2007).
In Smith , we held that the felon-in-possession statute under which Lunsford was convicted was one such exception. That statute prohibits a person who has been convicted of a felony from possessing a firearm, and a determination of guilt by either a jury or a court that the person committed a felony constitutes a conviction, even if the court suspended imposition of sentence or placed the defendant on probation. Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016). The statute exempts anyone who is granted a pardon by the governor of Arkansas. Ark. Code Ann. § 5-73-103(d). An amendment to the statute effective July 31, 2009, created another exception, providing that the "determination of guilt" provision does not apply to a person whose case was dismissed and expunged under Arkansas Code Annotated sections 16-93-301 et seq. or section 16-98-303(g). Ark. Code Ann. § 5-73-103(b)(2). However, that exception is inapplicable here because (1) it became effective after Lunsford's offense occurred and (2) Lunsford was neither sentenced under nor had his conviction expunged under those parts of the Code.
After carefully reviewing the law and the arguments made by counsel, we decline to overrule our holding in Smith , supra. The conviction is affirmed.
Affirmed.
Gladwin and Brown, JJ., agree. | [
-15,
-23,
-28,
28,
31,
97,
35,
-68,
82,
-73,
103,
83,
45,
74,
5,
121,
105,
91,
125,
121,
-54,
-105,
103,
97,
114,
-77,
88,
-57,
59,
75,
-20,
-58,
28,
112,
-22,
85,
36,
8,
-27,
88,
-118,
1,
9,
81,
123,
88,
44,
46,
34,
-121,
17,
-98,
-14,
43,
58,
-61,
105,
40,
75,
-72,
88,
27,
-102,
69,
-17,
20,
-79,
52,
-98,
2,
112,
46,
-112,
57,
0,
-8,
115,
-74,
-126,
116,
45,
-101,
45,
96,
114,
2,
61,
-57,
-72,
-88,
15,
-86,
-101,
-90,
-40,
105,
75,
-120,
-105,
-99,
110,
20,
6,
-8,
100,
44,
121,
108,
4,
-50,
-100,
-111,
15,
40,
6,
-14,
-21,
99,
112,
52,
-50,
-10,
84,
83,
121,
-101,
-58,
-47
] |
BRANDON J. HARRISON, Judge
This is a custody case, with a legal twist. Karley Rivers appeals the circuit court's order that switched custody of her minor son, G.D., to his father, Caleb DeBoer. The parents were not married when their son was born. Rivers had custody of G.D. from his birth in 2009 until the court changed that in its 12 October 2017 order. She argues that the circuit court erred by awarding custody to DeBoer because the "proof did not evince a material change in circumstances warranting a custody modification," and the change was not otherwise in G.D.'s best interest.
The twist is that an interpretive tussle has arisen over how to apply an Arkansas statute addressing custody of children born out of wedlock-and the case law that has dealt with it-to this case's facts and procedural course. Some history will place the parties' dispute, and this court's disagreement over how to decide it, in context.
I.
In June 2011, the Arkansas Office of Child Support Enforcement (OCSE) filed a paternity complaint in the Jefferson County Circuit Court. The complaint alleged that DeBoer is the father of G.D., who was born out of wedlock to Karley Rivers in 2009. In the paternity complaint, Alicia Morris, the child's maternal grandmother, was listed as G.D.'s then custodian. DeBoer did not answer the complaint, so OCSE moved for a default judgment.
It received one, in August 2011, when the circuit court entered a judgment of paternity, determined that DeBoer is G.D.'s father, and required him to start paying child support, among other things. The judgment misidentified Morris (the maternal grandmother) as G.D.'s biological mother but to no ill effect. More to the point, the judgment states, in paragraph 13,
Pursuant to Ark. Code Ann. § 9-10-113... the woman giving birth to the child(ren) of this action, has legal custody of the minor child(ren) until the child(ren) reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child(ren) in the custody of another.
We will say more about this paragraph, and the court's judgment as a whole, in due course. For now, just know that paragraph 13 has a leading role in this appeal.
No court interventions occurred in the family's lives custody wise, as far as the record shows, for approximately five years after the 2011 paternity judgment was entered. In mid-July 2016, however, DeBoer filed a change-of-custody petition against Rivers (and grandmother Morris). In his "Petition for Change of Custody," DeBoer admitted that the circuit court adjudicated him G.D.'s father in the 2011 paternity case and asked the court to determine that a material change in circumstances had occurred since that time. DeBoer's petition sought primary physical custody of G.D. The father further alleged that "it is currently in the best interest of [G.D.] that custody be placed" with him. Rivers's drug use was the concern in July 2016.
Rivers responded. She admitted that the court had previously adjudicated DeBoer's paternity, explained that G.D. was residing with Rivers in her mother's home, and otherwise opposed DeBoer's petition. In her counterpetition, Rivers stated that DeBoer had "stated no grounds or any facts or allegations that would indicate a material change in circumstances has occurred." DeBoer responded.
Months later, in February 2017, DeBoer filed an emergency petition for temporary custody of G.D. because Rivers was in a drug-rehabilitation facility in Florida, which made her unable to care for G.D. A couple of weeks later, Rivers and DeBoer jointly moved to consolidate OCSE's decided paternity case with the pending custody case. The circuit court did so.
In May 2017, the court held a hearing on DeBoer's custody petition. After receiving testimony from DeBoer, Rivers, DeBoer's employer, and DeBoer's wife, the court continued the hearing until September. During part two of the custody hearing, Rivers called her father and DeBoer's mother to testify. Rivers testified, too. And DeBoer took the stand to rebut some of his mother's testimony; then the parties made closing arguments. The court did not rule from the bench.
Instead, on 12 October 2017, the court entered a written order finding that the August 2011 default judgment had established DeBoer's paternity of G.D., that DeBoer was fit to raise G.D., and that DeBoer had assumed his responsibilities toward G.D. by providing care, supervision, protection, and financial support. The court also found that "[i]t [wa]s in the best interest of [G.D.]" to award custody to the father. (These findings comport with Ark. Code Ann. § 9-10-113 (Repl. 2015) ). Consequently, the court awarded custody to DeBoer and granted Rivers reasonable visitation. The order also noted that to the extent grandmother Morris had made a claim for custody, the claim was abandoned and dismissed. Rivers filed a timely notice of appeal, and here the case has landed.
II.
To the main point: did the circuit court err by awarding custody to DeBoer because, according to Rivers, the "proof did not evince a material change in circumstances warranting a custody modification"? A rather common legal question in this court has taken an uncommon turn. This is so because, as the dissent shows, a disagreement has arisen over whether DeBoer had to plead and prove that a material change in circumstances had occurred. More specifically, the issue is whether DeBoer was required to establish that a material change in circumstances had occurred between the time the August 2011 "Default Judgment of Paternity" was entered and when he filed for the change in July 2016. Our dissenting colleagues believe the father was not required to prove such a change because an initial custody determination was not made in the 2011 paternity judgment. In other words, because the custodial provision in the paternity judgment was entered pursuant only to the out-of-wedlock statute, it is not a judicial determination of custody.
We respectfully disagree with our colleagues on this important facet of child-custody law. What follows is our view of Arkansas law on when the biological father seeking custody of a child born out of wedlock must show a material change in circumstances.
A.
The August 2011 Judgment. Did the circuit court's judgment place custody of G.D. with his mother, Rivers? If the judgment placed custody of the child with his mother-and if the judicial determination was a final custodial decision rather than a temporary one-then a legal consequence attaches. The consequence is that DeBoer was required to prove in his 2016 change-of-custody case that a material change in circumstances had occurred since the 2011 paternity judgment was entered.
Here we return to the paragraph in the court's paternity judgment over which there are competing interpretations:
13. Pursuant to Ark. Code Ann. § 9-10-113, [KARLEY RIVERS], the woman giving birth to the child(ren) of this action, has legal custody of the minor child(ren) until the child(ren) reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child(ren) in the custody of another.
We read paragraph 13 to state that, as of 29 August 2011, Rivers had custody of G.D. until a subsequent court order places him in the custody of another person, or he turns eighteen, whichever event would come first. The authority under which the court initially gave Rivers custody was based on a statute that has been in place since 1987. The court simply exercised its authority under law and entered an enforceable judgment. Because the judgment placed custody of G.D. with Rivers, it is, by definition, the first (initial) custody order. Whether it was a temporary or a final decision then becomes the next pivotal question.
Revisiting the parties' court papers is valuable here. Each parent seems to have understood that DeBoer had to plead and prove a material change in circumstances when he sought custody of G.D. DeBoer's petition, which we mentioned earlier, included these paragraphs and prayer for relief:
1. By Order of the Circuit Court of Jefferson County, Arkansas, Domestic Relations Division, No. DR-2011-855 ... Caleb J. DeBoer was adjudicated the father of G.D., minor ... born out of wedlock to Karley Rivers.
2. In that Order Karley Rivers was granted custody of the minor child.
....
9. A change of circumstances has occurred and it is currently in the best interest of the minor child that custody be placed in [Caleb] and that Defendants Karley Rivers and Alicia Morris be granted reasonable visitation pursuant to a defined schedule of visitation.
....
WHEREFORE, [Caleb] prays that this court determine that a material change of circumstances has occurred, that [Caleb] is the appropriate person to have primary physical custody of the Parties' minor child, that an appropriate visitation schedule be established for Karley Rivers and Alicia Morris, that Karley Rivers be ordered to pay appropriate child support, and for all other just relief and proper relief to which he is entitled.
Rivers's response admitted paragraphs 1 and 2 of DeBoer's petition but denied paragraph 9. And her counterpetition stated in paragraph 2 that "[DeBoer], in his Petition for Change of Custody has stated no grounds or any facts or allegations that would indicate a material change in circumstances has occurred." DeBoer then asked the circuit court to judicially notice a pending guardianship case in which relatives were seeking guardianship over a child Rivers has with a different man because both she and the father were allegedly in the throes of drug addiction. The point is that DeBoer plainly wanted the information in the guardianship case to serve as additional grounds to support the material-change allegations in his 2016 custody case.
Although DeBoer changed his tune on the need to plead and prove a material change in circumstances for the first time in his appellee's brief-an ill-advised and usually ineffective tack-we must still address whether he had to do so given the dissent's view of the law. How an appellate court reasons to a result can be as important as the result itself; especially in this case, which involves a sensitive and common subject matter.
Arkansas Code Annotated Section 9-10-113 and Norwood . Simply put, we read differently from the dissenters the cases that have interpreted section 9-10-113. Among them is the inaugural Arkansas Supreme Court decision, Norwood v. Robinson , 315 Ark. 255, 866 S.W.2d 398 (1993). There our supreme court stated that "[t]he order establishing paternity gave the statutory presumption the effect of a judicial determination." Id. at 259, 866 S.W.2d at 401. Norwood 's core principle applies here: the order establishing DeBoer's paternity gave the statutory presumption that Rivers had custody over G.D. since he was born the effect of a judicial determination of custody. To hold otherwise is to strike through paragraph 13 and misapply Norwood .
Three excerpts from Norwood place the dissent's position into legal perspective. The first one, with our emphasis, is as follows:
Before 1987, no presumption of custody was placed in section 9-10-113 ; either parent of an [out-of-wedlock] child could petition for custody under the same three criteria. In 1987, the legislature changed this statute by adding a presumption of custody in the mother and leaving the father with the right to seek custody after establishing paternity. In the instant case and pursuant to the statute, custody was established and remained in the mother from the child's birth in April 1988.
315 Ark. at 256-57, 866 S.W.2d at 399. The supreme court declared that custody over the child was established in the mother, when the child was born, and remained with her (absent a court order to the contrary or the child reaching majority age). Likewise, when the court in this case entered its judgment pursuant to a settled statutory authority, custody over G.D. "was established and remained in" Rivers from the time G.D. was born until he reached eighteen or a subsequent court order altered the status quo.
In Norwood the supreme court recited the three criteria in section 9-10-113 and addressed the change-of-circumstances angle:
Along with the above requirements, the chancellor charged [the father] with showing a change of circumstances since the last custody order, which the chancellor deemed the initial determination of paternity. The chancellor added this to the three requirements listed in section 9-10-113(c) since a "material change of circumstances" is required in other change of custody cases pursuant to divorce. The chancellor based this requirement on Ark. Code Ann. § 9-10-109(a)(1) (1987)[.]
Id. at 257, 866 S.W.2d at 400 (citation omitted).
So up to this point, our supreme court has established that custody of an out-of-wedlock child presumptively vests in the mother when her child is born and remains there. It then turned to answer whether the father of the out-of-wedlock child had to establish a material change in circumstances after a paternity order had been entered. The court answered the father's contention that "it was error to require a showing of a material change in circumstances in addition to the three criteria" in section 9-10-113(c) by holding that the paternity order acted as a judicial determination of custody. Therefore, absent a change in circumstances since the paternity order was entered, the father could not successfully contest the mother's custodial status.
...
Fathers of [out-of-wedlock] children should certainly bear the same burden as fathers of children born of marriage. The order establishing paternity gave the statutory presumption the effect of a judicial determination. Implicit in the order of paternity establishing visitation was a determination that custody should continue to rest in the mother. Unless there was a change in the circumstances since the order, the child should not be uprooted from her life-long custodial relationship with her mother. We find these statutory sections to be congruous. The finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations.
Id. at 259, 866 S.W.2d at 401.
This case falls within Norwood 's pull because paragraph 13 is an enforceable judicial determination that placed custody of G.D. with Rivers. Our colleagues would not apply Norwood because the judgment in this case was silent on DeBoer's visitation rights, and the paternity order in Norwood mentioned that the father would receive some visitation. Whether or not a paternity order includes a visitation term for the father should not be an all-or-nothing point. The primary question is whether an order clearly enough decides custodial rights. The 2011 judgment stated that Rivers would have custody over G.D. until he turns eighteen or until a court order places custody over G.D. in someone else. And because the judgment was the first judicial declaration of DeBoer's and Rivers's custodial status with respect to G.D., it was an initial custody determination.
When the dissent's view of Norwood is generalized, a paternity order cannot operate as an initial custody determination, as a matter of law, if it is silent on a father's visitation-regardless of the order's other terms and no matter the course of events before and after the order's entry.
The better approach is to take each case on its own and see where the facts lead. Here, the record establishes that DeBoer was properly served with legal process when the OCSE commenced the paternity case in 2011. He chose not to defend the suit or seek relief. He did not appear and ask for custody. He did not ask for reasonable visitation. He did not ask that his child-support obligation be lowered, et cetera. Not having appeared before the circuit court for any reason, why would the court have set visitation for a father who had expressed no interest in receiving it? How could the court have responsibly inquired whether DeBoer was fit to receive visitation (and on what terms) when the judgment was entered? All things considered, the lack of a visitation reference in the 2011 judgment does not mean that it cannot be an initial custody determination.
Temporary or Final? If the judgment operated as a custody decision in Rivers's favor, as we hold it did, then a related issue arises: was the court's decision a temporary or final adjudication of the parents' custodial rights at that time? Temporary custody orders do not trigger the material-change requirement in a subsequent custody proceeding; final ones do. So DeBoer would not have had to establish a material change during the 2016 custody case unless the 2011 judgment operated as a final custody adjudication.
Let us examine closer the court's judgment in this case, as we promised to do. It set DeBoer's future and retroactive child-support amounts to the penny, required him to provide proof of income for the prior calendar year to OCSE, imposed an ongoing duty to report future income to "the custodial parent," provided that his support obligation would "terminate as provided for by Ark. Code Ann. § 9-14-237," ordered him to procure and pay for medical insurance when it was reasonably available through his employer, and required him to pay a few fees (including an attorney's fee). The judgment did not state that a future hearing, on any issue, would be forthcoming. It did not expressly reserve any issue for future determination. Had the parties considered the 2011 judgment to be a temporary adjudication, then we may safely conclude that DeBoer or Rivers would have pursued a hearing of some scope within a reasonable amount of time after the judgment was entered. Had the court viewed its own judgment as a temporary adjudication, then it could have communicated its intent to make final any important matter that was hanging fire. But nothing further happened for almost six years. When placed in its real-world context, the paternity judgment operates much more like a final custody determination than a temporary one.
The case law wholly supports this approach and conclusion. A decade ago, in Hicks v. Cook , this court restated the legal importance of differentiating between an initial determination of custody and a change of custody.
In Harmon v. Wells ... this court analyzed two cases that relied upon Arkansas Code Annotated section 9-10-113, and held that in order to determine which standard the trial court should use in a custody dispute involving parties who were not married at the time the child was born-best interests of the child (as is utilized for initial custody determinations) or material change of circumstances (which is used when custody is being changed)-the issue rests entirely on whether the initial order in the paternity action was permanent or temporary. If it was permanent, the trial court should follow Norwood v. Robinson ... and require a change of circumstances. If it was temporary, the trial court should follow Sheppard v. Speir ... and conclude that there is no need for the father to prove changed circumstances to obtain custody.
103 Ark. App. 207, 210, 288 S.W.3d 244, 246 (2008).
In Harmon v. Wells , this court wrote on the issue of whether the paternity order was temporary or final and restated that the difference determines whether a father must establish a change of circumstances in a subsequent custody challenge.
Harmon concedes that the [paternity] order was titled "Temporary Order" but points out that unlike the order analyzed in Speir, this order did not set a final hearing date and ended with the words, "this Court retains jurisdiction of this case for such further orders as may be appropriate for the enforcement of this Temporary Order and for all matters relating to custody, visitation and support of the minor child." She argues that "these are not the words of a temporary order." She also notes that "ten months later, a custody hearing [was] held."
....
Contrary to Harmon's assertion otherwise, the law does not prohibit a trial court from entering a temporary order of visitation in favor of the father at the same time that he is found to be the father and reserving the issue of custody for a later time. Speir , 85 Ark. App. at 490, 157 S.W.3d at 589. Therefore, the resolution of the issue before us rests entirely on whether the visitation order was permanent or temporary. If it was permanent, the trial court should have followed Norwood and required a change of circumstances. If it was temporary, the trial court should have followed Speir and should have concluded that there was no need for the father to prove changed circumstances. Although the order did not set a future date for a custody hearing, we conclude that the order was temporary in nature because it did not resolve the issue of custody. As such, the trial court was correct in not requiring a showing of changed circumstances.
98 Ark. App. 355, 359, 255 S.W.3d 501, 503-04 (2007).
The takeaway from Harmon is that this court analyzed the paternity order itself, and other circumstances, then concluded that the order contained a temporary, not final, custodial decision. It helped that the order was titled "Temporary Order," a designation that was used elsewhere in the order; also, a custody hearing was held ten months after the initial custodial decision had been entered. With some indicia in the order itself and the subsequent hearing in view, this court determined that the paternity order was a temporary custodial determination. Given the temporary custodial decision, the father was not required to prove a material change in circumstances when seeking custody. See also Sheppard v. Speir , 85 Ark. App. 481, 490, 157 S.W.3d 583, 589 (2004) (the paternity order's custodial term was not final because the father filed his petition for custody before the paternity order was entered and the paternity order that was entered "only set temporary visitation and went on to state that the issue of custody would be determined on October 31, 2002," a date certain and only six weeks in the future).
This case is different from Harmon and Speir . Here, the circuit court's judgment does not indicate that the custodial provision in Rivers's favor was going to be revisited soon. Neither DeBoer nor Rivers argued to the circuit court that the court's 2011 judgment was temporary and therefore did not trigger the material-change requirement. And unlike the ten-month interim between the first paternity order and the subsequent custody hearing in Harmon , or the mere six-week delay in Speir , the custody hearing in this case occurred more than five years (sixty-eight months) after the paternity judgment had been entered. By way of another comparison, in Norwood the amount of time that passed between the paternity order and the subsequent custody case, during which the father was required to prove a material change, was just shy of three years. Nearly six years passed in this case.
A fifth case that informs whether a temporary or final custodial determination has been made in the out-of-wedlock context is Ryan v. White , which held that a father did not have to establish a material change in a custody dispute because he had filed a petition to establish paternity and obtain joint custody before the child was born. Moreover, the paternity order stated that the mother was granted only "temporary care and custody," and three months later, a separate order was entered "setting a final hearing to determine the issues of 'Custody, Visitation and Child Support.' " 2015 Ark. App. 494, at 10-11, 471 S.W.3d 243, 249-50. For a sixth case supporting our reasoning and conclusion in this case, consult Donato v. Walker , 2010 Ark. App. 566, at 6, 377 S.W.3d 437, 441, in which this court held that a biological father was not required to show a material change because he "sought to establish paternity and obtain custody at the same time."
But DeBoer did not file a petition for paternity and custody before G.D. was born, the 2011 paternity judgment did not merely place temporary care and custody in Rivers, and no subsequent order was entered after the paternity judgment to schedule a final hearing on the critical issues of custody, visitation, and child support, as happened in Ryan . Nor is this case like Donato , because here the father did not simultaneously seek to establish paternity and get custody. Quite the opposite.
Having applied the case law-and considering the paternity judgment in light of the events that preceded and followed its entry-we conclude that a final custody determination issued in this case. See David Newbern, John Watkins & D.P. Marshall Jr., 2 Arkansas Civil Practice & Procedure § 31:1 (5th ed. 2011) ("As a general rule, an ambiguous judgment is to be construed as is any other instrument to determine the court's intention, based on the language of the judgment, the pleadings, and the record.") (footnote omitted). If the default judgment was not intended to be a final custody adjudication, then the parties' subsequent conduct and the passage of nearly six years practically made it so. Consequently, DeBoer was required to plead and establish a material change of circumstances in this custody case before the circuit court moved to the statutory elements.
B.
Caleb DeBoer pleaded in circuit court that a material change had occurred. But did he also establish that the required change had occurred? That decision ultimately rested with the circuit court, and there is some doubt about whether the court applied the required analysis.
The 12 October 2017 order on appeal does not state that a material change in circumstances had occurred, though it clearly recited that all the elements in section 9-10-113 had been met. The court may well have concluded that a material change had occurred given the pleadings, the proof received during the hearings, and the lack of open argument between the parties over whether DeBoer had to plead and prove a material change during his case. But it is also possible that the court did not do so given the absence of an express statement on the point. In the end, a choice must be made; and we choose to reverse the October 12 order and remand the case. On remand the court is directed to make an express finding-on the record the parties filed with this court-whether DeBoer sufficiently established that a material change in circumstances had occurred between the August 2011 judgment and the day he filed his custody petition in July 2016.
Reversed and remanded.
Gruber, C.J., and Glover, Whiteaker, and Hixson, JJ., agree.
Abramson, Klappenbach, Murphy, and Brown, JJ., dissent.
The first three entries in the Oxford English Dictionary for the word "establish," when used as a verb, are these: "1. To render stable or firm. 2. To fix, settle, institute or ordain permanently, by enactment or agreement. 3. To set up on a secure or permanent basis[.]" Oxford University Press, December 2018, www.oed.com/view/Entry/64530. Accessed 15 February 2019. | [
48,
-20,
-51,
76,
-70,
65,
10,
24,
82,
-61,
103,
-13,
-85,
-58,
20,
105,
-125,
107,
113,
121,
-29,
-73,
21,
97,
82,
-13,
-79,
-45,
-77,
-55,
101,
87,
76,
48,
-54,
-47,
66,
-54,
-27,
80,
-122,
2,
43,
77,
64,
-63,
52,
-87,
26,
14,
53,
-81,
-44,
-83,
63,
-21,
44,
78,
-39,
-67,
88,
-102,
-39,
23,
-113,
22,
-77,
20,
-102,
4,
72,
44,
-112,
56,
-119,
-24,
115,
-74,
-114,
116,
69,
-99,
9,
112,
118,
0,
45,
-57,
-72,
-120,
-50,
62,
29,
-90,
-102,
105,
11,
15,
-90,
-80,
108,
20,
74,
-2,
98,
-115,
21,
108,
0,
-114,
84,
-111,
12,
-128,
-100,
19,
-29,
101,
48,
117,
-53,
-32,
117,
71,
123,
-37,
-106,
-14
] |
BART F. VIRDEN, Judge
Appellant Joel Friday filed a complaint against his brother, appellee Randy Friday, to recover guns and ammunition, as well as a large gun safe, that he had entrusted to Randy. The Miller County Circuit Court ruled partially in Joel's favor and awarded him, among other things, the guns located at Randy's home. Joel argues that the trial court erred in not awarding him a judgment for the value of twenty-nine guns worth $ 24,050 that were missing from Randy's home. We affirm.
I. Bench Trial
The following is a summary of the testimony presented at trial. In 1985, Joel started and was active in operating a business in Texarkana called Bucks & Ducks Sporting Goods. Joel ran into some legal trouble in 2012 and was no longer allowed to possess any guns or ammunition. Joel and Randy disagreed on whose idea it was to store the guns and ammunition from the business at Randy's home. Nevertheless, Joel and some friends took approximately ten pickup-truck loads of guns and ammunition to Randy's home. Joel said that he did not ask Randy to sign a receipt at the time of the transfer because they are brothers. According to Joel, the agreement was that Randy would hold Joel's guns, ammunition, accessories, and components, along with the gun safe, until Joel's probation expired. In the two-year span of time that Randy had the guns and ammunition, the brothers had a falling out. In 2014, Joel was taken off probation, and his record was later expunged. Joel then asked Randy for his guns and ammunition back, but Randy refused to return them.
Randy denied disposing of any of Joel's guns or ammunition; however, Joel had two friends who testified that they had either helped load the guns and ammunition from the business location or helped deliver them to Randy's home. Both men stated that Joel had a full inventory at Bucks & Ducks in 2012, including approximately one hundred guns. Joel testified that in January 2013 he saw another friend, who had also assisted with the delivery, driving down the county road on which Randy lived with a load of ammunition. Joel also stated that in 2015, he hired a private investigator who bought ammunition from Randy and reported that Randy had tried to sell him a rifle.
Randy said that no inventory had been done when the guns and ammunition were delivered to his home; however, an inventory had been done after Joel filed the lawsuit. That inventory, along with photos of the guns and ammunition, was introduced at trial as defendant's exhibit No. 1. This exhibit included an informational page stating that the parties' lawyers had agreed to hire a nonbiased party to conduct the inventory. One page of the exhibit contained a typed list of nineteen guns, four gun cases, and one rifle scope with an explanation at the bottom: "This was the total of all the firearms in the house."
Joel testified that, when the goods were delivered to Randy's home, he already had an inventory of his guns and ammunition from the store. He stated that he could determine the balance of the missing guns because he had records and referred to "receiving and disposition books." Joel introduced plaintiff's exhibit No. 4, which consisted of a handwritten list of guns on three plain sheets of paper entitled "3 Pages Corrected Complete List of Guns" and "Joel Friday List of Values of Guns." The list purported to describe each gun, including the manufacturer, the model, the serial number, the type of action, the gauge or caliber, and an estimated value. There were approximately forty-six guns on the list. Along with the list of guns and ammunition were photos taken by Joel depicting empty shelves where the guns and ammunition had been stored at Bucks & Ducks before they were taken to Randy's home.
In a written order, the trial court found "that Joel is entitled to the return of all his guns and ammo as depicted on Exhibit Def # 1, along with his gun safe" but found that there was insufficient evidence to determine how many guns were missing from Randy's home. Joel timely appealed from this order.
II. Standard of Review
In civil bench trials, the standard of review on appeal is whether the trial court's findings were clearly erroneous or clearly against a preponderance of the evidence. City of Tontitown v. First Sec. Bank , 2017 Ark. App. 333, 522 S.W.3d 834. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been made. Id. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. Id.
III. Discussion
Joel argues that "there was very substantial evidence presented in the record" of his missing guns, as well as the fair market value assigned to them by their undisputed owner. Joel maintains that the trial court should have compared the one-page "litigation-era inventory" (defendant's exhibit No. 1 ), with his three-page "original delivery inventory" (plaintiff's exhibit No. 4 ), to arrive at a conclusion that twenty-nine guns worth $ 24,050 were missing.
We cannot say that the trial court clearly erred in finding that Joel failed in his burden of proving by a preponderance of the credible evidence the existence and value of guns he claimed were "missing" from Randy's home. Although Joel describes plaintiff's exhibit No. 4 as the "original delivery inventory," the testimony established that no inventory had been done when the guns and ammunition were delivered to Randy's home. While Joel suggested in his testimony that an inventory was already in existence at the time the guns were delivered to Randy's home, the list of guns included with plaintiff's exhibit No. 4 was a different list from that attached to Joel's first amended complaint. The attachment to the complaint was from a firearms receipt-and-disposition record book. Fifty guns were described, but the receipt section of the form was not properly filled out and instead contained handwritten notes. Also, there was a "Disposition & Sales" page, but it was not properly filled out either and contained a notation "To Randy L. Friday" beside Randy's home address. Comparing the two lists of guns, there were subtle differences as to value, and an AR-15 appears to have been listed twice on plaintiff's exhibit No. 4. Moreover, Joel had presented two different lists purporting to be his inventory of approximately fifty guns, yet Joel's witnesses testified that there were twice as many guns in Joel's inventory from the store. The trial court's decision not to rely on plaintiff's exhibit No. 4 was a matter involving credibility and the weight of the evidence on which this court defers to the trial court. City of Tontitown, supra .
Affirmed.
Abramson and Hixson, JJ., agree. | [
113,
-20,
-19,
28,
58,
96,
40,
-70,
86,
-29,
39,
83,
-17,
-49,
81,
107,
-32,
123,
-11,
104,
-26,
-73,
39,
96,
-110,
-77,
-71,
-59,
-80,
107,
44,
-43,
92,
100,
-22,
69,
98,
32,
-25,
92,
-122,
0,
-69,
96,
73,
74,
32,
46,
118,
2,
49,
-97,
-13,
46,
-75,
79,
105,
40,
107,
-65,
81,
121,
-37,
79,
-49,
3,
-109,
118,
-119,
6,
-8,
40,
-112,
48,
0,
-24,
113,
-76,
-128,
116,
41,
-99,
8,
102,
102,
32,
29,
-51,
109,
-88,
47,
-69,
-97,
-89,
-80,
72,
19,
44,
-97,
-99,
120,
80,
46,
126,
-20,
68,
91,
108,
7,
-58,
-108,
-109,
-83,
32,
76,
-78,
-21,
39,
52,
117,
-51,
-90,
124,
85,
116,
27,
-114,
-109
] |
ROBERT J. GLADWIN, Judge
J.C. appeals the Pulaski County Circuit Court's order affirming the administrative decision that he had committed sexual abuse of a minor and that his name should be placed on the Arkansas Child Maltreatment Central Registry. J.C. argues that the agency's decision is arbitrary, capricious, and an abuse of discretion. We affirm.
I. Facts
On August 23, 2013, a report was made to the child-abuse hotline regarding the alleged maltreatment of C.K., born September 23, 1998. After an investigation by the Arkansas Department of Human Service (DHS), a finding of child maltreatment was entered against J.C., who timely requested a hearing. The hearing was stayed due to pending criminal charges against J.C. related to the alleged abuse of C.K., but those charges were nolle prossed. An administrative hearing was held on November 29, 2016. C.K. did not appear, but two videotaped recordings of her interviews with investigators and her written statement were admitted as evidence. C.K. alleged that while she and J.C. were alone with her in his locked classroom, J.C. put his hand down her pants and touched her underneath her underwear on her private area. She also said that he had kissed her. He later asked her forgiveness and told her he had been praying about it.
Suzanne Harris, an investigator with the Crimes Against Children Division (CACD) of the Arkansas State Police, testified that she investigated C.K.'s allegations and spoke with her in a recorded interview. C.K. told Harris that she would have lunch in J.C.'s classroom and that he once had tickled her. She said that they had gone to the River Market together during lunch. C.K. told Harris that J.C. had touched her on her "lady area" and on her butt. In her written statement, C.K. stated that J.C. had put his hands inside her panties and said he wanted to feel her once. Harris testified that it was not uncommon for children to delay disclosing sexual abuse or sexual contact. She said that the basis for her true finding of sexual contact was that after an in-depth interview with C.K. and reviewing C.K.'s written statement, Detective Trent of the Little Rock Police Department sought an arrest warrant. Harris stated, "We can't go against law enforcement." She also said that after the charges had been dropped, her "attitude toward the case" did not change. She said that child-maltreatment law is different than criminal law. Harris said that C.K.'s shoplifting charge over the "intervening weekend" had no bearing on her true finding for sexual contact.
Harris said that she spoke to Ms. Rook, who works at C.K.'s school. Ms. Rook told Harris that J.C. had talked to her about C.K. being upset with him for giving her a "B." He had told Rook that C.K. wanted to start a book club and that she had been texting him. Rook also said that J.C. had stated that he and C.K. had lunch together in his classroom; Rook had told him that doing so was not a good idea; and J.C. wanted to argue over the issue.
Harris said that she had talked to J.C., who denied an interview but told her he believed C.K.'s allegation was in retaliation for a grade of "86" that he had given her. Harris also talked to C.K.'s mother and obtained written statements from other students.
J.C. testified that he was C.K.'s English teacher and that she had eaten lunch with him in his classroom. In response to a written allegation against him by another student, he said that he had taken that student into the hallway to address her wearing a tank top that exposed her cleavage. He said the school had a strict dress-code policy, and the student had violated the policy. He said that it was his job to reprimand her, but he had done so outside the classroom. He said that he had given her a break by not sending her to the principal's office.
J.C. said that it was not against school policy to take a student off campus for lunch and that he had not known he was supposed to sign out with the student. He said that his mentor, Mr. Sisk, who is another English teacher, took students off campus for lunch. He said that this was his first teaching job out of college, and the allegation occurred six weeks into his job. J.C. had wanted to encourage the formation of a book club, and he said that C.K. was part of the club.
J.C. denied that anything sexual had occurred between him and C.K. He said that when C.K. failed to turn in a homework assignment, her grade was lowered to a "B," and she had been very upset. He described her as having gritted teeth, a red face, and teary eyes. C.K. told him that he had embarrassed her in front of the class when he had called her down. He then talked to Ms. Rook because he had never seen C.K. behave in that manner. He said that C.K. had disclosed to him that her parents were separated and that she was having a hard time. He said that he had wanted the counselor to talk to C.K. and that he had talked to Ms. Rook about C.K.'s behavior. He told Ms. Rook that C.K. had eaten lunch in his classroom and that they had texted each other. He said that a counselor at school talked to C.K. and that C.K. denied that he had "done anything." He said that it was a week later that C.K. made the allegations against him.
The administrative law judge (ALJ) issued an opinion after reviewing the videotaped evidence, finding in part:
8. Although C.K. did not testify at the hearing, I find C.K.'s statements to be credible and plausible. Her manner in the video of her interview was straightforward and detailed. I do not find any significant motive for her to make up the allegation.
9. On the other hand, [J.C.'s] explanations for his actions are not credible. I do not find his reasoning for his contact with C.K. by texting her, phoning her, having lunch in his classroom alone with her, and going off campus for lunch alone with her, to be convincing. [J.C.'s] actions are inappropriate for a teacher and appear to be more about grooming her for a sexual encounter. His going to the counselor after the incident with C.K., claiming she was upset about a "B" grade, appear to [be] more of an attempt to explain any allegation C.K. might make about inappropriate touching.
10. I find that [J.C.], who was not married to C.K., touched C.K.'s vagina for a sexual purpose.
The opinion also stated that there was sufficient evidence to support a finding of sexual abuse, citing the Arkansas Child Maltreatment Act, and the facts that supported a finding that the elements of the statute had been met. Ark. Code Ann. §§ 12-18-101 to - 1202 (Repl. 2016 & Supp. 2017). The ALJ decided that the agency had met its burden of proving by a preponderance of the evidence that J.C. had sexually abused C.K. and that the allegations were true. It was ordered that J.C.'s name be placed on the Arkansas Child Maltreatment Central Registry. J.C. appealed the ALJ's decision to the Pulaski County Circuit Court, which affirmed the agency's decision without a hearing. J.C. filed a timely notice of appeal, and this appeal followed.
II. Applicable Law
DHS is an "agency" as defined by the Administrative Procedure Act. See Ark. Code Ann. § 25-15-202(2)(A) (Supp. 2017). Review of administrative-agency decisions, by both the circuit court and the appellate court, is limited in scope. Shaw v. Ark. Dep't of Human Servs. , 2018 Ark. App. 322, 550 S.W.3d 925. The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency's findings. Id. The appellate court's review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Staton v. Ark. State Bd. of Collection Agencies , 372 Ark. 387, 277 S.W.3d 190 (2008). When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Id.
Additionally, appellate courts refuse to substitute their own judgment for that of an agency. See Ark. Bd. of Registration for Prof'l Geologists v. Ackley , 64 Ark. App. 325, 984 S.W.2d 67 (1998). It is the prerogative of the agency to believe or disbelieve the testimony of any witness and to decide what weight to give the evidence. Ark. State Police Comm'n v. Smith , 338 Ark. 354, 994 S.W.2d 456 (1999). When conducting our review, we look to the findings of the administrative agency, keeping in mind that courts have held that the hearing officer is in the best position to determine the credibility of witnesses and decide the proper weight to give the evidence. Id. It is the appellant's obligation to raise an issue first to the administrative agency and obtain a ruling thereupon in order to preserve an argument for appeal. Louisiana v. Joint Pipeline Grp. , 2010 Ark. 374, 373 S.W.3d 292.
Either the circuit court or the appellate court may reverse the agency decision if it concludes the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h)(1)-(6) (Repl. 2014).
Substantial evidence is valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the agency decision. Ark. Prof'l Bail Bondsman Licensing Bd. v. Oudin , 348 Ark. 48, 69 S.W.3d 855 (2002). The challenging party must prove an absence of substantial evidence and must demonstrate that the proof before the administrative agency was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. The question is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Id.
III. Argument
J.C. claims that the agency's decision is arbitrary, capricious, and an abuse of discretion. He contends that although the ALJ recited some of the evidence, the skimpy findings ignore the weaknesses in the evidence and inconsistencies in the agency's allegations. J.C. argues that he was a new teacher, full of enthusiasm, and the accuser mistook his enthusiasm for a peer-to-peer friendship. He claims that when confronted with the reality that she actually had to do the work for her grade, C.K. lashed out and, over time, manufactured a story that he had sexually assaulted her. He argues that the prosecutor dropped the criminal charges, declining to subject the claims to adversarial testing. Further, he claims that the agency plowed ahead "buoyed by the lower standard of proof and the total absence of any meaningful evidentiary rules in the hearing." He notes that the CACD automatically founded the case, citing Investigator Harris's testimony that "[w]e can't go against law enforcement."
J.C. contends that the agency's decision is flawed in many respects. First, he complains that the ALJ "purported" to make credibility determinations from a recorded interview of the accuser. J.C. takes issue with the ALJ's characterization of C.K.'s video-recorded interview answers as "straightforward and detailed" and finding that C.K. had no significant motive. J.C. argues that the ALJ did not consider that C.K. was not subjected to cross-examination and that J.C. had presented a significant motive-C.K.'s being upset over a low grade.
He argues that the ALJ's finding that the agency had proved its case by a preponderance of the evidence is not the same thing as determining which version of the incident in the classroom was most credible, as was discussed in the decision. J.C. argues that a credibility determination does not factor in doubt. He also contends that the finding assumes that there was an "incident" at all. He cites Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a criminal case wherein the United State Supreme Court discusses that some form of cross-examination is the key to reliability.
J.C. complains that the ALJ ignored that C.K. had been arrested for shoplifting several days after making the allegation against him and that she had lied to law enforcement when confronted, rendering the decision flawed. He also claims that the ALJ ignored that C.K. had changed her story over time. J.C. contends that because of these omissions, the ALJ's decision is insufficient under the statute. See Ark. Code Ann. § 25-15-210(b)(2) (requiring agency decisions to contain a concise and explicit statement of the underlying facts supporting the findings). J.C. argues that the ALJ did not discuss any contrary indications of the evidence but concluded only that he disbelieved J.C.
J.C. claims that the findings regarding his credibility are "significantly unmoored from the actual allegations." He argues that the finding of "inappropriate" is undefined, and the finding of "grooming" does not fit the definition of Arkansas Code Annotated section 5-27-307 (Repl. 2013) (disseminating to a child thirteen years old or younger sexually explicit material to entice the child into sexual activity).
J.C. makes an evidentiary argument that the ALJ permitted irrelevant profile evidence as to what other accusers do, citing Brunson v. State , 349 Ark. 300, 79 S.W.3d 304 (2002). Finally, J.C. argues that the ALJ "appears to have presumed the worst" about him, attributing to him nefarious motives. He argues that the evidence shows that he was a naïve and enthusiastic first-year teacher, unaware of how vulnerable a teacher is to false charges of abuse. J.C. urges that we reverse or remand to the circuit court with instructions to remand to DHS for further proceedings to "properly deal with the issues before it."
DHS claims that J.C. was twenty-four years old and that C.K. was fourteen years old when J.C. engaged in sexual contact with her for the purpose of sexual gratification. These acts are described under Arkansas Code Annotated section 12-18-103(21)(A)(i) (Supp. 2017) ("sexual contact" means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person, or the breast of a female, or the offender requesting to touch a child in a sexual manner). Sexual gratification may be inferred from the attendant circumstances. Ark. Code Ann. § 12-18-103(21)(A)(ii).
DHS contends that the evidence included C.K.'s consistent disclosures, the undisputed facts concerning J.C.'s contact with C.K., and the ALJ's determination of credibility. In all of C.K.'s disclosures-to the school counselor; in an interview with Detective Trent; in an interview with the CACD investigator; and in a written statement-she said the same thing-that she was in J.C.'s classroom for lunch when he touched her on her vagina. In all except her initial disclosure, her statements were consistent and grew in detail. J.C. did not deny that C.K. ate lunch alone with him in his classroom or that they went off campus for lunch one day. He also does not dispute that they were in contact through phone calls and text messages.
Despite J.C.'s contentions that nothing sexual happened between him and C.K., it was the ALJ's responsibility to assess credibility and determine truthfulness. Shaw, supra. Clearly, the ALJ considered the defenses J.C. offered, but it was within his prerogative to reject them. Id. J.C. asks this court to reweigh the evidence; however, the appellate court does not act as a super-factfinder, substituting its own judgment for the credibility determination of the agency. Id. Finally, J.C. cannot complain on appeal that he was denied an opportunity to cross-examine a witness when he failed to subpoena her. Dyer v. Ark. Ins. Dep't , 2015 Ark. App. 446, 468 S.W.3d 303. We hold that because the agency's decision is supported by substantial evidence, the decision cannot be classified as arbitrary or capricious. Burton v. Ark. Dep't of Human Servs. , 2015 Ark. App. 701, 478 S.W.3d 221.
Affirmed.
Murphy and Brown, JJ. agree.
This is J.C.'s second attempt to appeal this case because we ordered rebriefing to comply with Arkansas Supreme Court and Court of Appeals Rule 4-2(a)(5)(A) (2018). See J.C. v. Ark. Dep't of Human Servs. , 2018 Ark. App. 585, 2018 WL 6332787. | [
48,
-24,
-19,
-20,
26,
-95,
58,
36,
67,
-93,
-13,
-45,
43,
-36,
28,
127,
-62,
79,
84,
113,
-47,
-77,
115,
97,
-78,
-14,
-72,
95,
-77,
79,
-12,
-36,
92,
112,
-102,
-47,
38,
-54,
-17,
-34,
-122,
11,
-86,
-28,
82,
3,
36,
43,
26,
15,
53,
-66,
-30,
40,
-104,
79,
47,
110,
90,
-82,
-64,
65,
-37,
23,
29,
52,
-93,
36,
-97,
13,
-16,
60,
-40,
57,
0,
-20,
51,
-74,
-118,
100,
109,
-117,
41,
112,
98,
42,
-116,
-9,
-75,
-119,
-33,
62,
-99,
-90,
-102,
105,
66,
37,
-73,
-76,
68,
84,
10,
-6,
-9,
100,
118,
100,
-85,
-49,
-100,
-79,
76,
57,
28,
59,
-21,
7,
16,
5,
-57,
-28,
92,
-61,
19,
-37,
-82,
-73
] |
PHILLIP T. WHITEAKER, Judge
In this stepparent adoption case, appellant Greg Holmes appeals a final decree from the Benton County Circuit Court granting an adoption petition filed by appellees Erin and Michael Wilhelm. Holmes argues five points, but his primary contention is that the circuit court erred by finding that his consent was not necessary and that the adoption was in the child's best interest. We affirm.
We review adoption proceedings de novo. We will not, however, reverse the circuit court's decision unless it is clearly erroneous or against a preponderance of the evidence, after giving due regard to its superior opportunity to determine the credibility of the witnesses. Navarrete v. Creech , 2016 Ark. App. 414, 501 S.W.3d 871. We give great weight to a circuit court's personal observations when the welfare of children is involved. Id. With these standards in mind, we turn our attention to a de novo review of the proceedings and the evidence before the circuit court.
Holmes and Erin Wilhelm were previously married. E.W. was born on August 29, 2006, during the marriage. Holmes and Erin divorced in November 2007 in Pulaski County. By an agreed divorce decree, Holmes and Erin had joint custody, but Erin was named the custodial parent. Holmes was awarded visitation and ordered to pay child support.
Erin moved to Northwest Arkansas after the divorce. She began dating Michael Wilhelm in mid-2012, and they married in April 2013. In August 2016, Michael and Erin filed a petition for Michael to adopt E.W. They asserted that Holmes's consent was not required under Arkansas Code Annotated section 9-9-207(a)(2)(i) (Repl. 2015) because Holmes had failed significantly without justifiable cause to communicate with E.W. for a period of at least one year. Holmes filed a pro se answer denying the material allegations of the petition. Holmes later retained counsel to represent him.
The parties litigated the case over three days between February and April 2017. On June 27, 2017, the circuit court entered its decree of adoption. The court found that Holmes had received appropriate statutory notice pursuant to the notice provisions of Act 1779 of 2001, that Holmes's consent was not required in that he had failed significantly without justifiable cause to communicate with E.W. for a period of at least one year, and that it was in E.W.'s best interest to grant the adoption. This appeal followed.
On appeal, Holmes argues five points. First, he argues that his consent to the adoption was required. Generally, a petition to adopt a minor may be granted only if written consent has been executed by the father of the minor if he was married to the mother at the time the minor was conceived or at any time thereafter. Ark. Code Ann. § 9-9-206(a)(2)(A). Holmes was married to Erin when E.W. was conceived, and this general rule would require his consent. There are exceptions to this general rule, however. One of the exceptions relevant to this appeal is found in Arkansas Code Annotated section 9-9-207(a)(2), which provides that a parent's consent to adoption is not required if the child is in the custody of another, and the parent for a period of at least one year has failed significantly without justifiable cause to either communicate with the child or to provide for the care and support of the child.
Here, the circuit court heard undisputed evidence that the last visit between Holmes and E.W. was in August 2012 and that the last contact of any kind between Holmes and E.W. was in December 2013. Likewise, the circuit court heard evidence that between June 2014 and early August 2016, there was no contact whatsoever between Holmes and E.W. There is no dispute that Holmes had no communication with E.W. for a period in excess of one year. The issue then becomes whether Holmes failed significantly to communicate without justifiable cause. "Failed significantly" certainly does not mean "failed totally." Pender v. McKee , 266 Ark. 18, 582 S.W.2d 929 (1979). Rather, it means a failure that is meaningful or important. Id. "Without justifiable cause" denotes a failure that is voluntary, willful, arbitrary, and without adequate excuse. In re Adoption of K.F.H. & K.F.H. , 311 Ark. 416, 844 S.W.2d 343 (1993).
Despite the undisputed lack of communication, Holmes argues that his consent is still required because any failure to communicate with E.W. was the result of Erin's willful interference. According to Holmes, Erin stopped answering his texts and phone calls and began actively blocking his communication with E.W. This interference, Holmes argues, justifies his failure to communicate with E.W. and mandates his consent under Arkansas Code Annotated section 9-9-207. Erin denies that she actively blocked Holmes's communications with E.W., but she does admit that she allowed E.W. to decide whether to communicate with Holmes.
The circuit court heard, weighed, and evaluated the conflicting testimony between the parties. This court has stated that in cases involving minor children, a heavier burden is cast on the circuit court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interest; that the appellate court has no such opportunity; and that we know of no case in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as one involving minor children. Navarrete, supra. The court found that Holmes's last visit with E.W. was in August 2012 and also found that Holmes made no effort whatsoever to have contact with E.W. between June 2014 and August 2016. In reaching these findings, the court made credibility determinations. It concluded that Holmes did not attempt as much contact with E.W. as he believed and that Erin thwarted Holmes's visitation more than she believed. The court also found Holmes's testimony that he did not know how to contact his son not credible. By clear and convincing evidence, the court found that the facts did not constitute justifiable cause for Holmes's lack of communication with E.W. and that Holmes's consent to the adoption was not required. We find no error on this point.
Holmes argues in his second and third points on appeal that the circuit court erred in finding that the adoption was in E.W.'s best interest. We disagree.
Holmes and his family presented significant testimony about the relationship that existed between them and E.W. The court, however, found that the evidence was clear that this contact happened when E.W. had been very young. In fact, E.W. testified he had little memory of those relationships. The court was very bothered by E.W.'s demeanor and testimony, commenting on how ten-year-old E.W. could "present so mature and so matter of fact" in stating that he wanted nothing to do with his biological father. Because the court believed Holmes was a good person, the court was concerned about E.W.'s feelings and whether they were the result of undue influence. The court appointed Dr. Martin Faitak, a clinical psychologist, to evaluate E.W. Dr. Faitak confirmed that E.W.'s feelings were genuine, that E.W. wanted nothing to do with Holmes, and that there was no real evidence of undue influence. Additionally, the court found that for a period of almost four years between 2012 and 2016, E.W. and Holmes had limited contact with one another. The court found this to be a critical time for E.W. in that it had been almost 50 percent of his life. During this period, the court ruled, the evidence was clear that E.W. developed a relationship with Michael Wilhelm and viewed Michael as his father. The court found no evidence that Michael was trying to replace Holmes; but instead, it was Holmes's and Erin Wilhelm's actions that led to Michael's being the father figure to E.W. We find no error on this point.
For his fourth point on appeal, Holmes argues the circuit court erred in finding that he received the notice provisions of Act 1779 of 2001. See Act of Apr. 18, 2001, No. 1779, 2001 Ark. Acts 7734. Act 1779 requires a child-support order to contain a notice to the noncustodial parent that the failure to pay support or to visit with the child for a period of at least one year shall provide the custodial parent with grounds to terminate the noncustodial parent's parental rights. Id. The Act further provides the noncustodial parent with a means to come into compliance with the child-support order and prevent the adoption or termination of parental rights. Id. At trial, Holmes presented testimony that the agreed divorce decree that he signed did not contain the mandatory notice provision required by statute. He further testified that had he been aware of this notice, he would not have allowed more than a year to transpire before communicating with E.W. Despite Holmes's testimony, the court found that all the copies of the divorce decree between Holmes and Erin introduced into evidence had the required notice attached. The court simply did not afford Holmes's testimony the weight that he desires. We find no error on this point.
Finally, Holmes argues that the circuit court erred in deferring to E.W.'s wishes to be adopted by Michael and crediting Dr. Faitak's report evaluating E.W.'s wishes. The court gave great weight to E.W.'s desires based on the court's observation of E.W. combined with Dr. Faitak's report. The court ultimately found E.W. credible. Holmes argues that this evidence was unreliable because E.W.'s brain was not yet fully developed, and he could not comprehend the import of his adoption by Michael. Holmes also claimed that Dr. Faitak's report was suspect because he had not been informed of all the circumstances leading to Holmes's cessation of communication with E.W. What Holmes is asking us to do, in essence, is to reweigh the evidence in his favor, which is not the function of the appellate court. We do not substitute our judgment or second-guess the credibility determinations of the circuit court; we will reverse only in those cases when a definite mistake has occurred. Madison v. Ark. Dep't of Human Servs. , 2013 Ark. App. 368, 428 S.W.3d 555. Here, the circuit court considered all the evidence and made findings as to the credibility of the witnesses; it simply weighed the evidence differently than Holmes desired. When reviewing the entire evidence, we cannot say with firm conviction that a mistake has been committed. Thus, we hold that the circuit court did not clearly err in granting the adoption.
Affirmed.
Virden and Klappenbach, JJ., agree.
There is no issue as to Holmes's provision of support in this case.
Holmes texted Erin asking for visitation on August 3, 2016. On August 15, 2016, Michael and Erin filed a petition for Michael to adopt E.W.
At all times relevant to Erin's allowing E.W. to make this decision, E.W. was under the age of seven.
In his second point, Holmes argues there was no evidence that the adoption would improve E.W.'s life. In his third point, Holmes argues that the circuit court erred in denying his motion for directed verdict because there was insufficient evidence that his failure to communicate with E.W. was without justifiable cause and there was insufficient evidence to support a finding that the adoption was in E.W.'s best interest. Because both of these points pertain to best interest, we consider them together. | [
85,
108,
-12,
124,
-102,
96,
56,
14,
83,
-93,
99,
83,
-17,
98,
20,
121,
-62,
47,
96,
121,
-57,
-74,
87,
98,
-48,
-9,
49,
-41,
-15,
-49,
101,
94,
93,
104,
-53,
-35,
66,
-56,
-83,
-100,
-126,
3,
-85,
101,
81,
66,
32,
101,
26,
15,
5,
-66,
-112,
-82,
61,
-53,
44,
14,
89,
-67,
-112,
-8,
-101,
23,
15,
6,
-95,
52,
-110,
7,
82,
42,
-112,
49,
-56,
-20,
115,
-74,
-118,
117,
72,
29,
9,
112,
102,
0,
72,
-9,
-68,
-120,
102,
47,
-67,
-89,
-104,
89,
3,
7,
-65,
-79,
76,
16,
14,
122,
111,
-51,
30,
-20,
4,
-114,
-44,
-111,
-114,
-16,
84,
3,
-29,
-36,
16,
117,
-61,
-44,
85,
-125,
56,
-101,
-106,
-14
] |
JOSEPHINE LINKER HART, Associate Justice
The State asks this court to dismiss the pending appeal of an order denying and dismissing appellant Edward Joseph Reynolds's petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2017). Although the file mark on Reynolds's Rule 37.1 petition appears to indicate that it was not timely filed, Reynolds asserted below that under Rule 37.2(g) of our criminal-procedure rules, his petition should be deemed filed on the date that it was mailed. Because the circuit clerk was required by the Rule to include in the record a copy of the envelope in which the petition was received but failed to do so, we remand for a supplemental record.
Reynolds appealed the judgment at issue here, which reflected his convictions for aggravated assault and kidnapping and imposed an aggregate sentence of life imprisonment. This court affirmed. Reynolds v. State , 2016 Ark. 214, 492 S.W.3d 491. The mandate issued on June 7, 2016, and under Rule 37.2(c)(ii), Reynolds's Rule 37.1 petition had to be filed within sixty days of that date. Jackson v. State , 2018 Ark. 209, 549 S.W.3d 346. The petition was marked as filed on November 28, 2016, or 143 days after the mandate issued. Reynolds's petition included an affidavit that stated he was incarcerated and identified the unit where he was incarcerated; stated that he was proceeding pro se; and indicated that the petition had been placed in the unit's legal-mail system on July 3, 2016, with first-class postage prepaid and addressed to the circuit clerk for filing. July 3, 2016, was twenty-six days after the mandate issued and well within the sixty-day limit in Rule 37.2(c)(ii).
The time requirements in Arkansas Rule of Criminal Procedure 37.2(c) are mandatory, and when a petition under Rule 37.1 is not timely filed, a trial court shall not consider the merits of the petition and grant postconviction relief. Gardner v. State , 2017 Ark. 230, 2017 WL 3300528. Although, as the State notes, the court indicated at the postconviction hearing that it did not believe that the petition was timely filed, the court did not enter a written order addressing the timeliness of the petition. It instead entered an order addressing the merits of the Rule 37 petition, thereby effectively finding that the petition was timely.
The State contends that the Rule 37 petition did not fulfill the conditions under Rule 37.2(g) for the petition to be deemed filed on the date of its deposit in the prison's legal-mail system because the record does not contain an envelope or other post-marked documents to verify Reynolds's statement concerning the date the petition was mailed. However, the Rule requires that the circuit clerk, not Reynolds, retain the envelope in which the Rule 37 petition was received and include a copy in the record on appeal. This information is needed for any review concerning whether Rule 37.2(g) has been satisfied, but the duty to satisfy that particular condition is the clerk's and not one of Reynolds's duties to fulfill.
The State also contends that, because the date of swearing for Reynolds's affidavit in support of his request to proceed in forma pauperis on the Rule 37 petition was beyond the due date, the petition could not have been timely received in the condition necessary for filing. The State appears to believe that the petition could not have been filed until the clerk received Reynolds's application for in forma pauperis status. Yet, the date that the petition was considered to have been received by the clerk would be the correct filing date, even if Reynolds had tendered the petition without having submitted a request to proceed as a pauper, if he cured the defect in form in a timely manner. See O'Fallon v. O'Fallon , 335 Ark. 229, 980 S.W.2d 246 (1998).
There are other, less obvious costs associated with the proceedings that, at times, may require an application to proceed as a pauper even in cases for which no filing fee is assessed. Regardless of the reason that the application may have been needed, a delay in the petition's filing that resulted from the requirement of the form, without a reasonable opportunity to cure the defect, is not acceptable in a criminal case with time-sensitive filing requirements. Our own clerk follows a practice of allowing a reasonable period of time in which to remit an omitted filing fee or provide an appropriate application for pauper status for those appellate records or pleadings with time sensitivity, and when the applicable filing fee or other cure is not received until after the filing deadline, the filing date is the date tendered. Id. This policy applies without regard to whether the record or pleading was submitted through counsel or pro se.
Because the clerk failed to provide a copy of the envelope in which the petition was received, we remand for the circuit clerk to provide a supplemental record with a copy of that envelope. If the clerk has failed in her duty to retain the envelope, then the circuit court is to hold a hearing to settle the record, to the extent possible, and enter an order that provides findings on the date that the petition was received by the clerk, the date of the postmark on the envelope, and the filing date of the petition. The supplemental record, including the transcript of any hearing conducted, is to be returned within thirty days of the date of this order.
Remanded for supplemental record.
Kemp, C.J., and Wood and Womack, JJ., dissent.
The State also filed a motion to stay briefing schedule in which it requested an additional thirty days to file its brief should this court deny the pending motion to dismiss. That motion was granted by syllabus entry on September 24, 2018. | [
112,
-30,
124,
60,
41,
65,
26,
-67,
83,
-61,
-83,
115,
-81,
-58,
20,
121,
-5,
107,
112,
-7,
-36,
-73,
103,
96,
82,
-77,
81,
87,
63,
107,
-20,
-2,
92,
112,
-54,
-47,
68,
106,
-119,
-40,
-114,
1,
-119,
-27,
81,
72,
56,
40,
90,
11,
49,
-66,
-29,
-81,
26,
-53,
-51,
108,
-39,
61,
-56,
-111,
-101,
29,
-113,
20,
-95,
-92,
-109,
4,
80,
62,
-120,
49,
33,
-24,
114,
54,
-122,
116,
111,
25,
40,
98,
98,
1,
93,
-9,
-88,
40,
12,
54,
-99,
-90,
-104,
73,
75,
45,
-122,
-75,
105,
-108,
39,
126,
108,
76,
117,
44,
14,
-50,
-44,
-79,
-81,
41,
20,
43,
-29,
37,
96,
52,
-50,
-10,
-36,
69,
57,
-37,
-106,
-78
] |
II. Law and Analysis
For his sole point on appeal, Farris argues that substantial evidence does not support the Commission's decision. Specifically, Farris contends that he timely filed his first additional-benefits form on May 5, 2016, and that his mistake of naming the wrong employer should not bar his claim.
When reviewing a decision of the Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence.
Crudup v. Regal Ware, Inc. , 341 Ark. 804, 20 S.W.3d 900 (2000). Substantial evidence exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. , 20 S.W.3d 900. The issue is not whether the appellate court might have reached a different result from the Commission, but rather whether reasonable minds could reach the result found by the Commission. Wallace v. W. Fraser South, Inc. , 365 Ark. 68, 225 S.W.3d 361 (2006). If so, the appellate court must affirm the Commission's decision. Id. , 225 S.W.3d 361.
Further, we review issues of statutory construction de novo because it is this court's duty to decide what a statute means. Johnson v. Bonds Fertilizer, Inc. , 365 Ark. 133, 226 S.W.3d 753 (2006). 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 meaning and usually accepted meaning in common language. Id. , 226 S.W.3d 753. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. , 226 S.W.3d 753. When the language of the statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. , 226 S.W.3d 753. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. , 226 S.W.3d 753.
Arkansas Code Annotated section 11-9-702 (Repl. 2012) governs the statute of limitations for additional benefits and states in relevant part,
(b) Time for filing additional compensation.
(1) In cases in which any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, whichever is greater.
Ark. Code Ann. § 11-9-702(b)(1). This court has stated that a claimant must prove that he or she acted within the time allowed for filing a claim for additional compensation. Stewart v. Ark. Glass Container , 2010 Ark. 198, 366 S.W.3d 358. Additionally, this court has stated that the running of the statute of limitations is largely a question of fact. Houston Contracting Co. v. Young , 267 Ark. 322, 590 S.W.2d 653 (1979).
According to the plain language of the section 11-9-702(b)(1), Farris's claim for additional compensation "shall be barred" unless he filed it "within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, whichever is greater." Thus, under the statute, Farris was required to file his claim by April 28, 2016, which is one year from April 28, 2015, the "date of the last payment of compensation;" or by May 12, 2016, which is two years from May 12, 2014, the "date of the injury." Id. Because the two-year date "is greater" under section 11-9-702(b), Farris should have filed his form by May 12, 2016. He filed his corrected amended form, dated May 12, 2016, on May 13, 2016-one day late.
Farris cites Dillard , 87 Ark. App. 379, 192 S.W.3d 287, for the proposition that the determinative factor for the statute of limitations is the timeliness of the filing and contends that he timely filed his form on May 5 even though it contained a mistake. In Dillard , the claimant sought additional benefit for permanent total disability, rehabilitation, attorney fees, and medical expenses. On the claim form, Dillard's attorney checked the boxes located under the initial-benefits section instead of checking the boxes under the additional-benefits section. After failing to timely request a hearing, Dillard's employer moved for a dismissal. The ALJ granted the dismissal, and the Commission accepted the ALJ's findings. The court of appeals reversed and remanded and held that a mistake-incorrect checkmarks-on the Form AR-C should not time-bar a timely claim. The court of appeals stated that "Dillard's failure to technically comply with the 'call' of the form" should not be fatal to his claim. Id. at 384-85, 192 S.W.3d at 291. The court of appeals concluded that there was insufficient evidence to support the Commission's finding that Dillard's claim had been properly dismissed, stating that to hold otherwise "[was] a classic example of [putting] form over substance." Id. at 384, 192 S.W.3d at 291.
Dillard is distinguishable from the present case. In Dillard , the claimant filed one timely claim form, but he mistakenly checked the wrong boxes. Here, Farris filed two claim forms. On his May 5 form, Farris did not merely check the wrong box but appeared to have sought additional benefits from Great Dane. On his May 13 form, he corrected his error by adding Express Services as his employer, but he filed it after the two-year period set forth in section 11-9-702(b)(1). Thus, Farris failed to meet his burden of timely filing his additional-benefits claim within the statutory time frame. We hold that the Commission did not err in finding that Farris's claim for additional benefits was barred by the statute of limitations. Accordingly, we affirm the Commission's decision and vacate the court of appeals opinion.
Affirmed; court of appeals opinion vacated.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent. The majority vacates the Court of Appeals' decision without affording its analysis appropriate consideration, simply ignores this court's long-established "relates back" doctrine, and purports to distinguish this matter from existing caselaw that is actually directly on point. This decision amounts to a plain windfall for Appellees.
It is not unusual for this court to simply "vacate the opinion of the court of appeals" when it decides a case after having granted a petition for review of a Court of Appeals' decision, but in the context of a workers' compensation case, this practice cuts against our state constitution and statutory law. True, the Arkansas Constitution provides that the Supreme Court of Arkansas has "statewide appellate jurisdiction" and "general superintending control over all courts of the state[,]" and "shall prescribe the rules of pleading, practice, and procedure for all courts[.]" Ark. Const. Amend. 80 §§ 2, 4, 3. However, Farris has not appealed the decision of a "court," but that of a commission, specifically the Arkansas Workers' Compensation Commission (AWCC).
This matters, as our Constitution treats workers' compensation claims differently from traditional claims that are brought and decided entirely in a court of law, i.e., within the context of the judicial branch of State government. Instead, the Constitution specifically excepts workers' compensation claims from the general sort and places them within the purview of the legislature. "The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same." Ark. Const. Art. 5 § 32 (emphasis added). Significantly, the laws enacted by the legislature pursuant to Art. 5 § 32 now provide that the Arkansas Court of Appeals shall be the forum for an appeal of an AWCC decision. Ark. Code Ann. § 11-9-711(b).
In other words, the authority for judicial review of most workers' compensation claims comes not directly from our constitution (from which this court gleans its authority to prescribe rules, including the rules governing petitions for review of decisions by the Court of Appeals), but from the laws enacted by the General Assembly. Those laws say a workers' compensation appeal goes to the Court of Appeals. Moreover, no law enacted by the General Assembly provides for this court to supplant a decision by the Court of Appeals in a workers' compensation case. For these reasons, it is not even apparent that we have jurisdiction over the present matter, which does not feature any constitutional issue or other significant circumstance that might independently invoke this court's jurisdiction. Perhaps support for this court's review of the Court of Appeals' decision can be found within the "superintending control" conferred by Amendment 80 § 4, but any such review must comport with a constitutionally acceptable procedure and standard of review.
In short, I have definite reservations about simply casting the Court of Appeals' decision aside without greater consideration and deference. However, regardless of what the standard of review should be in the present matter, it is plain that the Court of Appeals got this case right, and the majority here is getting it wrong.
To be clear, Farris did file his claim for additional benefits with the Arkansas Workers' Compensation Commission (AWCC) within the two-year window prescribed by Ark. Code Ann. § 11-9-702(b)(1) (Repl. 2012). Two years from the date of Farris's injury was May 12, 2016, and Farris filed his AR-C form for additional benefits a week beforehand on May 5, 2016. This was, of course, after Appellees had already received notice that Farris's injury had occurred, acknowledged that Farris's injury was compensable, and even paid Farris initial benefits for that injury. The record is replete with contemporaneous documentation of these facts, including documentation that Appellees generated themselves and filed with AWCC long before Farris filed his AR-C form. Even so, the majority opines that, because Farris mistakenly listed Great Dane Trailers as his employer when he filed his AR-C form, and because that mistake was not corrected until May 13, 2016 (one day after the two-year limitation would have expired), Farris's claim for additional benefits is barred by the statute of limitations. The majority is incorrect.
The May 13 amendment to Farris's AR-C form relates back to the May 5 filing date, and the majority's decision to the contrary entirely disregards decades'
worth of this court's jurisprudence. For example, in Southwestern Bell Telephone Co. v. Blastech, Inc. , this court observed,
When an amendment changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, it may relate back to the time of filing of the original complaint. Relation back is dependent upon proof of four factors: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining a defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
313 Ark. 202, 205, 852 S.W.2d 813, 814-15 (1993) (citing Harvill v. Cmty. Methodist Hosp. Ass'n , 302 Ark. 39, 786 S.W.2d 577 (1990) ). As set forth above, there can be no legitimate dispute that all four requirements are satisfied in this instance. The amendment relates back.
Moreover, the Arkansas Court of Appeals has already held that a mistake on an AR-C form for additional benefits does not bear upon its timeliness, as it is the filing of the form itself that tolls the applicable limitations period. Dillard v. Benton Cty. Sheriff's Office , 87 Ark. App. 379, 192 S.W.3d 287 (2004). The majority's nominal effort to distinguish Dillard is entirely unconvincing. As would have been the case in Dillard , barring Farris's claim in this instance is "a classic example of putting form over substance." Id. at 384, 192 S.W.3d at 291.
I dissent.
This court has held that "the date of the last payment of compensation" under section 11-9-702(b) means "the date of the last furnishing of medical services." Plante v. Tyson Foods, Inc. , 319 Ark. 126, 129, 890 S.W.2d 253, 255 (1994) (citing Superior Fed. Sav. & Loan Ass'n v. Shelby , 265 Ark. 599, 580 S.W.2d 201 (1979) ). Express Services paid the fee associated with the April 28, 2015 visit on June 4, 2015. However, we acknowledge the April 28 date because it constitutes the date of the last furnishing of medical services by Dr. Schechter.
There, our court of appeals observed,
[I]f the claim is classified as a claim for "additional" benefits (despite the fact that the wrong boxes were checked) then the claim, because it was timely filed, tolls the statute of limitations. This tolling is based on this court's observation that "[i]f the statute is not tolled when the claimant files a claim for additional benefits, what could possibly toll the statute? We prefer to think that the statute means what its plain language implies."
Dillard , 87 Ark. App. at 384, 192 S.W.3d at 290-90 (internal citations omitted). | [
-92,
-22,
-43,
-67,
8,
-30,
18,
120,
105,
-85,
103,
83,
-81,
-14,
20,
119,
-17,
127,
80,
106,
-43,
-77,
7,
-63,
-14,
-73,
-45,
-41,
53,
-49,
118,
92,
76,
48,
-62,
-43,
-26,
72,
-57,
82,
10,
15,
-120,
79,
-56,
-28,
52,
39,
80,
95,
80,
-34,
-25,
40,
24,
-61,
-21,
46,
79,
61,
64,
-72,
-118,
13,
79,
22,
-77,
100,
-65,
67,
-40,
12,
28,
57,
0,
-24,
115,
-74,
-42,
-76,
105,
41,
12,
96,
99,
1,
28,
-19,
-88,
-36,
22,
-68,
15,
-90,
16,
25,
-53,
45,
-105,
-67,
116,
22,
14,
126,
-26,
69,
31,
100,
3,
-113,
-110,
-77,
29,
124,
-102,
65,
-41,
-125,
16,
113,
-50,
-30,
92,
5,
27,
-109,
-122,
-122
] |
COURTNEY HUDSON GOODSON, Associate Justice
Sheila McHughes, along with attorneys David Hodges and Josh McHughes, appeals the order of the Saline County Circuit Court granting the motion for sanctions filed by appellees Anissa Wayland and Children's Medical Transportation Service, LLC. For reversal, appellants argue that the circuit court erred by (1) granting appellees' motion for sanctions and denying their motion for sanctions; (2)
denying their motion to recuse; (3) denying their motion for reconsideration; and (4) denying counsels' first motion to withdraw. We dismiss the appeal for lack of a final order.
The underlying case began when Sheila McHughes filed a complaint on July 25, 2013. In the complaint, Sheila McHughes alleged that she was stopped at an intersection on U.S. Highway 229 in Haskell on August 8, 2011, when she was hit from behind by a vehicle owned by Children's and operated by Wayland, who was a Children's employee. Throughout the litigation, Sheila McHughes claimed that the accident caused her abdominal pain.
Rule 11(b) of the Arkansas Rules of Civil Procedure provides that the signature of an attorney or a party on motions or other papers constitutes a certification that he or she has made a reasonable inquiry and, among other things, believes that
(1) the pleading, motion, or other paper is not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support[.]
Ark. R. Civ. P. 11(b) (2018).
After appellees discovered inconsistencies in Sheila McHughes's testimony and discovery responses, appellees filed a motion for sanctions seeking dismissal of the complaint and an allocation of costs and fees. On October 4, 2017, the circuit court entered an order granting appellees' motion. In pertinent part, the order stated that
this matter is dismissed with prejudice to the refiling of same. All court costs are assessed against She[ila] McHughes, David Hodges and Josh McHughes. Further, attorney fees incurred by Defendants are assessed against She[ila] McHughes, David Hodges and Josh McHughes. Defendants shall submit an affidavit, invoices or other reliable documentary evidence of their court costs, including expert witness fees and court reporter fees, and attorney fees, to Ms. McHughes, Mr. Hodges and Mr. McHughes within twenty days of this order. If Ms. McHughes, Mr. Hodges or Mr. McHughes dispute any of the submitted expenses and attorney fees, they shall notify this Court within ten days of receiving the costs and attorney fees from Defendants and request a hearing on the amount of the costs.
No order setting or apportioning costs and fees is part of the record. Appellants filed a notice of appeal on October 30, 2017. Appellants also filed a motion for reconsideration on October 27, 2017. On January 24, 2018, appellants filed a notice of appeal from the circuit court's order denying their motion for reconsideration. The two appeals were initially docketed as separate appeals, but they have since been consolidated.
As a threshold issue, we must determine whether the order being appealed is a final, appealable order pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure. Chitwood v. Chitwood , 2013 Ark. 195, 2013 WL 1932916. With exceptions not applicable here, an appeal may be taken only from a final judgment or decree entered by the circuit court. Ark. R. App. P.-Civ. 2(a)(1) (2018). Whether an order is final and subject to appeal is a jurisdictional question that this court will raise sua sponte.
Searcy Cty. Counsel for Ethical Gov't v. Hinchey , 2011 Ark. 533, 2011 WL 6275291.
Because our Rule 11 and Rule 11 of the Federal Rules of Civil Procedure are substantially identical, we consider interpretation of these rules by federal courts to be of significant precedential value. City of Fort Smith v. Carter , 364 Ark. 100, 216 S.W.3d 594 (2005). Federal courts have held that a Rule 11 case is not final until the monetary sanction has been reduced to a sum certain. See Cooper v. Salomon Bros. Inc. , 1 F.3d 82 (2d Cir. 1993) (holding that court lacked jurisdiction to review imposition of Rule 11 sanctions until district court reduced amount of sanctions to sum certain); see also S. Travel Club v. Carnival Air Lines, Inc. , 986 F.2d 125, 129-30 (5th Cir. 1993) (holding that a Rule 11 order is not final when it made a "liability" determination but did not compute the "damages"); Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc. , 873 F.2d 1327, 1329 (9th Cir. 1989) (holding that an order imposing sanctions but not setting an amount was not final or appealable); Gates v. Cent. States Teamsters Pension Fund , 788 F.2d 1341, 1343 (8th Cir. 1986) (holding that a claim for attorney's fees should be treated as a matter independent and collateral to the merits of the litigation, but an order finding liability for attorney's fees without a determination of a specific amount was not final).
In some cases, a Rule 11-sanction motion raises a "collateral and independent claim, not a matter integral to the merits of the action." Crocket & Brown, P.A. v. Wilson , 321 Ark. 150, 158, 901 S.W.2d 826, 830 (1995). In such situations, an unresolved issue as to whether sanctions should be imposed, or the amount of any monetary sanctions to be awarded, does not defeat the finality of a judgment on the merits of the underlying action. For example, in Crocket & Brown , although a final judgment on the parties' underlying action had been previously entered and appealed, we held that the circuit court retained jurisdiction to rule on the Rule 11 requests for sanctions. Likewise, we have held that the circuit court's failure to rule on a motion for Rule 11 sanctions filed before a jury trial did not prevent entry of a final judgment on the merits after the trial. Spring Creek Living Ctr. v. Sarrett , 318 Ark. 173, 883 S.W.2d 820 (1994). In this instance, however, Sheila McHughes and both of her attorneys were sanctioned. The circuit court assessed costs against all three, and the dismissal of the case is part of the sanction. The case was dismissed because the circuit court determined that Sheila McHughes and her two attorneys submitted pleadings and other papers in violation of Rule 11. In other words, there is no basis for dismissal independent of the sanction itself. Under these particular facts, we conclude that the Rule 11 order is not final.
Appeal dismissed.
Additionally, when a monetary sanction is imposed, our Rule 11(c)(3) requires the order to "explain how it was determined." | [
-48,
-20,
-20,
108,
14,
65,
16,
30,
81,
-109,
101,
83,
-89,
-2,
29,
119,
-29,
57,
-47,
105,
-25,
-77,
84,
64,
-30,
-78,
-79,
87,
-81,
67,
100,
-75,
78,
113,
-54,
-107,
70,
-54,
-25,
84,
14,
-126,
9,
-28,
73,
75,
112,
51,
20,
15,
117,
-97,
-29,
47,
60,
98,
-88,
110,
95,
45,
-55,
-78,
-101,
15,
95,
0,
-127,
52,
-101,
1,
88,
56,
-100,
57,
1,
-56,
50,
-94,
-126,
-44,
67,
-103,
8,
36,
98,
1,
-104,
-57,
60,
-84,
7,
30,
29,
-90,
-54,
41,
75,
15,
-73,
-79,
56,
20,
15,
120,
-18,
-123,
92,
104,
-118,
-22,
16,
-79,
30,
17,
28,
43,
-21,
5,
20,
117,
-51,
-16,
124,
-57,
51,
27,
78,
-78
] |
MIKE MURPHY, Judge
Appellant Robert E. Bamburg appeals two orders of the Pulaski County Circuit Court ordering him to pay attorney's fees to the appellees for expenses they incurred while attempting to recover missing trust assets. Robert's appeal is premature, and we dismiss without prejudice.
Appellees Joan Zumwalt and Lisa Bamburg filed the underlying action in this case to remove Robert as trustee of two trusts, the Lisa J. Bamburg Irrevocable Trust and the Elise D. Bamburg Irrevocable Trust. Robert was removed pursuant to a summary-judgment order entered by the Pulaski County Circuit Court on August 17, 2015. Lisa is the successor trustee to both trusts.
Following his removal, Robert did not immediately deliver the records and assets of the two trusts to Lisa. The appellees filed a motion to compel, and the circuit court, on December 14, 2015, ordered Robert to "produce all records or documents in his possession or that he has access to concerning the Bamburg Trusts" and to "pay Plaintiffs' reasonable attorneys' fees incurred in filing the subject motion to compel." Robert was able to produce the requested materials for the Elise D. Bamburg Irrevocable Trust but was unable to do so for the Lisa J. Bamburg Irrevocable Trust. The appellees filed a second motion on March 2, 2016, asking for an order compelling Robert to produce the documents and property associated with the Lisa J. Bamburg Irrevocable Trust, for attorney's fees, and for Robert to be held in contempt of court for his failure to comply with the December 2015 order.
On April 4, 2016, the circuit court entered an order compelling Robert to produce and release the missing trust documents, awarding attorney's fees, and reserving the issue of contempt. On November 11, 2016, the appellees filed their formal motion for attorney's fees and included an itemized bill. An order awarding those fees was entered on March 3, 2017, for $ 2997.02. That order stated that "the request for additional attorney's fees will be addressed in a separate order." Robert paid the $ 2997.02. Then, on December 4, 2017, the court entered another order awarding an additional $ 5294.23. Robert now appeals from that order, arguing that the award of fees in both March and December 2017 was an abuse of discretion.
We must first address the preliminary issue of whether this appeal involves a final, appealable order. When the order appealed from is not final, this court will not decide the merits of the appeal. Kines v. McBride , 2017 Ark. App. 40, at 3, 511 S.W.3d 352, 354. The finality of an order is a jurisdictional question that we have the right and duty to raise to avoid piecemeal litigation. Toney v. White , 31 Ark. App. 34, 787 S.W.2d 246 (1990). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. For an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Toney, supra. Rule 2(a)(12) also provides that an order is appealable if it is entered pursuant to Arkansas Code Annotated section 28-1-116 (Repl. 2012), which sets forth that all orders in probate cases, except an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator, are appealable.
However, trust matters are governed by Arkansas Code Annotated sections 28-73-101 to -1106, and these statutes are not designated by Rule 2 as appealable. Nor have trust matters historically been cognizable as probate matters. See Vaught v. Vaught , 71 Ark. App. 196, 198, 29 S.W.3d 365, 366-67 (2000) (holding that the construction, interpretation, and operation of trusts are matters that lie within the jurisdiction of chancery courts). It is important to note that our supreme court has recently held in In re Matter of Hamilton Living Trust , 2015 Ark. 367, 471 S.W.3d 203, that a circuit court's order granting a trust beneficiary's claim for an accounting against the purported successor trustee was appealable as a final judgment or decree pursuant to Rule 2(a)(1) ; however, in that case, the parties were dismissed from court, the action was discharged, and the rights to the subject matter were concluded.
In the present case, however, no parties have been dismissed, the action has not been discharged, and the rights to the subject matter have not been concluded. The appellees have continually prayed for the return of the trust assets, yet the orders have both dealt with delivery of records or documents concerning only the trust, and not the assets themselves. Additionally, the issue of contempt was specifically reserved in the April 4, 2016 order. The purpose of requiring a final order is to avoid piecemeal litigation, and to allow this appeal to proceed would almost certainly lead to just that. See Clark v. Summers , 2018 Ark. App. 225, at 3-5, 547 S.W.3d 511, 513-14.
As a final note, the record before us indicates that there have been two hearings on the motions to compel, yet appellant did not provide us any transcript, abstract, or abstractor's note regarding the hearings. The appellant's brief also omitted a statement of the case. Counsel is encouraged to review our rules to ensure that no additional deficiencies exist in the event an appeal is still warranted upon the entry of a final order.
Dismissed without prejudice.
Gladwin and Brown, JJ., agree. | [
-12,
104,
-24,
124,
58,
-16,
58,
-86,
99,
-93,
49,
83,
-81,
-26,
1,
107,
96,
-71,
101,
121,
-57,
-77,
111,
96,
-14,
-13,
-7,
-43,
-16,
-50,
-28,
-41,
73,
40,
-126,
85,
64,
-126,
-19,
-40,
-114,
2,
-101,
-19,
-39,
65,
48,
-25,
22,
3,
49,
-98,
-78,
45,
57,
74,
72,
44,
-5,
-65,
72,
-78,
-101,
5,
95,
7,
-95,
53,
-104,
2,
-56,
106,
-104,
49,
2,
-23,
51,
-74,
-58,
116,
67,
125,
9,
98,
-30,
0,
61,
-9,
-47,
-128,
6,
-100,
-97,
-57,
-46,
73,
83,
9,
-74,
-68,
116,
18,
3,
-12,
-20,
4,
17,
108,
-121,
-50,
-62,
-109,
-113,
60,
-100,
19,
-17,
27,
48,
81,
-49,
-30,
94,
79,
57,
27,
-98,
-89
] |
Karen R. Baker, Associate Justice
Appellant Brian Keith Byrne brings this appeal from the denial and dismissal by the circuit court of his pro se petition for reduction of sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016). Now before us is Byrne's motion asking that counsel be appointed to represent him on appeal. As there was clearly no ground stated in the petition on which relief could be granted under the statute, the appeal is dismissed, and the motion is moot. An appeal from an order that denied a petition for postconviction relief, including a petition filed under section 16-90-111, will not be permitted to go forward when it is clear that there is no merit to the appeal. Gardner v. State , 2017 Ark. 230, 2017 WL 3300528.
In 2005, Byrne entered a plea of guilty to rape and was sentenced to a term of 240 months' imprisonment. He filed the petition for reduction of the sentence in July 2018. He argued that the reduction was merited because he had caused no trouble while incarcerated, he had already served a term sufficient to pay for his crime, and prior to his incarceration, he had served in the military, worked for NASA, and attended college.
With regard to claims pursuant to Arkansas Code Annotated section 16-90-111, a circuit court's decision to deny relief will not be overturned unless that decision is clearly erroneous. Green v. State , 2017 Ark. 361, 533 S.W.3d 81. 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. Fischer v. State , 2017 Ark. 338, 532 S.W.3d 40.
The time limitations for filing a petition under section 16-90-111 alleging that the sentence was imposed in an illegal manner are superseded by Arkansas Rule of Criminal Procedure 37.2(c), and when a petition under the statute has been filed far beyond the expiration of those time limitations, as it was here, the circuit court has authority to grant relief under the statute only if the sentence imposed was illegal. Id . Under section 16-90-111, a sentence is illegal when it is illegal on its face. Anderson v. State , 2017 Ark. 357, 533 S.W.3d 64. A sentence is illegal on its face when it is void because it is beyond the circuit court's authority to impose and gives rise to a question of subject-matter jurisdiction. Jenkins v. State , 2017 Ark. 288, 529 S.W.3d 236.
Here, Byrne did not contend that the 2005 sentence was illegal on its face or illegally imposed. He asserted only that his sentence should be reduced on the basis of his good conduct while incarcerated, the length of time already served, and his history of good conduct prior to his incarceration. The assertions were not within the purview of the statute that pertains only to challenges to a sentence based on its legality or the validity of its imposition. Stewart v. State , 2018 Ark. 166, 546 S.W.3d 472 (The petitioner was entitled to no relief under section 16-90-111 because the petition did not question either the legality or the validity of the sentence imposed.). A challenge to a sentence on the ground that the petitioner has served enough time to atone for his crime or that his conduct merits a reduction of sentence attacks the execution of the sentence rather than the validity of the sentence imposed by the trial court. See Bosnick v. State , 275 Ark. 52, 627 S.W.2d 23 (1982).
Appeal dismissed; motion moot.
Special Justice Martha McKenzie Hill joins in this opinion.
Kemp, C.J., not participating.
Pursuant to Rule 37.2(c)(i), if a conviction was obtained on a plea of guilty ... and [petitioner] did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of entry of judgment. Byrne filed his section 16-90-111 petition in 2018, which was more than twelve years after the entry of his 2005 judgment of conviction. | [
86,
-22,
-43,
60,
107,
65,
58,
-92,
112,
-113,
99,
81,
-81,
-64,
0,
123,
-29,
123,
65,
121,
83,
-74,
23,
73,
98,
-5,
-39,
85,
-73,
79,
-28,
-2,
76,
112,
-54,
-43,
70,
-56,
109,
94,
-114,
3,
11,
109,
80,
12,
56,
35,
30,
15,
49,
-98,
-21,
-86,
16,
-54,
-55,
44,
73,
-67,
72,
-104,
-102,
15,
-17,
4,
-95,
-91,
30,
67,
114,
94,
-100,
57,
0,
-8,
114,
-106,
-126,
116,
75,
-101,
32,
96,
98,
-128,
93,
-25,
40,
-88,
22,
127,
-99,
-121,
-40,
105,
75,
109,
-105,
-107,
58,
-108,
44,
126,
102,
-115,
85,
108,
-126,
-54,
-80,
-79,
-49,
57,
20,
99,
-21,
45,
48,
97,
-52,
-29,
92,
71,
59,
-37,
-50,
-108
] |
SHAWN A. WOMACK, Associate Justice
The Arkansas Department of Human Services (DHS) appeals the circuit court's order holding the agency in contempt and the temporary restraining order enjoining its emergency rule. The primary question before us is whether the agency violated the express terms of the circuit court's preliminary injunction order by promulgating the emergency rule. We hold that it did not and therefore reverse the order of contempt. We further dismiss DHS's appeal of the temporary restraining order as moot.
I.
A recitation of the factual history underlying this appeal can be found in our first review of the case. See Ark. Dep't of Human Servs. v. Ledgerwood , 2017 Ark. 308, 530 S.W.3d 336 ( Ledgerwood I ). In Ledgerwood I , we upheld the circuit court's temporary restraining order enjoining the 2015 ARChoices Medicaid waiver rule as applied to the named Plaintiffs-Appellees. On remand, the circuit court entered a permanent injunction against the program in its entirety. DHS was permanently enjoined from using the methodology embraced by that rule "unless or until it was properly promulgated." Days after the circuit court entered that order, DHS promulgated an emergency rule utilizing the same methodology. The circuit court entered a temporary restraining order against the rule and held DHS in contempt of its permanent injunction order. The primary basis for both orders was DHS's failure to provide notice and an opportunity for public comment during the adoption of the emergency rule. This appeal ensued.
II.
DHS contends it did not violate the express terms of the permanent injunction order when adopting the emergency rule. It therefore seeks reversal of the circuit court's order holding the agency in contempt. Because we conclude the rule was properly promulgated under the Administrative Procedure Act's (APA) emergency rulemaking provision, we find DHS did not violate the express terms of the circuit court's order. We reverse the order of contempt.
As a threshold matter, we must first determine the character of the contempt order. Contempt may be criminal or civil in nature. See Johnson v. Johnson , 343 Ark. 186, 197, 33 S.W.3d 492, 499 (2000). Criminal contempt seeks to preserve the power of the court, vindicate its dignity, and punish those who disobey its orders. Id. Civil contempt, on the other hand, is designed to protect the rights of private parties by compelling compliance with orders of the court made for the benefit of those parties. See Ivy v. Keith , 351 Ark. 269, 280, 92 S.W.3d 671, 677 (2002).
While the line between civil and criminal contempt may blur at times, the critical distinction lies in the character of relief ordered by the court: "[C]riminal contempt punishes while civil contempt coerces. " Id. (internal quotation omitted) (emphasis in original). In other words, civil contempt seeks only "to coerce compliance with the court's order." Id. , 92 S.W.3d at 678. It carries with it a conditional penalty that may be purged once the civil contemnor complies with the underlying order. Id. Criminal contempt, by contrast, carries an unconditional penalty that is punitive in nature and cannot be purged. Id.
The circuit court did not state whether it was holding DHS in civil or criminal contempt. The record, however, reveals that the circuit court sought to punish DHS's "willful defiance" of its permanent injunction order by imposing a number of sanctions upon the agency. The contempt order required DHS to publish monthly updates relating to assessments of beneficiaries under the ARChoices program. The agency has been required to provide this information on its website and to opposing counsel. It has also been required to provide opposing counsel with monthly updates revealing the identities of persons who have not been reassessed under the program. DHS was not provided any avenue to purge itself of these sanctions; instead, they were to continue indefinitely until the circuit court ordered otherwise. Moreover, the circuit court referred DHS's counsel of record, as well as an agency attorney involved with the emergency rulemaking, to the Committee for Professional Conduct. The unconditional, unpurgeable penalties indicate that DHS was held in criminal contempt.
The standard of review in a case of criminal contempt is well settled: we view the record in the light most favorable to the circuit court's decision and sustain that decision if it is supported by substantial evidence. See James v. Pulaski County Circuit Court , 2014 Ark. 305, at 4, 439 S.W.3d 19, 23. Substantial evidence is that of sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Id. Where one is held in contempt for failure or refusal to abide by the circuit court's order, we will not look behind the order to determine its validity. Id.
There is no question that willful disobedience of a valid court order is contumacious conduct. See, e.g. , Johnson , 343 Ark. at 198, 33 S.W.3d at 499. But before one can be held in contempt for violating a court order, the order must be definite in its terms, clear as to the duties it imposes, and its commands must be express rather than implied. Id. When a party does all that is expressly required under an order, it is error to hold it in contempt. Id.
The underlying permanent injunction order expressly barred DHS "from using RUGs methodology unless or until it is properly promulgated." DHS subsequently adopted an emergency rule that utilized the methodology under the process established by the APA. The circuit court held DHS in contempt for violating its permanent injunction order because the agency did not provide prior notice and opportunity for public comment. The question is therefore whether the emergency rulemaking violated the express orders of the circuit court's permanent injunction.
The promulgation process for agency rulemaking generally requires, inter alia , a thirty-day notice period and opportunity for comment prior to adopting a new rule. See Ark. Code Ann. § 25-15-204 (Repl. 2017). But that provision also contemplates emergent situations requiring swift agency response; specifically, where the agency finds that imminent peril to the public health, safety, or welfare or compliance with a federal law or regulation requires adoption of a rule upon less than thirty days' notice. Ark. Code Ann. § 25-15-204(c). The agency must provide a written statement providing the reasons for that finding. Id. It may then proceed without prior notice or hearing to adopt an emergency rule. Id. But the rule will not be filed until it has garnered legislative approval and it cannot be effective for longer than 120 days. Id.
The record reveals that DHS complied with subsection 204(c)'s requirements when adopting the emergency rule. It provided a written statement explaining its finding of imminent peril to the public health, safety, or welfare absent the emergency rule. To the extent the circuit court disagreed with the stated reasons for the emergency rule, that is not a basis for the contempt order. The statement provided an explanation for the finding and did not merely parrot the statutory language of imminent peril. And the legislature found that explanation meritorious, as it voted to approve the emergency rule and permitted DHS to file it with the Secretary of State. DHS thus "properly promulgated" the emergency rule under the statutorily prescribed process.
To be sure, the permanent injunction was issued because of the circuit court's finding that DHS had failed to substantially comply with the APA's notice and public comment requirements. But the express terms of the permanent injunction order did not preclude the adoption of an emergency rule utilizing the RUGs methodology. It simply required that any such rule be "properly promulgated." DHS did just that when adopting the emergency rule. Because the agency did not violate the express terms of the circuit court's order, we find that the contempt order was in error. It is therefore reversed.
III.
For its second point on appeal, DHS challenges the temporary restraining order enjoining its emergency rule. During the pendency of this appeal, DHS adopted a final rule that supersedes the emergency rule at issue and remains in effect to this day, and the permanent injunction has been dissolved. We must therefore determine whether the doctrine of mootness precludes our review. And we find that it does.
As a general rule, this court will not review issues that are moot. See Terry v. White , 374 Ark. 387, 391, 288 S.W.3d 199, 202 (2008). To do so would be to render advisory opinions, which this court will not do. Id. A case is moot when any judgment rendered would not have any practical legal effect upon a then existing legal controversy. Id. In other words, a moot case presents no justiciable issue for determination by the court. Id. But we may elect to consider a moot issue when it falls within one of two exceptions to the mootness doctrine. The first exception involves issues capable of repetition yet evading review. See Cotten v. Fooks , 346 Ark. 130, 133, 55 S.W.3d 290, 292 (2001). The other exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. See id.
There is no doubt that the adoption of the new rule rendered the temporary restraining order against the emergency rule moot. DHS nevertheless urges this court to consider the matter under both exceptions to the mootness doctrine. It contends the nature of an emergency rule, which may generally last no longer than 120 days, means it is capable of repetition yet evading review. See Ark. Code Ann. § 25-15-204(c). DHS similarly argues that our public interest exception applies because of the periodic necessity of emergency rules. Because our review of the temporary restraining order would necessarily turn on facts unique to this case, we do not believe either exception is applicable. And we accordingly dismiss this issue as moot.
Reversed; dismissed.
Kemp, C.J., and Hart, J., dissent. | [
-108,
-16,
-12,
-52,
10,
1,
16,
-108,
-45,
-117,
127,
83,
39,
-14,
-107,
107,
-1,
107,
-15,
121,
-47,
-89,
21,
73,
102,
-46,
-79,
-43,
-77,
79,
-20,
94,
92,
113,
-86,
-47,
70,
-64,
-9,
-112,
-54,
43,
-120,
101,
81,
-121,
56,
51,
24,
15,
37,
-113,
-21,
46,
27,
-53,
104,
104,
89,
53,
-40,
-45,
-104,
15,
95,
4,
-95,
38,
-112,
23,
112,
118,
-128,
49,
1,
-8,
115,
-74,
-126,
116,
67,
-39,
37,
-92,
98,
-127,
8,
-27,
-68,
40,
6,
-97,
-97,
-90,
-104,
41,
42,
13,
-106,
-67,
124,
62,
14,
126,
111,
5,
94,
108,
-120,
-50,
20,
-95,
-82,
33,
-68,
-125,
-17,
3,
0,
85,
-50,
-30,
80,
-61,
83,
27,
-82,
-46
] |
ROBIN F. WYNNE, Associate Justice
Stephens Production Company appeals from an order of the Franklin County Circuit Court granting appellees' motion for class certification. Stephens contends that the trial court erred by granting the motion because the requirements of numerosity and superiority were not met. We affirm.
Appellees own mineral interests in land located in Franklin County. Stephens has leases with appellees and others that permit it to explore, drill, produce, and sell hydrocarbons from the leased property.
After Stephens suspended royalty payments, appellees filed a complaint in August 2015 alleging that the payments were suspended in an effort by Stephens to recoup improper deductions. The complaint asserted causes of action for (1) breach of contract; (2) violation of the prudent operator standard, Arkansas Code Annotated section 15-73-207 (Repl. 2009); (3) conversion; (4) violation of Arkansas Code Annotated sections 15-79-601 to -604; (5) fraud and deceit; and (6) violation of the Arkansas Deceptive Trade Practices Act.
Appellees moved for class certification on March 19, 2018. The class sought to be certified was described as
[a]ll persons or entities who are, or were, royalty owners in wells producing natural gas from the Barton Production Unit in Franklin County, Arkansas where Stephens Production Company is or was the operator and/or working interest owner/lessee under oil and gas leases which contain the following lease language:
"Lessee shall pay Lessor one-eighth (or applicable royalty if amended) of the proceeds received by Lessee at the well for all gas (including substances contained in such gas) produced from the leased premises and sold by Lessee."
Exclusions: The following persons are excluded from the class:
The persons or entities excluded from the Class are: (a) all governmental entities, including federal, state and local governments and their respective agencies, departments, or instrumentalities; (b) the States and territories of the United States or any foreign states or territories; (c) the United States of America; (d) any persons or entities that Plaintiffs' counsel is, or may be, prohibited from representing under the Arkansas Rules of Professional Conduct, including Defendant's counsel, their firms, and members of their firms; and (j) members of the judiciary and their staff to whom this action is assigned.
In their brief in support of the motion to certify, appellees alleged that the potential class numbered more than thirty-six members and "is so numerous and geographically dispersed that joinder of all members is impractical." They further alleged that a class-action suit was the superior method of resolving the dispute, as the central legal and factual issues presented are common to all members of the class. Appellant opposed the motion, contending that the requirements for class certification had not been met. Appellant asserted that the number of potential class members was too small to warrant certification. It also asserted that a class action was not superior to other methods for resolving the dispute because there existed no common questions of law and fact, and the potential class is too small for the time and expense involved in a class-action suit. After a hearing, the trial court entered an order granting appellees' motion and certifying the proposed class. This appeal followed.
Appellant argues that certain requirements for certification of a class were not met here. The six requirements for class-action certification as stated in Rule 23 of the Arkansas Rules of Civil Procedure (2017) are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. Diamante, LLC v. Dye , 2013 Ark. 501, at 2, 430 S.W.3d 710, 714. The proposed class must be susceptible to precise definition, and before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. See Van Buren Sch. Dist. v. Jones , 365 Ark. 610, 232 S.W.3d 444 (2006).
The determination that the class-certification criteria have been satisfied is a matter within the broad discretion of the trial court, and this court will not reverse the trial court's decision absent an abuse of that discretion. ChartOne, Inc. v. Raglon , 373 Ark. 275, 283 S.W.3d 576 (2008). In reviewing a class-certification order, this court focuses on the evidence in the record to determine whether it supports the trial court's conclusion regarding certification. Id. Neither the trial court nor this court shall delve into the merits of the underlying claims when deciding whether the Rule 23 requirements have been met. Id. In this regard, "a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action." Carquest of Hot Springs, Inc. v. Gen. Parts, Inc. , 367 Ark. 218, 223, 238 S.W.3d 916, 920 (2006).
Appellant first argues that the requirement of numerosity is not met here. Rule 23(a) of the Arkansas Rules of Civil Procedure (2017) states that, as a prerequisite to a class action, the class must be so numerous that joinder of all members is impractical. We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. See, e.g., Summons v. Mo. Pac. R.R. , 306 Ark. 116, 813 S.W.2d 240 (1991). In Cheqnet Systems, Inc. v. Montgomery , 322 Ark. 742, 911 S.W.2d 956 (1995), we held that the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense.
Appellant points to this court's decision in North Little Rock v. Vogelgesang , 273 Ark. 390, 619 S.W.2d 652 (1981), in which a potential class of seventeen members was deemed insufficient to satisfy the numerosity requirement. Appellant contends that if a seventeen-member class is insufficient, then a thirty-six-member class is insufficient as well. It is important to note that in Vogelgesang , this court affirmed an order denying a motion for class certification, whereas here we are reviewing an order granting a motion for class certification. As stated above, we review such orders under an abuse-of-discretion standard. SEECO, Inc. v. Stewmon , 2016 Ark. 435, 506 S.W.3d 828. An abuse of discretion means discretion exercised improvidently, thoughtlessly, and without due consideration. Id. Here, the circuit court considered the number of potential claimants known at the time to exist and determined that joinder of all potential claimants would be impractical. We cannot say that this finding constitutes an abuse of discretion. Further, this court has held that when the numerosity question is a close one, the balance should be struck in favor of a finding of numerosity in light of the trial court's option to later decertify. Fraley v. Williams Ford Tractor & Equip. Co. , 339 Ark. 322, 344, 5 S.W.3d 423, 437 (1999). Given the standard of review and the trial court's option to decertify at a later date, we affirm on this point.
Appellant also argues that appellees failed to satisfy the superiority requirement. A class action may be maintained if it is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b) (2017). This court has held that the superiority requirement is satisfied if class certification is the more efficient way of handling the case, and it is fair to both sides. Johnson's Sales Co., Inc. v. Harris , 370 Ark. 387, 260 S.W.3d 273 (2007). We have held that when a cohesive and manageable class exists, real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. Id.
Appellant does not contend on appeal that common issues of law or fact do not exist. Instead, appellant contends that superiority is not met here because the class is too small and the potential class members who have not joined the litigation had three years to do so before the class-certification motion was filed, making it unfair for appellant to be subjected to liability for claimants who were not interested in joining the litigation. The avoidance of multiple suits lies at the heart of any class action. See Lambert and Lambert Investors, Inc. v. Harris , 2016 Ark. 24, 480 S.W.3d 138. Here, the pertinent language in the leases is the same for all potential class members. The complaint alleges that appellant's actions were the same as to all potential class members. A class action will allow the issue of liability to be determined in one case, as opposed to being relitigated in multiple separate cases.
Under these circumstances, a class action is the superior method of adjudicating this controversy. Proceeding as a class action is also fair to both sides, as each will be permitted to present evidence on the issue of whether appellant's cessation of royalty payments was permissible. ChartOne, Inc. , 373 Ark. at 288, 283 S.W.3d at 586. We hold that the trial court did not abuse its discretion in determining that the superiority requirement is satisfied here.
Affirmed.
Kemp, C.J., and Wood and Womack, JJ., dissent
The trial court's order indicates that at the time the order was entered, counsel for appellees had not completed its review of appellant's records, which would yield the final number of potential class members. | [
116,
-22,
-64,
60,
-100,
-31,
58,
-118,
83,
-61,
101,
83,
-17,
-38,
20,
59,
-29,
29,
113,
75,
-46,
-78,
69,
80,
83,
115,
-55,
-57,
59,
79,
-28,
-50,
88,
48,
-54,
-43,
-58,
-62,
-51,
88,
78,
3,
-101,
-60,
121,
-127,
34,
-94,
82,
11,
101,
-82,
123,
45,
29,
-53,
13,
46,
89,
101,
-63,
-47,
58,
15,
75,
20,
17,
36,
-39,
1,
-24,
126,
-102,
48,
41,
-23,
50,
-90,
-58,
116,
3,
59,
8,
46,
102,
17,
16,
-123,
-84,
-84,
47,
-34,
29,
-89,
-46,
41,
107,
10,
-106,
-108,
90,
2,
70,
126,
-26,
-123,
90,
56,
-121,
-17,
-42,
-95,
5,
-31,
-100,
11,
-21,
-57,
-112,
68,
-51,
-14,
92,
7,
48,
27,
-57,
-73
] |
KAREN R. BAKER, Associate Justice
Appellants Larry Walther, Director of the Arkansas Department of Finance and Administration (DFA); Andrea Lea, State Auditor; Dennis Milligan, State Treasurer (collectively, the State); and the Central Arkansas Planning and Development District (the CAPDD) appeal from the Pulaski County Circuit Court's award of attorney's fees to appellee Mike Wilson in his illegal-exaction lawsuit that successfully challenged the constitutionality of certain legislative acts. This appeal stems from the circuit court's order awarding attorney's fees to Wilson in the amount of $ 323,266.53. The award was based on an illegal-exaction suit initiated by Wilson in 2015 alleging that certain legislative acts of 2015 appropriating funds from the Arkansas General Improvement Fund (GIF) to eight regional planning and development districts were unconstitutional. In Wilson v. Walther , 2017 Ark. 270, at 1, 527 S.W.3d 709, 711 ( Wilson I ), we agreed with Wilson and held that the acts were unconstitutional as written because they failed to state their district purpose in the bills. We reversed and remanded the matter and affirmed on cross-appeal.
On remand, Wilson sought a permanent injunction against the State enjoining disbursements under the authority of the acts in question, refund of funds and costs and fees. The sole issue on appeal relates to the circuit court's award of attorney's fees. The circuit court held a hearing and awarded $ 323,266.53 in attorney's fees (one-third of the remaining $ 969,799.60 GIF funds involved). The State timely appealed and presents three arguments regarding the one point on appeal: (1) the circuit court erred in finding Wilson's request for attorney's fees was not barred by sovereign immunity; (2) Wilson's recovery of attorney's fees is precluded as a matter of law; and (3) the circuit court's judgment in Wilson's favor did not result in the kind of substantial benefit that would warrant an exception from the normal attorney's-fee rules.
At issue is the circuit court's order from March 29, 2018, which stated in pertinent part:
Central Arkansas Planning and Development District, Inc. presently holds from the last legislative GIF appropriation funds remaining and unspent in the amount of $ 969,799.60.
....
By this lawsuit Plaintiff has conferred a benefit to taxpayers in the amount of the GIF funds appropriated but unspent. Plaintiff is, therefore, entitled to an award of attorney's fee of one-third (1/3) of the remaining GIF funds, or $ 323,266.53.
Central Arkansas Planning and Development District, Inc. shall pay the amount of this fee award into the Court's registry within thirty (30) days of the date of the entry of this order.
Central Arkansas Planning and Development District, Inc. shall remit payment of the balance of the remaining GIF funds ($ 646,533.07) to the State Treasurer within thirty (30) days of the date of entry of this order.
On review, "our general rule relating to attorney's fees is well established and is that attorney's fees are not allowed except when expressly provided for by statute. Chrisco v. Sun Indus., Inc. , 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. See Harris v. City of Fort Smith , 366 Ark. 277, 234 S.W.3d 875 (2006)." Hanners v. Giant Oil Co. of Ark. , 373 Ark. 418, 425, 284 S.W.3d 468, 474 (2008). Further, in awarding attorney's fees, we have explained that
[a]lthough there is no fixed formula in determining the computation of attorney's fees, the courts should be guided by recognized factors in making their decision, including 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 upon 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. State Farm Fire & Casualty Co. v. Stockton , 295 Ark. 560, 750 S.W.2d 945 (1988) ; Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. , 283 Ark. 335, 676 S.W.2d 228 (1984) ; New Hampshire Ins. Co. v. Quilantan , 269 Ark. 359, 601 S.W.2d 836 (1980).
We have also previously noted that due to the trial judge's intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney's fees will not be set aside absent an abuse of discretion by the trial court. State Farm Fire & Casualty Co. v. Stockton , supra.
Chrisco , 304 Ark. at 229-30, 800 S.W.2d at 718-19.
With these standards in mind, we turn to the State's point on appeal. The State first contends that Wilson is not entitled to an award of attorney's fees because it directly exposes the State to financial liability and is therefore barred by sovereign immunity. The State further asserts there is no statutory authority for attorney's fees. Additionally, the State contends that the circuit court erred in applying Lake View School District. No. 25 of Phillips County v. Huckabee , 340 Ark. 481, 10 S.W.3d 892 (2000), because in that case, the State agreed to pay attorney's fees, and here, the State has asserted that sovereign immunity bars recovery of attorney's fees since the beginning of the litigation. Wilson responds that he is not claiming a statutory basis for attorney's fees but was instead relying on Lake View in which this court held that a substantial benefit to the State had accrued because of Lake View's efforts and that attorney's fees should be awarded on this basis.
We begin with the State's argument that sovereign-immunity bars an attorney's fee award. Based on the record before us, the State's argument is misplaced because the State relinquished the funds; therefore, sovereign immunity is not an issue in this case. The record demonstrates that on September 13, 2015, the State disbursed $ 2,987,500 of appropriated funds from the GIF to the CAPDD. On February 12, 2016, Wilson filed suit challenging the constitutionality of the acts that appropriated these funds from the GIF. Throughout the litigation, the CAPDD continued to retain the funds. On October 5, 2017, we announced our opinion in Wilson I , 2017 Ark. 270, 527 S.W.3d 709, and held that the acts at issue were unconstitutional. At that time, the CAPDD continued to hold the funds. On April 30, 2018, pursuant to the circuit court's order, the entirety of the $ 969,799.60 in GIF funds was deposited into the registry of the circuit court to remain there during the pendency of this appeal. Accordingly, at no point since the State relinquished the funds to the CAPDD on September 13, 2015, has the State had an interest in the funds. Despite the origination of the funds, once the funds were handed over to the CAPDD, the funds were no longer in State coffers or under State control. Simply put, when the $ 979,799.60 was transferred from the State coffers to a private entity, the State no longer exercised sovereignty over the funds. This "transfer" equates to an abandonment. Therefore, sovereign immunity is not applicable to this case.
Having determined that sovereign immunity is not at issue, we turn to our law regarding attorney's fees. Arkansas follows the American Rule that attorney's fees are not chargeable as costs in litigation except where the fees are expressly provided for by statute. Lake View , supra ; Millsap v. Lane , 288 Ark. 439, 706 S.W.2d 378 (1986) ; City of Hot Springs v. Creviston , 288 Ark. 286, 705 S.W.2d 415 (1986). We have, however, recognized two exceptions to that rule: (1) the "common fund" doctrine and (2) the "substantial benefit" rule. Millsap , supra. "An exception has been created to that rule where a plaintiff has created or augmented a common fund or where assets have been salvaged for the benefit of others as well as himself. Powell v. Henry , 267 Ark. 484, 592 S.W.2d 107 (1980) ; Trustees v. Greenough , supra. Note, The Counsel Fee in Stockholder's Derivative Suits , 39 Columbia L. Rev. 784 (1939). In such a situation, to allow the others to obtain the full benefit from the plaintiff's efforts without requiring contribution or charging the common fund for attorney fees would be to enrich the others unjustly at the expense of the plaintiff. Fleischmann Distilling Corp. v. Maier Brewing Co. , 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1966 [1967] )." Millsap , 288 Ark. at 442, 706 S.W.2d at 379-80.
Pursuant to the "substantial benefit" rule, the plaintiff may be awarded attorney's fees if the plaintiff's actions result in a substantial benefit to the class or to a business corporation, even when the benefit is not pecuniary and no fund has been created. Lake View , supra ; Millsap , supra. In Millsap , this court affirmed an award of attorney's fees when the plaintiff's derivative action preserved a large sum of corporate assets, which benefited the corporation. In Lake View , we also concluded that "a substantial economic benefit has accrued not only to the poorer school districts as a direct result of Lake View's efforts but to the state as a whole. With the gradual elimination of disparities in funding and opportunities for students and with the passage of Amendment 74, education in the State has unquestionably benefitted." Id. at 495, 10 S.W.3d at 900-01. In reaching that conclusion, we relied on evidence that there was an increase of over $ 100 million in public-school funding due to Lake View's efforts. Id. at 495-96, 10 S.W.3d at 900-01. We further noted, however, as follows:
We emphasize that this is a unique case with a unique set of circumstances. By upholding an eventual award of attorneys' fees today, as we do, we are not sanctioning attorneys' fees in all public-interest litigation or endorsing a new exception to the American Rule. Nor are we advancing a particular method for paying those attorneys' fees, such as a contingent fee based on the economic benefit or the lodestar method. We further emphasize that we are wedded to no figure for attorneys' fees. All of that is for the chancery court to decide. We are simply holding that in this case, an economic benefit did accrue to the State of Arkansas due to Lake View's efforts and attorneys' fees should be awarded. Accordingly, we reverse the chancery court's decision denying attorneys' fees and remand for a determination of reasonable fees, after the compliance trial is completed. We leave it to the chancery court to determine what are reasonable fees, after taking into consideration all of the circumstances of this case. See Chrisco v. Sun Indus., Inc. , 304 Ark. 227, 800 S.W.2d 717 (1990). Because the State has benefitted, we hold that the State should pay the fees awarded.
Id. at 497, 10 S.W.3d at 902.
Here, like Lake View , sovereign immunity is not applicable, and a substantial benefit has been conferred to the benefit of the taxpayers. As we explained in Wilson I , "[T]he issues before us involve significant statewide public interest because they concern millions of dollars of taxpayer money." 2017 Ark. 270, at 9, 527 S.W.3d at 715 (emphasis added).
Having determined that attorney's fees are permitted in this case, we turn to the State's argument that we should remand this matter to the circuit court with instructions to employ the factors set forth in Chrisco , 304 Ark. 227, 800 S.W.2d 717. We agree. Based on the record before us, the circuit court did not make any findings with respect to what a reasonable attorney's fee would be in this case and awarded the one-third in fees that Wilson had requested. Accordingly, we remand to the circuit court for it to consider the Chrisco factors in determining whether the amount of fees requested by Wilson is reasonable under the circumstances.
Reversed and remanded.
Kemp, C.J., and Wood and Womack, JJ., dissent. | [
84,
-18,
52,
108,
30,
-128,
56,
10,
67,
-93,
-27,
83,
-19,
-52,
16,
59,
-29,
-35,
117,
105,
-57,
-73,
117,
96,
114,
-77,
-87,
-57,
-71,
-17,
-28,
-106,
92,
32,
-54,
-43,
70,
66,
-27,
88,
106,
0,
-117,
-36,
121,
67,
57,
-19,
18,
7,
53,
-65,
-6,
45,
16,
75,
76,
44,
-39,
-85,
81,
-69,
-118,
13,
95,
22,
33,
-76,
-102,
23,
88,
56,
-112,
49,
0,
-24,
115,
-93,
-122,
68,
71,
-104,
40,
98,
100,
-126,
-84,
-9,
-80,
8,
6,
-41,
31,
-122,
-46,
121,
74,
11,
-105,
-99,
127,
24,
71,
-10,
-16,
-99,
91,
110,
-123,
-50,
-108,
-77,
-81,
96,
-99,
83,
-17,
13,
16,
101,
-60,
-30,
95,
87,
51,
-101,
-46,
-11
] |
LARRY D. VAUGHT, Judge
Cody Lamar Hall appeals his conviction by a Garland County jury of negligent homicide. His only argument on appeal is that the court violated his right to a bifurcated trial by denying his request to strike the word "feloniously" from the criminal information read to the jury. We affirm.
Hall was charged with negligent homicide based on the State's allegation that, at approximately 4:30 a.m. on January 5, 2015, the car Hall was driving veered over the center line of the road and collided head-on with an oncoming vehicle, causing the death of Jesse Wehling. The Garland County Circuit Court held a jury trial on May 22, 2017. At the outset of trial, in a hearing in chambers, the defense objected to the court's standard practice of reading the criminal information to the jury, specifically the inclusion of the word "feloniously" to describe Hall's behavior. Hall argued that using the word "feloniously" would impermissibly indicate to the jury the possible sentencing range for the crime during the guilt phase of the proceedings, in violation of his statutory right to a bifurcated trial pursuant to Arkansas Code Annotated section 16-97-101 (Repl. 2016). The court disagreed, stating that it had to inform the jury of the crimes with which Hall was charged.
The court then read the charges in open court, prefacing each by saying that "[t]he defendant is charged ... with" before reading each count of the information. The court stated,
You are advised that what I have just read is an Information. An Information is [the] method by which a person is brought to trial. It is not evidence of guilt and must not be taken as such by you if you are selected as a juror. It is merely a step in the process of going to trial. The law presumes every person is innocent unless and until his guilt is established beyond a reasonable doubt. Are you and each of you willing and able to give the Defendant the benefit of a doubt throughout the trial until and unless it is overcome?
The jury found Hall guilty of negligent homicide, a Class B felony, and not guilty of battery in the second degree. Hall was sentenced to seven years' imprisonment in the Arkansas Department of Correction, and he filed a timely notice of appeal.
The purpose of voir dire is not to attempt to commit the jury to a decision in advance but to discover any basis for either party to exercise their for-cause and peremptory challenges. Watkins v. State , 2009 Ark. App. 124, at 9, 302 S.W.3d 635, 641. We have previously acknowledged that in order for voir dire to be properly conducted, prospective jurors must be informed of the nature of the alleged crimes. Id. at 10, 302 S.W.3d at 641-642. Rule 32.2(a)(iv) of the Arkansas Rules of Criminal Procedure states that the court will initiate voir dire by "briefly outlining the nature of the case." Ark. R. Crim. P. 32.2(a)(iv) (2017).
The extent and scope of voir dire is within the sound discretion of the court. Watkins , 2009 Ark. App. 124, at 9, 302 S.W.3d at 642. "The latitude of that discretion is wide." Id. , 302 S.W.3d at 641 (citing Isom v. State , 356 Ark. 156, 171, 148 S.W.3d 257, 267 (2004) ). We will not reverse a circuit court's decision regarding voir dire absent a clear abuse of discretion. Gay v. State , 2016 Ark. 433, at 9, 506 S.W.3d 851, 858. An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Id. , 506 S.W.3d at 858.
Hall's sole argument on appeal is that the circuit court violated his right to a bifurcated trial pursuant to Arkansas Code Annotated section 16-97-101 (Repl. 2016) when it included the word "feloniously" in its description of the charges read during voir dire. He argues that the word "feloniously" indicates that the alleged crime is a felony and that felonies are differentiated from misdemeanors based on the length of potential imprisonment, so the court's instruction improperly indicated to the jury the potential sentencing range during the guilt phase of the proceedings.
We disagree. First, it is a stretch to assume that jurors would infer a specific sentencing range from the use of the word "feloniously" in describing the charges against Hall. Moreover, our rules of criminal procedure require the court to advise the jury of the nature of the crime. Ark. R. Crim. P. 32.2(a)(iv) (2017). In Watkins , 2009 Ark. App. 124, at 9, 302 S.W.3d at 641, we upheld a circuit court's reading of enhancement offenses during voir dire that clearly indicated the defendant was charged with a felony. In Watkins , the court advised the jury that Watkins was charged with enhancement offenses for "commission of a felony with a firearm" and "commission of a felony in the presence of a child." 2009 Ark. App. 124, at 9, 302 S.W.3d at 641. We explained that reading the enhancement charges to the jury during voir dire was not unduly prejudicial because, unlike a felon-in-possession charge, which would notify the jury that the defendant had previously been convicted of a felony, the enhancement charges only informed the jury of the nature of the allegations in the present case. We stressed in Watkins that the State still bears the burden of proving those charges beyond a reasonable doubt, and the circuit court in the present case admonished the jury that "[an information] is not evidence of guilt and must not be taken as such."
Based on our standard of review, we cannot reverse unless the circuit court abused its discretion by acting arbitrarily or groundlessly. Gay , 2016 Ark. 433, at 9, 506 S.W.3d at 858. Here, the court considered the issue, decided it was necessary to inform the jury of the nature of the charges as required by Rule 32.2, and provided a cautionary statement after reading the information so as to limit any prejudice. We see no abuse of discretion and affirm.
Affirmed.
Abramson and Glover, JJ., agree.
Because Hall does not challenge the sufficiency of the evidence against him, we need not discuss in detail the evidence presented at trial. | [
80,
-24,
-43,
63,
41,
-64,
10,
24,
96,
-113,
-30,
19,
-19,
-48,
4,
43,
-93,
123,
85,
73,
-64,
-77,
21,
-63,
-78,
-13,
3,
-57,
115,
-55,
-68,
-68,
79,
112,
-54,
-43,
102,
74,
-91,
88,
-114,
2,
-87,
113,
72,
-110,
44,
54,
94,
15,
33,
-97,
-21,
58,
30,
-53,
-55,
40,
91,
-65,
88,
-79,
89,
15,
-17,
18,
-77,
-90,
-103,
3,
120,
12,
-35,
57,
0,
-8,
115,
-106,
-126,
20,
105,
-103,
-84,
102,
-10,
1,
28,
-49,
-95,
-87,
-81,
111,
-91,
-89,
-102,
9,
75,
40,
-105,
-35,
122,
52,
14,
-4,
109,
84,
113,
108,
-127,
-58,
-100,
-79,
13,
36,
-36,
-5,
-21,
-121,
16,
113,
-51,
-26,
86,
4,
83,
-5,
70,
-106
] |
RAYMOND R. ABRAMSON, Judge
Deborah Cunningham appeals the Marion County Circuit Court order appointing Connie Dillard as personal representative of Loy Gene Cunningham's estate. On appeal, Deborah argues that the circuit court misconstrued Arkansas Code Annotated section 28-40-302(2)(A) (Repl. 2012). We affirm.
Deborah is Loy's daughter. Loy died on July 14, 2016, and Connie lived with Loy during the last years of his life. On August 17, 2016, Deborah filed a petition for probate of will and appointment of personal representative. She attached a will executed by Loy in 2006 devising his property to his trust (the 2006 will). The 2006 will named Elizabeth Cunningham as the executor and nominated Deborah as the executor if Elizabeth declined. Deborah attached Elizabeth's declination of appointment as personal representative.
On August 31, 2016, Connie filed a petition to prove a lost will. She alleged that Loy had executed a second will in 2010 (the 2010 will) and that the 2010 will nominated her as the executor of his estate. She further alleged that the 2010 will revoked the 2006 will but that the 2010 will could not be located and that it had been lost or accidentally destroyed by a fire at Loy's residence on October 14, 2012.
The court held a bench trial; however, after the trial, the court discovered that it had a conflict of interest, and the case was reassigned. In lieu of holding a second trial, the parties stipulated to the following facts. In 2006, Loy executed a will devising his property to his trust. In 2010, Loy executed a second will devising his property to Connie. Loy kept the 2010 will in his home; however, on October 14, 2012, an accidental fire destroyed Loy's home and all his possessions, including the 2010 will. After the fire, Loy did not execute a subsequent will, and he died on July 14, 2016. The parties specifically stipulated that "the original 2010 will did not physically exist at the time of death, or if it did, there was no way to know where it was and is presumed lost in the fire at the time of Mr. Cunningham's death."
The parties filed posttrial briefs, and they submitted to the court that the only issue was whether Arkansas Code Annotated section 28-40-302(2)(A) requires the 2010 will to have physically existed at the time of Loy's death.
On June 22, 2018, the circuit court entered an order finding that section 28-40-302(2)(A) does not require the 2010 will to have physically existed at the time of Loy's death. The court noted that "[t]o hold otherwise would mean that a validly executed will that was not revoked by the testator could never be enforced, if it was merely lost or accidentally destroyed during his lifetime." Accordingly, the court admitted the 2010 will to probate and appointed Connie as the personal representative of Loy's estate.
Deborah timely appealed the circuit court's order to this court. On appeal, Deborah argues that the circuit court misconstrued section 28-40-302(2)(A). Specifically, she argues that subdivision (2)(A) requires the 2010 will to have physically existed at the time of Loy's death. Connie responds that subdivision (2)(A) requires the 2010 will to have only legally existed, rather than physically existed, at the time of Loy's death.
Although we review probate proceedings de novo, we do not reverse the circuit court's findings unless they are clearly erroneous. Burns v. Estate of Cole , 364 Ark. 280, 219 S.W.3d 134 (2005). We review issues of statutory interpretation de novo and are not bound by the circuit court's interpretation of a statute. Id.
Arkansas Code Annotated section 28-40-302, which deals with proving a lost or destroyed will, provides as follows:
No will of any testator shall be allowed to be proved as a lost or destroyed will unless:
(1) The provisions are clearly and distinctly proved by at least two (2) witnesses, a correct copy or draft being deemed equivalent to one (1) witness; and
(2) The will is:
(A) Proved to have been in existence at the time of the death of the testator, or
(B) Shown to have been fraudulently destroyed in the lifetime of the testator.
This court has stated that
[u]nder this statute, the proponent of a lost will must prove two things: first, the will's execution and its contents by strong, cogent, and convincing evidence; second, that the will was still in existence at the time of the testator's death (i.e., had not been revoked by the testator) or was fraudulently destroyed during the testator's lifetime.
Whatley v. Estate of McDougal , 2013 Ark. App. 709, at 3-4, 430 S.W.3d 875, 878 (citing Abdin v. Abdin , 94 Ark. App. 12, 223 S.W.3d 60 (2006) ). Proof of the second statutory element is necessary because the law presumes that an original will that cannot be found after a testator's death has been revoked. Whatley , 2013 Ark. App. 709, 430 S.W.3d 875. It is the failure to produce the original will that gives rise to the presumption; the presumption may be overcome if the proponent of the lost will proves, by a preponderance of the evidence, that the will was not revoked during the testator's lifetime. Id. The burden is on the proponent of the will to prove by a preponderance of the evidence that the decedent did not revoke it during his lifetime. Thomas v. Thomas , 30 Ark. App. 152, 784 S.W.2d 173 (1990). Thus, it is unnecessary for the circuit court to determine what became of the will; it is enough that the court determine that the will was not revoked or canceled by the decedent. Id.
We hold that subdivision (2)(A) does not require the 2010 will to have physically existed at the time of Loy's death to remain in effect. As this court stated in Whatley , subdivision (2)(A)'s requirement that the will is "proved to have been in existence at the time of the death of the testator" means that the will "had not been revoked by the testator." 2013 Ark. App. 709, at 3-4, 430 S.W.3d at 878. Thus, this court has previously held that subdivision (2)(A) means legal existence, not physical existence. This construction promotes the purposes of the lost-or-destroyed-will statute, while avoiding an unfair result that would arise under an impossibly strict interpretation.
Deborah cites Rose v. Hunnicutt , 166 Ark. 134, 265 S.W. 651 (1924), and asserts that Connie had to present evidence that Loy was unaware that the fire destroyed the 2010 will. However, that case addresses whether a will was fraudulently destroyed during the testator's lifetime. In this case, the issue is whether subdivision (2)(A) requires the will to have physically existed at the time of the testator's death. Because this court has held that subdivision (2)(A) requires that the will only legally exists at the time of the testator's death, we hold that the circuit court did not misconstrue the statute, and we affirm.
Affirmed.
Klappenbach and Brown, JJ., agree.
Elizabeth was Loy's wife at the time of his death. However, Loy and Elizabeth had been legally separated since 2009.
Deborah stipulated that Connie could satisfy the requirements of subsection 302(1). Specifically, Connie offered a copy of the 2010 will. Thus, the execution and the contents of the will are not at issue on appeal.
Other jurisdictions with statutes similar to Arkansas Code Annotated section 28-40-302 have construed the term "existence" in their statutes to mean legal existence, not physical existence. See, e.g. , Estate of Irvine v. Doyle , 101 Nev. 698, 710 P.2d 1366 (1985) ; In re Wheadon's Estate , 579 P.2d 930 (Utah 1978) ; In re Enz's Estate , 33 Colo.App. 24, 515 P.2d 1133 (1973) (citing In re Eder's Estate , 94 Colo. 173, 29 P.2d 631 (1934) ). | [
114,
108,
124,
-68,
24,
-32,
26,
0,
83,
-61,
102,
83,
-17,
-38,
20,
107,
51,
107,
-15,
107,
-14,
-77,
23,
-64,
114,
-77,
-39,
-42,
-78,
79,
-10,
-33,
12,
32,
-54,
93,
70,
0,
-121,
80,
14,
11,
27,
100,
-7,
-45,
48,
43,
6,
13,
69,
30,
-13,
47,
61,
74,
108,
108,
121,
25,
88,
-72,
-120,
5,
79,
23,
-109,
4,
-102,
-123,
90,
10,
-108,
17,
16,
-24,
115,
-90,
-106,
116,
78,
-103,
44,
-14,
119,
0,
76,
-25,
-96,
-120,
6,
46,
-107,
-89,
-54,
41,
90,
79,
-66,
-108,
124,
-40,
5,
124,
102,
-43,
92,
44,
12,
-49,
22,
-127,
-83,
80,
-108,
74,
-21,
70,
48,
85,
-35,
106,
85,
2,
17,
-101,
-46,
-14
] |
DAVID M. GLOVER, Judge
Rick Holman appeals the Crawford County Circuit Court's grant of summary judgment to appellee Allstate Property and Casualty Insurance Company (Allstate) on his claims of negligent infliction of emotional distress and outrage. On appeal, Rick argues this court (1) should declare the tort of negligent infliction of emotional distress to be a viable claim in the present scenario; (2) should hold the tort of outrage to be a valid claim under the facts of this case; and (3) should hold Allstate's insurance policy covers damages for emotional harm under the policy definition of "bodily injury." We affirm the grant of summary judgment.
Procedural History
On July 5, 2015, at approximately 2:40 a.m., Rick, his wife, Joy, four of their children, and their daughters' friend were asleep in the Holman home when Anna Marie Flores, who was believed to be intoxicated, drove a vehicle owned by Kenneth Cummings into the home, causing damage.
Rick and Joy, individually and as the next friends of her daughter, Taylor Brooks, filed a complaint against Flores, Cummings, and Allstate. It is undisputed Rick suffered no physical injury as a result of the incident, but Joy and Taylor alleged they sustained physical injuries. The claims of Joy and Taylor against Flores included negligence and willful and wanton conduct in the operation of a motor vehicle while impaired; their claims against Cummings included negligent entrustment and negligence in allowing Flores access to his keys. Rick's claims against Flores and Cummings were for negligent infliction of emotional distress and outrage (intentional infliction of emotional distress).
Allstate moved for partial summary judgment against Rick; in an order filed May 15, 2017, the circuit court granted Allstate's motion for summary judgment as to Rick's claim for negligent infliction of emotional distress but denied it as to his claim for outrage. After a motion to reconsider by Allstate, the circuit court issued a new order on July 12, 2017, dismissing with prejudice both of Rick's claims against Allstate. On July 19, 2017, the circuit court entered an order of dismissal with prejudice of the claims of Joy and Taylor against Allstate. However, this order specified that it did not in any way affect or dismiss the claims of Joy, Taylor, or Rick against Flores and Cummings.
On August 11, 2017, Joy and Taylor moved to dismiss without prejudice their causes of action against Flores and Cummings; Rick filed a separate notice of appeal the same day. An order was filed on August 18 dismissing without prejudice the causes of action of Joy and Taylor against Flores and Cummings. Rick filed a second notice of appeal on August 20, in which he abandoned any pending but unresolved claims.
Deposition Testimony
In his April 20, 2016 deposition, Rick agreed he suffered no physical injuries when Flores crashed into his home on July 5, 2015. However, he claimed emotional distress from the incident because of memories of a March 5, 1999 wreck in which he drove up on the burning remains of a motor-vehicle accident where his mother, his 18-month-old daughter, and his nephew were burned to death, and his oldest daughter remained in a coma for 30 days after the accident. Rick said the memories of the 1999 accident came flooding back to him when Kimberly, one of his daughters, came up to him after the 2015 incident, hugged him, and said, "Daddy, I almost died." Rick said he now saw his mother's truck every night in his dreams, sleeping was "rough" because his mind began to race at night, and not a day went by that he did not think about the 1999 accident. However, he and Joy had not considered moving. After the 1999 accident, Rick saw two therapists one time each. Rick did not continue with therapy because he did not believe he needed to talk to the therapists, and he did not want drugs. Rick stated he had continued to work regularly since the 2015 accident, and he still "did everything he was supposed to do."
Standard of Review
Summary judgment should be granted only when it is clear there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Cesena v. Gray , 2009 Ark. App. 143, 316 S.W.3d 257. 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. Patrick v. Tyson Foods, Inc. , 2016 Ark. App. 221, 489 S.W.3d 683. On appeal, viewing the evidence in the light most favorable to the nonmoving party and resolving all doubts and inferences against the moving party, we determine if summary judgment was appropriate based on whether the moving party's evidence in support of its motion leaves a material fact unanswered. Cesena , supra. Our appellate review is not limited to the pleadings, as we also focus on affidavits and other documents filed by the parties; however, conclusory allegations are insufficient to create a factual issue in a summary-judgment situation. Patrick , supra.
Negligent Infliction of Emotional Distress
Rick first argues our court should hold the tort of negligent infliction of emotional distress is a viable claim under the facts of the case. As he properly notes, Arkansas does not recognize the tort of negligent infliction of emotional distress. Dowty v. Riggs , 2010 Ark. 465, 385 S.W.3d 117 ; FMC Corp. v. Helton , 360 Ark. 465, 202 S.W.3d 490 (2005). In Dowty , our supreme court explained that in cases of negligence, if there is no physical injury, there can be no recovery for mental pain and anguish because it is deemed to be too remote, uncertain, and difficult to ascertain; however, when physical injury is suffered, mental pain and anguish must be considered because they are so intimately connected and too difficult to separate. Dowty , 2010 Ark. 465, at 6-7, 385 S.W.3d at 121.
Rick focuses on our supreme court's statement in Dowty that the majority of jurisdictions in the United States allow recovery for negligent infliction of emotional distress, and our supreme court might revisit the issue in the future. However, our supreme court has not yet seen fit to revisit this issue and create a new tort, and Dowty remains the law in Arkansas. Our court is without authority to overrule our supreme court's precedent and is obliged to follow the decision in Dowty. Farm Credit Midsouth, PCA v. Bollinger , 2018 Ark. App. 224, 548 S.W.3d 164 ; Watkins v. Arkansas Elder Outreach of Little Rock, Inc. , 2012 Ark. App. 301, 420 S.W.3d 477. We affirm the grant of summary judgment on the claim for negligent infliction of emotional distress.
Outrage
Rick next argues summary judgment should not have been granted on his outrage claim. We disagree.
The tort of outrage-also known as intentional infliction of emotional distress-opens an actor up to civil liability for committing extreme and outrageous conduct. Sawada v. Walmart Stores, Inc. , 2015 Ark. App. 549, 473 S.W.3d 60. To establish a claim for the tort of outrage, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was "extreme and outrageous," was "beyond all possible bounds of decency," and was "utterly intolerable in a civilized society"; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Marlar v. Daniel , 368 Ark. 505, 509-10, 247 S.W.3d 473, 477 (2007).
The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Brown v. Wyatt , 89 Ark. App. 306, 202 S.W.3d 555 (2005). Arkansas appellate courts give a narrow view to the tort of outrage and require clear-cut proof to establish the elements. Marlar , supra. Merely describing the conduct as outrageous does not make it so. Faulkner v. Arkansas Children's Hosp. , 347 Ark. 941, 69 S.W.3d 393 (2002). We recognize that "the tort of outrage should not and does not open the doors of the courts to every slight insult or indignity one must endure in life." Kiersey v. Jeffrey , 369 Ark. 220, 222, 253 S.W.3d 438, 441 (2007) (citing Crockett v. Essex , 341 Ark. 558, 19 S.W.3d 585 (2000) ).
Under the facts of this case, summary judgment was appropriate. The circuit court found Rick failed to establish any of the elements or to even create a genuine issue of material fact for the tort of outrage, including that the alleged conduct rose to the appropriate level or that the alleged mental or emotional damages or injuries were to the degree or severity required by Arkansas law. Even viewing the evidence in the light most favorable to Rick, as we must, we hold he failed to come forward with evidence to show he sustained emotional distress so severe that no reasonable person could be expected to endure it.
In his deposition, Rick testified that after Flores had run the vehicle she was driving into his home on July 5, 2015, he began to dream every night about the accident in which his mother, daughter, and nephew were killed, and sleeping was "rough" because his mind begins "racing" before he goes to sleep. In his affidavit submitted in response to Allstate's motion for summary judgment, he asserted he suffered posttraumatic stress disorder and/or aggravation of posttraumatic stress disorder and had problems with anxiety, sleeping, emotional grief, recollection of prior events involving the death of his child, and other harm. However, he admitted in his deposition he was not taking any medication, had seen two different therapists only one time each and did not return for additional visits, had not discussed moving out of his house, and had not missed any work due to the incident.
In Coombs v. J.B. Hunt Transport, Inc. , 2012 Ark. App. 24, 388 S.W.3d 456, our court held that Coombs's loss of sleep and nightmares, coupled with humiliation, frustration, and being upset and anxious about his coworkers taking pictures of him on a business trip while he was sleeping or passed out in various states of undress and showing them to Coombs and other coworkers was not sufficient to show Coombs had sustained emotional distress so severe that no reasonable person could be expected to endure it. Earlier, in FMC Corp., Inc. v. Helton , our supreme court held that farmers whose wheat was quarantined had failed to demonstrate they had suffered emotional distress so severe that no reasonable person could be expected to endure it when they testified that they had experienced sleep loss, loss of appetite, weight loss, had begun taking antidepressants, and suffered anxiety, stating that such distress was the type "reasonable people may be faced with throughout their lives." 360 Ark. at 486, 202 S.W.3d at 505. Then, in Kiersey , supra , our supreme court held that while a mother whose son had been taken by his paternal grandmother for several days was upset, she was not so upset as to seek medical or psychological treatment, and while understandable, her distress was not so severe that no reasonable person could be expected to endure it. And the same year, in Schmidt v. Stearman , 98 Ark. App. 167, 253 S.W.3d 35 (2007), our court held that Schmidt's recurrence of depression and a fear of staying at his farm after Stearman had broken into the house Schmidt was living in and shot five of Schmidt's dogs to death did not satisfy the requirements for outrage.
Here, Rick had nightmares about the 1999 accident after Flores ran into his house, he had trouble sleeping, and he suffered with anxiety. While he had seen two therapists, he had attended only one session with each before terminating the therapy, and he was not on any medication. Furthermore, he stated he had not thought of moving from his home, and he had not missed any work as a result of the incident. Based on our caselaw precedent, these difficulties do not amount to clear-cut proof he suffered emotional distress so severe that no reasonable person could be expected to endure it; therefore, the circuit court correctly granted summary judgment on the claim for outrage.
Coverage Under Allstate Insurance Policy
Finally, Rick contends our court should hold that Allstate's insurance policy for uninsured-motorist benefits covers damages for emotional harm under its definition of "bodily injury," defined in the policy as "bodily injury, sickness, disease, or death." In his reply brief, he acknowledges that addressing the policy language is moot unless he prevails on either of his first two points. Because we hold summary judgment was proper on the claims for negligent infliction of emotional distress and outrage, his third point is indeed moot, and we need not address it.
Affirmed.
Vaught and Brown, JJ., agree.
Allstate is the Holmans' insurance carrier. The Holmans sued for uninsured-motorist benefits under their Allstate policy because Flores was uninsured, and she was specifically excluded from coverage on Cummings's auto insurance.
In Park Plaza Mall CMBS, LLC v. Powell , 2018 Ark. App. 48, at 5, 2018 WL 562366, our court held:
We reiterate the general rule that the dismissal of a claim without prejudice does not create finality. Beverly Enters.-Ark., Inc. v. Hillier , 341 Ark. 1, 3, 14 S.W.3d 487, 488 (2000). By contrast, the dismissal of a party to an action, with or without prejudice, is sufficient to obtain finality and invest jurisdiction in an appellate court. Driggers v. Locke , 323 Ark. 63, 913 S.W.2d 269 (1996). The rationale for these rules provides important context. The dismissal without prejudice of a party is sufficient to create finality because "nothing requires a plaintiff to sue the prospective defendants simultaneously." Driggers , 323 Ark. at 66, 913 S.W.2d at 270. However, the dismissal of fewer than all claims against a party is insufficient because our courts seek to avoid piecemeal appeals. Id.
For this reason, there is a final, appealable order in this case, even though the causes of action of Joy and Taylor against Flores and Cummings were dismissed without prejudice. | [
-48,
108,
-11,
60,
40,
-31,
42,
104,
83,
-110,
-76,
19,
-65,
-6,
21,
43,
-2,
127,
101,
105,
-45,
-93,
7,
-94,
-14,
-77,
-13,
71,
-94,
75,
124,
-4,
92,
112,
-118,
117,
102,
-118,
-27,
20,
-126,
-122,
-71,
108,
-39,
66,
32,
111,
70,
7,
49,
-97,
-30,
46,
27,
67,
104,
110,
91,
-68,
-48,
-87,
-117,
5,
121,
3,
-93,
36,
-100,
35,
122,
25,
-104,
57,
8,
-24,
50,
-90,
-110,
116,
107,
-103,
13,
102,
103,
1,
13,
-27,
-28,
-119,
47,
118,
31,
-124,
-110,
121,
51,
15,
-73,
-99,
116,
53,
-116,
124,
110,
76,
92,
-24,
-111,
-50,
-108,
-75,
-49,
48,
28,
99,
-57,
11,
52,
101,
-49,
-96,
84,
69,
119,
123,
94,
-78
] |
LARRY D. VAUGHT, Judge
David Fraser appeals the December 5, 2017 order terminating his parental rights to his daughter, A.F. (born December 22, 2009), entered by the Polk County Circuit Court. On appeal, Fraser contends that the circuit court clearly erred in finding that statutory grounds supported termination and that termination was in A.F.'s best interest. We affirm.
On November 6, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect, alleging that on November 2, 2015, it had removed six-year-old A.F. and her siblings, A.R. (born May 3, 2013) and C.S. (born February 26, 2015), from the custody of their mother, Whitney Reynolds. The affidavits accompanying the petition detailed an extensive substantiated history of maltreatment of Reynolds's children dating back to 2010, which included inadequate food, medical neglect, environmental neglect, inadequate supervision, abandonment, physical abuse, and the children being born with drugs in their systems.
The affidavits state that Fraser is the father of A.F. and that he resided in the Arkansas Department of Correction (ADC). The affidavits state that in September 2015, the Arkansas Child Abuse Hotline received a report that A.R. had been the victim of physical abuse by a third-party offender. A.R. received medical treatment and was scheduled to receive follow-up treatment; however, Reynolds did not take A.R. to the follow-up appointment. A second follow-up appointment was made, yet Reynolds did not take A.R. to that appointment either. A third follow-up appointment was made during which a hair-follicle sample was taken from A.R. The results of the hair-follicle test were positive for THC and methamphetamine. The affidavits state that when confronted with the test results, Reynolds denied drug use and stated that she had concerns about Chris Sanders being around her children but that he was the only person she had to watch them. The circuit court entered an ex parte order for emergency custody on November 6, 2015.
On November 19, 2015, Fraser filed a response to DHS's petition, objecting to DHS having custody of A.F. He also requested that A.F. be placed in the custody of her aunt and uncle, that he and A.F. be appointed attorneys, and that a hearing be held on these issues. The circuit court entered a probable-cause order on November 23, 2015, and an adjudication order was entered on December 23, 2015, finding the children dependent-neglected. The court further found that Fraser did not contribute to the dependency-neglect of the children, but the court did not make any findings with respect to his fitness for custody or visitation because he had not appeared before the court and no evidence was available regarding his fitness. The court noted in the adjudication order that Fraser was residing in the ADC. The goal of the case was reunification with the concurrent goal of "permanent guardianship/permanent-relative placement/adoption."
A review order was entered on March 16, 2016, wherein the circuit court acknowledged receipt of a sentencing order that found Fraser had been sentenced to twenty years in the ADC for possession of a firearm by certain persons. The court noted again that Fraser had not appeared before the court and that Fraser was not fit for visitation or custody. A second review order was entered on June 13, 2016, wherein the court stated that Fraser had not appeared before the court and was not participating in the matter.
A permanency-planning order was entered on October 11, 2016. Fraser did not appear at the hearing, and the circuit court found that he had not complied with the case plan and had not been participating in the case. A third review order was entered on December 22, 2016. Again, the court found that Fraser did not appear and was not participating in the matter. He was, however, ordered to follow the court orders and the case plan.
On April 26, 2017, Fraser was appointed an attorney. The next day, April 27, DHS filed a petition to terminate the parental rights of Fraser, Reynolds, and Sanders. On DHS's motion, this petition was dismissed on August 15, 2017. On August 18, 2017, DHS filed a second petition for termination of parental rights. Against Fraser, the petition alleged that termination was supported by the following grounds: (1) noncustodial parent's failure to remedy, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) (Supp. 2017); (2) willful failure to support, section 9-27-341(b)(3)(B)(ii)(a) ; (3) other factors, section 9-27-341(b)(3)(B)(vii)(a) ; (4) sentenced in a criminal proceeding, section 9-27-341(b)(3)(B)(viii) ; (5) aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a)(3)(A) , (B)(i) ; and (6) abandonment, section 9-27-341(b)(3)(B)(iv). DHS further alleged that termination of Fraser's parental rights was in A.F.'s best interest.
The termination hearing was held on November 6, 2017. Tammy Broadway, the DHS caseworker, testified that the children were initially removed from Reynolds's custody on November 2, 2015. Broadway stated that Fraser had been incarcerated during the majority of the case, there was no visitation between Fraser and A.F., and A.F. did not know Fraser as her father "in any way[,] shape[,] or form." Broadway stated that no services had been offered to Fraser. She testified that she met him one time at Reynolds's home in September 2016 when he was on parole. She said that she had invited him to a September hearing but that he did not attend. Broadway also stated that she understood since that time, Fraser had been arrested and returned to prison. However, she said that when he was not imprisoned, he did not call either her or DHS to request services. The only time she heard from Fraser was when he mailed her a letter. In response, she mailed him a staffing invitation. Broadway admitted that none of the case plans included Fraser, yet she testified that DHS stood ready to offer him services. Broadway testified that DHS recommended termination of Fraser's parental rights to A.F.
The CASA volunteer, Ken Marks, also recommended that Fraser's parental rights to A.F. be terminated based on his lack of contact with her, his criminal history, and his incarceration. Marks testified that A.F. had been out of Reynolds's custody for two years, that she was in a stable home, and that she was thriving there.
Shirley Watkins, an adoption specialist, testified that A.F. has no major medical issues that would prevent her from being adopted. Watkins added that she identified sixty-two families that would adopt all three children as a sibling group.
Fraser, who was incarcerated when this case opened in 2015, testified that he is serving a twenty-year sentence. He stated that he was released on parole on August 8, 2016, but his parole was revoked on December 18, 2016. He expected to be paroled again in February 2018. He further testified that during his current incarceration, he has had many disciplinary violations, including violations for group disruption, battery, insolence to a staff member, failure to obey an order, and a threat to inflict injury. He said that when he is released, he plans to live with his grandmother and work for a company that remodels homes.
Fraser further testified that it was never his intention to not have a relationship with A.F. or to abandon her. He said that while incarcerated, he mailed DHS a couple of letters asking to get to know A.F., but he did not receive a response. He said that he called A.F. a couple of times when he was not incarcerated and talked to her. He stated that it was his desire to maintain a relationship with A.F.
At the conclusion of the hearing, the circuit court orally granted DHS's petition to terminate Fraser's parental rights to A.F. The order granting termination was entered on December 5, 2017. Fraser's appeal followed.
Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep't of Human Servs. , 2010 Ark. App. 781, at 9, 379 S.W.3d 703, 708. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. , 379 S.W.3d at 708. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. , 379 S.W.3d at 708. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. , 379 S.W.3d at 708. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id. , 379 S.W.3d at 708. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. , 379 S.W.3d at 708. As with all issues addressing child placement, the appellate court affords heightened deference to the circuit court's superior position to observe the parties personally and weigh credibility. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001).
In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Pine , 2010 Ark. App. 781, at 9-10, 379 S.W.3d at 708-09 (citing Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2009) ). Additionally, the circuit court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Id. at 10, 379 S.W.3d at 709 (citing Ark. Code Ann. § 9-27-341(b)(3)(B) ).
In this case, the circuit court found that termination of Fraser's parental rights was supported by five statutory grounds: (1) noncustodial parent's failure to remedy, (2) willful failure to support, (3) other factors, (4) aggravated circumstances, and (5) abandonment. On appeal, Fraser challenges each of these grounds, plus the additional sentenced-in-a-criminal-proceeding ground. We address the sentenced-in-a-criminal-proceeding ground first.
Arkansas Code Annotated section 9-27-341(b)(3)(B)(viii) provides that one ground that supports termination of parental rights is the "parent is sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life." Fraser testified that he was sentenced to twenty years' imprisonment. The circuit court's March 16, 2016 review order acknowledged receipt of a sentencing order that found Fraser had been sentenced to twenty years in the ADC for possession of a firearm by certain persons. Based on these facts, we hold that Fraser's twenty-year sentence encompassed a substantial period of A.F.'s life, who was eight years old at the time of the November 2016 termination hearing. Our holding is consistent with prior cases in which termination orders relying on the sentenced-in-a-criminal-proceeding ground were affirmed: Moore v. Ark. Dep't of Human Servs. , 333 Ark. 288, 969 S.W.2d 186 (1998) (twenty-eight-year prison sentence, one-year-old child); Fields v. Ark. Dep't of Human Servs. , 104 Ark. App. 37, 44, 289 S.W.3d 134, 139 (2008) (ten-year concurrent prison sentences, ten-month-old child); Moses v. Ark. Dep't of Human Servs. , 2014 Ark. App. 466, 441 S.W.3d 54 (five-year sentence, less than one-year-old child and less than one-month-old child); Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364 (five-year prison sentence for mom and four-year prison sentence for dad, five- and six-year-old children); Hill v. Ark. Dep't of Human Servs. , 2012 Ark. App. 108, 389 S.W.3d 72 (three-year prison sentence, two-year-old child).
Fraser argues that the circuit court erred in relying on the sentenced-in-a-criminal-proceeding ground because there is no evidence in the record as to when his sentence began. We note that Fraser's sentencing order is not in the record. However, to the extent that Fraser argues that evidence of his sentence had to be placed into evidence by DHS, he is mistaken. Edwards v. Ark. Dep't of Human Servs. , 2016 Ark. App. 37, at 11, 480 S.W.3d 215, 221. Further, there is evidence of when Fraser's sentence was imposed. In a November 22, 2016 CASA report, it was stated that Fraser disclosed on November 19, 2016, that he had recently been released from prison after having served five years of a twenty-year sentence. Based on this information, Fraser's twenty-year sentence was imposed in 2011, when A.F. was two years old. We hold that this sentence-from 2011 to 2031-is a period of time that would constitute a substantial period of A.F.'s life.
We further reject Fraser's argument that it is error to rely on the sentenced-in-a-criminal-proceeding ground in his case because he testified that he expected to be released in February 2018. We look at the length of the prison sentence, not the potential release date, when reviewing whether this statutory ground was met. Moses , 2014 Ark. App. 466, at 5, 441 S.W.3d at 57 (citing Bowman v. Ark. Dep't of Human Servs. , 2012 Ark. App. 477, 2012 WL 4009596 ). For these reasons, we affirm the circuit court's finding that DHS proved the sentenced-in-a-criminal-proceeding ground in support of its order terminating Fraser's parental rights.
For his second point on appeal, Fraser challenges the circuit court's best-interest finding. In determining whether termination is in the best interest of the juvenile, the circuit court must consider the likelihood that the juvenile will be adopted and the potential harm that would be caused by returning the juvenile to the custody of the parent. Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, at 5, 471 S.W.3d 251, 255 ; Ark. Code Ann. § 9-27-341(b)(3)(A)(i), (ii). Adoptability and potential harm, however, are merely two factors to be considered and need not be established by clear and convincing evidence. Id. , 471 S.W.3d at 255. The evidence presented on potential harm must also be viewed in a forward-looking manner and considered in broad terms, but a circuit court is not required to find that actual harm will result or to affirmatively identify a potential harm. Id. , 471 S.W.3d at 255.
Fraser argues on appeal that the circuit court clearly erred in finding that A.F. would be subject to potential harm if returned to his custody. He acknowledges his extensive criminal history and his multiple prison violations and concedes that these issues are "concerning," yet he argues that DHS should not be able to "shirk" its responsibility to incarcerated parents by failing to make reasonable efforts, pursuant to section 9-27-303(48)(A)(v), to provide services to them and then use its failure to support a potential-harm finding against those parents. More specifically, he argues that DHS's failure to provide visitation services to him while he was in prison created the lack of a bond with A.F.
This argument has no merit. The best-interest analysis in the termination context does not require proof that DHS make reasonable efforts to provide services. Ark. Code Ann. § 9-27-341(b)(3). What is required is that the circuit court consider the likelihood that A.F. will be adopted and the potential harm to her if she is returned to Fraser's custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(i), (ii).
The circuit court found that A.F. is adoptable, and Fraser does not challenge that finding. Regarding the court's potential-harm finding, in our de novo review, we hold that the circuit court did not clearly err. The evidence showed that Fraser and A.F. have no relationship. They have no bond. Broadway testified that A.F. did not know Fraser as her father "in any way[,] shape[,] or form." There is no evidence in the record when Fraser last saw A.F. There is no evidence in this record that Fraser, while in prison, tried to contact A.F. directly-no calls and no letters. During the four months that Fraser was on parole, the only evidence of Fraser's contact with A.F. was his testimony that he called her a couple of times. Fraser offered no other evidence or witness testimony to corroborate his testimony. Further, Fraser has an extensive criminal history. He was incarcerated for nearly the entire duration of the two-year case, serving a twenty-year sentence. And he has had multiple (at least five) prison disciplinary infractions in 2017. Finally, there was evidence that A.F. was in a stable foster home and was thriving.
Based on this evidence, we hold that the circuit court did not clearly err in finding that A.F. would be subject to potential harm if placed in Fraser's custody. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. 356, at 11-12, 2015 WL 5895440 (affirming circuit court's best-interest finding because the evidence demonstrated that the appellant had been incarcerated throughout the dependency-neglect case and had no relationship with the child). Accordingly, we affirm the circuit court's best-interest finding.
Affirmed.
Abramson and Glover, JJ., agree.
Reynolds is not a party to this appeal.
The affidavits also state that Thomas W. Duncan had been identified as the putative father of A.R. and that Chris Sanders had been identified as the putative father of C.S. Neither Duncan nor Sanders are parties to this appeal.
The circuit court's order did not include findings with respect to the sentenced-in-a-criminal-proceeding ground. Nevertheless, in our de novo review, we may hold that this ground for termination was proved even when not stated in the circuit court's order if it was pled as a ground in DHS's petition to terminate parental rights. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. App. 90, at 10, 455 S.W.3d 347, 354 (affirming a termination-of-parental-rights order based on grounds not stated in the circuit court's order although it was alleged in DHS's petition to terminate parental rights). In the instant case, the sentenced-in-a-criminal-proceeding ground was pled in DHS's petition to terminate parental rights.
Because only one statutory ground is required to be proved, we need not discuss the alternative statutory grounds relied on by the circuit court in terminating Fraser's parental rights. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, at 6, 489 S.W.3d 182, 185-86. | [
-80,
-20,
-20,
44,
59,
97,
26,
56,
82,
-61,
-15,
-13,
-89,
-26,
25,
105,
-63,
79,
96,
105,
83,
-73,
85,
97,
114,
-13,
-80,
-45,
59,
75,
100,
-36,
88,
80,
-114,
85,
66,
-64,
-17,
-48,
2,
3,
-85,
101,
81,
-62,
42,
43,
26,
15,
49,
-66,
-14,
45,
30,
-62,
8,
78,
91,
-68,
88,
96,
-37,
23,
-33,
18,
-79,
-12,
-70,
4,
120,
110,
-112,
57,
1,
-22,
115,
-76,
-122,
116,
71,
-103,
13,
116,
-30,
0,
61,
-11,
-8,
-120,
-114,
62,
-99,
-90,
-38,
105,
73,
13,
-106,
-76,
110,
20,
62,
-6,
107,
-49,
116,
108,
-92,
-51,
-34,
-127,
-116,
-88,
92,
59,
-29,
37,
48,
101,
-49,
-16,
85,
17,
115,
-37,
-42,
-14
] |
WAYMOND M. BROWN, Judge
Appellant Melita Cox (now Nicola) appeals the order of the Washington County Circuit Court denying her motion for relocation and modification of visitation. On appeal, she argues that the circuit court "improperly shifted the burden to Ms. Nicola to prove that her proposed move to Winnipeg, Canada, would be advantageous to herself and the children." In light of the Arkansas Supreme Court's decision in Hollandsworth v. Knyzewski , we agree and hold that the circuit court clearly erred in denying Melita's request to relocate; therefore, we reverse and remand.
The parties were divorced in August 2016. Born of the marriage were two children of whom Melita was awarded primary custody subject to appellee Nathan Cox's visitation rights. In July 2017, Melita filed a motion to relocate, expressing her desire to move the children, M.C. (11) and F.C. (3), to Winnipeg, Canada, for "better education, financial and employment opportunities." Nathan responded, objecting to the relocation and asserting that it would have a "detrimental effect" on his relationship with the children. A hearing was held on January 3, 2018.
At the hearing on the motion to relocate, both Melita and Nathan testified. Melita stated that following the divorce in 2016 she was awarded primary custody of the children while Nathan was awarded visitation on alternating weekends, 6:00pm-8:00pm on Tuesdays, and as provided in the court's standard visitation schedule for holidays.
Melita testified that she first notified Nathan on May 18, 2017, via text message regarding her desire to move and request for a "different visitation schedule." She stated that he responded that he wanted her to be happy and wished her well, which she took as an indication that he was supportive and consented to the move. Melita again contacted Nathan via text on June 27, 2017, concerning relocation and the need for a "revised long-distance visitation schedule." At that time, Nathan still did not object to Melita's proposed move with the children.
On July 7, 2017, Melita prepared a letter expressing her "intention to move to Winnipeg-Manitoba, Canada" for employment and educational opportunities. She expressed her willingness to work with Nathan in coordinating visitation and transporting the children between Canada and Arkansas. Melita specifically provided:
I am willing to drive half way the distance between Fayetteville, Arkansas and Winnipeg, Canada every summer until the children turn 18 years old. They can spend the entire summer vacation with the non-custodial parent, Nathan Lloyd Cox, from first weekend of summer vacation until the last Friday preceding the start of the new school year.
She further offered electronic communication with the children "by means of telephone, mobile phone, text messaging, [and] video conference" to supplement traditional forms of visitation. Still, there was no objection to the relocation from Nathan. Melita filed a motion for relocation and modification of visitation on July 14, 2017.
Melita testified that on July 19, 2017, Nathan texted her the following:
We need to talk sometime. I wanna know all details. I will follow any path you think is best for you and kids. They will grow up soon and I don't want to be the reason why they look down on me. One life we all have. Let's think about kids. I have you're [sic] back on any dission [sic] if it's safe for my kids. This message was the hardest thing I ever have done in my life.
They then arranged to meet to discuss the details; however, the meeting did not happen. The following week, Nathan informed Melita that he would "meet [her] in front of the judge."
Melita testified that she wished to move to Canada to further her education, beginning with completing her Bachelor of Science degree and then moving on to medical school, stating that it "will be better for the kids if I get a better job and have a more stable financial situation." Melita also stated that moving to Canada would allow her parents to be involved in the children's lives. She explained that her parents live in Romania and that it had been difficult for them to obtain a visa to visit them in the United States; however, Romanians can travel to Canada without a visa.
Melita stated that she had already secured a one-bedroom apartment in Winnipeg and had placed a $ 450 deposit on it. Melita provided her acceptance letter to the University of Manitoba. F.C. is not yet of school age, but M.C. would attend George Waters Middle School in Winnipeg. Upon inquiry, the principal of George Waters Middle School informed Melita that M.C. should not have any academic problems with transitioning to the school. Melita obtained the school calendar and calculated a total of 95 days of school break during which Nathan could exercise visitation with the children (spring break, Christmas break, and summer). Under the current visitation schedule, Nathan receives 108 days of visitation. Melita explained that she would encourage the use of calls, messages, and video chat to supplement Nathan's interaction with the children.
On cross-examination, when asked if there was a medical school in Arkansas, Melita replied that there is not one in Fayetteville, but there is one in Little Rock-UAMS. However, "I did not apply to UAMS. My intention was to relocate, so I applied to the University of Manitoba." She further acknowledged that while many states may have medical schools, she did not apply to those schools because "[m]y focus was to relocate to Winnipeg, Canada." Additionally, "[a]s to whether I have a basis of comparison to attest that the educational opportunities afforded by the University of Manitoba are superior to any opportunities I would have at UAMS or any other state that is contiguous, the point was not to compare universities. The point was to attend a university in the same city where I would be moving."
Nathan also testified at the hearing. He stated that Melita "is a great mom. I do not have any problem with the way she has cared for the children as a mother, other than taking them away from me. As to whether she will continue what she is doing now if she moves to Canada, she will do great wherever she goes." He went on to say that he changed his mind multiple times about Melita relocating with the children. Nathan also stated that he had initially agreed with her moving to Canada because "I wanted to do what was best for the kids."
Nathan testified that he believes that Melita does want to further her education and attend medical school, as they had discussed it many times during their marriage. He also believes that Melita obtaining a medical degree would have a positive impact on the children's future. However, while agreeing that she will need help, he stated that he believed that she could get the extra help where they currently live.
Nathan went on to acknowledge that Melita had never denied him visitation with the children, had never denied a telephone call with the children, and had never denied any other contact with the children. He further stated that the "92 days[ ] of break on the George Waters' school calendar are not far off" from the number of days he is awarded visitation under the current custody agreement. However, he argues that getting blocks of visitation instead of alternating weekend visitation "would not be close to maintaining an equivalent relationship that I have with them. That is why I oppose it." In closing, Nathan testified, "I still believe that no matter where she is, she would take the best care of my kids she possibly could. She would always provide for them."
Following the hearing, the circuit court entered an order denying Melita's motion for relocation and modification of visitation. She now appeals.
In reviewing child-custody cases, we consider the evidence de novo, but the circuit court's findings of fact will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when, although there is supporting evidence in the record, the appellate court viewing the entire evidence is left with a definite and firm conviction that a mistake has been committed. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses.
Hollandsworth is the controlling case regarding the relocation of custodial parents. Hollandsworth expressly pronounced that there is "a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has the responsibility to prove a real advantage to herself or himself and to the children in relocating." The court recognized that divorce not only changes the relationship between parents, but it also inevitably changes the nature of the relationship between parents and their children. The Hollandsworth court further stated that it was "a matter of common knowledge that at least one parent must necessarily forfeit some individual rights to the constant companionship of minor children when a divorce decree is granted."
In recognizing the custodial parent's right to relocate with his or her children, the Hollandsworth court set forth the following factors to be considered in determining the best interest of the child in the matter of a request for relocation: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; (5) the preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.
In its order denying Melita's motion for relocation and modification of visitation, the circuit court found, "for the reasons recited in the Court's bench opinion, the same being incorporated herein as if set out word for word," that the "requested move of the plaintiff is speculative at best, that such a move would not be in the best interests of the parties' minor children, and that the defendant has successfully rebutted any presumption that might otherwise be afforded to the plaintiff in regard to her requested relocation and the resulting modification of the Court's prior orders."
As directed in the January 24, 2018 order, we turn to the circuit court's bench opinion to better understand the court's specific reasoning for denying Melita's relocation request. At the close of the hearing, the circuit court made the following statements:
• This move is, in my opinion from the testimony, speculative at best as to whether or not it would be beneficial to you or your children.
• So you're talking about uprooting them, taking them out of their home, your children away from their father without any type of guarantee.
• There is no confirmation whatsoever at all in reference to you being able to find a job, much less a job where you can make as much money or more money than you are currently making....
• I just-I think this Motion to Relocate, at the best, is premature and very speculative.
• I also found it disturbing that there was-you have no idea what they're even teaching in the Canadian school that you've looked at.
• All of the opportunities that you are talking about are not only available here, but are easier here for you to get than this very speculative move to Canada.
The circuit court then went on to find:
So I do believe that the Respondent has rebutted the presumption that it would be in the children's best interest in order to relocate. In order-in reference to the Hollingsworth [Hollandsworth] five factors, (a) the reason for relocation, I have not heard any good reason for relocation. In fact, I've heard tons of reasons why it would be much smarter and much better for you and your children if you relocated say, for example, to Little Rock or some other similar place.
Two, educational, health and leisure opportunities available in the place of relocation, I've heard nothing in reference to this being a better school than the current Fayetteville schools that your child is attending.
Health, leisure opportunities, I also-I don't believe that I've heard anything in reference to those being better in the Canada area.
Visitation and communication schedule for the noncustodial parent, based on the fact that it appears you would have to take a significant pay cut and you would not have child care at least for what you say, nine out of 12 months probably out of the year, I don't think that that would be a better situation for the noncustodial parent. I think it would significantly inhibit his visitation. I found it very telling that his son makes sure and calls him at least once a week to talk to him. I think that also shows the type of relationship they have and that he is wanting to keep in contact even when they don't have visitation scheduled.
The effect of the move on the extended family relationship, I believe that would be significantly detrimental because there are extended family relationships here in reference to Mr. Cox's mom and, obviously, their half-sister.
And then preference of the child, obviously is not appropriate to be weighed in this case because of the children's age and they have not testified today.
A review of the circuit court's oral ruling leaves no doubt that the court placed the burden on Melita to prove that the move to Canada was "advantageous" or "better." However, Hollandsworth makes clear that as the custodial parent, it was not her burden to carry. The presumption in favor of relocation is automatic. Melita did not have to prove that the move would be "beneficial" or that there are no "better options" than the location that she chose. Nor did she have the burden to show that the Canadian school is better than the Fayetteville school, or that she will make more money in Canada, etc. Further, case law does not require that a custodial parent with primary custody have concrete plans, instead of "speculative" ones, when contemplating relocation.
Step one in the process was Melita's Motion for Relocation and Modification of Visitation. Upon that motion, she was afforded the presumption in favor of relocation. Nothing more was required of Melita. Next, Nathan, as the noncustodial parent, had the burden to provide evidence to rebut the presumption.
Applying the Hollandsworth factors to the evidence presented at the hearing, Nathan unequivocally failed to rebut the presumption in favor of relocation. First, he presented no testimony disputing the validity of Melita's reason for wanting to relocate. In fact, not only did he acknowledge that he believed she genuinely wants to attend medical school, he also stated that by going to medical school, Melita could better provide for the children's future. Nathan provided no testimony regarding the quality of the schools in either location; he likewise failed to provide any testimony regarding the availability or caliber of the health and leisure opportunities in either location; and he admitted that Melita had never denied him access to the children and he did not think she ever would. As to the circuit court's finding that relocation would be detrimental to existing relationships the children have with Nathan's extended family in Arkansas, we hold that the court failed to consider the benefit of establishing relationships with members of Melita's family, with whom they have been unable to bond.
From his testimony, Nathan's only concern with relocation is the effect it will have on his visitation with the children, arguing that he will not be able to maintain an "equivalent relationship" with them due to the distance. However, that is not the standard. Hollandsworth presupposes that visitation and communication between the child and the noncustodial parent will be impaired. Nevertheless, "if there continues to be meaningful visitation, the presumption in favor of relocation is not rebutted."
Here, Melita testified that Nathan could exercise visitation with the children every summer from the first weekend of summer vacation until the last Friday preceding the start of the new school year, as well as every spring break and Christmas break. She further indicated her willingness to meet halfway to facilitate the visitations. Melita also offered electronic communication to supplement traditional forms of visitation. As Nathan admitted, the ninety-five days contemplated under the proposed visitation schedule is not "far off" from the number of days of visitation he currently receives with the children. Under similar circumstances, we have found such visitation to be meaningful, and we so hold the same to be true in this case.
Upon applying the law as set forth in Hollandsworth , we hold that the circuit court clearly erred in ruling that Nathan rebutted the presumption in favor of allowing Melita to relocate, as he offered no evidence that the move was against the children's best interest. Additionally, we hold that the circuit court's denial of Melita's relocation motion due to her "speculative" plans with no "guarantee" amounted to an improper shifting of the burden to her to prove that her proposed move offered some advantage to her or to the children.
Accordingly, we reverse and remand for entry of an order allowing Melita to immediately relocate to Canada with the children.
Reversed and remanded.
Gruber, C.J., and Whiteaker and Vaught, JJ., agree.
Gladwin and Murphy, JJ., dissent.
353 Ark. 470, 109 S.W.3d 653 (2003).
According to Melita's testimony, a Google search revealed that Winnipeg is 1051 miles from Northwest Arkansas and approximately a 15-hour and 40-minute drive.
According to Melita, the school breaks would total 95 days per year.
Hodge v. Hodge , 97 Ark. App. 217, 245 S.W.3d 695 (2006).
Id.
Id.
353 Ark. 470, 109 S.W.3d 653.
Id. at 476, 109 S.W.3d at 657.
Id. at 485, 109 S.W.3d at 663 (quoting Walter v. Holman , 245 Ark. 173, 431 S.W.2d 468 (1968) ).
Id. at 485, 109 S.W.3d at 663-64.
Fischer v. Smith , 2012 Ark. App. 342, 415 S.W.3d 40.
Id.
See Fischer , supra (finding that a noncustodial parent could have meaningful visitation with his daughter if she and her mother relocated to the Virgin Islands with proposed visitation at Christmas break, summer break, and two other weeks per year). | [
81,
104,
-27,
108,
14,
-31,
59,
-68,
98,
-77,
101,
-45,
-89,
111,
20,
121,
43,
47,
101,
105,
-63,
-73,
87,
96,
112,
-13,
51,
-49,
-2,
-55,
117,
-114,
93,
96,
-118,
-43,
68,
-54,
-25,
92,
-122,
5,
-117,
-27,
88,
-125,
44,
-23,
26,
15,
117,
-113,
-77,
-83,
24,
66,
44,
110,
93,
-84,
-40,
90,
-54,
14,
-1,
6,
-125,
52,
-102,
-124,
112,
12,
-108,
49,
32,
-24,
115,
-122,
-78,
116,
67,
-67,
-104,
48,
103,
1,
-116,
-25,
120,
8,
14,
62,
-99,
-90,
-38,
24,
67,
66,
-73,
-108,
124,
84,
8,
126,
107,
5,
28,
100,
-114,
-49,
-48,
-79,
-115,
41,
-124,
59,
-29,
103,
48,
117,
-53,
-30,
125,
70,
49,
-101,
-10,
-70
] |
BART F. VIRDEN, Judge
Darann Diane Harrison appeals the Pulaski County Circuit Court's dismissal of her petition for review of the Arkansas Public Employees' Retirement System (APERS) decision denying her request for payment of survivor benefits and the agency's conclusion that there were no accumulated contributions held by APERS. We affirm.
I. Relevant Facts
Gladis Bright was an employee of the Marianna Public School System from January 1978 until June 1990. Bright filed her application for retirement on November 4, 2015, and unfortunately, she passed away only four days later. On November 17, 2015, APERS, unaware of Bright's death, sent her a letter informing her that she was a noncontributory member with twelve years and six months of service as of June 1990. The letter stated that Bright had selected annuity Option A120 and had designated Harrison, her daughter, as her beneficiary. The letter explained that if Bright died before she received all 120 payments, her designated beneficiary would receive the same benefit amount that she had been receiving. The section entitled "Survivor Benefit" set forth that
[b]ecause you are vested for benefits, your eligible survivors may qualify for payments should you decease prior to retirement. Please advise your family to contact this office for information in the event of your death. A spouse, to whom you've been married at least one year, will be eligible for a benefit figured as if you retired on the day prior to your death and elected Option B75. Dependent children are also eligible for survivor benefits. There is no redactor for age applied to these benefits.
On April 23, 2016, Harrison's attorney received an email from Jay Wills who informed him that because Bright passed away two months before her retirement was effective and before the A120 annuity payments had begun, and because Harrison was not a surviving spouse or a dependent minor child, no benefits were available to her. Wills explained that if Bright had passed away after the annuity payments had commenced, Harrison would have been eligible to collect the remainder of the payments. Wills also explained that Bright was not a contributory member; thus, there were no accumulated retirement contributions to pass to the estate.
Harrison appealed the decision to the APERS Board of Trustees ("Board"). The parties stipulated that Bright was a noncontributory member of APERS for twelve years and six months, that she filed her application for retirement on November 4, 2015, that Bright selected the annuity Option A120, that she designated her daughter as the beneficiary, and that Bright died on November 8, 2015, about two months before her retirement date of January 1, 2016.
APERS provided the Board with a written determination in which it concluded the following: Arkansas Code Annotated section 24-4-608(a) (Repl. 2014) requires that an employee file a retirement application no less than thirty days before the first of the month in which he or she desires to retire, and Bright requested that her retirement begin January 1, 2016. Bright selected A120 retirement benefits under Arkansas Code Annotated section 24-4-606(a)(2) (Repl. 2014). Bright died before her retirement began, and because her retirement was not effective when she died, Arkansas Code Annotated 24-4-608 governed any survivor benefits. Under Arkansas Code Annotated section 24-4-608, only the surviving spouse, dependent parents, or dependent children are entitled to survivor's benefits. Bright was not a contributory member, and Arkansas Code Annotated section 24-4-101(12) (Supp. 2017) defines contributory member as one who contributes 5 percent or 6 percent of compensation to APERS. Subsection (26) defines "noncontributory member" as "one who does not contribute a portion of compensation." Arkansas Code Annotated section 24-4-602 (Repl. 2014) allows a refund of a deceased contributory member's own contributions, and employer contributions are not refunded.
At the hearing, Harrison contended that because Bright chose annuity Option A120, and not Option B75, APERS erroneously based its decision on section 24-4-608. Harrison also asserted that pursuant to section 24-4-608(g) and section 24-4-1102 (Repl. 2014) she is entitled to receive all employer contributions that accumulated during Bright's employment.
Wills refuted Harrison's claim that she is entitled to collect Bright's annuity payments because, Wills explained, Bright passed away before she reached retirement, and the balance of an annuity is paid to a beneficiary only when the employee's retirement has begun. Wills testified at the hearing that because Bright passed away before her retirement began on January 1, she was not a retirant and section 24-4-608, known as the "death in service" statute, applies here. Wills explained that the death-in-service statute provides that only dependent children, a spouse, and dependent parents are eligible for survivor benefits.
Wills also testified that pursuant to Arkansas Code Annotated section 24-4-602, if an employee dies before all the annuity payments are made to the retirant, those contributions must either be refunded to the estate or paid to the designated beneficiary. Wills explained that as a noncontributory member, Bright had no contributions to refund. Wills responded to Harrison's assertion that section 24-4-1102 allows her to inherit any accumulated employer contributions. Wills testified that, in fact, the purpose of section 24-4-1102 is to allow the employer to "pick up" for the employee what would have been the tax liability for retirement contributions. On November 9, 2017, Harrison filed a petition for judicial review of the Board's decision, and ultimately, the circuit court affirmed the agency decision and denied her petition, dismissing it with prejudice. Harrison filed a timely notice of appeal.
II. Points on Appeal
A. Arkansas Code Annotated Section 24-4-608
For her first point on appeal, Harrison argues that the Board erred in its decision that Arkansas Code Annotated section 24-4-608 applies here and prohibits her from receiving Bright's annuity payments. Harrison also argues that the agency erred in its determination that she is not entitled to any accumulated retirement contributions pursuant to subsection (g). Harrison's arguments are not well taken, and we affirm the agency decision.
Although the circuit court ruled in this case, appellate review is directed not toward the circuit court's order, but toward the order of the administrative agency. Voltage Vehicles v. Ark. Motor Vehicle Comm'n , 2012 Ark. 386, 424 S.W.3d 281. Judicial review of administrative agency decisions is governed by the Arkansas Administrative Procedure Act, which limits our inquiry to the question of whether the administrative agency's decisions violate constitutional or statutory provisions; exceed the agency's statutory authority; involve an unlawful procedure; are the result of an error of law; are not supported by substantial evidence; or are arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25-15-212(h) (Repl. 2014).
In our review, we consider the entire record and give the evidence its strongest probative force in favor of the administrative agency's decision. Voltage Vehicles, supra. For us to invalidate an administrative agency's order as arbitrary or capricious, we must hold that an agency's decision lacked a rational basis or relies on a finding of fact based on an erroneous view of the law. Id. Even so, when the administrative agency's decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Id.
Our appellate courts review issues of statutory construction de novo; however, we give great deference to the administrative agency's interpretation of a statute or regulation that the agency is charged with administering. Ark. State Hwy. & Transp. Dep't v. Lamar Advantage Holding Co. 87. Id. We will not overrule the agency's interpretation unless it is clearly wrong. Id.
Harrison contends that APERS's reliance on Arkansas Code Annotated section 24-4-608 to support its conclusions is erroneous because section 24-4-608 applies only when the B75 annuity option has been chosen by the employee. She argues that because Bright chose Option A120, section 24-4-608 is inapplicable here, and APERS's decision was arbitrary and capricious. Harrison misinterprets the statute.
Arkansas Code Annotated section 24-4-608 entitled "Payment of benefits upon death of member before retirement-Exception" provides in pertinent part as follows:
(a) Effective July 1, 2001, if an active member or former member with five (5) or more years of actual service dies before retirement, the applicable benefits provided in this section shall be paid upon written application to the Board of Trustees of the Arkansas Public Employees' Retirement System.
....
(c)(1) A member's or former member's surviving spouse who was married to the member at least the one (1) year immediately preceding his or her death shall receive an annuity computed in the same manner in all respects as if the member or former member had:
(A) Retired the date of his or her death with entitlement to an annuity provided for in § 24-4-601;
(B) Elected the Option B75 survivor annuity provided for in § 24-4-606(a)(4) ; and
(C) Nominated his or her spouse as joint beneficiary.
(Emphasis added.)
Arkansas Code Annotated section 24-4-608 does not require that the employee choose annuity Option B75 annuity. It clearly states that when an employee dies before retirement has begun, and there is a surviving spouse, then it is as though the employee had chosen Option B75. In other words, if a member dies before retirement begins, then the surviving spouse shall receive an annuity as if the following had occurred: (1) the member had retired on the date of death, (2) the member had chosen Option B75, and (3) the member had chosen his or her spouse as a joint beneficiary. We find no error in the agency's decision.
This leads us to Harrison's contention that according to Arkansas Code Annotated section 24-4-608(g), the employer's contributions should have been paid to the estate. Subsection (g) provides
(1) In the event that all the annuities provided for in this section payable on account of the death of a member or former member terminate before there has been paid an aggregate amount equal to his or her accumulated contributions standing to his or her credit in the members' deposit account at the time of his or her death, the difference between the accumulated contributions and the aggregate amount of annuity payments shall be paid to such person as he or she shall have nominated by written designation duly executed and filed with the board.
(2) If there is no designated person surviving at termination, the difference shall be paid to the member's or former member's estate.
It is undisputed that Bright was a noncontributory member, and no employee contributions accumulated to be paid to Harrison as the beneficiary; however, Harrison argues that Arkansas Code Annotated section 24-4-1102 entitled "Member Contributions" provides that member contributions made by the employer are the same as member contributions made by the employee. Harrison contends that according to subsection (g), she is entitled to inherit all employer contributions that accumulated during Bright's career. Arkansas Code Annotated section 24-4-1102(b)(2) provides the following:
(A) Member contributions picked up by the employer shall be paid from the same source of funds used for the payment of salary to a member.
(B) The employer shall be solely responsible for remitting member contributions to the system in a manner consistent with § 24-4-202, including without limitation compliance with deadlines and penalties.
(C) A deduction shall be made from each member's salary equal to the amount of the member's contribution picked up by the employer.
(D) For all other purposes, member contributions picked up by the employer shall be considered member contributions.
The agency decision that section 24-4-1102 does not apply to Bright because it applies only to "contributory members" is not clearly wrong. "Contributory member" is defined as a person who was a member of APERS prior to January 1, 1978, and who continues to contribute 6 percent of his or her compensation to the system. Ark. Code Ann. § 24-4-101(12). The agency did not err in deciding that the statute does not apply to Bright because the years at issue here are from 1978 to 1990, and not prior to 1978 as required by the definition of "contributory member." Moreover, Bright did not contribute any percentage of her salary during that time; thus, the statute does not apply for this reason as well, and we affirm the agency decision. Wills explained that Harrison misunderstood the meaning of section 24-4-1102, which in fact governs the "employer pick up" of tax liability, and as we stated above, we give great deference to the administrative agency's interpretation of a statute or regulation that the agency is charged with administering, and we will not overrule the agency's interpretation unless it is clearly wrong. Lamar Advantage, supra.
B. Arkansas Code Annotated Sections 24-4-601 to -602
Harrison asserts that APERS clearly erred in deciding that Arkansas Code Annotated section 24-4-602 does not apply under these facts. Harrison's argument fails.
We find no error in APERS's decision that section 24-4-602 applies only to retirants who choose a straight-life annuity under section 24-4-601. Arkansas Code Annotated section 24-4-602 provides that "[i]n the event a retirant who is in receipt of a straight life annuity dies before he or she has received in straight life annuity payments...." Bright chose the A120 annuity option, which is set forth as an alternative to a straight life annuity in section 24-4-601. Arkansas Code Annotated section 24-4-606(a) provides that "a member may elect to receive his or her annuity as a straight-life annuity or may elect to have his or her annuity reduced and nominate a beneficiary in accordance with the provisions of one (1) of the following options[.] " (Emphasis added.) Option A120, the option chosen by Bright, is an alternative to a straight-life annuity. Harrison's argument that section 24-4-602 applies to her situation has no merit, and we affirm.
Also under this heading, Harrison contended that APERS erred in finding that her mother was not a "retirant" as defined by Arkansas Code Annotated section 24-4-101(23). Because our holding above resolves this issue, we decline to review this point.
Affirmed.
Abramson and Hixson, JJ., agree.
In June 1990, Bright left employment with the Marianna Public School System and began working for the Little Rock School District.
Wills was deputy director of APERS at the time of the hearing.
On July 13, 2018, by its own motion the circuit court vacated the order denying the petition. On August 15, 2018, the circuit court entered a new order granting Harrison's petition in part and denying and dismissing it in part. The circuit court found that APERS clearly erred in finding that Harrison is not entitled to a survivor benefit, and it reversed and remanded to the board to enter an award of benefits. The circuit court found that substantial evidence supported APERS's determination that there were no accumulated contributions held by APERS to refund to Harrison because her mother had been a noncontributory member. On August 23, 2018, the circuit court entered an order setting aside and vacating the August 15 order. On the same day, the circuit court entered an order identical to the first order denying the petition and dismissing with prejudice. | [
20,
108,
-60,
-68,
24,
-32,
27,
16,
83,
-65,
39,
83,
-21,
114,
81,
127,
-5,
43,
65,
121,
-45,
55,
23,
72,
91,
-13,
-71,
-42,
-96,
95,
54,
-44,
76,
112,
42,
-59,
-26,
-18,
-51,
16,
-108,
6,
-117,
101,
121,
-62,
56,
103,
-40,
15,
37,
-34,
-79,
-81,
24,
110,
108,
46,
89,
-85,
66,
-78,
-85,
-121,
-21,
5,
2,
20,
-102,
-61,
80,
42,
92,
49,
64,
-24,
114,
38,
-34,
52,
123,
25,
5,
100,
102,
-128,
52,
-11,
-100,
-126,
14,
-66,
-115,
-92,
-38,
57,
19,
15,
-105,
-98,
90,
-124,
71,
-4,
102,
-60,
104,
108,
15,
-50,
-2,
-79,
-36,
-3,
-100,
-117,
-29,
86,
114,
117,
-39,
-30,
85,
-57,
51,
19,
-58,
-6
] |
KENNETH S. HIXSON, Judge
Appellant Michelle Davis appeals from a final order dismissing her complaint in favor of appellee Van Buren School District. On appeal, appellant contends that the circuit court erred in ruling that the job-performance records at issue are not subject to disclosure under the Freedom of Information Act (FOIA), Arkansas Code Annotated sections 25-19-101 through -110 (Repl. 2015). We affirm.
I. Relevant Facts
Appellant filed her complaint on March 2, 2017, under FOIA to compel appellee to provide all records of the Van Buren School District pertaining to two investigations involving altercations that occurred between her son and two teachers within the school district. Appellant alleged that the first incident occurred at the Van Buren Freshman Academy on September 14, 2015, and the second incident occurred at Northridge Middle School on September 9, 2016. She further alleged that it was her belief that no action was taken against the teacher involved in the first incident but that the teacher responsible for the second incident had been terminated. Appellant stated that the superintendent of the Van Buren School District, Dr. Harold Jeffcoat, refused her FOIA request in an email stating, "The records you have requested were generated as a result of allegations related to the employee's job performance. The District does not have any non-exempt records responsive to your request under FOIA." Therefore, in her complaint, appellant prayed for a hearing, for an order requiring appellee to make available the records she requested, and for reasonable attorney's fees and costs.
Appellee filed its answer and affirmatively pleaded the following:
14. Defendant affirmatively pleads the records requested by Plaintiff constitute employee evaluation or job performance records, which shall be open for public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records from a basis for the decision to suspend or terminate the employee and if there is a compelling interest in their disclosure. See Ark. Code Ann. § 25-19-105(c)(1).
15. Defendant affirmatively pleads the documents requested by Plaintiff were generated as a result of allegations related to an employee's job performance, and therefore constitute a job performance record, and they were not used in the final administrative resolution of any suspension or termination proceeding of the employee, and therefore they are exempt from disclosure.
16. Defendant affirmatively states there are other compelling public interest reasons which preclude disclosure of the requested documents, pursuant to Ark. Code Ann. § 25-19-105(c)(1).
Thereafter, appellant filed a motion to compel answers to her requests for interrogatories and production of documents. A hearing on appellant's motion to compel and on her complaint was held on March 13, 2018. Regarding appellant's complaint, the parties argued their respective positions at the hearing. At the outset, appellant stated, "I don't think there's really any disputed facts here. It's really just a legal determination for the Court to make whether the exemption that the school district is alleging is valid or not." Appellant argued that the records are not exempt under FOIA. Regarding records from the first incident, appellant argued that any investigative report should not be considered a job-performance or employee-evaluation record because nothing was ultimately done to the employee. Instead, she argued that any report should be considered a personnel record that is subject to disclosure. Regarding records from the second incident, appellant argued that the records should be disclosed under the section 25-19-105(c) exception because the employee was either terminated as a result of the investigative report or resigned as part of an agreement in lieu of being suspended or terminated.
Appellee disagreed and argued that records from both incidents are exempt under section 25-19-105. In both incidents, there was no final administrative resolution or any decision to suspend or terminate. It was undisputed that the employee involved in the first incident was not suspended or terminated. Appellee further explained that although the employee involved in the second incident ultimately resigned, the employee did not do so based on any agreement with appellee. Rather, the employee proffered a resignation when confronted with the allegations and was told that the matter was under investigation.
At the conclusion of the hearing, the circuit made the following oral ruling:
I think at this point without more than what we have Mr. Holmes [appellant's counsel] I'm going to have to deny your request. I mean, I understand the kind of predicament that you're in, but it appears that at least the exemption here protects, if you want to call that, the school from disclosure. My, again, my - it's my - my problem is I can't distinguish based on what's been said that there may not be something that I would call an incident report or something that describes what's going on, but at this point with their argument and declaration that there isn't anything that is of that nature then I don't think I can allow your request. So it will be denied.
The circuit court subsequently filed a written final order on March 28, 2018, making the following relevant findings:
1. Plaintiff filed this action seeking records from two (2) separate incidents relating to alleged abuse of her special needs son by employees of the Van Buren School District, pursuant to the Freedom of Information Act, A.C.A. § 25-19-105.
2. Defendant, Van Buren School District, denied the request, claiming that the personnel records constitute employee evaluation or job performance records, which shall be open for public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling interest in their disclosure.
3. The Court finds that the Plaintiff has not presented sufficient evidence to the Court that would demonstrate that the records requested do not fall within the exemption claimed by the Defendant and that the records are employee evaluation or job performance records pursuant to A.C.A. § 25-19-105(c)(1), and therefore Plaintiff's Complaint is hereby dismissed.
This appeal followed.
II. Standard of Review
The applicability of FOIA is a question of statutory interpretation, which we review de novo, because it is for this court to determine the meaning of a statute. Harrill & Sutter, PLLC v. Farrar , 2012 Ark. 180, 402 S.W.3d 511. We are not bound by the decision of the circuit court. Thomas v. Hall , 2012 Ark. 66, 399 S.W.3d 387. However, in the absence of a showing that the circuit court erred in its interpretation of the law, its interpretation will be accepted as correct on appeal. Id. We liberally interpret 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, 188 S.W.3d 881. Furthermore, this court broadly construes the Act in favor of disclosure. Thomas, supra. In conjunction with these rules of construction, we narrowly construe exceptions to FOIA to counterbalance the self-protective instincts of the government bureaucracy. Id. A statutory provision for nondisclosure must be specific. Id. Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Id. At the same time, we will balance the interests between disclosure and nondisclosure, using a common-sense approach. Id.
III. The FOIA Request
Appellant conceded at the hearing that the essential facts surrounding the records at issue are not in dispute-simply the exempt status under FOIA based on appellee's allegations. Appellant contends on appeal that the circuit court erred in ruling that the job-performance records at issue were not subject to disclosure under FOIA. We disagree.
Appellant correctly states that the burden of proving exemptions to FOIA rests with the keeper of the requested records claiming the exemption. Orsini v. State , 340 Ark. 665, 13 S.W.3d 167 (2000). Appellant first argues that the circuit court erred by placing the burden of proof on her to prove that the records are subject to disclosure. The portion of the final order with which appellant takes issue is as follows:
The Court finds that the Plaintiff has not presented sufficient evidence to the Court that would demonstrate that the records requested do not fall within the exemption claimed by the Defendant and that the records are employee evaluation or job performance records pursuant to A.C.A. § 25-19-105(c)(1), and therefore Plaintiff's Complaint is hereby dismissed.
Appellee responds that appellant misinterprets the circuit court's order in light of the court's comments at the hearing and states that the circuit court was referring to appellant's failure to present persuasive legal authority to support her argument that the employee's resignation was actually a constructive termination. Regardless of the circuit court's meaning, we hold under our de novo review that the records were not subject to disclosure.
Our supreme court has held that for a record to be subject to FOIA and available to the public, it must (1) be possessed by an entity covered by the Act, (2) fall within the Act's definition of a public record, and (3) not be exempted by the Act or other statutes. Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass'n , 371 Ark. 411, 266 S.W.3d 689 (2007). The first criterion is not at issue in this case. Although the general policy in Arkansas is for all public records to be "open to inspection" under FOIA unless they are specifically exempted, the legislature has determined that the public interest in maintaining an effective public-employee-evaluation system and in the privacy interests of its employees requires that "employee evaluation or job performance records" be treated differently. Hyman v. Sadler for Ark. State Police , 2018 Ark. App. 82, at 5, 539 S.W.3d 642, 644 (quoting Thomas , 2012 Ark. 66, at 6-7, 399 S.W.3d at 391 ). These records are subject to disclosure only in certain circumstances. Id.
Arkansas Code Annotated section 25-19-105 provides in relevant part,
(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
....
(12) Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy;
....
(c)(1) Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.
Our supreme court has approved the following definition of employee-evaluation or job-performance records: "[A]ny records that were created by or at the behest of the employer and that detail the performance or lack of performance of the employee in question with regard to a specific incident or incidents." Thomas , 2012 Ark. 66, at 8-9, 399 S.W.3d at 392 ; see also Hyman, supra.
In Thomas , our supreme court further explained that although attorney general opinions are not binding on the court, the General Assembly has specifically said that attorney general opinions should be used for guidance in the FOIA context. Thomas, supra. Moreover, our supreme court has looked in the past to attorney general opinions for guidance when no case had addressed the issue at hand. Id. With approval, our supreme court cited in Thomas the following examples of employee-evaluation and job-performance records from various attorney general opinions:
The Attorney General has opined that records such as letters of recommendation or termination, letters of reprimand, and other disciplinary records are classified as "job performance records." Op. Ark. Att'y Gen. No. 76 (1993). Also generally covered by the "employee evaluation and job performance" exemption are records that reflect administrative action in response to or in connection with a complaint and records of investigations into alleged employee misconduct. Op. Ark. Att'y Gen. No. 342 (1996) (emphasis added); see also Op. Ark. Att'y Gen. No. 261 (1997) (including "documents such as written reprimands, letters of caution, letters related to promotions or demotions, and documents upon which a recommendation for dismissal was based" within the definition of "job performance records").
We further note that section 25-19-105(c)(1) provides that employee-evaluation and job-performance records include "preliminary notes and other materials." The Attorney General has explained that this language was intended to encompass " 'incident reports' routinely compiled by supervisors, who may use such documents detailing employee performance in preparing the formal evaluation." Op. Ark. Att'y Gen. No. 076 (1993) (citing John J. Watkins, The Arkansas Freedom of Information Act (M & M Press 1988) ) (emphasis added). Thus, the intent of the provision seems to be to exempt not only the 'end product,' which is the evaluation itself, but also other documents from which the evaluation report was prepared. Id. Such supporting materials include, as opined by the Attorney General, "incident reports, supervisors' memos, and transcripts of investigations, including witness statements." Op. Ark. Att'y Gen. No. 095 (2002) ; see also Op. Ark. Att'y Gen. No. 127 (1994).
Thomas , 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
Here, according to appellant's complaint and the attached exhibits, she requested records that pertained to the investigations of two incidents involving her son. The records she requested fit within the definition of employee-evaluation and job-performance records and the examples provided in the attorney general opinions cited by our supreme court in Thomas . See Thomas, supra. Appellant's suggestion that the records at issue here were the equivalent of "use-of-force reports" the Thomas court found not to be exempt is unavailing. Thomas discussed whether routine "use-of-force reports" created by police officers were exempt from disclosure as employee-evaluation and job-performance records under FOIA. Id. Ultimately, our supreme court held that they are subject to disclosure. In relevant part, our supreme court held that the reports at issue were not employee-evaluation or job-performance records because the reports were not prepared by the police officer's supervisor, nor did the reports contain any notation or comments about the officer's conduct by the supervisor. Thomas, supra. The same is not true here. There was no evidence presented to suggest that the records at issue were not created by the employer regarding the employee's performance with regard to specific incidents as appellee affirmatively pleaded in its answer. Thus, Thomas is distinguishable and inapplicable to the records at issue in this case.
Appellant's additional argument that the records fit within the narrow exception allowing disclosure as provided under section 25-19-105(c)(1) is equally unavailing. There was no evidence to suggest that there was a final administrative resolution of any suspension or termination proceeding at which the records at issue formed a basis for the decision to suspend or terminate the employee. It was undisputed that neither employee was suspended or terminated as a result of the records at issue. Rather, appellant argued that the employee's resignation following the second incident amounted to a constructive termination under the guidance of Attorney General Opinion 2007-061, which suggested that there may be circumstances in which a resignation could be considered a constructive termination. Even if it were true that a resignation could amount to a constructive termination under certain circumstances, about which we offer no opinion, we cannot say that those circumstances existed here. Appellee explained at the hearing that the employee voluntarily resigned after the incident when the employee was told that the matter was under investigation. Appellee further explained that the resignation was not the result of any negotiation with the employee. Under these circumstances, the employee resigned before any administrative hearing, resolution, or appeal even took place. Thus, the job-performance records requested by appellant are exempt from disclosure and do not fit the narrow exception permitting their disclosure as outlined in section 25-19-105(c)(1). Accordingly, we affirm the circuit court's decision.
Affirmed.
Abramson and Virden, JJ., agree.
The circuit court ultimately denied appellant's motion to compel, which is not at issue on appeal.
The issue before us is limited to whether the records appellant requested were exempt from a request pursuant to FOIA. We offer no opinion as to whether these records would be discoverable in the course of a private action under Arkansas Rule of Civil Procedure 26. | [
52,
-19,
-60,
12,
-86,
-31,
58,
-90,
81,
-121,
116,
-45,
-17,
89,
12,
105,
-29,
123,
81,
105,
-57,
50,
83,
65,
-90,
-1,
-8,
-41,
-77,
79,
-12,
-34,
95,
48,
-86,
-43,
68,
66,
-57,
88,
-122,
34,
-85,
-42,
89,
-60,
40,
43,
90,
15,
49,
126,
-13,
44,
24,
67,
77,
44,
-37,
-81,
96,
-109,
27,
15,
127,
18,
-77,
53,
-102,
-118,
-48,
40,
-120,
49,
33,
-24,
50,
-90,
-62,
52,
99,
-119,
-119,
104,
98,
19,
-68,
-57,
-76,
-56,
38,
126,
29,
-90,
-38,
41,
107,
13,
-105,
-100,
122,
80,
13,
-2,
99,
-59,
18,
44,
77,
-50,
-124,
-79,
15,
-27,
30,
35,
-21,
16,
16,
52,
-51,
-14,
-36,
74,
51,
-102,
-42,
-76
] |
LARRY D. VAUGHT, Judge
Secia Salinas appeals the Washington County Circuit Court's adjudication and disposition order finding AF (DOB February 27, 2003), MS1 (DOB June 4, 2009), MS2 (DOB March 31, 2013), and SN (DOB February 18, 2017) dependent-neglected. We affirm.
After a hearing in a family-in-need-of-services case on May 15, 2018, the circuit court entered an order authorizing the removal of AF, MS1, and MS2 from Salinas for seventy-two hours based on allegations that despite being warned repeatedly to properly supervise her children, MS1 had been sexually abused by a thirteen-year-old neighbor. The order provided that the Arkansas Department of Human Services (DHS) had been recently providing services to the family based on a separate incident in 2016 when MS1, seven years old at the time, had been sexually abused by her eighteen-year-old half brother. The order further provided that Salinas had failed to provide ADHD medication to MS1 for two months and did not take MS1 to inpatient treatment that was recommended for her after the second instance of sexual abuse.
On May 18, 2018, DHS filed a petition for emergency custody and dependency-neglect of AF, MS1, and MS2. The affidavit of a DHS family-service worker attached to the petition stated that the family had a history with DHS dating back to 2012 that included four unsubstantiated findings (medical neglect; inadequate food and shelter; educational neglect; and environmental neglect) and four substantiated findings (sexual abuse; failure to protect; inadequate supervision and threat of harm; and educational neglect). The affidavit also stated that AF, MS1, MS2, and SN had been removed from Salinas's custody based on her lack of supervision after MS1 had been sexually abused by a thirteen-year-old neighbor. It was stated that this was the second time that MS1 had been sexually abused while in Salinas's custody and that Salinas had been warned by the circuit court to provide proper supervision. The affidavit further stated that Salinas had not given MS1 her ADHD medicine for two months. An ex parte order for emergency custody was entered that same day.
A probable-cause hearing was held on May 22, 2018. The circuit court found there was probable cause to issue the ex parte order for emergency custody of AF, MS1, and MS2. A separate order was entered the same day removing SN from Salinas's care, authorizing DHS's seventy-two-hour hold on SN, and finding that probable cause existed to issue the emergency hold on SN.
At the July 5, 2018 adjudication hearing, Corporal Patrick Hanby of the Fayetteville Police Department testified that he responded to a sex-offense call on April 20, 2018. When he arrived on the scene, he spoke to the neighbor who made the report. The neighbor told the officer that she was standing outside on the balcony of her apartment looking toward the dumpster when she observed a young teenage male (later identified as LC) lying on his back with a girl about seven to nine years old (later identified as MS1) sitting on his lap having vaginal intercourse. The neighbor said that she yelled at the children to stop, but they did not. She ran inside, called the police, ran back outside and downstairs to where the children were and saw LC's penis in MS1's mouth. She said that LC's pants were at his ankles and that MS1 was not wearing pants. The neighbor yelled at the children again, telling them that she had called the police. She said the children stood up, put on their pants, and ran away.
A detective with the Fayetteville Police Department, Garrett Levine, testified that he interviewed LC, who stated that MS1 was sitting on his lap playing a game when a lady yelled at him. After the interview, Detective Levine arrested the young man for sexual assault.
Michael McHenry, an investigator with the Crimes Against Children Division of the Arkansas State Police, testified that he observed MS1's interview. McHenry stated that MS1 told the interviewer that she sat on LC's lap, and he penetrated her vagina with his fingers. MS1 said that LC also forced his penis into her mouth.
McHenry also testified about Salinas's interview. Salinas said that she had been cleaning her house on the day in question but also was keeping an eye on MS1 and LC because of "red flags" she had recently noticed. Salinas said that the previous day she had found MS1 sitting on LC's lap and that she told MS1 not to do that because it was inappropriate. Salinas also said that MS1 was not allowed to play alone with LC because on another occasion he asked if MS1 could come to his house to see some paintings, and Salinas thought that was inappropriate based on their age difference. Salinas stated that she took her eyes off the children for no more than eight minutes while she vacuumed, which she claimed is when the assault occurred. On May 4, 2018, McHenry concluded his investigation with a true finding of "sexually aggressive behavior." Major Jeff Drew of the Arkansas State Police testified that because the case concerned an out-of-home offender, the state police did not remove MS1 from Salinas's custody.
DHS family-service worker Eugenia Marks testified that AF, MS1, MS2, and SN should not be returned to Salinas's custody because she failed to protect them. Marks further testified that since October 2016 there had been eight true findings where MS1 was the victim.
Salinas testified at the hearing that she saw "red flags" concerning LC because she had once observed MS1 sitting in his lap. She said that she found it odd that a teenage boy would want a "little girl" to come to his house, so she prohibited it. She also stated that the boy was not allowed in her house.
Salinas admitted that on the day of the incident in question she left MS1 and MS2 in the care of AF, who was fifteen years old, while Salinas picked up her boyfriend from work. However, Salinas maintained that the sexual abuse must have happened before she left while she was vacuuming. Salinas also conceded that MS1 had been without her ADHD medicine for six to eight weeks because "Medicaid ran out" but that she was working with DHS to get the medicine.
Samuel Nino, Salinas's boyfriend and SN's father, disagreed that Salinas failed to supervise MS1. He believed LC "was going to do whatever he wanted to do whether it was with [MS1] or whether it was some other little kid."
MS1's school counselor testified that MS1's mental state had been affected due to the first instance of sexual abuse. This counselor also said that MS1's treatment was hindered because MS1 missed school. AF's school counselor testified that AF felt guilty for what happened to MS1 because AF was supposed to be watching her little sister and that AF was in inpatient treatment for self-harm behavior.
At the conclusion of the hearing, the circuit court orally adjudicated all of the children dependent-neglected as a result of sexual abuse, neglect, and parental unfitness. Thereafter, on July 5, 2018, the court entered an adjudication and disposition order finding AF, MS1, MS2, and SN dependent-neglected based on Salinas's failure to protect MS1, who was the victim of sexual abuse by a thirteen-year-old neighbor. The court noted that this was the second occurrence of sexual abuse against MS1 and that Salinas continued to place her children at substantial risk. The court also found that Salinas failed to provide MS1 the medication she required and failed to keep her in school in order to receive the counseling she required after being sexually abused by her half brother. Salinas appeals this order.
We review a dependency-neglect finding de novo, but we do not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Hernandez v. Ark. Dep't of Human Servs. , 2013 Ark. App. 424, at 3. 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 was made. Id. In reviewing a dependency-neglect adjudication, we defer to the circuit court's evaluation of the credibility of the witnesses. Eason v. Ark. Dep't of Human Servs. , 2012 Ark. App. 507, at 7, 423 S.W.3d 138, 141.
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof.
Ark. Code Ann. § 9-27-327(a)(1)(A) (Supp. 2017). DHS has the burden of proving by a preponderance of the evidence that AF, MS1, MS2, and SN are dependent-neglected. Ark. Code Ann. § 9-27-325(h)(1), (2)(A)(2). The focus of an adjudication hearing is on the child, not the parent. Eason , 2012 Ark. App. 507, at 8, 423 S.W.3d at 142. At this stage of a proceeding, the juvenile code is concerned with whether the child is dependent-neglected. Id. , 423 S.W.3d at 142.
A dependent-neglected juvenile is one at substantial risk of serious harm because of sexual abuse, neglect, or parental unfitness to the juvenile, a sibling, or another juvenile. Ark. Code Ann. § 9-27-303(18)(A). "Neglect" means those acts or omissions of a parent that constitute the failure to appropriately supervise the juvenile that results in the juvenile's being left alone at an inappropriate age or in inappropriate circumstances, creating a dangerous situation or a situation that puts the juvenile at risk of harm. Ark. Code Ann. § 9-27-303(36)(A)(iii). "Sexual abuse" includes sexual intercourse, deviant sexual activity, or sexual contact by forcible compulsion by a person younger than fourteen years of age to a person younger than eighteen years of age. Ark. Code Ann. § 9-27-303(52)(E)(i). "Deviant sexual activity" is defined as any act of sexual gratification involving: penetration, however slight, of the anus or mouth of one person by the penis of another person; or penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 9-27-303(21)(A), (B).
On appeal, Salinas first argues that there is insufficient evidence to support the circuit court's finding that MS1 is dependent-neglected. We disagree. In this case, evidence was presented that a neighbor witnessed MS1 having vaginal and oral sex with LC. MS1 stated in her interview that LC penetrated her vagina with his finger and forced his penis into her mouth. Investigator McHenry testified that the conclusion of the Arkansas State Police investigation was a true finding of "sexually aggressive behavior." This evidence of sexual abuse alone is sufficient to support a finding that MS1 was dependent-neglected. Ark. Code Ann. § 9-27-303(18)(A) ; Lipscomb v. Ark. Dep't of Human Servs. , 2010 Ark. App. 257, at 5.
We also affirm the circuit court's finding that MS1 was dependent-neglected based on neglect and parental unfitness. In Lipscomb , our court affirmed a dependency-neglect finding based on sexual abuse, neglect, and parental unfitness where the evidence showed that the juvenile had been sexually abused by her stepfather and that the juvenile's mother suspected the abuse, failed to prevent it, and facilitated it in order to "catch" her husband in the act. There, we stated that
[a] parent has a duty to protect a child and can be considered unfit even though she did not directly cause her child's injury; a parent must take affirmative steps to protect her children from harm.
Lipscomb , 2010 Ark. App. 257, at 6.
This is the second time in two years that MS1 has been sexually abused while in the care and custody of Salinas. In 2016, MS1's half brother sexually abused her in her own home. DHS became involved with the family as a result, and Salinas was directed by the court to provide "line-of-sight" supervision. Despite the specific order of the court and the "red flags" Salinas saw concerning LC, she permitted MS1 to play with him, unsupervised, which resulted in the second instance of sexual abuse committed against MS1. Salinas's lack of supervision is directly connected to the sexual assault perpetrated by LC and the risk of future harm. This evidence meets the definition of neglect. Ark. Code Ann. § 9-27-303(36)(a)(iii). Accordingly, we hold that the circuit court's finding that MS1 is a dependent-neglected juvenile-at substantial risk of serious harm based on neglect and parental unfitness-is not clearly erroneous.
Salinas contends that it was unreasonable to expect her to provide "line-of-sight" supervision at all times; nevertheless, the evidence showed that she had been watching MS1 and lost sight of her for only eight minutes while she vacuumed. However, there was also evidence that the abuse occurred when Salinas left her apartment to pick up her boyfriend. Therefore, to find merit in Salinas's assertions would require this court to act as a super fact-finder or second-guess credibility determinations of the circuit court, and that we will not do. Blanchard v. Ark. Dep't of Human Servs. , 2010 Ark. App. 785, at 11, 379 S.W.3d 686, 692. We affirm the circuit court's dependency-neglect finding as to MS1.
Salinas also challenges the sufficiency of the evidence supporting the finding that AF, MS2, and SN were dependent-neglected. She claims that there is no evidence in the record to demonstrate how the abuse suffered by MS1 by an out-of-home offender placed AF, MS2, and SN at a substantial risk of harm. She maintains that the circuit court cannot automatically adjudicate children dependent-neglected based on a sibling's status.
As set forth above, a dependent-neglected juvenile is one at substantial risk of serious harm because of sexual abuse, neglect, or parental unfitness to the juvenile, a sibling , or another juvenile. Ark. Code Ann. § 9-27-303(18)(A). Our case law and code support a circuit court's finding of dependency-neglect for any sibling of a child who has suffered neglect or abuse, i.e., the abuse or neglect of one sibling can establish that another sibling is at substantial risk of serious harm-even though there is no reason to think that the other siblings have also been actually abused or neglected. Eason , 2012 Ark. App. 507, at 9, 423 S.W.3d at 143. It is the risk of harm that is created by the sibling's abuse or neglect that makes a finding of dependency-neglect regarding the other sibling appropriate. Allen-Grace v. Ark. Dep't of Human Servs. , 2018 Ark. App. 83, at 12, 542 S.W.3d 205, 211 (citing Brewer v. Ark. Dep't of Human Servs. , 71 Ark. App. 364, 43 S.W.3d 196 (2001) ).
Parental unfitness is not necessarily predicated upon the parent's causing some direct injury to the child in question. Such a construction of the law would fly in the face of the General Assembly's expressed purpose of protecting dependent-neglected children and making those children's health and safety the juvenile code's paramount concern. To require [a sibling] to suffer the same fate as his older sister before obtaining the protection of the state would be tragic and cruel.
Id. , 542 S.W.3d at 211 (citing Brewer , 71 Ark. App. at 368, 43 S.W.3d at 199 ).
Despite the language of the statute, the circuit court should not make an "automatic" finding of dependency-neglect based solely on the dependency-neglect finding of sibling. Our court has held that it is the particular facts of the case that give rise to the affirmation of the circuit court's dependency-neglect findings and not due solely to the status of older siblings. Haney v. Ark. Dep't of Human Servs. , 2017 Ark. App. 437, at 6, 526 S.W.3d 903, 907.
In Haney , our court noted that it had addressed this issue in several cases and had almost always affirmed the circuit court's decision to adjudicate the minor dependent-neglected. Id. , 526 S.W.3d at 907. Salinas relies on Haney because our court in that case reversed the circuit court's dependency-neglect finding. Her reliance on Haney is misplaced. There, the circuit court concluded before the child was born that she needed to be removed solely because her siblings were in the care of DHS; therefore, it was apparent that the circuit court failed to assess the level of risk posed to the child. Id. , 526 S.W.3d at 907.
The case at bar is more similar to Eason. There, the mother made the same argument made by Salinas-that the circuit court made an automatic finding of dependency-neglect based solely on dependency-neglect findings of siblings. Eason , 2012 Ark. App. 507, at 6, 423 S.W.3d at 141. We disagreed, finding that the circuit court conducted a hearing and reviewed the history of all three children and other evidence in assessing the risk of harm to the sibling of a child who suffered physical abuse. Id. at 9, 423 S.W.3d at 143.
Likewise, in the instant case, the circuit court did not make an automatic finding of dependency-neglect with respect to AF, MS2, and SN. The court had before it evidence of two true findings of sexual abuse against MS1 along with other evidence of Salinas's neglect and parental unfitness that included her failure to protect MS1 from sexual abuse two times. The second instance of sexual abuse occurred despite court warnings to Salinas to provide better supervision of MS1 and despite Salinas's admitted concerns about LC. There was also evidence that Salinas did not provide MS1 medication for two months, did not regularly take MS1 to school so that she could receive counseling for the trauma she suffered after being sexually abused by her half brother, and did not follow up with recommended inpatient treatment for MS1 after she had been sexually abused by LC. There was also evidence that AF was experiencing mental-health issues due to the guilt she suffered when MS1 was sexually abused the second time. Based on the totality of the evidence, the circuit court made a specific finding that all the children were at substantial risk of harm as a result of Salinas's acts or omissions. We cannot say that the circuit court's finding AF, MS2, and SN to be dependent-neglected is clearly against the preponderance of the evidence.
Affirmed.
Gladwin and Glover, JJ., agree.
Stephen Farley (deceased) was the father of AF. Jorge Moreno is the putative father of MS1, and Jose Luis Martinez is the legal father of MS1. Isaac Villafranco is the father of MS2. Samuel Nino is the father of SN. These men are not parties to this appeal.
Marks provided details of five of the true findings with MS1 as the victim: (1) educational neglect in October 2016; (2) sexual abuse in April 2017; (3) failure to protect in December 2017; (4) failure to protect in January 2018; and (5) sexual abuse in May 2018. | [
-16,
108,
-19,
-20,
58,
97,
26,
36,
-45,
-61,
118,
-45,
-25,
-10,
21,
107,
-93,
107,
101,
105,
-45,
-75,
66,
65,
90,
-9,
42,
71,
51,
79,
108,
-106,
74,
112,
-102,
-111,
66,
-128,
-25,
24,
10,
3,
-119,
117,
81,
-125,
40,
47,
26,
14,
49,
62,
-43,
45,
121,
74,
40,
74,
-35,
53,
-52,
-90,
-37,
21,
75,
18,
-127,
116,
-102,
-114,
72,
43,
-124,
49,
-128,
-18,
49,
-74,
-126,
116,
64,
-5,
-111,
36,
-30,
35,
-116,
-9,
-7,
-120,
-50,
-66,
-99,
-90,
-103,
105,
83,
15,
-74,
-76,
124,
-106,
35,
-6,
79,
-113,
56,
108,
-124,
-53,
20,
-111,
-116,
-71,
28,
-77,
-25,
109,
50,
53,
-53,
-30,
84,
-42,
115,
27,
-58,
-109
] |
KAREN R. BAKER, Associate Justice
Appellant Everett Foreman appeals the denial by the Lee County Circuit Court of his petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated section 16-112-101 (Repl. 2016). Foreman raises two grounds for reversal of the order-that the circuit court erred in declaring his petition untimely and in holding that the petition was without merit. We affirm.
I. Background
In 1994, Foreman was convicted in Pulaski County Circuit Court of first-degree murder in the shooting death of an off-duty police officer and sentenced to life imprisonment. This court reversed the judgment and remanded the case for a new trial. Foreman v. State , 321 Ark. 167, 901 S.W.2d 802 (1995). On retrial, Foreman was again convicted and sentenced to life imprisonment. We affirmed. Foreman v. State , 328 Ark. 583, 945 S.W.2d 926 (1997). Foreman filed the petition for writ of habeas corpus in the county where he is incarcerated.
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris , 369 Ark. 405, 255 S.W.3d 466 (2007). When the trial court has personal jurisdiction over the appellant and also has jurisdiction over the subject matter, the court has authority to render the judgment. Johnson v. State , 298 Ark. 479, 769 S.W.2d 3 (1989).
Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566.
III. Standard of Review
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
IV. Timeliness of the Petition
The circuit court held that, in addition to being without merit, Foreman's petition for writ of habeas corpus was not timely because it was not filed within ninety days of the date that the judgment of conviction was entered. However, the Arkansas Constitution nor the state statutes place a time limit on pursuing a writ of habeas corpus. Renshaw v. Norris , 337 Ark. 494, 989 S.W.2d 515 (1999). Indeed, to do so would contravene the proscription against suspending the right to habeas corpus. Id. Nevertheless, the court was correct that Foreman's petition clearly lacked merit. This court will affirm the circuit court's decision when it reached the right result even if a wrong reason may have been stated. See Marshall v. State , 2017 Ark. 208, 521 S.W.3d 456.
V. Recantation of Trial Testimony
It was Foreman's contention that the writ should issue because in 2017 a key witness recanted her trial testimony that had implicated him as the person who had shot the police officer. He argues that the recantation of the witness's testimony renders the judgment in his case invalid because no reasonable juror would have found him guilty of first-degree murder if the witness had not perjured herself at his trial.
In this case, the circuit court had jurisdiction to render the judgment of conviction; therefore, Foreman was required to show that the judgment was unlawful on its face. Miller v. State , 301 Ark. 59, 781 S.W.2d 475 (1989). Foreman's allegation that the judgment in his case was obtained by the false testimony of a witness does not demonstrate that the judgment was unlawful on its face. The claim that a witness committed perjury is a challenge to the sufficiency of the evidence to sustain the judgment of conviction, and an attack on the sufficiency of the evidence is not cognizable in habeas proceedings. Clay v. Kelley , 2017 Ark. 294, 528 S.W.3d 836 ; see also Johnson v. State , 2018 Ark. 42, 538 S.W.3d 819 (holding that a defendant's challenge to the sufficiency of the evidence to support rape conviction was outside the purview of habeas corpus relief).
Affirmed. | [
112,
-26,
-60,
60,
11,
-64,
56,
-72,
98,
-126,
107,
83,
101,
-58,
20,
107,
99,
-5,
115,
-7,
-34,
-89,
71,
65,
114,
-13,
-55,
87,
58,
-53,
61,
-100,
76,
112,
-18,
-63,
70,
-54,
-85,
-104,
-50,
29,
-53,
112,
121,
-110,
56,
-82,
16,
15,
49,
-66,
-21,
42,
19,
-61,
-55,
44,
89,
-115,
89,
25,
-102,
15,
127,
0,
-95,
-90,
-105,
3,
114,
126,
-108,
57,
19,
-22,
-13,
-112,
-126,
100,
99,
25,
40,
102,
98,
65,
92,
-49,
40,
40,
31,
126,
31,
-90,
-104,
105,
67,
73,
-106,
-97,
107,
52,
110,
-12,
108,
68,
84,
108,
-114,
-50,
-76,
-107,
-113,
108,
-68,
114,
-21,
1,
16,
116,
-116,
-78,
92,
-121,
57,
-69,
-116,
-74
] |
PHILLIP T. WHITEAKER, Judge
The Osceola District Court found appellant Nina Hannah guilty of numerous offenses. She timely filed and perfected an appeal of her district court convictions to the Mississippi County Circuit Court, but she failed to appear for any of her scheduled circuit court trial dates. As a result, the circuit court affirmed the district court's decision pursuant to Arkansas Rule of Criminal Procedure 36(h) (2018). On appeal, Hannah argues that the circuit court abused its discretion in affirming her district court convictions. Because Hannah has failed to preserve the arguments she raises on appeal, we affirm.
On June 8, 2016, the Osceola District Court found Hannah guilty of one count of second-degree criminal mischief, for which it sentenced her to ninety days in jail, a $ 1,000 fine, and $ 364.37 in restitution. On the same day, the district court found her guilty of three counts of failure to appear (FTA); she was sentenced to ninety days in jail on each count, to be served consecutively, as well as a $ 500 fine on each count. Hannah timely appealed her district court convictions to the Mississippi County Circuit Court and received a circuit court date of June 27, 2016. We are unable to ascertain exactly what happened on June 27, but apparently the matter was continued until September 6, 2016.
On September 6, Hannah failed to appear in the circuit court, and a warrant for her arrest was issued. Subsequently, the circuit court also issued arrest warrants after Hannah failed to appear for trial on three other scheduled circuit court dates: January 22, 2017; May 8, 2017; and November 17, 2017.
Hannah finally appeared before the circuit court on July 31, 2018. After recounting Hannah's multiple counts of FTA, the circuit court determined that based on "the statutory law," Hannah's district court convictions should be affirmed because of her failure to appear for the September 6 trial date. The circuit court entered an order nunc pro tunc affirming the district court on August 1, 2018, and a sentencing order reflecting Hannah's convictions for criminal mischief and failure to appear was entered on August 23. Hannah filed a timely notice of appeal.
On appeal, Hannah challenges the circuit court's interpretation and application of Arkansas Rule of Criminal Procedure 36(h). This subsection of the rule, titled "Default Judgment," provides that "[t]he circuit court may affirm the judgment of the district court if ... the defendant fails to appear in circuit court when the case is set for trial." Hannah argues that the circuit court erred by improperly interpreting Rule 36(h) as mandatory rather than discretionary; she also contends that the circuit court abused its discretion when it affirmed her district court convictions without considering why she did not appear at her previous trial dates or articulating any of the facts on which it based its decision.
Hannah's arguments are not preserved for appeal. At her circuit court hearing, the court asked why the district court should not be affirmed. Hannah replied only that "there should be a jury trial guaranteed by the U.S. and Arkansas Constitution. I think also the appropriate remedy for this day would be to file a separate but new charge for failure to appear." She did not argue that the rule allowed the circuit court to exercise its discretion in affirming the district court, nor did she urge the circuit court to allow her to present evidence about why she had failed to appear previously.
An appellant must make an objection in the circuit court that is sufficient to apprise that court of the particular error alleged in order to preserve an argument for appeal. McKinney v. State , 2018 Ark. App. 10, 538 S.W.3d 216. In addition, a party may not change the grounds for an objection on appeal. Oxford v. State , 2018 Ark. App. 609, 567 S.W.3d 83 (refusing to consider whether the circuit court abused its discretion in running sentences consecutively instead of concurrently when appellant raised new and different arguments about the court's discretion than were raised at trial). Further, an appellant is bound on appeal by the scope and nature of the objections and arguments presented at trial. Eliott v. State , 342 Ark. 237, 27 S.W.3d 432 (2000) ; Brown v. State , 326 Ark. 56, 931 S.W.2d 80 (1996). The purpose of this rule is to call the circuit court's attention to the alleged error by timely objection or inquiry so that the court can be given the opportunity to correct the error. McKinney , supra ; see also Johnson v. State , 2009 Ark. 460, at 9, 344 S.W.3d 74, 80 (holding that issues raised for the first time on appeal, even constitutional issues, will not be considered because the circuit court never had an opportunity to make a ruling).
Here, Hannah simply failed to raise in the circuit court any of the arguments that she makes on appeal. Accordingly, we affirm without reaching the merits of her arguments.
Affirmed.
Virden and Gladwin, JJ., agree.
Counsel for Hannah signed an "acknowledgment of court date" on June 15, 2016, recognizing a circuit court date of June 27, 2016.
Rule 36 generally provides for appeals from district court to circuit court. | [
-112,
-24,
-20,
-36,
58,
65,
34,
-68,
83,
-121,
104,
83,
-93,
-58,
20,
121,
-61,
125,
117,
105,
-52,
-77,
1,
33,
-90,
-13,
41,
87,
-68,
75,
-11,
-34,
76,
96,
-22,
81,
70,
-54,
-25,
88,
-122,
3,
-101,
111,
65,
67,
40,
42,
6,
15,
53,
-66,
-77,
59,
21,
78,
-23,
108,
89,
61,
80,
-48,
-102,
29,
75,
20,
-95,
-92,
-101,
-125,
-8,
40,
-104,
49,
0,
-23,
115,
54,
-126,
84,
79,
-69,
-115,
104,
98,
1,
12,
-9,
-83,
1,
22,
126,
-99,
-90,
24,
73,
67,
13,
-73,
-107,
118,
86,
4,
124,
110,
-121,
121,
108,
37,
-50,
-112,
-111,
14,
53,
-124,
114,
-25,
35,
48,
85,
-52,
-26,
-36,
-58,
121,
-101,
-49,
-75
] |
ROBERT J. GLADWIN, Judge
Appellant James England filed a petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2016) on July 7, 2016, and with leave of the Pulaski County Circuit Court, he filed an amended petition for relief, which was denied on March 29, 2017, without a hearing. England filed a motion to reconsider, clarify, and preserve, but the circuit court denied that motion by order filed on April 26, 2017, also without a hearing. England argues that the circuit court committed reversible error in denying his amended petition without holding an evidentiary hearing.
A Pulaski County jury convicted England of one count of rape and two counts of incest based on the allegations of his two stepdaughters. He was sentenced to concurrent terms of imprisonment in the Arkansas Department of Correction-fifteen years on the rape charge and ten years on each incest charge in its sentencing order filed on May 19, 2015. This court affirmed England's convictions in an opinion issued on April 20, 2016. See England v. State , 2016 Ark. App. 211, 489 S.W.3d 721. The mandate from that appeal was filed on May 12, 2016.
On July 7, 2016, with assistance of counsel, England filed a timely petition for relief under Rule 37 with the Pulaski County Circuit Court, alleging numerous errors by trial counsel and containing a proper verification. He also filed a motion for leave to file an amended and enlarged Rule 37 petition on the same date, and that motion was granted by an order filed by the circuit court on August 22, 2016. England filed an amended petition on October 17, 2016, the State filed a response on December 20, 2016, and England filed a reply to the State's response on December 28, 2016. The circuit court did not hold a hearing on the matter, but instead, following the parties' submissions, entered a sixteen-page written order on March 29, 2017, that denied relief. England filed a motion to reconsider, clarify, and preserve, but the circuit court denied that motion by order filed on April 26, 2017, also without a hearing. The circuit court relied on the parties' pleadings, as well as an extensive review of the trial record, and concluded that the mistakes that England alleged trial counsel had made would have been meritless and otherwise would not have changed the outcome of his trial. On appeal, England repeats some, but not all, of the claims raised below and argues that the circuit court erred by denying these claims for relief. Arguments that were made below but not raised on appeal are considered abandoned. State v. Grisby , 370 Ark. 66, 69, 257 S.W.3d 104, 107 (2007).
This court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly erroneous. Walden v. State , 2016 Ark. 306, at 2-3, 498 S.W.3d 725, 728-29 ; Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Walden , 2016 Ark. 306, at 2-3, 498 S.W.3d at 728-29. When considering an appeal from a circuit court's denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel's performance was not ineffective. Id. Under the two-prong standard outlined in Strickland , to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Id. The reviewing court must indulge in a strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel's perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. The second prong requires a petitioner to show that counsel's deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
A person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could have made a successful argument in order to demonstrate the prejudice required under the Strickland test. Breeden v. State , 2014 Ark. 159, at 6-7, 432 S.W.3d 618, 624 (per curiam). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id. ; Greene v. State , 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004).
Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. See Wooten v. State , 338 Ark. 691, 1 S.W.3d 8 (1999). The circuit court, in its discretion, can deny postconviction relief without a hearing if it concludes that the petitioner is entitled to no relief. Mancia v. State , 2015 Ark. 115, 459 S.W.3d 259. Rule 37.3(a) states that
[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.
Without the specific findings, there can be no meaningful review in this court, because this court determines whether the findings are supported by a preponderance of the evidence. Rackley v. State , 2010 Ark. 469, 2010 WL 4922390. We are not required to scour the record in a Rule 37.1 appeal to determine if the petition is wholly without merit when there are no written findings. Id. When a hearing is not held, it is the function of the circuit court to make written findings. Id.
Before addressing England's arguments on appeal, it is necessary to review the evidence adduced at his trial. The trial record demonstrates that the State presented testimony from England's ex-wife, Peggy England (now Stane), and former stepdaughters, L.B. and S.B., who detailed the control and manipulation England exerted over their lives, including repeated threats to kill himself to get them to behave in ways he wanted. Other witnesses for the State included Mark Brice, criminal investigator for the Arkansas State Police, who testified regarding the investigation. The State also presented testimony from Richard Love, a cellmate of England's, who testified about information England volunteered to him about the sexual abuse of his stepdaughters. Debbie Keathley, employer of one of the stepdaughters, S.B., testified for the State about her interaction with S.B. and the effect that England had on her. The State presented testimony from England's brother, Cleo England, about the general family dynamics. Danny Lawson and Kenney Munn, lifelong friends of England's, testified for the State, indicating that they knew about rumors of inappropriate relations between England and S.B. but that they never personally observed anything of concern. Dr. Kevin Claybrook, England's urologist, presented extensive testimony for the State regarding England's medical treatment. Ray Byrd, England's former employer and friend, provided testimony for the State about his past dealings with England both personally and professionally. England testified on his own behalf and denied all the allegations against him.
I. Failure to Obtain Phone Records
On the charges against England for rape and two counts of incest, the allegations were that England engaged in sexual relations with his stepdaughters. At trial, it was largely a matter of credibility between England and his two stepdaughters, who were the only ones that professed actual knowledge of the offenses. England claims that his ability to prove when he was on the road as a truck driver was important. England submits that one way to support the notion that he was on the road is with call records to show that he was calling or texting people in other states and calling or texting Peggy, his wife, or the alleged victims, as he would presumably not be calling or texting Peggy or the alleged victims during times he was at the residence in Perry County.
He points out that L.B. alleged that England texted her hundreds of times in the mornings to come into his room and have sex with him. At trial, L.B. testified, "I don't know what he said but it was always a text to come in there." Considering L.B.'s statement, along with her claim that England had sex with her approximately 400 times, England states that there should be hundreds of text messages around 6:30 a.m. when Peggy would leave for work. As pleaded, those cell-phone records refute this allegation. There are no records of either morning text messages or phone calls between England and L.B. in the record before us. England maintains that this evidence would have destroyed L.B.'s credibility and there is a reasonable probability that the evidence would have resulted in a not-guilty verdict on the rape claim.
Additionally, there is a reasonable probability that if one alleged victim, L.B., was discredited, it would have resulted in a not-guilty verdict on both claims. He urges that there is no strategic or tactical reason for not acquiring the phone records. The cell-phone records, as pleaded, are currently in postconviction counsel's possession; however, because there was no hearing, they are not in the record for this court's review.
England submits that the circuit court denied his claim because England did not attach the phone records to his Rule 37 petition. He maintains that the circuit court had no authority for its claim that he should have attached 7000 pages of phone records to his Rule 37 petition. He claims that neither this court nor our supreme court has ever made it a requirement to attach evidence to the petition. Petitions routinely do not include attached evidence, and he urges that no court should make it a requirement. He cites Rackley , supra , for the proposition that attaching records to the petition would obviate the entire purpose of the evidentiary hearing. He urges that this court should not permit the circuit court to institute new requirements that contravene precedent from the Arkansas Supreme Court.
We hold that England's assertion, that the circuit court's denial creates a new requirement, is without merit. As an initial matter, England's reliance on Rackley , supra , is distinguishable. Rackley involved an appeal from a circuit court's dismissal of a Rule 37 petition where the circuit court neither held a hearing nor issued written findings. Id. Here, after filing his initial petition for postconviction relief, England moved to amend and enlarge the petition, and the motion was granted. Contrary to England's argument, there is no authority that prevented him from attaching these phone records to his amended Rule 37 petition, and the circuit court was not attempting to create a new rule.
Although England claims now that he has approximately 7000 pages of phone records, England fails to mention whose phone records he obtained, and it is not clear if he is speaking about just his own phone records or if he somehow obtained others. His claim that exculpatory evidence could be found in the phone records is mere speculation and precluded from Rule 37 relief. Simpson v. State , 355 Ark. 294, 138 S.W.3d 671 (2003). A Rule 37 hearing is not available to a petitioner in hopes of finding grounds for relief. Greene, supra.
Here, England argues that the circuit court's sole reason for rejecting England's claim that trial counsel was ineffective for not obtaining England's phone records was that England did not attach them to the petition. But our review of the circuit court's order denying his claim notes that England stated that he "did not attach those records to the petition because of the page limitations with the Rule 37 petitions. England is in the process of digesting those records into a format where this Court can easily digest them for their evidentiary value." The circuit court took issue with England for making that argument in a pleading after the circuit court had specifically allowed him to enlarge and expand his Rule 37 petition. The circuit court noted that it gave no limits on length when it permitted England to expand on his petition and expressly stated that it would certainly have examined any evidence England wished to present in the amended petition. We hold that the circuit court did not err in not allowing England to use the limited postconviction-hearing process to develop this evidence and that it was not required to hold a hearing on this claim.
II. Failure to Introduce Evidence That Prescriptions Taken by England Would Cause Depression
England notes that trial counsel's strategy was largely to prove that he was incapable of performing the sexual acts, especially to the degree asserted by the alleged victims, because of his erectile dysfunction. Despite that strategy, trial counsel failed to introduce the prescriptions and side effects of the medications that England was taking during the time frame of the allegations. He maintains that there is no strategic reason for not introducing the prescription medications taken by him that caused his depression because doing so would have supported the theme of the defense with available evidence that would not depend on witness credibility.
England notes that the State introduced testimony and evidence that he was depressed and had attempted suicide and that the State's theory was that the suicide attempts were feigned to control the alleged victims. England, however, claims that the suicide attempts were likely authentic side effects from the medications he was on and that evidence of those prescriptions would have been critical to rebut the State's allegations.
If he had been allowed a hearing on his Rule 37 petition, England explained, he would have presented evidence of the medications and their side effects. Instead, the jurors were left with the unrebutted presumption that the suicide attempts were fake and done solely to manipulate the alleged victims. England argues that the unrebutted assertion by the State significantly increased the credibility of the alleged victims and that there exists a reasonable probability of a not-guilty verdict had this error not occurred.
We hold that counsel was not ineffective for failing to offer testimony that England's prescription medicine could cause depression. During trial, England's urologist, Dr. Kevin Claybrook, testified on England's behalf that he had treated England for a variety of ailments, including prostate cancer, erectile dysfunction, hypogonadism (low testosterone ), chronic prostatitis, chronic pelvic pain syndrome, and pelvic dysfunction. Dr. Claybrook described how he treated patients with erectile dysfunction and how he treated England initially with prescription medicine such as Viagra, Cialis, or Levitra. Dr. Claybrook also explained the treatment and surgery England had for prostate cancer. In describing England's condition after his surgery, Dr. Claybrook stated, "And he had fairly significant problems with depression, fairly significant problems with diminishment of sexual desire and erections. He complained of that fairly consistently following surgery. And the testosterone that we started on him, we actually started to try and help some of these chronic dystopic symptoms." Dr. Claybrook explained that testosterone could possibly help treat depression but that depression was a "multi-factoral" thing caused for many different reasons.
Dr. Claybrook was specifically asked whether he had notes or recollections regarding any experiences England had taking Viagra and Cialis, erectile-dysfunction drugs. He testified that England complained of severe headaches while taking Viagra, which is a very common side effect. Dr. Claybrook also explained that, when England was diagnosed with prostate cancer, he recommended that England see a psychiatrist to help alleviate some of his feelings of despair and despondency.
In addition, Dr. Claybrook was cross-examined by the State on the issues discussed during his direct examination. Any additional testimony would have been cumulative to the testimony regarding England's medications and possible side effects, including depression. Counsel's failure to present cumulative evidence is not a basis for postconviction relief, nor does it deprive a defense of vital evidence for the purposes of ineffective-assistance-of-counsel claims. Simpson, supra. England cannot demonstrate that the result of the trial would have been different if his attorney had presented more testimony about depression as a possible side effect of his prescription medications. There was no need for a hearing on this claim.
III. Failure to Sever Allegations of the Stepdaughters-Victims
England notes that trial counsel's assistance was ineffective because counsel never made a motion to sever the charges. He submits that the charges had holes in their respective allegations and little corroboration; however, by failing to sever the charges, trial counsel allowed the prosecution to use the two allegations to support one another. England argues that a review of the two allegations makes it clear that he had the right to a severance because they were joined solely on the basis that they involved similar conduct. See Ark. R. Crim. P. 22.2 (2017); see also Clay v. State , 318 Ark. 550, 886 S.W.2d 608 (1994).
Additionally, England maintains that under due-process and fair-trial guarantees of the United States and Arkansas Constitutions, he was entitled to a severance of the charges. Trial counsel never asked for, therefore never received, a severance of the charges; accordingly, the jury was allowed to use the two accusations to support one another, thereby unfairly prejudicing England at trial.
England argues that, for two reasons, trial counsel cannot rest on the defense that a severance motion can be denied when the testimony of other victims would be admissible under Arkansas Rule of Evidence 404(b) (2017). First, Arkansas Rule of Criminal Procedure 22.2 clearly states that England would have been entitled to a severance. Therefore, any assumptions about what the court would have done should be in accordance with the law. Second, even if the testimony of the other victim was admissible under Rule 404(b), it would have been accompanied by an instruction that it was admissible only to show motive, intent, or common plan and not to show propensity. Instead, the jury could use it for any purpose. England claims that trial counsel could have minimized the jury's use of one charge to support the other by requesting a jury instruction against using the evidence in one charge to support a conviction on the other, but counsel did not request the instruction.
England cites cases from other states to support his proposition that courts have held it to be ineffective assistance of counsel to fail to request a severance of the charges. See State v. Sutherby , 165 Wash.2d 870, 204 P.3d 916 (2009) ; Wilkerson v. State , 728 N.E.2d 239 (Ind. App. 2000).
England maintains that S.B.'s allegations were questionable because S.B. had made previous denials, had a significant delay in reporting, had motive to fabricate the allegations, and had made threats to England that she would send him to prison if he did not give everything to her mother in the divorce. He claims that the allegations by L.B. were outlandish considering the number of times L.B. claimed she had sex with England over a short period of time. Additionally, England submits that there was little evidentiary support for the claim that L.B. was alone with England enough to have sex hundreds of times, even assuming he had the ability to have sex that many times. He notes that these two charges propped each other up and that there is a reasonable probability that he would have been found not guilty on both of the charges if they had been tried separately.
Arkansas Rule of Criminal Procedure 22.2 provides that when two or more offenses are joined for trial solely on the ground that they involve the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses. See Ark. R. Crim. P. 22.2. We hold that Rule 22.2 does not apply in this situation.
England would not have been able to show that his actions were not part of a single scheme or plan as required by Rule 22.2. There was extensive, intertwined testimony from L.B. and S.B. about his sexual relations with both girls, who lived in the same house with England. L.B. testified that there were times when England would take her and S.B. down to his workshop and he would have sex with one girl while the other girl watched to make sure no one came to the workshop. A man who makes one stepdaughter stand guard while he has sex with the other stepdaughter in the same room constitutes a single scheme or plan.
England's reliance on Clay , supra , is misplaced. Clay involved five separate sexual assaults in different manners against five separate victims in different locations over the period of a year. See Clay, supra. The crimes in Clay did not involve children in the same household. Here, there was a clear single scheme or plan propagated against both of his stepdaughters over a period of years. Had the charges been severed, much of the same testimony would have been relevant and admissible in each trial to show England's intent, motive, common scheme or plan, and each sister would have had to testify in two trials rather than one.
A petitioner seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion must show that counsel could have made a successful argument to demonstrate the prejudice required under the Strickland test. Clayton v. State , 2013 Ark. 453, at 4, 2013 WL 5968926. Here, the record before us supports that there was a clear, single scheme or plan in place, and a motion to sever would have been unsuccessful.
The failure to make a meritless motion does not constitute ineffective assistance of counsel. Caery v. State , 2014 Ark. 247, 2014 WL 2158140. Because England did not demonstrate that a motion to sever would have had any merit, the circuit court did not err in denying relief on his claim of ineffective assistance and was not required to hold an evidentiary hearing.
IV. Failure to Put on Proof That S.B. Was Untruthful
England submits that trial counsel was aware that S.B. had previously committed acts of untruthfulness, namely that she had forged a signature to steal money. However, trial counsel failed to call any witnesses to testify about S.B.'s lack of truthfulness. England maintains that trial counsel erred by not putting on a witness to testify about S.B.'s untruthfulness, especially because this is a case that is primarily a battle of credibility between the alleged victims and England. He argues that there is no strategic or tactical reason for not attacking the credibility of S.B. in this case, and he claims that there were witnesses available to testify about S.B.'s untruthfulness. Appellant urges that had trial counsel attacked S.B.'s prior lack of truthfulness, there is a reasonable probability that he would have received a not-guilty verdict.
Our review of the record indicates that England's trial counsel questioned S.B. about the event in question-when some of her family alleged that she had forged her grandmother's name on a check. S.B. testified that she was never investigated and was never contacted by the police. When a petitioner alleges ineffective assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Stevenson v. State , 2013 Ark. 302, at 4, 2013 WL 3946082. Here, England simply states there are witnesses available to testify, which is insufficient. Moreover, England failed to (1) provide the circuit court with names of witnesses, (2) show what their testimony would contain, or (3) show that their testimony would be admissible. England's claim is without merit, and the circuit court was not required to hold an evidentiary hearing on this claim.
V. Failure to Call Character Witnesses
England cites Commonwealth v. Castellana , 277 Pa. 117, 121 A. 50, 51 (1923), for the proposition that evidence of an accused's character is admissible, because he may not be able to produce any other evidence to exculpate himself from the charge he faces except his own oath and evidence of good character. He asserts that in a rape case, the verdict typically hinges entirely on the credibility of the victim versus that of the defendant. "In a case ... where intent and credibility are decisive factors leading to either acquittal or conviction, the accused's reputation is of paramount importance. Indeed, evidence of good character may, in spite of all evidence to the contrary, raise a reasonable doubt in the minds of the jury." See Com. v. Shapiro , 223 Pa.Super. 15, 297 A.2d 161, 163 (1972) ; see also Shelton v. State , 287 Ark. 322, 334, 699 S.W.2d 728, 734 (1985).
England argues that trial counsel's failure to investigate, interview, and call character witnesses on his behalf constituted ineffective assistance of counsel. See Com. v. Luther , 317 Pa.Super. 41, 463 A.2d 1073 (1983). He notes that Arkansas courts have reversed and remanded for new trials when character evidence was not allowed on pertinent traits. See Finnie v. State , 267 Ark. 638, 593 S.W.2d 32 (1980) ; Shelton, supra. England argues that if Arkansas appellate courts are willing to reverse and remand for not allowing character evidence, it should stand that failure to elicit such testimony would constitute ineffective assistance of counsel.
England cites State v. Dillard , 338 Ark. 571, 998 S.W.2d 750 (1999), in which our supreme court held that when almost all the evidence was coming from two alleged victims, it was ineffective not to put on character witnesses against the alleged victims. England submits that several individuals, including Jodi Felkins and Cleo England, would have testified at trial that he is a truthful person, but they were not asked to do so by trial counsel. He claims that there was no strategic reason for not eliciting this testimony and maintains that if trial counsel had elicited testimony that England is a truthful person, there is a reasonable probability that he would have been found not guilty.
Decisions regarding witnesses have long been considered to constitute trial strategy and are outside the purview of Rule 37. Hickey v. State , 2013 Ark. 237, 428 S.W.3d 446. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Johnson v. State , 325 Ark. 44, 924 S.W.2d 233 (1996).
Although England claims that Cleo England and Jodi Felkins would have testified that he is a truthful person, Cleo England actually was the first witness for the defense and testified that he never noticed anything inappropriate between England and either stepdaughter.
Addressing England's argument that Arkansas courts have reversed and remanded for new trials where character evidence was not allowed on pertinent traits, citing Finnie , supra , and Shelton , supra , we hold that these cases are distinguishable. First, both Finnie and Shelton were direct appeals of murder convictions rather than Rule 37 proceedings. Second, both defenses sought to introduce evidence that the defendant was law abiding and of a nonviolent nature, which is traditionally admissible in murder cases. See Finnie ; Shelton .
We also hold that England's reliance on Dillard , supra , is misplaced. In Dillard , our supreme court affirmed the circuit court's finding that trial counsel was ineffective for failing to interview a victim's sister who trial counsel knew held the opinion that the victim-her sister-had a problem telling the truth and a reputation for dishonesty. Id. England's situation is distinguishable. The mere fact that a witness or witnesses existed who could have offered beneficial testimony is not, in itself, proof of trial counsel's ineffectiveness. Smith v. State , 2015 Ark. 165, 459 S.W.3d 806. Moreover, had trial counsel introduced character-witness testimony, the State would have been permitted to rebut that testimony by questioning those witnesses about prior bad acts under Arkansas Rule of Evidence 608 (2017).
England cannot show that trial counsel's failure to call Cleo England or Jodi Felkins to testify about his truthful character was unreasonable. At most, their testimony would have challenged the alleged victims' credibility. To demonstrate prejudice, England must establish that there was a reasonable probability that, had counsel presented the witnesses, the outcome of the trial would have been different. Smith, supra. For the reasons set forth above, England cannot show that the outcome of his trial would have been different had counsel called Jodi Felkins and Cleo England as character witnesses; accordingly, the circuit court was not required to hold a hearing to further develop the issue.
VI. Failure to Object and Request a Mistrial Due to Prosecutor's Statement That It Was the Jury's Duty to Find England Guilty
England next argues that trial counsel's failure to object and request a mistrial when the prosecuting attorney stated that it was the jury's duty to stand up for the victims and find England guilty of all charges amounted to ineffective assistance of counsel. He cites multiple out-of-state cases that have found it to be error for the prosecuting attorney to make similar comments. See People v. Nelson , 193 Ill.2d 216, 250 Ill.Dec. 10, 737 N.E.2d 632 (2000) ; People v. Castaneda , 299 Ill.App.3d 779, 233 Ill.Dec. 916, 701 N.E.2d 1190 (1998) ; Pacifico v. State , 642 So.2d 1178 (Fla. Dist. Ct. App. 1994) ; State v. Acker , 265 N.J.Super. 351, 627 A.2d 170 (App. Div. 1993). The prosecuting attorney's comments were not objected to by England's trial counsel, and he maintains that there was no strategic or tactical reason not to object and request a mistrial. He claims that the circuit court should have granted a mistrial or, at the very least, instructed the jury to disregard the prosecuting attorney's comments. England submits that there is a reasonable probability that the jury would have reached a different verdict had the prosecuting attorney's comments been objected to by his trial counsel and that a different outcome would certainly have occurred had the circuit court granted a mistrial.
We acknowledge that our supreme court has recognized that failing to object to an egregious comment by a prosecutor during a closing argument may constitute ineffective assistance of counsel. See Houghton v. State , 2015 Ark. 252, 464 S.W.3d 922. But a reversal of a judgment based on remarks made by counsel during closing arguments (or the failure to object to comments) is rare and requires that counsel make an appeal to the jurors' passions and emotions. Id. (citing Price v. State , 365 Ark. 25, 223 S.W.3d 817 (2006) ). Moreover, each plausible inference may be argued in closing. Id.
Our review indicates that the remarks made by the prosecuting attorney during her rebuttal were directly connected to both the testimony elicited by trial counsel and trial counsel's closing argument. In her closing argument, the prosecuting attorney reiterated how much control, sexually and in their day-to-day activities, England had exerted over his stepdaughters that continued into their adulthood. In her rebuttal, she reiterated that the victims have come before them with an "embarrassing, distasteful, nasty story," and merely asked the jury to "make a decision"-she did not ask the jury to find England guilty. The failure of trial counsel to make a meritless objection is not an instance of ineffective assistance of counsel. See, e.g. , Catlett v. State , 331 Ark. 270, 962 S.W.2d 313 (1998).
Additionally, before a petitioner can prevail on an allegation that counsel was wrong in not objecting during closing argument, the petitioner must establish that he was denied a fair trial by the failure to object. See, e.g. , Hayes v. State , 280 Ark. 509, 660 S.W.2d 648 (1983). We hold that the remarks, taken in their proper context either as rebuttal to trial counsel's closing argument, or, standing alone, do not establish that England was denied a fair trial. Therefore, the circuit court did not err in finding that England failed to demonstrate defective representation that influenced the outcome of the trial. The circuit court was not required to hold an evidentiary hearing on this claim.
VII. Eliciting Testimony That the Perry County District Judge Felt There Was an Improper Relationship Between England and S.B.
England notes that during the questioning of Mark Brice, criminal investigator for the Arkansas State Police, trial counsel asked why Brice addressed S.B. concerning her relationship with England. England claims that trial counsel committed error in doing so because there was no "good answer"; accordingly, there was no tactical or strategic reason for asking the question. Upon asking, trial counsel elicited the following testimony from Brice: "In Perry County it was a widespread rumor. It was from police officers to the district judge there for that matter that they felt that there was an improper relationship between [England] and [S.B.]." England argues that it was error to elicit the testimony and further error not to object and move to have the jury instructed to disregard the statement. He maintains that the prejudice is clear from such a statement.
England asserts that the jury, hearing that law enforcement and the district judge in Perry County all believed that he is guilty, was tantamount to putting on several additional, highly persuasive witnesses that could not be rebutted by examination. Because England's case depended on his credibility versus that of the two alleged victims, he argues that it was error to elicit testimony that completely bolstered the State's case. England argues that there is a reasonable probability of a different outcome if that testimony had not been elicited.
The circuit court found that this was a typical "yes/no" cross-examination question within the scope of Brice's direct testimony. Moreover, trial counsel did not ask Brice about any particular person's opinion of England. Brice's response was a spontaneous comment. We hold that the circuit court correctly held that it could be reasonable strategy to not call attention to a statement and simply move on. When a decision by counsel was a matter of trial strategy and supported by reasonable professional judgment counsel's decision is not a basis for relief. See Bryant v. State , 2013 Ark. 305, 429 S.W.3d 193. Accordingly, the circuit court was not required to hold an evidentiary hearing on this claim.
VIII. Failure to Elicit Testimony Concerning Sexually Transmitted Diseases That Both Peggy England and England Contracted
England acknowledges that his trial counsel elicited testimony from England's urologist, Dr. Claybrook, as to whether England had a sexually transmitted disease in 2013; however, that is well after the allegations at issue occurred. England argues that trial counsel failed to elicit testimony from either Peggy or him indicating that they had contracted sexually transmitted diseases well before the allegations. England urges that was an error, as there was no strategic decision not to do so. England submits that the error was prejudicial because it would have significantly bolstered England's chance for a not-guilty verdict if he could have argued that the fact that the alleged victims do not have his sexually transmitted diseases proves he was not having sexual relations with them.
We disagree, noting that the circuit court held that England failed to present any evidence from the record that would lead it to believe his allegation that he or Peggy had a sexually transmitted disease or complained of symptoms before February 1, 2013. That was the day, Dr. Claybrook testified, that England was diagnosed with herpes and prescribed Valtrex. England's argument is conclusory and unsupported by the evidence presented at trial. A bare allegation, without supporting facts or legal authority, is insufficient to obtain postconviction relief. England had the opportunity to expand his conclusory argument in his amended Rule 37 petition, yet he failed to include specific facts to show what his trial counsel should have developed and introduced. Conclusory statements that counsel was ineffective will not sustain a Rule 37 petition. Mancia, supra. The circuit court was not required to hold an evidentiary hearing on this claim.
IX. Failure to Call Witnesses at Sentencing
Finally, England claims that regardless of his guilt, trial counsel's failure to call witnesses at sentencing was error and prejudicial to his sentence. He submits that presentation of an inadequate sentencing phase, even in a non-death-penalty trial, constitutes ineffective assistance of counsel and requires reversal. See State v. Franklin , 351 Ark. 131, 89 S.W.3d 865 (2002) (Corbin, J., concurring); see also Pyle v. State , 340 Ark. 53, 8 S.W.3d 491 (2000) ; Helton v. State , 325 Ark. 140, 924 S.W.2d 239 (1996).
England notes that Cleo England and Jodi Felkins were in attendance and claims that they desired to testify at sentencing. Trial counsel did not call either witness to the stand. England argues that there is a reasonable probability that a jury would have given him less time if he had someone to speak on his behalf, relay his good deeds to the jury, and beg for mercy.
We disagree and hold that trial counsel was not ineffective for failing to call witnesses during sentencing. The three Arkansas cases England relies on all held that an ineffective-assistance-of-counsel claim based on failure to present sentencing evidence did not overcome the presumption that such a decision would be considered trial strategy. See Franklin , supra ; Pyle , supra ; Helton, supra. Moreover, our supreme court has held that in cases where a defendant is not subject to the possibility of the death penalty, the failure to present mitigating evidence is not ineffective assistance of counsel. State v. Smith , 368 Ark. 620, 249 S.W.3d 119 (2007).
England was sentenced to a total term of 180 months in prison. The maximum sentence he could have received for the offense of rape was life in prison. See Ark. Code Ann. § 5-4-401(a)(1) (Repl. 2013). Because England received a sentence less than the maximum sentence he could have received, he cannot show prejudice from the sentence. See Edwards v. State , 2017 Ark. 207, 521 S.W.3d 107. Furthermore, England does not and cannot show that the failure of his trial counsel to call witnesses during sentencing was outside the realm of normal trial strategy. We recognize that an attorney can be ineffective for failing to present mitigating evidence. See Jordan v. State , 2013 Ark. 469, 2013 WL 6046053. But when a petitioner under Rule 37 asserts that his trial counsel was ineffective for failure to call a witness or witnesses, it is incumbent on the petitioner to name the witness, provide a summary of that witness's testimony, and establish that the testimony would have been admissible. Id. Because England failed to provide a summary of the potential witnesses' testimony or establish that the testimony would have been admissible, the allegation was conclusory and did not merit further consideration. See id. A conclusory claim is not a ground for postconviction relief. Id. The burden is entirely on the petitioner in a Rule 37 proceeding to provide facts that affirmatively support the claims of prejudice. Id. Conclusory statements without factual substantiation are not sufficient to overcome the presumption that counsel was effective. Id. The circuit court was not required to hold an evidentiary hearing on this claim.
Affirmed; motion denied.
Virden and Vaught, JJ., agree. | [
48,
-24,
-28,
60,
-54,
65,
42,
44,
-62,
-45,
101,
115,
47,
-32,
16,
123,
35,
75,
117,
-15,
-45,
-73,
21,
73,
119,
-13,
112,
-41,
-11,
79,
-4,
-74,
80,
112,
-54,
-43,
70,
-64,
-23,
88,
-82,
73,
-119,
-19,
80,
1,
56,
109,
-58,
11,
49,
-98,
-77,
-85,
48,
-53,
41,
44,
89,
-84,
72,
25,
-98,
23,
-19,
22,
-79,
36,
-102,
0,
112,
124,
-104,
17,
8,
-3,
-13,
54,
-122,
117,
97,
25,
41,
96,
66,
1,
24,
-57,
57,
-88,
22,
-66,
-99,
38,
-40,
97,
99,
79,
-114,
-107,
126,
20,
14,
126,
104,
14,
125,
12,
-122,
-50,
-80,
-109,
-51,
40,
20,
51,
-31,
45,
16,
117,
-57,
-30,
124,
71,
57,
-101,
-113,
-77
] |
Robin F. Wynne, Justice, dissenting.
I would reverse the circuit court's grant of summary judgment to appellee on the basis of quasi-judicial immunity and remand for further proceedings. Therefore, I respectfully dissent.
On this record, appellee is not entitled to immunity. As the majority opinion recounts, Kenneth McFadden was released from the Arkansas State Hospital pursuant to a conditional release order and, ultimately, Gain was named "the responsible agency for monitoring [his] compliance to his prescribed medication and treatment regimen." Appellee, a psychiatrist, is the director of Gain. As such, he was McFadden's treating physician, responsible for the long-term (up to five years) treatment of McFadden for schizophrenia.
The law in Arkansas regarding quasi-judicial immunity is not well-developed. In the seminal case, Chambers v. Stern , 338 Ark. 332, 994 S.W.2d 463 (1999), this court held that a court-appointed physician providing evaluation and therapy services in a divorce case was entitled to absolute immunity for acts within the scope of the court's appointment. The case at bar presents an opportunity to clarify and limit the holding in Chambers . I would draw a distinction between providing treatment and providing evaluations or recommendations to a court:
[T]reatment, unlike reports or evaluations and recommendations, is not intimately related and essential to the judicial decision-making process. Rather, it is a separate remedial function in which full disclosure may be contrary to the best interests of the patient and improper.
See Ethical Principles of Psychologists , American Psychologist 390, 392 (March 1990) ("Principle 5: Confidentiality. Psychologists have a primary obligation to respect the confidentiality of information obtained from persons in the course of their work as psychologists. They reveal such information to others only with the consent of the person.").
Further, the focus of the psychologist in performing evaluations, providing reports, and making recommendations is not necessarily on the best interests of the subject being evaluated or any one of the parties involved in the litigation, but on aiding the court to separate truth from falsity. In contrast, the focus of the therapist in treatment is solely on the best interests of the patient. The need for absolute immunity for treatment is therefore not as compelling as the need for immunity for evaluations and recommendations.
In addition, a party claiming to be aggrieved by an evaluation or recommendation has the opportunity to challenge the expert's opinion during the litigation. There is no similar opportunity to rectify harm caused during treatment.
Awai v. Kotin , 872 P.2d 1332, 1336 (Colo. App. 1993) (citations omitted).
Here, the record reveals that appellee was acting as McFadden's treating psychiatrist; he was not "acting as an arm of the court and performing a quasi-judicial function." Chambers , 338 Ark. at 338, 994 S.W.2d at 466. Therefore, he was not entitled to absolute immunity from suit, and I respectfully dissent.
Hart, J., joins. | [
-111,
-20,
-35,
-82,
10,
96,
58,
18,
64,
-85,
55,
115,
-83,
122,
-123,
107,
-6,
99,
68,
107,
84,
-77,
119,
65,
-66,
-5,
-6,
-41,
-77,
-18,
-28,
-35,
73,
120,
-118,
81,
102,
75,
-23,
18,
-122,
-121,
-85,
77,
88,
-64,
52,
47,
88,
15,
17,
-34,
-29,
108,
27,
70,
45,
40,
91,
100,
80,
-104,
10,
14,
-53,
4,
-77,
6,
60,
-113,
-8,
46,
-100,
-79,
9,
-20,
115,
-106,
-126,
116,
79,
-71,
12,
102,
98,
-127,
64,
-27,
-16,
-88,
63,
-114,
-83,
-89,
-101,
73,
73,
9,
-106,
-3,
98,
30,
13,
124,
-16,
-35,
92,
60,
73,
-97,
-106,
-95,
-55,
120,
92,
-80,
-17,
3,
18,
81,
-51,
-32,
92,
67,
115,
-101,
-114,
-110
] |
III. Analysis
A. Endangering the Welfare of a Minor
We begin our statutory analysis by examining the plain language of the endangerment statute. A person commits the offense of endangering the welfare of a minor in the first degree if, being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely engages in conduct creating a substantial risk of death or serious physical injury to a minor. Ark. Code Ann. § 5-27-205(a)(1). First-degree endangering the welfare of a minor is a Class D felony. Ark. Code Ann. § 5-27-205(b).
The State must prove beyond a reasonable doubt every element of a charged offense; this is axiomatic. Starling v. State , 2015 Ark. App. 429, at 4, 468 S.W.3d 294, 295 (citing Victor v. Nebraska , 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) ). In a case of endangering the welfare of a minor, the State must prove the existence of two distinct elements. First, the person committing the offense must be a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor. Second, he or she must purposely engage in conduct creating a substantial risk of death or serious physical injury to a minor.
K.F.'s first argument on appeal focuses on the first of these two elements, i.e., that she was not among the class of persons who can commit the offense of first-degree endangerment of a minor. She notes that the State conceded below that she was not in this class of persons when the prosecutor stated, "As far as the statute, 5-27-205, indicating that a person charged with-must be charged with supervision of a minor, in this case, Your Honor, MaKayla Brewster was." The court also specifically asked the prosecuting attorney "who [the baby's mother testified] was responsible, who was the one that was babysitting?" The State replied, "[O]n this night, her particular answer was MaKayla."
Because K.F. was not "charged with supervision of a minor" as set forth in the statute, she is not in the class of persons who can commit the offense of first-degree endangerment. As a result, K.F. cannot be principally culpable for committing the offense of first-degree endangerment. The circuit court recognized this point at trial, noting that K.F. was "correct in that the [endangerment statute] requires that somebody be a parent/guardian or otherwise legally charged with [the minor's] well-being." The court, however, accepted the State's argument that it was proceeding against K.F. as an accomplice to MaKayla, who was the person charged with supervision of the minor. We must therefore consider the matter of accomplice liability under Arkansas's statutes.
B. Accomplice Liability
Arkansas Code Annotated section 5-2-403 provides as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to commit the offense;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the particular result; or
(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.
(Emphasis added.)
Below, the State argued--and the court found--that K.F. was an accomplice of MaKayla in the commission of the offense of endangering the welfare of a minor. To be culpable as an accomplice to MaKayla, K.F. must have solicited, advised, encouraged, or coerced MaKayla to commit the offense of endangerment, Ark. Code Ann. § 5-2-403(a)(1) ; must have aided, agreed to aid, or attempted to aid MaKayla in planning or committing the offense of endangerment, Ark. Code Ann. § 5-2-403(a)(2) ; or, having a legal duty to prevent the commission of the offense of endangerment, K.F. must have failed to make a proper effort to prevent it, Ark. Code Ann. § 5-2-403(a)(3). In short, K.F. must have taken some action to further MaKayla's commission of the offense. On the record before us, she did not.
In this case, the State alleged--and the court found--that the act of sparking a stun gun at the baby was conduct that created a substantial risk of death or serious physical injury to a minor. On the record before us, K.F. was the person engaged in that conduct, but as discussed above, she is not in the class of persons who can commit the offense of first-degree endangerment. MaKayla is a person within the class of persons who can commit the offense of first-degree endangerment, but she did not engage in the act of sparking a stun gun at K.W. In other words, on the record before us, MaKayla did not engage in conduct creating a substantial risk of death or serious physical injury to a minor as it relates to the use of a stun gun. Because MaKayla did not engage in such conduct, she did not commit the offense of first-degree endangerment. As a result, K.F. cannot be an accomplice to an offense that was never committed by another person.
As noted above, we construe criminal statutes strictly in favor of the defendant. Holcomb, supra. Construing the accomplice-liability statute strictly, there must be evidence that the defendant engaged in some course of conduct that assisted "the other person to commit" an offense. "The other person" in this case is MaKayla, and MaKayla did not commit an offense. The circuit court therefore erred in adjudicating K.F. delinquent on the basis of accomplice liability.
Reversed and dismissed.
Klappenbach and Vaught, JJ., agree.
On appeal, the State suggests that the trial testimony supports a conclusion that K.F. was "helping" MaKayla babysit and that she was thus "charged with supervision" of the baby. We cannot agree. Not only did the State essentially concede at trial that K.F. was not charged with supervision of the minor, the evidence showed that she was not so charged. Alysia Watkins testified repeatedly that MaKayla was the one she left in charge of her daughter. "MaKayla was babysitting." "I was paying MaKayla to babysit my baby." "I had an agreement with MaKayla to babysit my daughter that day." "From my perspective the person babysitting my daughter was MaKayla. I never had any conversations with K.F. or T.M. about babysitting my daughter." The State is therefore incorrect when it tries to argue that K.F. was charged with supervision of the minor. We note that the use of the word "charged" here follows the statute and does not refer to a formal charge reflecting criminal culpability.
Although the Snapchat video also showed MaKayla slapping the baby on the head, the circuit court expressly found that there was no evidence that K.F. was involved in that offense.
Because we conclude that K.F. could not have been adjudicated delinquent under the statute as charged, it is unnecessary to address her second argument on appeal, wherein she contends that the evidence was insufficient to support the endangerment finding. | [
-40,
-24,
-36,
60,
11,
99,
26,
50,
-45,
-13,
103,
83,
-17,
-60,
17,
105,
-31,
103,
81,
32,
-111,
-74,
23,
65,
-16,
-13,
-79,
67,
-77,
79,
108,
-44,
78,
112,
-54,
-35,
2,
72,
-31,
-46,
10,
11,
-117,
81,
83,
-126,
36,
35,
-110,
78,
117,
-97,
-121,
44,
62,
-53,
11,
66,
77,
47,
-62,
-14,
-102,
45,
123,
18,
-93,
70,
-72,
103,
64,
5,
-104,
57,
8,
-20,
115,
34,
-126,
124,
111,
9,
-120,
98,
-30,
-128,
8,
-51,
-84,
-56,
-82,
-2,
-83,
-89,
-104,
121,
19,
14,
-97,
-65,
94,
-75,
14,
106,
-93,
103,
27,
108,
19,
-125,
84,
-79,
-115,
-48,
84,
-77,
-25,
-121,
3,
49,
-50,
-74,
84,
-63,
51,
-102,
-122,
-42
] |
BRANDON J. HARRISON, Judge
Michael Myers was killed at work when a load of molten metal spilled and covered his body. His employer, Arkansas Steel Associates, LLC, did not dispute that Myers's death on 19 February 2014 was work related and is paying death benefits to Michael's widow, Mary Myers. In May 2016, Mary Myers, individually and as an administratrix of her husband's estate and a representative of his wrongful-death beneficiaries, filed a lawsuit in the White County Circuit Court. The circuit court, in part, transferred jurisdiction to the Arkansas Workers' Compensation Commission. In June 2018, the Commission found that some entities-Yamato Kogyo Company, Ltd.; Sumitomo Corporation; Sumitomo Corporation of Americas d/b/a Sumitomo Corporation of America; SC Steel Investment, Inc.; SC Steel Investment, LLC; Yamato Kogyo (U.S.A.) Corporation; and Yamato Kogyo America, Inc.-were entitled to the exclusive-remedy provisions of the Arkansas Workers' Compensation Act. Myers appeals that decision.
This appeal raises at least two important questions in the law of workers' compensation:
• May an employee of a subsidiary entity sue one or more parent corporations in tort, or are parent corporations immune "employers" under the exclusive-remedy provision of the Workers' Compensation Act? See Ark. Code Ann. § 11-9-105(a) (Supp. 2017).
• If one or more parent corporations are deemed "employers" within the meaning of the act, does that violate article 5, section 32 of the Arkansas Constitution ? Ark. Const. art. V, § 32, amended by Ark. Const. amend. XXVI.
I.
The parties stipulated to the following facts when litigating this case before the administrative law judge:
1. On February 29, 2014, Michael Earl Myers was employed by Arkansas Steel Associates, LLC as a ladle man in a steel plant.
2. While Michael Myers was working in the course and scope of his employment for Arkansas Steel Associates, LLC, a load of molten metal spilled from a Hot Metal Crane inside the Melt Shop of the steel plant.
3. The molten metal engulfed his entire body causing, among other things, catastrophic injuries and death.
4. Liberty Mutual Insurance, Arkansas Steel Associates, LLC's insurance carrier, is paying death benefits to Claimant Mary Myers, the widow of Michael Earl Myers, arising from his work-related death.
5. Arkansas Steel Associates, a New York general partnership, no longer exists and is hereby dismissed from this action.
6. SC Steel Investment, Inc. no longer exists and is hereby dismissed from this action.
7. Sumitomo Corporation of Americas was a principal and stockholder of Arkansas Steel Associates, LLC at the time of Michael Earl Myers' afore-described workplace injury and death.
8. At the time of Michael Earl Myers' afore-described workplace injury and death, Sumitomo Corporation wholly owned Summit Global Management of America, Inc., which wholly owned Sumitomo Corporation of Americas.
9. After Michael Earl Myers' afore-described workplace injury and death, Summit Global Management of America, Inc. merged into Sumitomo Corporation of Americas.
10. SC Steel Investment, LLC was a principal and stockholder of Arkansas Steel Associates, LLC at the time of Michael Earl Myers' afore-described workplace injury and death.
11. Sumitomo Corporation wholly owned SC Steel Investment, LLC at the time of Michael Earl Myers' afore-described workplace injury and death. 12. Yamato Kogyo (U.S.A.) Corporation was a principal and stockholder of Arkansas Steel Associates, LLC at the time of Michael Earl Myers' afore-described workplace injury and death.
13. Yamato Kogyo America, Inc. wholly owned Yamato Kogyo (U.S.A.) Corporation at the time of Michael Earl Myers' afore-described workplace injury and death.
14. Yamato Kogyo Company, Ltd. wholly owned Yamato Kogyo America, Inc. at the time of Michael Earl Myers' afore-described workplace injury and death.
The ownership structure of Arkansas Steel Associates, LLC, is shown in the following diagram.
The appellee corporations are, either directly or indirectly, owners of Arkansas Steel Associates, LLC. They are separate and distinct entities from Arkansas Steel Associates, LLC. The appellee entities have their own corporate entity designations; their own formation and creation dates; their own headquarters; their own employer identification numbers; and their own officers, directors, and managers. The parent companies do not hire or fire Arkansas Steel employees; do not pay them salaries or wages; do not provide them with W2s or 1099s; do not train or educate them; do not supply workers'-compensation or other benefits; and do not set their work schedules. There were no direct employees of the appellee parent corporations present at the jobsite when the accident occurred; and there has been no evidence that any direct employee of the parent corporations had ever met Michael Myers before the accident.
Myers argues that an employer-employee relationship was a requirement for, and prerequisite to, employer immunity under section 11-9-105(a). Section 11-9-105 states:
(a) The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his or her capacity as an employer, or prime contractor of the employer, on account of the injury or death , and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have.
Ark. Code Ann. § 11-9-105(a) (Supp. 2017) (emphasis added). According to Myers, Arkansas Steel Associates, LLC was the sole employer under the circumstances, meaning she cannot sue it in tort but can sue other entities. The parent companies were not actual employers, Myers says, because no agents of the parent companies were present at the jobsite where Michael Myers was killed nor did they treat him as an employee.
In contrast, the parent companies argue that they are employers for purposes of the exclusive-remedy doctrine because the General Assembly has made them so. Specifically, the parent companies argue that the statutory language that "any principal, officer, director, stockholder, or partner acting in his or her capacity as employer" applies to them. According to the parent companies, an immune entity does not have to act as an "actual" or "true" employer as a matter of fact-all it must do to be immune from tort liability is to meet the statute's requirements that it be a principal or stockholder of an immune employer.
The Commission found that the Yamoto and Sumitomo parent companies were "party-employers acting within the employer-shareholder role." It found that the Yamoto and Sumitomo defendants were "immune from liability as a result of their personae as principals and stockholders in accordance with Ark. Code Ann. § 11-9-105(a)." The Commission wrote:
The Full Commission finds that [the Yamoto and Sumitomo parent companies] were acting in their capacities as the claimant's employer at the time of the compensable injury. [The parent companies] are immune from liability in tort pursuant to their status as principals or stockholders, in accordance with Ark. Code Ann. § 11-9-105(a) (Repl. 2012). The respondents were not a third party in accordance with Ark. Code Ann. § 11-9-410(a) (Repl. 2012). Therefore, as it pertains to [the parent companies], jurisdiction of this case rests exclusively with the Arkansas Workers' Compensation Commission.
As we said earlier, Myers has timely appealed the Commission's decision to apply the exclusive-remedy doctrine in favor of the appellees.
II.
The Commission has original exclusive jurisdiction to decide whether a tort action is barred by the exclusive-remedy provision of Arkansas Code Annotated section 11-9-105(a). VanWagoner v. Beverly Enters. , 334 Ark. 12, 970 S.W.2d 810 (1998).
In deciding what a statute means, the interpretation of a statute by the agency charged with its execution is highly persuasive and, while not binding on this court, will not be overturned unless it is clearly wrong. Brigman v. City of W. Memphis , 2013 Ark. App. 66, at 2-3, 2013 WL 457909. But see id. at 5-7 (Harrison, J., concurring). When we construe the workers' compensation statutes, we must strictly construe them. Id. at 3. Strict construction is narrow construction and requires that nothing be taken as intended that is not clearly expressed. Id. The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id.
Whether an employer-employee relationship exists between the parties is a factual issue solely within the jurisdiction of the Commission. Honeysuckle v. Curtis H. Stout, Inc. , 2010 Ark. 328, at 6-7, 368 S.W.3d 64, 69. We affirm the Commission's findings if they are supported by substantial evidence. Privett v. Excel Specialty Prods. , 76 Ark. App. 527, 531, 69 S.W.3d 445, 448 (2002).
Here, the Commission found that the appellee entities were employers, for the purpose of the exclusive-remedy provision, because they were principals or stockholders of Arkansas Steel Associates, LLC. This conclusion is supported by substantial evidence in the record and is not a clearly wrong interpretation of Ark. Code Ann. § 11-9-105(a) under the circumstances. By this we mean that there was no real factual dispute over the business-entities' structure related to Arkansas Steel Associates, LLC; and once it was determined (stipulated) that the appellee entities were principals or stockholders of Arkansas Steel Associates, LLC, then as a matter of statutory construction we believe the Commission did not clearly err by concluding that the statute shielded the appellee entities.
In the tort case in the White County Circuit Court, Myers alleged workplace-safety violations against the parent Yamoto and Sumitomo parent companies. The claims she made against the Yamoto and Sumitomo parent companies are substantially the same ones she made against their subsidiary-Arkansas Steel Associates, LLC. In the circuit court, Myers also sued other American and international companies-WireCo Worldgroup, Inc.; Casar Drahtseilwerk Sasar GMBH d/b/a Casar; Yarbrough Cable Services, LLC; Jaco Construction Company; Heavy Machines, Inc.; Morgan Engineering Systems, Inc.; and John Does I thorough X-related to problems with the crane, cables, firewall, block, and ladle used at the worksite.
The Commission found that the appellees were not, in fact, third parties; but the other named defendants in the tort lawsuit were third parties within the meaning of the Workers' Compensation Act. Section 11-9-410(a) provides that an injured employee may, in addition to pursuing a claim for workers' compensation benefits, maintain action in court against a third party who may be responsible for the injury. Ark. Code Ann. § 11-9-410(a) (Repl. 2012). A third party in workers'-compensation-law terms means some party other than an employer. Id.
Here, the parties stipulated that Arkansas Steel Associates, LLC, Michael Myers's employer, was a subsidiary of the parent companies, meaning that the parent companies owned a controlling share of Arkansas Steel Associates, LLC. In their stipulation, the parties used the words "principal" and "stockholder." The words "principal" and "stockholder" appear in the exclusive-remedy provision under the Workers' Compensation Act. See Ark. Code Ann. § 11-9-105(a). The Commission concluded that the parent companies' statuses as principals and stockholders of Arkansas Steel Associates, LLC, made them employers under the statute.
The plain language of the statute supports this conclusion. First, the word "partner" is omitted at the end of subsection (a), where it states: "No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration." The statute counsels us to look to whether a partner is acting as an employer but not whether a principal or a stockholder is acting as an employer. Second, there is not a comma between "partner" and "acting in his or her capacity as employer,"
which tends to indicate that the phrase "acting in his or her capacity as employer" modifies only "partner"-not the other nouns listed before the word "partner." In other words, "partner acting in his or her capacity as employer" is a stand-alone, independent "thing." The case law supports this admittedly grammar-dependent reading of the statute. See McCoy v. Walker , 317 Ark. 86, 876 S.W.2d 252 (1994) (stating when no contrary intention appears, referential and qualifying phrases relate or refer only to last antecedent); Bell v. Bd. of Dirs , 109 Ark. 433, 160 S.W. 390 (1913) (explaining that evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma).
Moreover, the Commission's interpretation that a statutory "employer" includes its principals and stockholders strikes us as the more practical and workable rule of law and more likely than not the one that the General Assembly intended when it enacted section 11-9-105(a). See Act of Mar. 2, 1979, No. 253, § 4, 1979 Ark. Acts 522, 523. The only overarching rule in statutory interpretation is to give effect to the General Assembly's intent. Holt v. City of Maumelle , 302 Ark. 51, 53, 786 S.W.2d 581, 583 (1990) ("The basic rule of statutory construction, to which all other interpretative guides are really subordinate, is to give effect to the intent of the legislature."). Under Myers's reasoning, the "true employer" test must be applied to any "principal, officer, director, stockholder" of any employer. We conclude that such a sweeping rule was not intended. See Ark. Code Ann. § 11-9-101(b) (stating intent of Act is "to emphasize that the workers' compensation system in this state must be returned to a state of economic viability").
In this case, Myers did not allege that the parent companies had a status so completely independent from, and unrelated to, a status as an employer that would except her complaint from workers'-compensation law. She did not, for example, plead any intentional torts or independent bad acts that would place the claims outside a normal employment context. The Commission's finding that the parent companies were employers and the other defendants were third parties is supported by substantial evidence in the record. Honeysuckle , supra.
Finally, it is vital to note that Myers is not without a remedy. Pursuant to Ark. Code Ann. § 11-9-105(a), once an employee or employee's beneficiary avails himself or herself of the rights and remedies under the Workers' Compensation Act, those rights and remedies must be exclusive of all other rights and remedies. Myers is receiving death benefits from her husband's employer. Consequently, she is not allowed to sue the parent companies in tort for alleged workplace negligence.
III.
Myers further argues that Ark. Code Ann. § 11-9-105(a) is unconstitutional as applied by the Commission because it grants tort immunity to a defendant who doesn't have an employment relationship with the injured party. The Commission found that article 5, section 32 of the Arkansas Constitution did not bar its decision because there was an employer-employee connection between Myers and the parent corporations given their statuses as principals and shareholders (owners) of Myers's employer.
Statutes are presumed constitutional, and the burden of proving otherwise is upon the challenger of the statute. ACW, Inc. v. Weiss , 329 Ark. 302, 947 S.W.2d 770 (1997). Under the Arkansas Constitution, "every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character." Ark. Const. art. 2, § 13. Workers'-compensation law is an exception to this general principle. Prior to the adoption of amendment 26 in 1938-which created the Workers' Compensation Act-article 5, section 32 of the Arkansas Constitution provided that "[n]o act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property." Ark. Const. of 1874, art 5, § 32 (amended 1938).
Amendment 26 to the 1874 Arkansas Constitution changed that article 5 now permits the General Assembly to enact laws prescribing the amount of compensation to be paid for injuries resulting in death, or injuries involving compensation paid by employers to employees who have been injured or have died while employed:
The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.
Ark. Const. art. 5, § 32, amended by Ark. Const. amend. 26.
Our supreme court has interpreted section 11-9-105(a) to mean that any claim against an employer for injury or death may only be brought under the Act, which eliminates an employer's tort liability. Elam v. Hartford Fire Ins. Co. , 344 Ark. 555, 42 S.W.3d 443 (2001). This exclusivity is based on the general purpose behind our workers'-compensation laws, which was to change the common law and shift the burden of all work-related injuries from individual employers and employees to the consuming public, with the concept of fault being virtually immaterial. Craven v. Fulton Sanitation Serv., Inc. , 361 Ark. 390, 206 S.W.3d 842 (2005). With the passage of these statutes, employers gave up the common-law defenses of contributory negligence, fellow servant, and assumption of the risk; for their part, employees gave up the chance to recover large damages awards but have more certainty in their ability to recover something. Brown v. Finney , 326 Ark. 691, 932 S.W.2d 769 (1996).
Because the exclusive-benefits provision of our compensation law favors both the employer and the employee, appellate courts have taken a narrow view of any attempt to seek damages beyond the exclusive remedy. Honeysuckle , 2010 Ark. 328, 368 S.W.3d 64. There are exceptions when the Act plainly does not provide a remedy for the claim. Hendrix v. Alcoa, Inc. , 2016 Ark. 453, at 5, 506 S.W.3d 230, 234. So a worker whose injury is not covered by workers'-compensation law has a constitutional right to file a tort claim against an employer. Automated Conveyor Sys. v. Hill , 362 Ark. 215, 208 S.W.3d 136 (2005).
Our supreme court has held Ark. Code Ann. § 11-9-105(a) unconstitutional to the extent that it grants tort immunity to a prime contractor when there is no statutory employment relationship with the injured person. Stapleton v. M.D. Limbaugh Constr. Co. , 333 Ark. 381, 392, 969 S.W.2d 648, 653 (1998). In Johnson v. Arkansas Steel Erectors , this court stated that Ark. Code Ann. § 11-9-105(a), as amended by 1993 Ark. Acts 796, section 4, was unconstitutional as applied because it "grants tort immunity to a prime contractor even when there is no statutory employment relationship with the injured employee." 2009 Ark. App. 755, at 9, 350 S.W.3d 801, 806. This statement was technically more dictum than holding, because it was not necessary to go that far to decide the case. Johnson 's actual holding was that a construction worker could recover against the lessor of a crane that fell on him because the crane's lessor was a third party, and not the employee's employer.
In section II above, we held that the parent companies are statutory employers and affirmed the Commission's finding that an employer-employee relationship existed under the circumstances. It has long been the law that the General Assembly has the authority to state who an employer is. Baldwin Co. v. Maner , 224 Ark. 348, 351, 273 S.W.2d 28, 31 (1954) (legislature is not prohibited from providing by statute the ones that are to be regarded as employees or employers). Whether a party is immune under the workers' compensation exclusivity is a sensitive issue. See Hendrix , 2016 Ark. 453, at 11, 506 S.W.3d at 237. We nonetheless hold that Ark. Code Ann. § 11-9-105(a) is constitutional as applied in this case because the General Assembly may define who is an employer pursuant to the power given to it by the Arkansas Constitution.
IV.
In this case's context, an "employer" includes its principals and stockholders. Third parties who have no ownership interests in the employer company are not entitled to immunity. Ark. Code Ann. § 11-9-410 (Repl. 2012); see also Johnson , 2009 Ark. App. 755, at 3, 350 S.W.3d at 803 (lessor of crane that injured an employee was a third party not entitled to employer immunity). Only parties who are so-called statutory employers are immune in tort under the exclusive-remedy provision. And parent companies that own subsidiaries having a direct employment relationship with the claimant are statutory employers under Ark. Code Ann. § 11-9-105(a).
Section 11-9-105(a) is constitutional as applied by the Commission in this case because under the circumstances, the defendant parent companies had an employment relationship with the injured party. Myers has received her workers'-compensation benefits from Arkansas Steel Associates, LLC, and she cannot recover further from its immune principals and stockholders.
We affirm the Commission's decision on all points.
Affirmed.
Abramson, Klappenbach, Murphy, and Brown, JJ., agree.
Whiteaker, J., dissents. | [
80,
-24,
-36,
-84,
40,
-26,
18,
58,
119,
-50,
-27,
-45,
-75,
-26,
89,
59,
-5,
27,
64,
107,
-14,
-77,
83,
2,
-38,
63,
-71,
-59,
-70,
75,
-68,
-34,
-51,
112,
78,
-59,
-25,
-70,
-33,
26,
70,
8,
-118,
-16,
57,
80,
56,
126,
80,
71,
65,
-72,
58,
61,
21,
75,
12,
42,
121,
-82,
81,
-79,
-54,
5,
123,
16,
-125,
0,
-100,
-81,
-46,
31,
-40,
63,
0,
-56,
114,
-74,
-122,
116,
65,
-115,
12,
98,
99,
-80,
-127,
-27,
-32,
-104,
-89,
-82,
-99,
-113,
-88,
41,
27,
78,
-99,
-99,
122,
22,
12,
124,
-2,
84,
68,
40,
-127,
-121,
-74,
-95,
-51,
-28,
-36,
-125,
-17,
-113,
32,
113,
-34,
-70,
84,
7,
126,
95,
71,
-104
] |
COURTNEY HUDSON GOODSON, Associate Justice
Petitioner Marlon Glenn Hallman asks this court to reinvest jurisdiction in the trial court so that he may proceed with a petition for writ of error coram nobis and to recall the mandate in his direct appeal. Hallman contends that his conviction for kidnapping was invalid and the sentence on that conviction was an illegal sentence that the trial court was without authority to impose. Hallman also filed a petition requesting permission to proceed as a pauper in the matter. Although Hallman's sentence for kidnapping is illegal and void, we deny his request to proceed with a petition for the writ, and we do not reinvest jurisdiction in the trial court or recall the mandate. However, we grant a part of the relief that Hallman requests by holding that the judgment is void to the extent that it imposed a sentence for the charge of kidnapping. The petition for leave to proceed as a pauper is moot.
Hallman and his codefendants, Tywanna Faye Martin and Henry Jewel Harris, were tried together on charges that the three of them, along with a fourth codefendant who was tried separately, had kidnapped Calvin Earl Smith from a restaurant in Little Rock, beat him, and then drowned him in the Arkansas River. Hallman and Martin were both convicted of capital murder and kidnapping, and each received sentences of life imprisonment without parole for capital murder and twenty years for kidnapping. Hallman and Martin filed a joint appeal, and this court affirmed the judgment. Hallman v. State , 264 Ark. 900, 575 S.W.2d 688 (1979).
In the instant petition to reinvest jurisdiction, Hallman would have this court allow him to file a petition in the trial court seeking the writ of error coram nobis, or recall the mandate so that the trial court might conduct new sentencing proceedings, based on his claim that his kidnapping sentence was illegal and the judgment was facially invalid as to that conviction. He appears to wish this court to issue a new mandate that would affirm the judgment only for the murder conviction and void the judgment as to the kidnapping conviction.
Hallman indicates, correctly, that this court has previously considered this same issue concerning his codefendant Martin's request to proceed with a petition under Arkansas Rule of Criminal Procedure 37.1 (Repl. 1977 & Supp. 1979). Martin v. State , 277 Ark. 175, 639 S.W.2d 738 (1982)
(per curiam). In that case, we determined that the lesser offense was subsumed by the capital-murder conviction, and we set aside the kidnapping conviction as void. Id. Hallman cites Ward v. State , 2016 Ark. 8, 479 S.W.3d 9 (per curiam) in support of his position that the writ should issue if the petitioner shows that the trial court acted outside its subject-matter jurisdiction.
Hallman has misconstrued that case, in that it affirmed the denial of a petition for the writ. The writ will lie only to correct errors of fact and not errors of law, and the appropriate remedy under the writ is a new trial. See Smith v. State , 200 Ark. 767, 140 S.W.2d 675 (1940). The appellant in Ward had raised the issue of an illegal sentence for the first time on appeal, and this court addressed the issue because it was one to be treated as a question of subject-matter jurisdiction. 2016 Ark. 8, 479 S.W.3d 9. This court may address a question of an illegal sentence sua sponte. Harness v. State , 352 Ark. 335, 101 S.W.3d 235 (2003). Such an issue, which is jurisdictional in nature, can be addressed at any time. Bell v. State , 2017 Ark. 231, 522 S.W.3d 788. Hallman has not stated a basis that would justify coram nobis proceedings in the trial court, or even shown a need for resentencing proceedings. He has, however, demonstrated that the judgment, to the extent that it reflects his conviction for kidnapping, is facially invalid.
While the State does not directly concede the point, it acknowledges in its brief that this court held in Martin that the applicable statute-which, despite the lack of an appropriate concession, is precisely the same statute that is applicable in this case-did not authorize the trial court to sentence the defendant for both kidnapping and capital murder. 277 Ark. 175, 639 S.W.2d 738. As we explained in Martin , when a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under Arkansas Statutes Annotated section 41-105(1)(a) (Repl. 1977). Id. at 176, 639 S.W.2d at 739 (citing Swaite v. State , 272 Ark. 128, 612 S.W.2d 307 (1981) ). This court has an obligation to correct an apparent illegal sentence. See Smith v. Kelley , 2016 Ark. 307, 2016 WL 4919890. Hallman's conviction for kidnapping is set aside as void, although the conviction and sentence for capital murder is not disturbed.
As the State notes in its brief, Hallman's desire to have the trial court correct the judgment filed in that court to reflect that his kidnapping conviction is void is one that he may pursue more directly through a petition under Arkansas Code Annotated section 16-90-111 (Repl. 2016). He may do so without this court reinvesting jurisdiction in the trial court to do so or recalling the mandate in his direct appeal. The general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. Bangs v. State , 310 Ark. 235, 835 S.W.2d 294 (1992). In addition, section 16-90-111 specifically states that illegal sentences may be corrected at any time. Id. We need not defer to the trial court, as the State suggests, to make the determination that the sentence is illegal, however. Whether the judgment is facially illegal is a matter of law, and it is not a question of fact best resolved through the trial court's determination.
Petition to reinvest jurisdiction and to recall the mandate denied; kidnapping sentence void; petition for leave to proceed in forma pauperis moot.
The legislature later amended the controlling statutes to authorize sentencing on both the charged felony and the underlying felony. See Ark. Code Ann. § 5-1-110(d)(1)(A) (Repl. 2013); Walker v. State , 353 Ark. 12, 110 S.W.3d 752 (2003).
The State argues that a lack of diligence on Hallman's part is sufficient reason to deny Hallman coram nobis relief. As noted, the relief sought here is not relief appropriate for issuance of the writ, where diligence is a factor. As this court noted in Martin , the claim Hallman makes in this case, that his sentence is illegal, is a claim that may be considered by this court at any time through a request for postconviction relief. 277 Ark. 175, 639 S.W.2d 738. The rules of procedure applicable to Hallman's conviction require the petitioner to request permission from the court before proceeding in the trial court, but there is no time limit when the relief alleged would render the judgment void, as it does here. Ark. R. Crim. P. 37.2(c) (Repl. 1977 & Supp. 1979). As previously noted, this type of issue may be addressed by this court at any time regardless of the proceedings, and although Hallman does not request permission to pursue Rule 37 relief, he does directly raise the issue of an illegal sentence. His delay in doing so does not bar relief. | [
112,
-28,
-16,
-68,
26,
-95,
10,
56,
-29,
-117,
103,
115,
-19,
94,
0,
111,
59,
123,
117,
-31,
-43,
-105,
13,
-32,
-46,
-13,
-111,
-41,
49,
73,
-4,
-44,
76,
96,
-18,
-43,
70,
58,
-29,
-100,
-114,
11,
-38,
-27,
80,
65,
48,
67,
16,
15,
49,
-34,
-5,
46,
27,
-54,
104,
44,
89,
63,
80,
-103,
-103,
79,
-21,
21,
-95,
4,
-79,
33,
112,
62,
28,
25,
9,
-24,
18,
-106,
-126,
116,
107,
-37,
44,
98,
98,
-127,
93,
-33,
-79,
-88,
63,
126,
-99,
-122,
-46,
8,
75,
101,
-105,
-3,
90,
-108,
65,
92,
102,
-116,
61,
108,
13,
-34,
-112,
-79,
-82,
57,
12,
57,
-61,
4,
48,
117,
-52,
-32,
124,
7,
57,
-45,
-118,
-45
] |
JOHN DAN KEMP, Chief Justice
Appellant Jonathan Ryan Hill appeals an order of the Faulkner County Circuit Court convicting him of aggravated residential burglary and sentencing him to a term of life imprisonment. For reversal, Hill argues that the circuit court erred in (1) denying his motion for directed verdict, (2) refusing to admit character evidence of a victim, (3) admitting text messages from Hill's cell phone, and (4) refusing to allow the cross-examination of an investigating officer with a prior inconsistent statement. Pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2017), we have jurisdiction of this appeal because Hill received a life sentence. We affirm.
I. Facts
Officer Eric Woodward of the Faulkner County Sheriff's Office relayed the following facts constituting probable cause in an affidavit signed on August 20, 2015. According to Woodward, the Faulkner County Sheriff's Office responded to a Damascus residence in the early morning hours of July 10, 2015, for an alleged home invasion. Deputy Brian Kesterson met the two residents, Cornenia "Cle" Dillard and Donna Salvo, and performed a search of the premises. After discovering that the suspects had left the residence, he interviewed Dillard and Salvo. Dillard stated that he was asleep on the living room couch when a white male intruder woke him, held a knife against his throat, and demanded money and pills. Dillard stated that he did not have those items but that Salvo may have them. According to Dillard, the intruder proceeded toward Salvo's bedroom, and "a scuffle ensued." Dillard grabbed a small .25-caliber pistol and went into the bedroom where he saw the intruder holding a shotgun that had been stored in the bedroom. Dillard stated that he fired at the intruder until his gun jammed but did not know if he had hit the suspect. The intruder dropped the shotgun and exited the residence by jumping out the bedroom window. Dillard then felt a pain in his back and turned around to discover that an unknown white female had struck him. Dillard told the female that the male intruder had left, and she exited the residence at that time. The deputy investigated the scene, processed blood stains and personal effects, and found a spent shell casing in the bedroom that matched the type of pistol that Dillard had fired.
Faulkner County police alerted surrounding law enforcement that a male suffering from a gunshot wound might seek medical treatment at a nearby hospital. The Clinton Police Department received a call and went to the hospital. There, the officers met Hill and his girlfriend, Stacy Wright, who had driven him to the hospital and who initially gave the officers a fictitious name. Hill was transported to Conway Regional Hospital, and Wright was transported to the detention center for multiple outstanding warrants. Salvo later identified Hill as the intruder in a photograph lineup. Testimony revealed that Dillard had passed away before trial.
On September 30, 2016, the State filed an amended felony information charging Hill as a habitual offender with aggravated robbery, aggravated residential burglary, and aggravated assault. Before trial, the State filed a motion in limine to exclude testimony pursuant to Arkansas Rules of Evidence 404(a)(2) and 405. In its motion, the State requested that the circuit court grant the motion to prevent the defense from calling witnesses to provide testimony regarding specific instances of Dillard's conduct. The circuit court granted the motion.
On February 22, 2017, the circuit court held a jury trial. After the State's case-in-chief, Hill moved for a directed verdict. The circuit court denied the motion and found that the State had made a prima facie case on all three counts. After the defense presented its case, Hill renewed his motion for directed verdict, and the circuit court again denied the motion. The jury found Hill guilty of aggravated residential burglary and sentenced him to a term of life imprisonment. The jury acquitted him of aggravated robbery and aggravated assault. Hill timely filed a notice of appeal and now brings his appeal to this court.
II. Motion for Directed Verdict
For the first point on appeal, Hill argues that the circuit court erred in denying his motion for directed verdict. Specifically, Hill contends that the State lacked substantial evidence to support the residential-burglary element of the aggravated-residential-burglary offense, as set forth in Arkansas Code Annotated section 5-39-204 (Repl. 2013). He claims that the State failed to prove that he illegally entered or remained in a dwelling. Hill does not challenge the second element that he was armed with a deadly weapon or that he inflicted or attempted to inflict death or serious physical injury upon another person.
A motion for directed verdict is a challenge to the sufficiency of the evidence. Marshall v. State , 2017 Ark. 347, 532 S.W.3d 563. In a challenge to the sufficiency of the evidence, this court considers only the evidence supporting the conviction in the light most favorable to the State and determines whether the verdict is supported by substantial evidence. Sweet v. State , 2011 Ark. 20, 370 S.W.3d 510. Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion or conjecture. Id. , 370 S.W.3d 510. Finally, the credibility of witnesses is an issue for the jury. Kinsey v. State , 2016 Ark. 393, 503 S.W.3d 772. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. , 503 S.W.3d 772.
Hill was convicted of aggravated residential burglary. A person commits aggravated residential burglary if he or she commits residential burglary, as defined in section 5-39-201, of a residential occupiable structure occupied by any person, and he or she (1) is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon; or (2) inflicts or attempts to inflict death or serious physical injury upon another person. Ark. Code Ann. § 5-39-204(a). 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 structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1). Serious physical injury is defined as a physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(21).
In the case at bar, Salvo testified at trial that she had been asleep in bed when she heard her name and awoke. She saw Hill walk in the door, and he asked, "Where's the pills? Where's the money?" According to Salvo, Hill grabbed her and threw her down. When she "got up and went toward him," Hill threw her on the bed, grabbed Dillard's twelve-gauge shotgun propped in the bedroom corner, pointed the gun at her, and pulled the trigger. She heard the click, but the gun did not fire. Salvo stated that Dillard then entered the room. Hill pointed the shotgun at Dillard, and Dillard fired a shot. Salvo said that she heard two shots, but she did not know who had been shot. Salvo testified that Hill pushed her backward and jumped out the window. She stated that she and Dillard went into the living room, where she saw "a lady" who asked, "Is he still in there?" Salvo responded, "No. Get out of here." She then called the police.
Here, Salvo's testimony provides substantial evidence to support Hill's conviction. Her testimony reveals that Hill entered and remained in the bedroom and demanded money and pills. She testified that Hill picked up Dillard's shotgun and pointed it at her. According to Salvo, Hill pulled the trigger, and she heard a click. This testimony supports the elements of aggravated residential burglary because Hill (1) remained unlawfully in Salvo's bedroom with the purpose of committing an offense punishable by imprisonment (2) while armed with a deadly weapon (3) attempting to inflict serious bodily harm on Salvo. Thus, we hold that the circuit court did not err in denying Hill's motion for directed verdict.
III. Character and Reputation Evidence
For the second point on appeal, Hill argues that the circuit court erred in sustaining the State's objection to the admission of evidence from other witnesses about Dillard's character and reputation for engaging in sexual assaults. Hill asserts that this testimony should have been admissible pursuant to Rule 401 and Rule 405 of the Arkansas Rules of Evidence, because it was relevant to corroborate Wright's testimony at trial.
During an in camera proceeding before trial, defense counsel stated that Hill's defense was that Dillard and Hill's girlfriend, Wright, had a relationship during which she periodically bought pills from him. Defense counsel claimed that he assaulted her the night of the offense, and that Hill "heard her scream and went in." Defense counsel sought to admit the testimony of other women to show that Dillard "would use that [time] as an opportunity to assault young women." The circuit court stated, "I think Ms. Wright can testify as to what she says occurred the night she went into the house. We're not going to bring all these other folks in here to testify about that." The circuit court further ruled that Wright could testify about what had occurred the night of the offense and stated that Hill could proffer the "other witnesses at some point during the proceedings today."
At trial, testifying for the defense, Wright stated that she and Hill went to Dillard's residence to buy some pills on the night of the offense. She stated that she frequently bought pills from Dillard and would often resell the pills and turn a profit. Wright testified,
We were sitting on the couch and he kind of forced hisself [sic] over on me and started fondling like my crouch [sic] and my breast and I just started screaming and tell him get to off me [sic] and that's when Johnny [Hill] come in and we-I-when Johnny [Hill] come to the right side where I was and Cle pulled a gun out and it was in my face and I run around the back side of the-over the couch, stepped along the couch and went around to the left side and he started firing the gun and Jonathan ran into the bedroom that was right there to the right and he kept firing the gun and I-I didn't see Jonathan after that.
Defense counsel later proffered the testimony of two witnesses who allegedly would corroborate Wright's testimony. Defense counsel stated,
Your Honor, the defense would have called Megan Schwartz. If called to testify, she would testify that within a month or two before this event happened, she also would seek Cle Dillard to buy drugs and that the last time she went out there to his house he also sexually accosted her in exchange for the drugs rather than money and that she was able to get away from him herself but she used mace to spray him and ran from him through the front door and ran and got in the car with a friend waiting on her and got away. We would proffer that as evidence of corroboration of what happened out there that evening.
....
Oh, and we would have also proffered the testimony of Amanda West who would have testified similar to Megan Schwartz. She would have testified that she knew Cle Dillard and also knew of his reputation as being a drug dealer and a lecherous old man who attacked women and-and knew a woman who lived out there with him, that she went out there one time to see this woman who lived there and [the] way Mr. Dillard treated her and what their relationship was for pills.
So we would have had those two witnesses to testify and corroborate the story.
At that time, the circuit court stated, "All right, sir. Thank you very much. We've concluded the proffer and we will stand in recess until the jury returns with their verdict."
Evidence of other crimes, wrongs, or acts are admissible for proof of motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b). Specific instances of conduct are admissible only when the character or a trait of character of a person is an essential element of a charge, claim, or defense. Ark. R. Evid. 405(b). Here, any proffered witness testimony alleging that Dillard acted in conformity with his alleged reputation of trading sex for drugs is barred by Rule 404(b). Additionally, the evidence is barred by Rule 405(b). Although the proffered witness testimony would have provided evidence of specific instances of conduct to show the reason that Hill entered the home, it would not have provided specific instances to show the reason that Hill entered or remained unlawfully in Salvo's bedroom. Thus, this proffered witness testimony would not have supported an essential element of the aggravated-residential-burglary charge or his general-denial defense. For these reasons, we hold that the circuit court did not abuse its discretion in refusing to allow this witness testimony.
IV. Cell Phone
For the third point on appeal, Hill contends that the circuit court abused its discretion in admitting several text messages from his cell phone. He also contends that the circuit court erred in admitting testimony concerning the meaning of certain phrases contained in the text messages.
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." Arkansas Rule of Evidence 402 provides that "[e]vidence which is not relevant is not admissible." Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Ark. R. Evid. 403.
At trial, the circuit court admitted some of Hill's text messages during the testimony of Billy Don Kennedy, a narcotics investigator. The text messages included the following:
"I'm going to pull a Jack move tonight for about 90 roxy 30's and close to 60 K-4's."
"Can't talk right now ... I'm creepen through the woods ... I'll hit you up when I'm thrue with this ok I LOVE YOU BABY AND I'M MISSING YOU LIKE CRAZY! ! ! ! ! ! ! ! ! !"
"Ok baby I will ... I promise you! ! ! I'm gonna be ok so don't worry ... but if something does ever happen to me just KNOW and REMEMBER forever that you have my heart and ALWAYS have from day one and that I was ALWAYS on your side and willing to do anything for you ... because I love you so much! ! ! !
"I went to pay sale tax on my car ... I thought it was $590.... WRONG! ! More like $1017 ... I went off and walked out n went straight to dealership and got a extension ... gonna try to get the contract restructured and include the sale tax in my monthly payments? ? ? ?
"I'm sorry baby my phone been dead and I just got home ... I feel bad after reading your message! ! ! I've missed you like crazy all day ... I had to drive out of town to go pick up another pair of skates so I'm straight now! ! ! I hope to see you
again soon? ? I've got to hustle hard these next two weeks and save $1117 to pay taxes and at least $850 more to keep my business afloat! ! ! ! !
The circuit court ruled that these text messages
are up to and including the time of the event which gave rise to these charges. They reference jack moves and roxy's and things-and all conclude about the time of the event that gave rise to these charges. I think that [the text messages] are relevant and will be admittable [sic] at this point.
Here, the circuit court ruled that the text messages were admissible because they were close in time to the offense, and they corroborated Salvo's testimony that Hill entered the premises and demanded pills and money, thereby establishing his motive for the crime. We agree with the circuit court's conclusion that the text messages were relevant for purposes of corroborating the victim's testimony and were close in time to the offense. Accordingly, we hold that the circuit court did not abuse its discretion in admitting these text messages from Hill's cell phone.
Further, Hill argues that Investigator Kennedy lacked the expertise to comment on the meaning of the slang terms for the drugs listed in the text messages. The officer testified that "roxy 30's" and "K-4's" referred to opioid-based narcotics. He testified that a "jack move" meant "to steal something or to rob something." He also testified that "creepen" meant "sneaking or creeping around about to maybe to do a jack move on somebody." At trial, Hill objected that the officer's testimony was purely speculative, and the circuit court ruled that the police officer had "indicated some measure of experience with this, and I'm going to allow him to testify."
Arkansas Rule of Evidence Rule 701 permits opinion testimony of a lay witness when the opinions are rationally based on the perception of the witness and are helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. See Salley v. State , 303 Ark. 278, 796 S.W.2d 335 (1990). Rule 701 is not a rule against opinions but is a rule that conditionally favors them. Moore v. State , 323 Ark. 529, 915 S.W.2d 284 (1996).
Here, Investigator Kennedy's testimony meets the requirements of Rule 701. We cannot say that the circuit court abused its discretion in allowing the officer to give his lay-opinion testimony about the drug terminology in Hill's text messages because the circuit court determined that the officer possessed some experience in that area. We affirm the circuit court's ruling.
V. Officer's Statement
For the final point on appeal, Hill argues that the circuit court abused its discretion in denying Hill an opportunity to cross-examine Officer Woodward with a prior inconsistent statement. Woodward testified that he did not attempt to obtain a DNA sample from the shotgun, yet he allegedly made a prior statement to Wright that police officers had obtained DNA from the shotgun and that it would prove whether Hill had handled the shotgun. Hill claims that he should have been allowed to cross-examine Woodward with the prior inconsistent statement that he had obtained a DNA sample from the shotgun. The State responds that the circuit court did not abuse its discretion by limiting such impeachment evidence arising from the investigating officer's efforts to induce an admission by a witness. The State also contends that Hill cannot show prejudice from such a limitation.
The relevant facts are as follows. At trial, on cross-examination, Woodward admitted that he had not taken a DNA sample from the shotgun. Defense counsel stated, "[T]hat's not what you told Stacy Wright when you took her interview; is it?" The State objected, and the circuit court sustained the objection. On redirect examination, the officer testified that "DNA on the firearm is what we call touch DNA.... [I]t's left behind by skin cells, dead skin cells. That's different from DNA that's contained in blood." Woodward stated that, based on his experience, he had "very very little success with touch DNA." Defense counsel moved to impeach Woodward with a prior inconsistent statement that the officer made to Wright during the investigation when he stated that officers had obtained DNA on the shotgun. The circuit court denied Hill's motion to use the prior inconsistent statement to impeach the officer, stating, "I think that he's testified he didn't find any of that. If [Wright] wants to try to testify to that, that'd be up [to] her, but we're not going to go into that with him."
When Wright testified, she discussed her conversation with Woodward. During direct examination, the following colloquy occurred:
STATE : You responded to Detective Woodward on a question concerning DNA on the shotgun. Do you recall what that was?
WRIGHT : Yes.
STATE : And what was it?
WRIGHT : It was just, "Good. That'll prove that there wasn't-he wasn't-had-that he didn't have a gun."
We conclude that Hill's argument lacks merit. The jury heard Woodward's alleged inconsistent statement through Wright's testimony. This court has stated that a defendant cannot complain about receiving the relief he or she requested. See, e.g. , Wyles v. State , 357 Ark. 530, 182 S.W.3d 142 (2004). For this reason, we affirm the circuit court's ruling on this point.
VI. Rule 4-3(i)
In compliance with Arkansas Supreme Court Rule 4-3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, Dissenting.
I agree that the circuit court clearly erred and abused its discretion in refusing to allow Mr. Hill to impeach Officer Woodward with a prior inconsistent statement. However, I disagree that Stacy Wright's testimony in Mr. Hill's case-in-chief concerning her response to Officer Woodward's prior inconsistent statement removed the prejudice. Justice can only be achieved by the proper application of our rules and procedures. The failure by the circuit court to allow Mr. Hill the opportunity to conduct a full cross-examination of Officer Woodward prevented Mr. Hill from being able to put on a complete and effective defense. Mr. Hill deserves a new trial.
It is not disputed that Officer Woodward's statement to Stacy Wright that he had recovered DNA from the shotgun is inconsistent with his trial testimony that no DNA was recovered because his department had "very, very little success" recovering and exploiting "touch DNA." Furthermore, it is also not disputed that this testimony was important to the State's case. The State needed it because it explains away a weakness in the State's case-no forensic evidence placing the shotgun in Mr. Hill's hands. Officer Woodward was thus allowed to minimize the lack of corroboration of Donna Salvo's fairly incredible claims upon which Mr. Hill's conviction and life sentence rest. According to Ms. Salvo's testimony, Mr. Hill committed aggravated burglary by finding and picking up the shotgun that Ms. Salvo kept in the house for her protection (and presumably for protection of the drug premises where she resided)-a weapon that Mr. Hill had no way of knowing was there-to attempt to rob Ms. Salvo of drugs and money, while the other alleged "victim," opioid peddler Cornenia Dillard, shot at him. Clearly Officer Woodward's prior-inconsistent statement should have been admitted into evidence pursuant to 613 of the Arkansas Rules of Evidence. Thus, the circuit court clearly abused its discretion by refusing to allow Mr. Hill to impeach Officer Woodward with this prior-inconsistent statement. The majority is simply wrong when it holds that Mr. Hill suffered no prejudice from this erroneous evidentiary ruling because "the jury heard Woodward's alleged inconsistent statement through Wright's testimony." It is true that Rule 613 makes prior-inconsistent statements admissible-save for admissions by party opponents, almost every out-of-court statement is inadmissible hearsay. However, Rule 613 does much more. Rule 613(a) specifies when a prior inconsistent statement may be used in a trial-when "examining" the witness who made the statement. Accordingly, under the plain wording of Rule 613, Officer Woodward's prior inconsistent statement-which would otherwise be hearsay-was admissible only to impeach Officer Woodward while he was on the witness stand. Thus, when the circuit court sustained the State's objection and denied Mr. Hill the opportunity to confront Officer Woodward with his statement, the circuit court's error was complete.
Furthermore, the majority's claims that "the jury heard Woodward's alleged statement though Wright's testimony" is not true. The following excerpt from the transcript is illuminating:
DEFENSE COUNSEL : When you were interviewed by Detective Woodward were you repeatedly-was DNA mentioned?
MS. WRIGHT : Yes ma'am.
DEFENSE COUNSEL : In what way?
MS. WRIGHT : He said there would be DNA-
THE STATE : Objection. This is hearsay.
THE COURT : I'd sustain that objection.
DEFENSE COUNSEL : You responded to Detective Woodward on a question concerning DNA on the shotgun. Do you recall what that was?
MS. WRIGHT : Yes.
DEFENSE COUNSEL : And what was it?
MS. WRIGHT : It was just, "Good. That'll prove that there wasn't-he wasn't-had-that he didn't have a gun."
This portion of the transcript proves conclusively that the jury never actually "heard" Officer Woodward's prior inconsistent statement-the circuit court sustained the State's hearsay objection.
It is noteworthy that Rule 613(b) prohibited Mr. Hill from introducing Officer Woodward's prior-inconsistent statement through Ms. Wright's testimony because it would be extrinsic evidence of the statement. Rule 613(b) states:
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
Officer Woodward was never actually confronted with his prior-inconsistent statement; consequently, he had no "opportunity to explain or deny" it. Thus, to the extent that even traces of Officer Woodward's prior-inconsistent statement could be detected by the jury, it was stripped of its value as impeachment evidence.
Our system of justice depends on adversary proceedings in which both sides must be allowed to test the proof in accordance with the rules of evidence. When one side is prevented from fully presenting its case, we cannot have confidence in the outcome of the trial. Mr. Hill was denied a fair trial because he was not allowed to test the State's evidence as provided for by Rule 613. He deserves a new trial.
I respectfully dissent. | [
21,
-17,
-3,
-68,
9,
97,
58,
60,
114,
-95,
102,
-13,
-27,
-24,
5,
105,
-95,
111,
117,
-23,
-47,
-73,
39,
97,
-14,
-69,
-111,
85,
-78,
75,
-28,
-66,
24,
96,
-54,
81,
70,
8,
-25,
88,
-118,
11,
-119,
114,
-111,
64,
40,
46,
92,
15,
53,
-100,
-30,
62,
23,
-53,
73,
44,
73,
-81,
90,
123,
90,
31,
-53,
52,
-77,
-89,
-72,
5,
122,
28,
-112,
49,
0,
-24,
115,
38,
-128,
116,
111,
-103,
44,
96,
98,
32,
-115,
-57,
40,
-127,
15,
110,
-75,
-89,
-104,
105,
75,
44,
-105,
-97,
110,
-108,
4,
-4,
101,
-20,
93,
108,
36,
-49,
-108,
-127,
9,
32,
-110,
-6,
-29,
5,
96,
117,
-51,
-26,
81,
-59,
113,
-101,
-82,
-48
] |
JOHN DAN KEMP, Chief Justice
This court granted appellant Edmond McClinton's request to proceed with an appeal of the denial of his petition under Arkansas Rule of Criminal Procedure 37.1 (2017). McClinton filed the motions before us in which he seeks permission from this court to include in the addendum of his brief a portion of the trial court's docket listing, a document filed in district court and an appendix. We need not consider the motion because it is clear that McClinton's Rule 37.1 petition did not include a meritorious claim for relief, and the trial court did not clearly err in denying postconviction relief. The appeal is dismissed, and the motions are moot.
McClinton filed his petition requesting relief under Rule 37 and requesting error coram nobis relief. The trial court originally dismissed the petition because it found the petition was untimely under the Rule and because it did not have jurisdiction to entertain a petition for a writ of error coram nobis when this court had not granted permission to McClinton to seek the writ. On appeal, this court reversed and remanded in part, holding that the circuit court clerk was to file-mark the petition as timely under Rule 37, and we affirmed the trial court's dismissal to the extent that McClinton sought the writ. McClinton v. State , 2016 Ark. 461, 506 S.W.3d 227 (per curiam).
On remand, the trial court considered McClinton's claims in the petition for Rule 37 relief. McClinton alleged that the trial court did not have jurisdiction to convict him because he did not receive a preliminary, first appearance, "bind-over," or probable-cause hearing or there were irregularities concerning those hearings; because his arrest was invalid in that there was no warrant or probable cause; and because he was not indicted by a grand jury. He alleged that he had not received due process as a result of these errors, that there was insufficient evidence to convict him, and that his trial attorneys were ineffective because the due-process errors concerning his arrest and detention were not raised.
Based on its review of the record, the trial court denied and dismissed the petition. In the order, the trial court set out its findings, which included determinations that
McClinton's claims that the evidence was insufficient were not cognizable in the proceedings, that any trial errors concerning his arrest or first appearance hearing would not support relief under Rule 37, that McClinton was properly charged by criminal information rather than by a grand jury indictment and that McClinton had failed to show either deficient performance or prejudice to establish ineffective assistance of counsel.
McClinton filed his timely notice of appeal, but the record was not submitted within the time allowed under our rules. The record that was submitted by the circuit clerk also failed to include McClinton's petition addressed by the order. In addition to granting McClinton's motion to proceed with the appeal, this court directed the circuit clerk to provide a supplemental record with that document. The supplemental record has been received, and McClinton has filed his brief.
An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward when it is clear that the appellant could not prevail. Ortega v. State , 2017 Ark. 365, 533 S.W.3d 68. This court does not reverse the denial of postconviction relief unless the trial court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, 534 S.W.3d 143. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the trial court made a mistake. Id.
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lee v. State , 2017 Ark. 337, 532 S.W.3d 43. The benchmark for judging a claim of ineffective assistance of counsel must be
"whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Lee , 2017 Ark. 337, 532 S.W.3d 43. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Id.
McClinton's claims of trial court error, incorrectly framed as jurisdictional issues, were assertions that must be raised at trial and on direct appeal. Ortega , 2017 Ark. 365, 533 S.W.3d 68. Such claims are not cognizable in Rule 37 proceedings because Rule 37 is not available as a direct challenge to the admissibility of evidence or to raise questions of trial error, even questions of constitutional dimension. Lee , 2017 Ark. 337, 532 S.W.3d 43. For this court to address such a question when it is raised for the first time in Rule 37 proceedings, the appellant must show a fundamental error sufficient to void the judgment. Id. McClinton's allegations of error failed to make this showing and also failed to demonstrate prejudice that would support his claims of ineffective assistance of counsel through a failure to raise the errors.
An invalid arrest does not entitle a defendant to be discharged from responsibility for the offense, and a flaw in the arrest procedure does not vitiate an otherwise valid judgment or constitute fundamental error sufficient to void a judgment. Biggers v. State , 317 Ark. 414, 878 S.W.2d 717 (1994). The court's jurisdiction to try the accused does not depend upon the validity of the arrest. Singleton v. State , 256 Ark. 756, 510 S.W.2d 283 (1974). A defendant who was fairly tried in a court of competent jurisdiction and found guilty is not entitled to be set free on the basis of some flaw in the manner of his arrest, and because no prejudice results from counsel's failure to raise such a challenge, the trial court correctly found that McClinton's counsel were not ineffective for failing to raise the issue. Id.
McClinton's allegations of other errors regarding his pretrial detention are much the same. An allegation concerning the lack of a prompt first appearance or proper arraignment is not one of fundamental error and does not render the judgment void; and because McClinton was tried by a jury on a plea of not guilty, he can, once again, demonstrate no prejudice resulting from such an error. See Scott v. State , 355 Ark. 485, 139 S.W.3d 511 (2003).
This court has held many times that a defendant has no constitutional right to be indicted by a grand jury and that amendment 21 to the Arkansas Constitution, which permits indictment by information, is constitutional.
Bennett v. State , 307 Ark. 400, 821 S.W.2d 13 (1991). Failure to make a meritless objection is not ineffective assistance of counsel. Turner v. State , 2016 Ark. 96, at 4, 486 S.W.3d 757, 760. McClinton's ineffective-assistance claim on that issue likewise fails to demonstrate prejudice.
The trial court therefore correctly determined that McClinton was not entitled to relief on his allegations of trial error or ineffective assistance regarding those claims. As for his final claim of insufficient evidence, a direct challenge to the sufficiency of the evidence is not cognizable in Rule 37 proceedings. Scott v. State , 2012 Ark. 199, 406 S.W.3d 1. The trial court did not clearly err in denying postconviction relief, and McClinton cannot prevail on appeal.
Appeal dismissed; motions moot.
Hart, J., concurs.
Josephine Linker Hart, Justice, concurring.
I agree that Mr. McClinton's appeal should be dismissed. However, my reason for dismissing Mr. McClinton's Rule 37 appeal is even more basic than the majority's-we should dispose of the rule itself.
In the nearly thirty years since this court created the rule, I am aware of only two cases in which a prisoner received a new trial pursuant to Rule 37: Flores v. State , 350 Ark. 198, 85 S.W.3d 896 (2002), and Rackley v. State , 2014 Ark. 39, 2014 WL 346713. Meanwhile, the procedural defaults that are distressingly common when an inmate attempts to invoke Rule 37 bars the inmate from pursuing habeas relief in federal court.
Furthermore, in light of this court's recent decision, Board of Trustees of the University of Arkansas v. Andrews , 2018 Ark. 12, 535 S.W.3d 616, Rule 37 must be unconstitutional. As the writing judge in Andrews noted, the plain language of article 5, section 20 of the Arkansas Constitution states that "the State of Arkansas shall never be made defendant in any of her courts," and emphasized that "never" means "never." This court determined that Rule 37 is a civil rather than criminal proceeding, and, most importantly, that the State of Arkansas is named as the defendant.
I believe that Rule 37 could have been an invaluable tool for this court to assess whether the State of Arkansas is providing competent counsel as the state and federal constitutions require. Effectiveness of counsel should be judged not merely on whether a case is won or lost but also on whether defense counsel was competent enough to help the finder of fact to decide the nature and level of culpability for a particular criminal act. Determining the proper level of culpability directly corresponds to the length of a prison sentence. Without a competent defense, a criminal defendant could easily receive a much greater sentence than the law contemplates. With Arkansas's prison population exceeding 19,000, ineffective counsel is something that we simply cannot afford.
I concur.
The record contains a second petition McClinton filed in the trial court seeking Rule 37 and declaratory-judgment relief. The order appealed did not address that petition.
In his brief, McClinton cites State v. Dillingham , 43 Ark. 154 (1884), for the proposition that there can be no valid trial without a formal plea from the defendant. This court noted in Hobbs v. State , 86 Ark. 360, 111 S.W. 264 (1908), that Dillingham was overruled by Hayden v. State , 55 Ark. 342, 18 S.W. 239 (1892). The decision in Hobbs , consistent with our more recent precedent, held that it was not prejudicial error, and a conviction in a felony case will not be reversed, because the defendant was put on trial without a formal arraignment and plea of not guilty, if the record shows that the defendant received every right that he would have received had he been duly arraigned and pleaded. 86 Ark. 360, 111 S.W. 264.
I am mindful that this court occasionally reverses summary dismissal of a Rule 37 petition and orders the circuit court to make specific findings of fact. That disposition is little more than direction to comply with the mandatory language of Rule 37.3(a), which states:
(a) If the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings.
(Emphasis supplied.) However, this is not "relief," but merely forestalling the inevitable. | [
48,
-24,
-3,
124,
-104,
-127,
26,
28,
65,
-109,
103,
113,
-19,
-98,
5,
115,
-21,
121,
117,
-7,
-52,
-73,
7,
97,
50,
-77,
-117,
71,
116,
91,
-20,
-14,
76,
96,
-22,
-43,
68,
106,
-121,
24,
-114,
9,
-119,
-27,
80,
67,
48,
32,
84,
15,
49,
-98,
-29,
42,
19,
-53,
-23,
108,
-37,
58,
72,
-77,
-120,
-107,
-1,
20,
-95,
52,
-102,
7,
116,
62,
-104,
17,
0,
-8,
114,
-90,
-126,
-44,
107,
-69,
40,
100,
98,
33,
89,
-25,
-72,
-96,
46,
61,
-107,
38,
-38,
33,
107,
1,
-106,
-71,
107,
20,
12,
124,
108,
-116,
16,
108,
40,
-82,
-44,
-91,
38,
116,
-108,
82,
-29,
5,
20,
117,
-51,
-25,
88,
7,
59,
-33,
-84,
-107
] |
DAVID M. GLOVER, Judge
Jameel Raheem was tried by the court and found guilty of the offense of third-degree domestic battering, a Class A misdemeanor. He appeals, contending 1) the trial court violated his Sixth Amendment right to confront a witness against him, Megan Simmons, and 2) without Megan's testimonial hearsay statements, there was no evidence to sustain his conviction, and therefore his conviction should be vacated and the State barred from trying him again. We affirm.
Sergeant Scott Miles responded to a call at a Valero gas station on June 1, 2017, where he found Megan Simmons lying on the ground and in distress. She reported Jameel Raheem, her boyfriend, had hit her legs with the broad side of a machete and had tried to choke her. Raheem was arrested after a machete was found on the floor of a truck registered to him. Dr. Darren Flamik treated Megan after she was transported to the hospital. She told Dr. Flamik that Raheem was the one who had hit her with the flat side of a machete and choked her.
As time for trial approached, it became clear Megan was not willing to testify. Raheem filed a motion in limine to prevent Sergeant Miles and Dr. Flamik from testifying. His motion focused on Confrontation-Clause violations in addition to arguments the testimony did not qualify as hearsay exceptions.
At the outset of the bench trial, Megan was not present, and defense counsel asked the court to address the motion in limine, arguing that none of the hearsay exceptions applied and that not only did those exceptions not apply, but there was also a fundamental constitutional right to confront a witness the State was attempting to evade. The State countered that it was premature for the court to rule on the admissibility of the testimony from Sergeant Miles and Dr. Flamik without hearing the context and substance of the statements. The trial court concluded the State could put the witnesses on, and if there was an objection, defense counsel could make it at that time based upon who the witness was, the time frame, and the circumstances under which it was made.
Sergeant Miles and Dr. Flamik testified about what Megan Simmons told them had happened to her on June 1, 2017. When the State presented Sergeant Miles, defense counsel objected, but strictly on hearsay grounds. No mention was made of the Confrontation Clause. The trial court overruled the objection, concluding that the testimony about what Megan told the officer fell under the excited-utterance exception to the hearsay rule.
Similarly, when Dr. Flamik was testifying about what Megan had told him, defense counsel again objected based on hearsay. The argument focused on Rule 803(4)-statements made for the purpose of medical diagnosis and treatment. No mention was made of the Confrontation Clause. The trial court overruled the objection.
When the State rested, defense counsel moved for a directed verdict, arguing the only testimony indicating Raheem caused injuries to Megan came from hearsay testimony. The trial court denied the motion, and Raheem then testified in his own defense. Defense counsel renewed the motion at the conclusion of Raheem's testimony, and it was again denied.
As his second point of appeal, Raheem challenges the sufficiency of the evidence supporting the verdict. We address this issue first because of double-jeopardy concerns. Drennan v. State , 2018 Ark. 328, 559 S.W.3d 262. We note at the outset Raheem misstates the manner in which our court reviews such challenges. He basically contends that because the testimony of Sergeant Miles and Dr. Flamik should not have been allowed, without it there was not sufficient evidence to establish that he was the assailant. However, in reviewing sufficiency challenges, all the evidence, including that which may have been inadmissible, is considered in the light most favorable to the State. Britt v. State , 2015 Ark. App. 456, 468 S.W.3d 285. We examine all the evidence submitted before we address alleged trial error. Briggs v. State , 2015 Ark. App. 364, 465 S.W.3d 24. We review the evidence in the light most favorable to the State as the prevailing party and affirm if the conviction is supported by substantial evidence. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.
Arkansas Code Annotated section 5-26-305 (Supp. 2017) provides in pertinent part:
(a) A person commits domestic battering in the third degree if:
(1) With the purpose of causing physical injury to a family or household member, the person causes physical injury to a family or household member[.]
Here, Sergeant Miles testified that when he responded to the call on June 1, Megan Simmons was "obviously upset," "crying," "not really walking as she was injured," and he "observed injuries" to her. She had a small cut on her neck, "redness and bruising on the upper portion of her right leg," and some "slight swelling." Megan told the sergeant the injuries to her leg were caused by the broad side of a machete wielded by her boyfriend at the time, Jameel Raheem. She explained he grabbed the machete from his truck when he could not get in her locked car and tried to use it to get in the car. She noticed Raheem becoming more and more aggressive, and she told the sergeant he grabbed her and placed his arm around her neck in a choke position and also grabbed the front of her throat with his hands and applied pressure. He then threw her to the ground and struck her right leg with a dumbbell wrapped in duct tape. Sergeant Miles explained he got the suspect's information and verified it was a domestic case. He remained with Megan, waiting on an ambulance, while other officers went to Raheem's address and made contact with him. One of those officers testified he saw a machete in Raheem's vehicle. Dr. Flamik testified he was working in the emergency department when Megan arrived at the hospital on June 1, and he treated her. He observed the injuries to her right upper and lower leg and the scratches and abrasions around her neck. While Dr. Flamik was taking her history concerning how she had been injured, she told him she had gotten into a verbal altercation with her boyfriend and tried to drive away; he attempted to open her car door with a machete; he then choked her and struck her multiple times with the flat side of the machete on her upper right leg; and then he struck her on the right lower leg with a dumbbell. This evidence is sufficient to support Raheem's conviction for third-degree domestic battery.
Raheem's primary argument on appeal is that the trial court erred in allowing the testimonial hearsay from Sergeant Miles and Dr. Flamik because it violated his Sixth Amendment right to confront the witness against him-Megan Simmons. We do not address this argument because it was not properly preserved for our review. Even though the Confrontation Clause argument was raised in the motion in limine, the trial court did not rule on the motion. Rather, the trial court specifically stated that when the State presented the challenged witnesses, if there was an objection, defense counsel could make it then based upon who the witness was, the time frame, and the circumstances under which it was made. Counsel raised hearsay objections during the testimony of both Sergeant Miles and Dr. Flamik; counsel did not include the Confrontation Clause arguments. In fact, in his post-trial motion for reconsideration, defense counsel candidly acknowledged
4. Defendant objected to the admission of such testimony on the basis that such statements did not meet the legal grounds for hearsay exceptions....
5. The court overruled defendant's objections, and by default, denied defendant's motion in limine, ....
Raheem's motion for reconsideration focused on the Confrontation Clause. It was too late. His confrontation arguments should have been made alongside the hearsay arguments when the witnesses were presented at trial. As our supreme court explained in Massengale v. State , 319 Ark. 743, 746, 894 S.W.2d 594, 595 (1995)
When a motion in limine is filed, a trial judge will usually make one of three rulings. One, he may grant the motion, and the evidence will not be admitted. Two, he may decline to rule on the motion for various reasons.... In that case it is necessary for counsel to make a specific objection during the trial. Brown v. State , 316 Ark. 724, 875 S.W.2d 828 (1994). Third, he may deny the motion. A motion in limine which is denied preserves the issue for appeal and no further objection is required. Ward v. State , 272 Ark. 99, 612 S.W.2d 118 (1981).
(Emphasis added.) Raising the Confrontation Clause argument in a post-trial motion and trying to tie it back to the motion in limine-where it was raised but not ruled upon-is not sufficient to preserve the argument for this court's review on appeal.
Affirmed.
Harrison and Klappenbach, JJ., agree. | [
16,
-25,
-19,
-115,
43,
33,
-88,
-76,
10,
-125,
118,
114,
47,
88,
5,
127,
-86,
127,
84,
105,
-46,
-73,
-121,
-61,
-94,
-13,
-112,
-45,
-78,
-50,
-10,
-11,
12,
112,
-30,
17,
102,
74,
-13,
88,
-114,
63,
-88,
-16,
-45,
17,
40,
47,
6,
15,
49,
-114,
-13,
44,
53,
-54,
-119,
104,
75,
-67,
-64,
93,
-103,
-105,
-50,
48,
-77,
36,
-97,
35,
120,
119,
-108,
17,
0,
104,
115,
-74,
-128,
116,
107,
-101,
45,
34,
98,
17,
12,
85,
101,
-88,
127,
126,
-100,
-89,
-104,
105,
107,
-116,
-105,
-99,
108,
84,
44,
-30,
110,
92,
120,
76,
70,
-57,
-108,
-103,
-113,
116,
-106,
-14,
-21,
23,
16,
85,
-59,
-22,
84,
69,
51,
-1,
47,
-10
] |
DAVID M. GLOVER, Judge
Tyree Goins was tried by a jury and found guilty of the offense of rape. His victim, TL, was under fourteen years old at the time of the offense. Goins raises four points of appeal, contending the trial court erred in denying 1) his motions for directed verdict based on pre-trial and trial-defense motions, 2) his motion for directed verdict based on defense arguments concerning inconsistencies between the victim's pre-trial and trial testimony, 3) his motion for directed verdict restricting defense arguments concerning the relationship between the victim's mother and Goins being the motive for the charges against him, and 4) his objection to jail-phone recordings being admitted for the jury to hear. We affirm.
TL testified she was born on October 23, 2001. She stated she was thirteen years old when she met Goins at the Fox Creek Apartments in Texarkana. TL explained she lived in an apartment complex located next door to his. According to her, approximately two weeks after meeting Goins, they had sex for the first time. She described several subsequent sexual encounters with Goins. As abstracted, she described in part her first sexual encounter with Goins as follows:
One night we were outside. He asked me if I wanted to go to the store and I said yes. And we didn't go to the store right away. And we, we went somewhere and had sex. No, ma'am, I do not remember about what time of year it was. Yes, ma'am, I do remember it was before my fourteenth birthday.
....
Yes, ma'am, it was a burgundy car with tinted windows. I can tell you what happened in the burgundy car with tinted windows. We had sex. I don't know where he parked and told me that he would not hurt me, that I'd be okay. He told me to take off my clothes and he got out of the car and got in the back seat where I was and we had sex. He said everything was going to be okay and he was not going to hurt me.
I can tell you what I mean when I say he had sex with me. When a male sticks their penis in a female's vagina, Yes ma'am, that did happen. No, ma'am, I do not know what made it stop. Next, we left. No, ma'am, I do not know if anything came out of his penis. No, ma'am, nothing came out of my vagina. Then we left and went to Church's and back to Fox Creek.
I remember that it made my vagina feel weird.... It was my first time so it felt weird.
TL then testified about at least six additional sexual encounters with Goins. She described another time they had sex in the same burgundy car in the parking lot of the Links Apartments. She testified Goins "started licking my vagina and then we start[ed] having sex." She said she took her clothes off; he just pulled down his pants; he told her to turn around and bend over; he was behind her and he started having sex, which she again described as a "man's penis going in the vagina"; and she said that was what happened that day at the Links Apartments.
She explained they also had sex in a Fox Creek apartment where nobody lived because it was getting fixed. They were in one of the rooms in the apartment; they had sex in that room. She said her pants came off; his pants "got pulled down."
She also described a sexual encounter that took place in his apartment at Fox Creek where he lived with the mother of his children. TL testified they did not have sex, but she described the encounter as going into his room and "his penis was in my mouth." The kids were outside playing.
She described another time when they were parked by the fairgrounds and had sex in the burgundy car. She said when they finished having sex, Goins grabbed a towel. TL acknowledged that when she said they had sex, it was the same definition she had previously given. She then described a time when he came to get her at the Village Park South apartments, and they "went somewhere" where they had sex in a black Jeep; she did not know where they were, but she described the route they took to get there.
Finally, she described an encounter that took place in a "grayish silver looking car" in a "big parking space behind E-Z Mart and Wendy's on State Line and by Motel 6." She testified they were in the car and had sex and that "sex" meant what it had meant all the other times. She said at least one or more of the seven sexual encounters she described happened before her fourteenth birthday on October 23, 2015. TL explained her brother saw texts she and Goins had exchanged on her brother's phone, and her brother showed their mother, who called the police.
Goins's first three points of appeal challenge the trial court's denial of his motion for directed verdict, attempting to encompass arguments within the sufficiency challenge that are not pertinent. We address them together. In reviewing the denial of a motion for directed verdict, we treat the motion as a challenge to the sufficiency of the evidence. Wiseman v. State , 2017 Ark. App. 371, 526 S.W.3d 4. We examine the evidence to determine whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Variances and discrepancies in the proof go to the weight or credibility of the evidence and are matters for the fact-finder to resolve. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Accordingly, when there is evidence of a defendant's guilt, even if it is conflicting, it is for the jury as fact-finder to resolve, not the court. Id.
Arkansas Code Annotated section 5-14-103 (Repl. 2013) defines the offense of rape in pertinent part:
(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:
....
(3)(A) Who is less than fourteen (14) years of age.
"Deviate sexual activity" means any act of sexual gratification involving (A) the penetration, however slight, of the anus or mouth of a person by the penis of another person; or (B) the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1). A rape victim's testimony may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Garcia v. State , 2017 Ark. App. 457, 530 S.W.3d 862. A rape victim's testimony need not be corroborated, nor is scientific evidence required, and the victim's testimony describing penetration is enough for a conviction. Id.
We begin by noting that Goins's efforts to encompass into his sufficiency challenges the trial court's denial of pre-trial and trial motions, inconsistencies in the testimony, and TL's mother's relationship with Goins fail. They do not provide grounds for a sufficiency challenge. Moreover, even if the trial court had erred in the ways argued by Goins, it would not change the outcome of his challenges to the sufficiency of the evidence. In reviewing sufficiency challenges, all the evidence presented, including that which may have been inadmissible, is considered in the light most favorable to the State. Britt v. State , 2015 Ark. App. 456, 468 S.W.3d 285.
Here, Goins was charged with only one count of rape. TL testified about at least seven sexual encounters that would satisfy the definition of either sexual intercourse or deviate sexual activity. She was able to give graphic descriptions of those encounters. She explained she regarded sexual intercourse as any time a man inserted his penis into a woman's vagina. In addition, she testified that at least one, if not more, of the encounters happened before her fourteenth birthday. We hold there is substantial evidence to support Goins's rape conviction.
For his remaining point of appeal, Goins contends the trial court erred in allowing the introduction of a CD and a call log involving recorded phone calls from the jail where Goins was housed at the time. The recordings were introduced through the testimony of Alan Fincher, who was employed as an investigator for the prosecuting attorney's office. Before that, Fincher had served as a police officer with the Texarkana, Arkansas Police Department for twenty-five years. He testified he had obtained the recordings in his role as investigator for the prosecutor's office; he downloaded the disc; he was able to identify the recordings based on a number or identification code; the CD contained phone calls from an account for James Ross; and they were recorded on February 15, 2018. He said the accompanying exhibit was the "call detail record." He further explained the information downloaded to the disc was recorded on a machine capable of making an accurate recording of telephone calls that are being made over that system. He explained he listened to the original phone call and the phone call on the disc and they were one and the same, with no alterations. He testified the disc contained a true and correct copy of the recording as he listened to it on the original recording device; the call log was for James Ross; he knew that because there was an identification number for Ross and also Ross's name and specific telephone number were listed on the record. Fincher further explained that the call log was generated through the same system from which the call was recorded and that the call log corresponded with the calls contained on the disc.
Goins objected "based on [Alan Fincher's] not being in control of that system." The trial court overruled the objection, stating "the admissibility of this evidence is not in question, but the jury can give it whatever credibility they find in it." Subsequently, the trial court planned to limit what the jury heard from the CD, concluding that it presented hearsay in some places-a concern raised by the trial court, not Goins. Not only did Goins not object based on hearsay, he also ultimately asked the trial court to play the entire CD, which was done. It is well settled that only the specific objections and requests made at trial will be considered on appeal. Thomas v. State , 2016 Ark. App. 195, 487 S.W.3d 415. Arguments not raised below, even constitutional ones, are waived, and parties cannot change the grounds for an objection on appeal but are bound by the scope and nature of the objections and arguments presented at trial. Id. Accordingly, we find no merit in the hearsay arguments concerning these recordings that exceed the scope and nature of the objection presented to the trial court.
In addition, Goins further expands his trial argument to add an argument before this court that the playing of the recorded conversations destroyed his constitutional right not to testify because he was left "with a choice of evils"-"[h]e could remain silent as he chose to do and allow the implications of the recordings to go unchallenged, or he could give up his right not to be made to testify and take the witness stand." Again, in order to preserve even a constitutional argument for our consideration on appeal, the argument must first be raised to the trial court. Id.
Finally, with respect to the evidentiary challenge Goins did raise at trial, which challenged the recordings' authenticity, we find no abuse of the trial court's discretion in overruling the objection. Arkansas Rule of Evidence 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Harris v. State , 2018 Ark. App. 520, 561 S.W.3d 766. Rule 901 further states "that the testimony of a witness with knowledge that a matter is what it is claimed to be can authenticate evidence, and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence." Id. at 10, 561 S.W.3d at 772. The purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Id. Authentication requirements are satisfied if the trial court concludes, in its discretion, that the evidence is genuine and that, in reasonable probability, it has not been tampered with or altered in any significant matter. Id.
Here, Goins's objection was limited to the assertion Alan Fincher was not in control of the system that recorded phone calls and therefore not qualified to authenticate it. Goins made no assertion the recordings had been tampered with or altered in any fashion. As previously recounted, Fincher testified at length about how he downloaded the conversations on the CD and verified their accuracy. He further explained how the calls are identified by specific numbers and how the call log was generated by the same system that records the calls. He testified the disc contained a true and correct copy of the recording as he listened to it on the original recording device. We hold the trial court did not abuse its discretion in allowing this evidence. As the trial court noted, the jury could give the disc and call log whatever credibility it found in it. Minor uncertainties in the proof of chain of custody are matters to be weighed by the jury following arguments of counsel, but they do not render the evidence inadmissible as a matter of law. Id.
Affirmed.
Abramson and Brown, JJ., agree. | [
48,
-52,
77,
-67,
29,
80,
42,
-4,
16,
-73,
115,
83,
-93,
-34,
84,
125,
-101,
107,
84,
96,
-111,
55,
-123,
-31,
48,
-5,
58,
-45,
-73,
75,
-76,
-100,
76,
80,
-54,
-15,
38,
74,
-25,
94,
-94,
-121,
-117,
-28,
90,
-125,
44,
51,
66,
79,
53,
-116,
-30,
43,
-68,
91,
41,
76,
87,
60,
88,
16,
-39,
23,
-92,
36,
-93,
36,
-98,
19,
120,
40,
-108,
49,
0,
-4,
123,
-74,
-110,
116,
109,
-119,
-115,
96,
115,
33,
13,
-60,
-84,
-95,
95,
127,
-107,
-89,
-40,
-87,
3,
76,
-65,
-43,
-32,
80,
12,
-6,
99,
69,
125,
96,
-85,
-114,
-108,
-111,
-115,
32,
-58,
59,
-15,
85,
84,
117,
-57,
-10,
76,
85,
56,
-45,
30,
-77
] |
LARRY D. VAUGHT, Judge
Jamie Guardado appeals the Grant County Circuit Court's order terminating her parental rights to five of her six children, R.M., L.M., E.G., L.G., and J.G. We affirm.
On April 26, 2016, the Arkansas Department of Human Services (DHS) took emergency custody of thirteen-year-old twins R.M. and L.M., ten-year-old E.G., nine-year-old L.G., and two-year-old J.G. due to neglect, educational neglect, inadequate shelter, and Guardado's drug use. The court subsequently adjudicated the children dependent-neglected based on neglect and parental unfitness, which was in part based on the fact that Guardado tested positive for amphetamines and methamphetamine. The court also found that Guardado had been arrested on felony charges on the day of the adjudication hearing, lacked stable housing, and had made false statements to the court.
The court held review hearings in November 2016 and February 2017, after both of which the court found Guardado in substantial compliance with the case plan. Guardado was granted overnight visitation with her children until a maltreatment allegation arose against Guardado's live-in boyfriend, Yengenis Antonio Vallejo Martinez ("Tony"). The court then entered a no-contact order prohibiting Tony from being around the children. Following a permanency-planning hearing in March 2017, the court found that Guardado was in substantial compliance with the case plan but also found that she had suffered a "setback" due to relying on others for financial support. The court ordered that Guardado show financial stability and provide DHS with her pay stubs and work schedule.
After several continuances, the court held a fifteen-month review hearing in September 2017. The court found that although Guardado had made measurable progress on the case plan, she had failed to attend the trauma therapy that had been recommended for her in July 2017, and she lacked financial stability sufficient to care for her children. The court continued the goal of reunification but ordered Guardado to comply with trauma therapy and show financial stability by obtaining employment to help provide for her children. The court subsequently ordered Guardado to seek child-support arrearages owed to her, which she did.
On December 13, 2017, the court authorized DHS to file a petition to terminate Guardado's parental rights, which it filed on January 3. The petition alleged that termination was appropriate under several grounds: "failure to provide significant material support" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ii)(a) (Supp. 2017); "failure to remedy" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) ; "subsequent factors" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) ; and "aggravated circumstances" pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3)(A) -(B)(i) .
The court held a termination hearing on April 30, 2018. Following the hearing, the court entered an order terminating Guardado's parental rights. The court found that Guardado's testimony at the hearing was not credible, especially as to her relationship with Tony. The evidence revealed that Tony's name was still on the lease for Guardado's apartment; her only form of transportation was his car, which she claimed he had given her; and she continued to rely on Tony and her family to support her financially. Moreover, Guardado had another child with Tony during the pendency of the case. The court also found that Guardado still lacked stable and adequate income and housing, did not have an appropriate childcare plan should the children be returned to her custody, lacked stable transportation, had not consistently visited the children, had not provided support for the children, had not complied with court-ordered trauma therapy, continued to rely on friends and family to resolve her financial problems, had been arrested twice during the pendency of the case for failure to pay court fines, and had not complied with the case plan. The court also found that the children are adoptable, that returning them to Guardado's custody would pose a risk to their health and safety, and that termination is in their best interest.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a circuit court's decision to terminate parental rights only when it is clearly erroneous. Ullom 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). 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. 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).
Guardado challenges the sufficiency of the evidence supporting the court's findings that DHS adequately proved four independent statutory grounds for termination. We have repeatedly held that DHS need only prove one ground for termination, so we must affirm if the evidence supports at least one of the statutory grounds at issue in this case. Martin v. Ark. Dep't of Human Servs. , 2016 Ark. App. 521, at 11, 504 S.W.3d 628, 635.
Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3) establishes a statutory ground for the termination of parental rights when "[a] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification." Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) . Guardado does not contest the court's finding that there is little likelihood that additional family services would result in successful reunification; her only argument is that the circuit court erred in finding that DHS had provided meaningful services throughout the case. This argument has no merit. We have previously held that "a finding of aggravated circumstances does not require that DHS prove that meaningful services toward reunification were provided." Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, at 9, 538 S.W.3d 842, 849 (citing Draper v. Ark. Dep't of Human Servs. , 2012 Ark. App. 112, 389 S.W.3d 58 ). Because Guardado has raised no other challenge to the court's aggravated-circumstances finding, and because DHS need only prove one statutory ground supporting termination of parental rights, we affirm the circuit court's finding that termination was supported by sufficient evidence.
Guardado's second point on appeal is a challenge to the court's finding that termination is in the children's best interest. In addition to finding a statutory ground for termination, an order terminating parental rights must also be based on clear and convincing evidence that the termination is in the child's best interest. Smith v. Ark. Dep't of Human Servs. , 2018 Ark. App. 380, at 6, 555 S.W.3d 896, 900. When making a best-interest determination, the circuit court must consider the likelihood the child will be adopted and the potential harm the child would face if returned to the parents. Id. Potential harm must be viewed in a forward-looking manner and considered in broad terms. Id.
Guardado's best-interest argument does not challenge the court's adoptability finding. Instead, she seems to argue that because the parties stipulated that the children would prefer to be returned to their mother's custody if their home was safe and stable, the termination decision was against their best interest. We disagree. To the extent that Guardado is challenging the court's potential-harm finding, she fails to address the facts on which the court's finding was based: her "continued instability and failure to comply with the case plan and this Court's orders." Specifically, the court discussed Guardado's ongoing "toxic relationship" with Tony, her reliance on him and others for transportation and financial support, her failure to complete trauma therapy or provide DHS with evidence of her employment, her failure to consistently visit the children or provide for their support, her reliance on an inappropriate childcare plan should they be returned to her care, and the fact that she had inadequate housing and income to accommodate the children. While the children expressed a preference for returning home with Guardado so long as her home was safe and stable, the court's risk-of-harm finding demonstrates that Guardado's home was not safe and stable. Moreover, Guardado has cited no legal authority, and we are aware of none, that would mandate that the circuit court's best-interest determination must accommodate a child's stated preference regarding custody. The court considered the children's wishes but found that Guardado's instability and unwillingness to comply with the case plan presented a risk of harm to their health and safety. We affirm.
Affirmed.
Gruber, C.J., and Klappenbach, J., agree.
Guardado also has a sixth child, born in February 2018, who is not a party to this case.
Tony is the father of Guardado's youngest child, born during the pendency of this case. The record contains multiple variations of Tony's first name, including "Yengenis" and "Genesis."
Guardado testified that she worked as a home healthcare aide and planned to bring all six of her children, including an infant son born in February 2018, to work with her while she cared for her clients. | [
-16,
-20,
-11,
108,
26,
97,
30,
56,
67,
-53,
114,
-45,
-81,
-26,
20,
105,
42,
111,
100,
113,
-61,
-74,
-43,
33,
98,
-13,
-72,
-41,
115,
79,
44,
-44,
90,
80,
-114,
-111,
66,
-64,
-25,
88,
-118,
3,
-117,
-27,
81,
-121,
32,
-85,
18,
14,
53,
-66,
-45,
108,
24,
-54,
108,
110,
81,
53,
88,
-6,
-53,
7,
-18,
85,
-125,
100,
-101,
4,
114,
39,
-44,
49,
-127,
-24,
51,
54,
-118,
116,
65,
-69,
-123,
48,
102,
-128,
60,
-57,
-16,
-88,
-34,
-66,
-103,
-90,
-118,
-7,
11,
15,
-106,
-76,
124,
20,
42,
-4,
67,
77,
108,
100,
-124,
-49,
-44,
-111,
-116,
-72,
92,
27,
-29,
99,
48,
117,
-126,
-78,
116,
-57,
51,
-101,
-26,
-10
] |
ROBERT J. GLADWIN, Judge
This appeal stems from a dispute between three siblings over the management and distribution of their mother's trust. Deborah Mitchell (Deb), sued her siblings, Cynthia Horton (Cindy) and Prentice Young (Butch), and Cindy and Butch filed a counterclaim against Deb. Deb ultimately prevailed. Thereafter, the circuit court awarded Deb attorney's fees and later held Cindy in contempt of court for failing to comply with its orders. Butch had died by the time the contempt proceedings were held, and Bryce Brewer was appointed as special administrator of Butch's estate. Cindy and Butch appeal the circuit court's judgment, the order awarding attorney's fees, and the contempt finding against Cindy. Deb cross-appeals, challenging a posttrial ruling wherein the circuit court refused to void a mortgage on certain property that Cindy and Butch had given to their lawyer. We affirm on direct appeal and on cross-appeal.
I. Background
The Rena Byars Mitchell Revocable Trust (the Trust) was established by Rena Byars Mitchell in June 2005. Pursuant to the Trust, Rena, a widow with three living children-Deb, Cindy, and Butch-served as the initial trustee.
Deb, Cindy, and Butch have been estranged for years. Their strained relationship is apparent throughout this litigation. Deb generally claims that Butch and Cindy, who lived on the same property as Rena until Rena's death, abused drugs and mistreated Rena during her life, while Butch and Cindy accuse Deb of being absent from their mother's life.
Due to health problems, Rena resigned as trustee of the Trust in April 2008. The Trust delineated that on her resignation, Butch, Cindy, and Deb would be appointed as cotrustees and serve by majority agreement.
This allowed two of the three siblings, Butch and Cindy, authority to make decisions on behalf of the Trust without Deb's approval.
After Rena's resignation, Deb petitioned for guardianship of Rena's estate and person, and Butch and Cindy petitioned to become coguardians of Rena's estate and person. Ultimately, Butch and Deb were appointed as coguardians. Cindy admitted to long-term methamphetamine use at the guardianship hearing. Later, Butch resigned after refusing to submit to a drug test, and Deb became Rena's sole guardian.
In May 2012, Rena died. Shortly after Rena's death, Deb filed a complaint and then an amended complaint relating to administration of the Trust and alleged the misappropriation of Trust funds by Cindy and Butch. She made claims against Cindy and Butch for breach of trust, breach of fiduciary duty, conversion, fraud, breach of contract, civil action by a crime victim, tortious interference, unjust enrichment, removal of trustees, imposition of constructive trust and equitable lien, and injunction. Generally, Deb claims that Butch and Cindy used their powers as cotrustees to pay themselves hundreds of thousands of dollars out of the Trust for which Deb contends there was little or no justification or supporting documentation. Butch and Cindy counterclaimed and alleged that Deb breached her duties as cotrustee.
A three-day jury trial was held on July 27, 28, and 30, 2015. At the conclusion of the trial, the jury rendered a verdict in favor of Deb. The jury found Butch liable to Deb on behalf of the Trust for $420,000 in compensatory damages and $630,000 in punitive damages and found Cindy liable for $205,000 in compensatory damages and $310,000 in punitive damages. The jury also rejected Butch and Cindy's counterclaim. This left pending several equitable claims to be decided by the circuit court. After the jury was released, counsel for Deb mentioned that he was concerned about the resolution of Deb's pending injunction claim because, until it was decided, Butch and Cindy could theoretically clean out the Trust account. The court responded by saying there would be no action on the Trust over the weekend and directed the parties to promptly prepare a judgment for its approval.
More than two months passed, and on October 5, 2015, a judgment memorializing the jury's verdict was entered. That same day, the circuit court entered a decree addressing many of Deb's equitable claims. The decree included language that "in the event" Butch and Cindy "have withdrawn any money from the trust or disposed of any trust property, they are given ten (10) days from the date this decree is filed ... to return said funds or property to the trust."
Thereafter, Butch and Cindy filed a motion for judgment notwithstanding the verdict and a motion for new trial or remittitur. Deb responded, and the circuit court denied the motions. Butch and Cindy filed a notice of appeal of the judgment and the denial of their posttrial motions. Later, a judgment for prejudgment interest was entered, and Butch and Cindy filed an amended notice of appeal to include this order. Finally, the circuit court entered an order awarding attorney's fees and costs to Deb, and Butch and Cindy timely appealed this order.
The record on appeal was filed in our court. However, the appeal was dismissed without prejudice due to lack of finality. There were several pending claims that had not been resolved. The case was remanded to the circuit court, and the circuit court administratively dismissed the unresolved claims. Butch and Cindy timely appealed.
The circuit court also held a contempt hearing based on a motion filed by Deb. Deb claimed that Cindy and Butch had violated the circuit court's July 2015 oral order not to engage in any Trust transactions over the weekend following the jury trial. She also claimed that Cindy and Butch had violated the circuit court's decree, which required them to return any funds or property they may have withdrawn from or disposed of from the Trust. Also, in the contempt motion, Deb sought to have a mortgage on Trust property that Cindy and Butch executed in favor of their attorney as payment for his attorney's fees declared null and void. Shortly after Deb filed the motion, Butch died, and Bryce Brewer was appointed as special administrator of his estate.
At the contempt hearing, Deb proceeded against only Cindy since Butch had died. The circuit court held Cindy in contempt and ordered her to reimburse the Trust for $41,054.32 that she and Butch had taken in violation of the court's posttrial orders. The circuit court denied Deb's request to cancel the mortgage Butch and Cindy executed in favor of their attorney. Butch and Cindy timely appealed from the contempt order, and Deb cross-appealed.
Finally, Cindy and Butch filed a motion to modify the judgment, and Deb filed a motion for reconsideration of the contempt order. Both motions were deemed denied, and the parties timely filed a final notice of appeal and cross-appeal.
In this appeal, our court must decide several issues. On direct appeal, Cindy and Butch contend (1) the doctrine of laches barred Deb's claims, (2) the language of the Trust barred Deb's claims, (3) the jury verdict contained a mathematical error, (4) the punitive-damages award should be reversed, (5) the award of attorney's fees should be reversed, and (6) the finding of contempt against Cindy should be reversed. On cross-appeal, Deb contends the circuit court erred when it declined to rule that Butch and Cindy's mortgage of the trust property should be canceled and invalidated.
II. The Direct Appeal
A. Laches
Butch and Cindy raised the defense of laches to Deb's claims, arguing that Deb waited too long after she realized she had concerns about the management of the Trust to pursue her claims against them. The defense was rejected by the circuit court. Specifically, the circuit court found that "laches is not a defense to the claims presented to and decided by the jury because the jury's verdict was for legal causes of action, and laches does not apply to legal causes of action." Butch and Cindy contend the rejection of their laches defense was reversible error.
Laches is based on the equitable principle that an unreasonable delay by the party seeking relief precludes recovery when the circumstances are such as to make it inequitable or unjust for the party to seek relief. Larco, Inc. v. Strebeck , 2010 Ark. App. 263, at 4, 379 S.W.3d 16, 20. It requires a detrimental change in the position of the one asserting the doctrine, as well as an unreasonable delay by the one asserting his rights against whom laches is invoked. Id.
The principle question here is whether the laches defense is applicable to legal causes of action. Our caselaw frequently provides that "the doctrine of laches is only applicable where equitable relief is sought; where a party is only seeking to enforce a legal right ... and is not seeking equitable relief, the doctrine of laches has no application." See generally Warford v. Union Bank of Benton , 2010 Ark. App. 635, at 5, 378 S.W.3d 239, 243 ;
Landreth v. First Nat'l Bank of Cleburne Cty. , 45 F.3d 267, 271 (8th Cir. 1995) ; Rogers Iron & Metal Corp. v. K & M, Inc. , 22 Ark. App. 228, 230, 738 S.W.2d 110, 111 (1987). Moreover, our courts have held that "laches is not applicable to actions for damages, accounting, or the recovery of money or property fraudulently obtained." Warford, supra.
In support of reversal, Butch and Cindy cite McPherson v. McPherson , a trust case in which money damages were awarded. 258 Ark. 257, 523 S.W.2d 623 (1975). In McPherson , the supreme court determined that the doctrine of laches was inapplicable but not before first conducting a detailed analysis of the facts at issue. Notably, the McPherson court did not engage in a discussion of whether the award of money damages precluded the defense of laches.
Butch and Cindy's reliance on McPherson is unavailing to our court. It does not directly address whether the defense of laches is applicable to cases in which money damages are sought. Moreover, the depth of our caselaw indicates that laches is applicable only in instances in which equitable relief is sought. Therefore, we are persuaded that the doctrine of laches is inapplicable in this case, and we affirm the circuit court's decision on this basis.
B. The Language of the Trust
Butch and Cindy also argue that the language of the Trust barred Deb's claims. For this point on appeal, it is necessary to analyze several specific provisions of the Trust because "the cardinal rule in construing a trust instrument is that the intention of the settlor must be ascertained." Bailey v. Delta Tr. & Bank , 359 Ark. 424, 432, 198 S.W.3d 506, 512 (2004). When construing the Trust, we conduct a de novo review. Anna Flippin Long Trust v. Holk , 315 Ark. 112, 113, 864 S.W.2d 869, 869 (1993).
We begin our analysis by highlighting several of the most pertinent provisions of the Trust. Article XIV(B) of the Trust governs the appointment of trustees in the event Rena was unable or unwilling to serve and provides that Rena's children will be appointed as cotrustees serving by majority agreement. The Trust gives the trustees discretion concerning distributions of income and principal that is "absolute and uncontrolled and subject to correction by a court only if the Trustee should act utterly without reason, or in bad faith, or in violation of specific provisions" of the Trust. The Trust further provides, "[U]nless I have specifically provided otherwise, and subject to any ascertainable standard governing its exercise, the Trustee's discretionary power to distribute income or principal includes the power to distribute all of such income and/or principal to one or more members of a class to the exclusion of others whether or not the terms of the trust specifically mention the possibility."
A review of the Trust indicates that Rena authorized unequal distributions. Frequently, Cindy and Butch characterize Deb's lawsuit as being based on the premise that they received more distributions from the Trust than she did. Based on their argument, they claim that Deb's lawsuit is meritless. This oversimplifies Deb's position. Throughout the litigation, Deb has challenged the distributions to her siblings but not merely on the basis of the unequal amounts distributed. She also opposed the expenditures for Butch's work on the farm and Cindy's work caring for her mother on the basis that there was no documentation in support of their work. Moreover, she called into question whether Butch and Cindy were truly caring for the farm and their mother as they purported to be.
The Trust imposes a limitation on distributions that allowed for court correction in instances in which a trustee acts utterly without reason or in bad faith. This is where Deb's case hinges. Butch and Cindy contend that there was no evidence of their bad faith, but we disagree. Enormous distributions were made to Butch and Cindy. They were purportedly made to account for Butch's work on the farm and Cindy's work acting as Rena's caregiver; however, there is little to no documentation to support those distributions. Although the Trust does not require documentation for expenditures, the lack of documentation raises concerns. There was extensive testimony that neither Rena nor the farm were being properly cared for by Butch and Cindy. Especially troublesome is the testimony about Rena's standard of living. Specifically, Rena had Visqueen covering her windows and was living in a filthy room full of animal feces. This testimony coupled with the lack of documentation is sufficient to support a finding of bad faith. For these reasons, we find no error on this point.
C. Mathematical Error in Damages Calculation
On this point, Butch and Cindy seek to have the jury verdict reduced based on a perceived mathematical error. Our court has the authority to correct "obvious mathematical errors" on appeal. Harper v. Shackleford , 41 Ark. App. 116, 122, 850 S.W.2d 15, 19 (1993). We may do so in instances in which the verdict is not supported by substantial evidence. See Bank of Eureka Springs v. Evans , 353 Ark. 438, 455, 109 S.W.3d 672, 682 (2003).
Here, any mathematical error potentially made by the jury was not "obvious," as required by our caselaw. In fact, Butch and Cindy's counsel admitted in his oral argument that the math was complicated.
A review of the evidence reveals that Deb's expert witness, Woodrow White, calculated her damages. During White's testimony, he opined that damages from Butch should amount to the $400,000 he received in excess of the royalties plus the $20,000 he kept from cattle sales. White also testified that damages from Cindy should amount to $205,000. Although Butch and Cindy's attorney extensively cross-examined White, they did not call a damages witness and one could easily reach the conclusion that Deb should be awarded these amounts. We are reminded that resolving conflicting evidence is within the province of the jury. Minerva Enters., Inc. v. Howlett , 308 Ark. 291, 824 S.W.2d 377 (1992). Moreover, a jury is free to believe or disbelieve the testimony of any witness. See Farm Bureau Mut. Ins. Co. v. Foote , 341 Ark. 105, 14 S.W.3d 512 (2000). Because there is substantial evidence to support the jury's verdict, we decline to reduce the verdict based on an alleged obvious mathematical error.
D. Punitive Damages
Butch and Cindy also seek reversal of the $630,000 punitive-damages award assessed against Butch and the $310,000 punitive-damages award assessed against Cindy. They argue that the award of punitive damages was not permissible.
An award of punitive damages requires more than a "gross dereliction of duty." Orsini v. Larry Moyer Trucking, Inc. , 310 Ark. 179, 182, 833 S.W.2d 366, 368 (1992). Instead, it requires "proof of intentional wrong or conscious indifference to the consequences from which malice may be inferred." Id. When deciding whether this threshold has been met, our court undertakes a substantial-evidence standard of review. D'Arbonne Constr. Co. v. Foster , 80 Ark. App. 87, 92, 91 S.W.3d 540, 543 (2002).
Butch and Cindy argue that Deb offered no proof of malice. We disagree. The evidence reflected that Butch and Cindy paid themselves large amounts of money from the Trust for purportedly providing services to their mother and the farm. Deb clearly called into question the validity of the services they allegedly provided. There was no documentation of the services. Moreover, there was significant evidence regarding the lack of actual work being done on the farm and as it related to the care of Rena. Specifically, there was evidence of neglect of these responsibilities despite the frequent and substantial distributions being made from the Trust. Finally, there was evidence that Butch and Cindy used threats and intimidation to dissuade Deb from visiting or inquiring too much. Those facts taken together are indicative of intentional wrong or conscious indifference to their consequences, and we hold that malice could be properly inferred by a jury and affirm.
E. Attorney's Fees
Butch and Cindy also appeal the circuit court's award of attorney's fees to Deb. On this point, Butch and Cindy merely seek reversal of the attorney's fee award in the event our court reverses on any of the previous points. Because we affirm on each of the previous arguments presented, we also affirm the award of attorney's fees.
F. Contempt
Finally, Butch and Cindy challenge the circuit court's contempt finding against Cindy. We begin our analysis by discussing the orders Cindy is alleged to have violated. After the jury rendered its verdict, the circuit court announced that there would be no action on the Trust over the weekend. When the circuit court entered its order more than two months later in October 2015, it included the directive that "in the event" Butch and Cindy "have withdrawn any money from the trust or disposed of any trust property, they are given ten (10) days from the date this decree is filed ... to return said funds or property to the trust."
Deb filed a motion for contempt claiming that Butch and Cindy violated the court's orders. The motion proceeded against Cindy since Butch had died. Ultimately, the circuit court found that Cindy was in contempt of court and ordered Cindy to pay $41,054.32 to Deb within thirty days of the filing of the order to purge herself of contempt. The circuit court further ordered that if Cindy did not make this payment, judgment would be entered against her, which would include pre-and postjudgment interest.
Cindy and Butch appeal this order, and they make two arguments in support of reversal. First, they argue that the order was not a valid contempt order. They also argue that the contempt finding must be reversed because Cindy did not violate a clear and definite order of the court.
Their first argument is premised on the concept that the contempt order bears indicators of being both criminal and civil contempt. In such instances, a contempt order is invalid.
A basic explanation of the differences in civil and criminal contempt is helpful to our analysis of this issue. Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders. Omni Holding & Dev. Corp. v. 3D.S.A., Inc. , 356 Ark. 440, 156 S.W.3d 228 (2004). Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Id. In determining whether a particular action constitutes criminal or civil contempt, the focus is on the character of the relief rather than the nature of the proceeding. Applegate v. Applegate , 101 Ark. App. 289, 275 S.W.3d 682 (2008). Civil contempt coerces, and a contemnor may free himself or herself by complying with the order. Id. The punishment is remedial and for the benefit of the complainant. Id. Criminal contempt carries an unconditional penalty, and the contempt cannot be purged; the sentence is punitive to vindicate the authority of the court. Id.
Here, Cindy argues that compliance and the penalty for noncompliance were the same-under either scenario she had to pay $41,054.32. Thus, any offer for her to purge herself of contempt was illusory. We disagree. The penalty for noncompliance was not the same as the method to purge herself of contempt. If Cindy failed to comply with the circuit court's orders, the amount she owed would be reduced to a judgment plus interest. This is a penalty more severe than merely paying the money owed. This is a valid civil-contempt order.
Cindy and Butch's second challenge to the contempt finding is that the orders of the court were too indefinite to enforce. Before one can be held in contempt for violating a court order, the order must be definite in its terms and clear as to what duties it imposes. Holifield v. Mullenax Fin. & Tax Advisory Grp., Inc. , 2009 Ark. App. 280, at 3, 307 S.W.3d 608, 611.
Butch and Cindy argue that the language "over the weekend" from the circuit court's oral directive precluded Deb from seeking a contempt finding against them for any actions taken after the weekend because it was not clear and definite in the duties it imposed. If that were the only order of the court, we would agree. However, in the October 2015 order, the circuit court also ordered any funds withdrawn or Trust property disposed of to be returned. The October 2015 order is clear and definite in the duties it imposed.
Next, Butch and Cindy dispute the evidence in support of the contempt finding. Deb's motion for contempt challenged certain transactions made after the jury trial. Four transactions are pertinent to our review:
1. A July 31, 2015 check for $13,013.12 made out to Butch and signed by Butch and Cindy.
2. An August 6, 2015 withdrawal in the amount of $6,707.86.
3. A September 22, 2015 check from Plains Marketing, L.P., made out to Butch in the amount of $10,667.67.
4. A September 22, 2015 check from Plains Marketing, L.P., made out to Cindy in the amount of $10,667.67.
We review the contempt findings for whether they are clearly against the preponderance of the evidence. Omni Holding & Dev. Corp., supra.
First, we address the July 31 check. This check, bearing Cindy's signature, was cashed during the weekend following the jury trial. Cindy testified that she had presigned several checks, and she had no knowledge of the withdrawal. Irrespective of this, the testimony of an interested party is always considered to be controverted. Cont'l Express v. Harris , 61 Ark. App. 198, 965 S.W.2d 811 (1998). We defer to the circuit court in making credibility determinations. Moody v. Moody , 2017 Ark. App. 582, 533 S.W.3d 152. We hold that the contempt finding with regard to the July 31 check was not clearly against the preponderance of the evidence.
Next, we examine the September 2015 check to Cindy for $10,667.67. Cindy testified that she understood that to be her individual money and not part of the Trust. In support, she emphasizes that the check was payable to her and not the Trust. On the other hand, the evidence reflected that the Trust owned the property. This supports a finding that Cindy violated the circuit court's October 2015 order when she failed and refused to return this money to the Trust. We affirm the contempt finding with regard to this check as well.
The evidence also indicated that Butch received a $10,667.67 check in September 2015. In fact, Cindy testified that she knew Butch received a check in this amount. Once again, this check may have been payable directly to Butch, but the evidence reflected that it was a payment for property owned by the Trust. Cindy makes an additional argument with regard to this transaction. She claims that there was no evidence she had the access to the funds so that she could return them. Irrespective of her arguments, Cindy admitted that she knew Butch had received this money, which belonged to the Trust. The October 2015 order required them to return any funds or property of the Trust in the event either had withdrawn any money from the Trust or disposed of any Trust property. Accordingly, it was not clearly against the preponderance of the evidence to hold her in contempt for this withdrawal.
Finally, we address the August 2015 withdrawal of $6,707.86. The testimony indicated that Butch deposited a monthly royalty check totaling approximately $10,000 into the Trust and then immediately withdrew $6,707.86-roughly two-thirds of the amount deposited. The two-thirds amount supports the conclusion that Butch took what he believed to be Cindy's and his share from the deposit. Cindy testified that she never received any of this money. The amount withdrawn certainly supports the finding that these funds were withdrawn for Cindy and Butch's benefit and against the circuit court's orders. Secondly, Cindy's testimony on the matter is deemed controverted. Cont'l Express, supra. We hold that it was not clearly against the preponderance of the evidence to find Cindy in contempt for refusing to return these funds to the Trust.
III. The Cross-Appeal
Cindy and Butch executed a mortgage in favor of their attorney for payment of his attorney's fee. In her contempt motion, Deb asked the circuit court to cancel and invalidate the mortgage. The circuit court declined to grant this relief. Deb cross-appeals, arguing that this was reversible error.
On appeal, Deb makes several arguments for reversal: (1) the mortgage was prohibited by the Trust; (2) the mortgage was prohibited by the Trust Code; (3) the mortgage was prohibited by the circuit court's rulings after the jury verdict; (4) the mortgage was prohibited by ethical rules.
We summarily dispose of two of these arguments, namely that the mortgage was prohibited by the Trust Code and ethical rules. Both arguments were raised for the first time in a posttrial motion to reconsider. An issue must be presented to the circuit court at the earliest opportunity to preserve it for appeal. LaFont v. Mooney Mixon , 2010 Ark. 450, at 15, 374 S.W.3d 668, 676. And it is well settled that our court will not consider an argument made for the first time in a posttrial motion. See Lee v. Daniel , 350 Ark. 466, 91 S.W.3d 464 (2002).
Cindy and Butch also claim a third argument-that the mortgage violated the Trust-was not preserved. They correctly identify that the argument was first mentioned in a pleading in the motion for reconsideration. However, at the contempt hearing, Deb presented testimony that supports this argument. She testified that the Trust does not allow assignments and asked that the mortgage be dismissed or nullified on this basis. Her testimony was sufficient to preserve this argument for appeal. Nevertheless, we acknowledge that the relief requested-that the mortgage be declared null and void based on a violation of the Trust-could not properly be granted because the mortgagee, Butch and Cindy's lawyer, was not a party to the action. See Ark. R. Civ. P. 19(a) (2017).
Finally, we direct our attention to whether the circuit court erred by refusing to void the mortgage based on violations of the circuit court's orders. As with Deb's previous argument, we recognize that the relief requested could not be granted without the inclusion of the mortgagee as a party. Additionally, the evidence supports a finding that the mortgage did not dispose of any Trust property in violation of the circuit court's order. We acknowledge that the October 2015 order prohibited the disposal of any Trust property. Still, Butch and Cindy's lawyer represented to the court that his mortgage was subordinate to any judgment. Based on Cindy and Butch's lawyer's representation, the court had a basis to conclude that the mortgage did not dispose of any Trust property. We find on error on this point.
Affirmed on direct appeal; affirmed on cross-appeal.
Gruber, C.J., and Brown, J., agree.
In the interest of clarity, we refer to arguments made by Brewer as being Butch's arguments. | [
112,
-24,
-35,
-68,
8,
-31,
58,
-102,
-13,
-53,
99,
-45,
-21,
114,
21,
111,
112,
-35,
117,
107,
-45,
-93,
23,
-128,
-10,
-13,
-112,
-57,
-94,
95,
-9,
-41,
76,
50,
-86,
93,
66,
-125,
-11,
16,
-114,
83,
-115,
108,
-39,
83,
48,
35,
22,
15,
113,
-50,
-77,
-84,
53,
110,
40,
110,
127,
-71,
84,
-88,
-120,
29,
-53,
23,
-95,
7,
-104,
-109,
-40,
111,
-48,
-75,
-119,
-24,
51,
-74,
-58,
116,
75,
-104,
-116,
102,
100,
0,
116,
-25,
-72,
-128,
-122,
118,
-99,
-89,
-102,
89,
18,
79,
-76,
-100,
120,
20,
98,
124,
-26,
-36,
93,
-20,
-128,
-49,
-42,
-111,
20,
-68,
-104,
3,
-25,
97,
50,
117,
-35,
64,
84,
6,
113,
27,
-50,
-70
] |
RHONDA K. WOOD, Associate Justice
Appellant Willie G. Davis, Jr., appeals the Jefferson County Circuit Court's order granting the Appellees' motion to dismiss with prejudice and designation of the dismissal as a strike under Ark. Code Ann. § 16-68-607 (Supp. 2017). Because Davis failed to perfect service on Appellees, we affirm the circuit court's dismissal, but modify it as a dismissal without prejudice. We reverse the circuit court's designation of the dismissal as a strike because the circuit court lacked jurisdiction to consider the merits.
I. Background
Willie G. Davis, Jr., is serving a life sentence in the Arkansas Department of Correction for various convictions, including first-degree murder. In 2010, Davis filed a freedom of information request seeking crime-lab files related to his conviction. Since that initial request, Davis initiated a number of legal actions attempting to obtain the requested documentation. On October 4, 2017, Davis filed a pro se petition for writ of mandamus and complaint for conversion that is the subject of this appeal. He sought a writ to compel Appellees to release the contents of his crime-lab file and monetary damages for conversion of the file.
On December 8, 2017, Appellees filed a motion to dismiss arguing, among other things, that Davis failed to perfect service according to Rule 4 of the Arkansas Rules of Civil Procedure. Davis did not timely respond to the motion to dismiss, but rather filed a motion to extend time for service. The circuit court declined to extend service and granted Appellees' motion to dismiss "with prejudice." In addition, the circuit court designated the dismissal as a "strike." See Ark. Code Ann. § 16-68-607. After the circuit court filed its order granting the motion to dismiss, Davis filed a response to Appellees' motion. This appeal followed.
II. Standard of Review
We review a circuit court's decision to grant a motion to dismiss for an abuse of discretion. Dockery v. Morgan , 2011 Ark. 94, at 6, 380 S.W.3d 377, 382. Under this standard, the facts alleged in the complaint are taken as true and are viewed in the light most favorable to the complainant. Id. For the circuit court to have abused its discretion it must have acted improvidently, thoughtlessly, or without due consideration. GSS, LLC v. CenterPoint Energy Gas Transmission Co. , 2014 Ark. 144, at 8, 432 S.W.3d 583, 588.
III. Analysis
Arkansas law has long held that valid service of process is necessary to give a court jurisdiction over a defendant. Jones v. Turner , 2009 Ark. 545, at 3, 354 S.W.3d 57, 59. Indeed, without valid process, the circuit court lacks jurisdiction over a defendant and any judgment rendered thereafter is void ab inito. See, e.g. , Taylor v. Zanone Props. , 342 Ark. 465, 474, 30 S.W.3d 74, 79 (2000) ; Sides v. Kirchoff , 316 Ark. 680, 682, 874 S.W.2d 373, 374 (1994).
A. Insufficient Process
Appellees' motion to dismiss argued that Davis failed to perfect service. If service of a valid summons and a copy of the complaint is not made within 120 days after filing the complaint, the action shall be dismissed without prejudice. Ark. R. Civ. P. 4(i). The circuit court dismissed the action after the 120 days expired. On appeal, Davis does not argue that he obtained valid service, but rather that any failure to obtain service is not his fault.
The record does not reflect any attempt by Davis to serve either DePriest or Rutledge within the 120 days provided by Rule 4. Appellees allege Davis's attempt to serve Kelley was insufficient because he failed to comply with Rule 4(b) and (d). Specifically, Appellees contend that the plaintiff's name and address portion of the summons was noncompliant with Ark. R. Civ. P. 4(b) insofar as it was completely blank. Appellees further argue that the attempted service on Kelley violated Ark. R. Civ. P. 4(d)(8)(A)(i) because service was sent by regular U.S. Postal Service mail and failed to restrict delivery to the person being served. Finally, although Davis's petition references twenty-one exhibits, the package he mailed Kelley only included four. In neglecting to include the remaining seventeen exhibits, Appellees argue that failure to provide a complete copy of the petition does not comport with the requirements of Rule 4(d). Ark. R. Civ. P. 4(d) ("A copy of the summons and complaint shall be served together.") (emphasis added).
Davis learned of these deficiencies almost sixty days before the service deadline; however, he did not reattempt service. As a result, the 120 days for service expired and the circuit court entered the dismissal order. Again, he does not deny his failure to serve Appellees. Instead, he blames the circuit clerk for the error. This argument is unavailing and not preserved on appeal. Indeed, Davis filed his response to the motion to dismiss well after time had run and after the circuit court issued its ruling. See, e.g. , Taylor v. Taylor , 369 Ark. 31, 38, 250 S.W.3d 232, 238 (2007) (maintaining that this court will not consider arguments that are not raised before the circuit court and ruled upon).
Davis failed to perfect service on the Appellees within the time provided by Rule 4. Accordingly, we find that the circuit court did not abuse its discretion in granting Appellees' motion to dismiss. However, dismissal should have been without prejudice. Arkansas Rule of Civil Procedure 4(i)(1) plainly states that "[i]f service of the summons and a copy of the complaint is not made upon a defendant within 120 days after the filing of the complaint ... the action shall be dismissed as to that defendant without prejudice. " Ark. R. Civ. P. 4(i)(1) (emphasis added). In similar situations, our practice has been to affirm the result but modify dismissal to be without prejudice. See, e.g. , Malone v. Trans-States Lines, Inc. , 325 Ark. 383, 387, 926 S.W.2d 659, 662 (1996) ; Hubbard v. Shores Grp., Inc. , 313 Ark. 498, 504, 855 S.W.2d 924, 928 (1993) ; Spires v. Members of Election Comm'n of Union Cty. , 302 Ark. 407, 410, 790 S.W.2d 167, 169 (1990). Therefore, we modify the order dismissing the case to "without prejudice."
B. Dismissal as a Strike
Finally, when a circuit court lacks jurisdiction over a defendant, any judgment rendered thereafter is void ab inito. E.g. , Raymond v. Raymond , 343 Ark. 480, 485, 36 S.W.3d 733, 735 (2001) ; see also Zanone Props. , supra ; Kirchoff , supra. Here, the circuit court's order granted the Appellees' motion to dismiss and designated the dismissal as a strike under Ark. Code Ann. § 16-68-607.
For a dismissal to constitute a strike, the circuit court must have determined that Davis's cause of action was frivolous or malicious, or that Davis failed to state a claim upon which relief may be granted. See Ark. Code Ann. § 16-68-607(b). Either inquiry would have required the court to go beyond the threshold determination of whether Davis served Appellees with valid process. Upon determining that summons and service of process were insufficient in this case, the court lacked jurisdiction to designate the dismissal as a strike pursuant to Ark. Code Ann. § 16-68-607. Accordingly, we reverse the court's designation of Davis's dismissal as a "strike."
Affirmed as modified in part; reversed in part.
Hart, J., concurs.
Baker, J., dissents.
Josephine Linker Hart, Justice, concurring.
I write separately because I wish to note a disturbing aspect of this case-the reason why the named defendants were not served in this case.
As the majority notes, in the State's motion to dismiss Mr. Davis's complaint it asserted that the summons was incomplete. This deficiency cannot be blamed on Mr. Davis as Rule 4(a) of the Arkansas Rules of Civil Procedure charges the circuit clerk with issuing the summons: "Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process." The omission of Mr. Davis's return address must be attributed to the conscious actions of the circuit clerk because it was plainly written at the end of his complaint.
I concur.
Director of the Arkansas Department of Correction, Wendy Kelley; Chief Legal Counsel for the Arkansas Department of Correction, James DePriest; and Arkansas Attorney General Leslie Rutledge ("Appellees"). | [
48,
-32,
-18,
28,
41,
-31,
16,
-84,
83,
-29,
119,
83,
37,
-32,
28,
101,
-29,
119,
-47,
105,
68,
-73,
115,
97,
82,
-45,
-109,
87,
57,
-49,
-12,
92,
78,
112,
-26,
-107,
70,
-64,
-49,
18,
-50,
1,
-87,
104,
81,
-50,
56,
-85,
26,
15,
53,
-114,
-21,
45,
27,
-61,
13,
110,
-39,
-84,
66,
24,
-118,
31,
95,
16,
33,
-91,
-104,
7,
-16,
120,
-112,
48,
2,
-6,
51,
-74,
-58,
84,
107,
-103,
8,
120,
98,
-93,
-100,
-17,
-128,
-120,
55,
-66,
-99,
38,
-104,
105,
73,
39,
-106,
-68,
94,
20,
-123,
126,
110,
-115,
53,
44,
2,
-50,
-104,
-79,
15,
33,
-124,
59,
-21,
1,
52,
53,
-49,
-30,
92,
15,
59,
-37,
-50,
-107
] |
SHAWN A. WOMACK, Associate Justice
Randy Zook, petitioner, challenges the sufficiency of the signatures certified by the respondent, the Honorable Mark Martin, Arkansas Secretary of State, in the statewide initiative ballot petition entitled "Arkansas Term Limits Amendment," which is on the November 6, 2018 ballot. The intervenor, Arkansas Term Limits, sponsored the petition. This court addresses the second issue raised in the original action, the sufficiency of the collected signatures. We conclude that the special master was correct in his finding that there were insufficient signatures to keep the amendment on the ballot; we therefore grant the petition.
On July 6, 2018, the sponsor submitted 135,590 signatures to the secretary of state. On August 3, 2018, the secretary of state certified that the sponsor had met the requirements under the Arkansas Constitution to be placed on the ballot. The secretary determined that there were no more than 93,998 valid signatures and that 84,859 signatures was the minimum required to be placed on the ballot.
On September 5, 2018, the petitioner filed an original action in this court against the secretary of state, challenging the sufficiency of the popular name and ballot title as well as the sufficiency of the signatures collected. The petitioner additionally moved to bifurcate the proceedings and to have a special master appointed. On September 6, the intervenor filed a motion to intervene in the action. On September 7, we granted the motion to intervene, bifurcated the proceedings, and appointed the Honorable Mark Hewitt as a special master according to Arkansas Supreme Court Rule 6-5(c) (2017) to address the sufficiency of the collected signatures.
The special master held hearings on September 16, 17, and 20th, and entered his written findings on September 24th; he concluded that the intervenor had failed to provide sufficient signatures for the ballot. That same date, the intervenor filed a letter notifying the special master that he had double-counted multiple petition parts that had been excluded for multiple reasons. On September 25th, the special master filed his amended findings of fact and ultimately concluded that the respondent had erroneously included 14,806 signatures in the valid and final count. He therefore determined that there were insufficient signatures for the proposed amendment to remain on the ballot.
I. Standard of Review
Amendment 7 states that "[t]he sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes." Ark. Const. art. 5, § 1, amended by Ark. Const. amend. 7. Regarding the special master's findings, our standard of review is that we will accept the master's findings of fact unless they are clearly erroneous. Benca v. Martin , 2016 Ark. 359, at 3, 500 S.W.3d 742, 744 ; Ark. R. Civ. P. 53(e) (2017). A finding of fact is clearly erroneous, even if there is evidence to support it, when, based on the entire evidence, the court is left with the definite and firm conviction that the master has made a mistake. Roberts v. Priest , 334 Ark. 503, 511, 975 S.W.2d 850, 853 (1998). We review issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. State v. Ledwell , 2017 Ark. 252, at 4, 526 S.W.3d 1, 3. Additionally, when interpreting a statute, we construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Benca , 2016 Ark. 359, at 3, 500 S.W.3d at 745. We construe statutes so that, if possible, every word is given meaning and effect. Id.
II. False Affidavits
We first review the special master's findings that 4,371 signatures should be excluded because the canvassers attached false affidavits to the relevant petition parts. The special master noted that the relevant petition parts had the following affidavits attached:
I did not have in mind at the time I executed my Affidavit, but am now informed, that under Arkansas law, my "current residence address" is the place I am staying at the time I swear out my Affidavits, which may be a distinct location from my permanent address.
The affidavits referred to in the statement above are the sworn signatures that the canvassers must provide on the individual petition parts. See Ark. Code Ann. § 7-9-108(b) (Repl. 2018). The sworn signature section also has a space for the canvasser to place his or her residence address on the petition. The special master noted that the canvassers had executed other documents, sworn statements, and signature cards demonstrating that they understood the difference between their domicile address and their current residence address. He concluded that the later affidavits stating they did not understand the law were false and that the failure to list their true current residence address on the petition renders those signatures invalid.
In Arkansas, a canvasser is required to sign the petition parts and state that "the canvasser's current residence address appearing on the verification is correct, that all signatures appearing on the petition part were made in the presence of the affiant, and that to the best of the affiant's knowledge and belief each signature is genuine and each person signing is a registered voter." Ark. Code Ann. § 7-9-108(b). The signatures in a petition shall not be counted if "[t]he petition lacks the signature, printed name, and residence address of the canvasser." Ark. Code Ann. § 7-9-126 (b)(2) (Repl. 2018).
In Benca v. Martin , the petitioner challenged signatures obtained by the sponsor where the canvasser (1) listed a post office box as his residence address, (2) listed a business as the residence address, or (3) failed to include a residence address on the petition parts. 2016 Ark. 359, at 11, 500 S.W.3d 742, 749. We held that if a petition fails to meet the requirements of section 7-9-126, the petition shall not be counted. Benca , 2016 Ark. 359, at 12, 500 S.W.3d at 750 ; Ark. Code Ann. § 7-9-126. We specifically noted that the term "shall" is mandatory and the clerical-error exception or substantial compliance cannot be used as a substitute for fulfillment with the statute. Benca , 2016 Ark. 359, at 12-13, 500 S.W.3d at 750.
Here, the special master's findings are not clearly erroneous. The special master used Larry Bradshaw as an example and noted that the sponsor registered him with a Bentonville address with the secretary of state. However, on the petition parts he collected, Bradshaw signed an affidavit that his current resident address is in Florida. He executed documents that he understood Arkansas law. Bradshaw executed his sworn-canvasser statement on June 8, 2018, and listed Florida as his current residence. On that same date, the intervenor registered Bradshaw with the secretary of state using a Bentonville, Arkansas, current residence address. The two residential addresses are in direct conflict. Further, Bradshaw later executed a sworn affidavit that the affidavit on the petition parts he collected was false as to his current residence address. The special master's findings were therefore not clearly erroneous, and he correctly excluded 4,371 signatures.
III. Failure to Obtain Sworn-Canvasser Statements
Next, we review the special master's findings that the signatures collected by Courtney McDuffie and Jennifer Norwood should be excluded because they failed to execute a sworn statement before collecting signatures as paid canvassers. The special master noted that both women were registered with the secretary of state as paid canvassers on September 12, 2017. However, McDuffie did not execute a sworn-canvasser statement until July 2, 2018. The special master noted that a sponsor is required to obtain a criminal-background check within thirty days of the paid canvasser's collecting signatures. Because McDuffie did not execute her sworn statement until almost a year after she was registered with the secretary of state, any background check performed fell well outside the thirty-day statutory period. Likewise, the special master concluded that the signatures collected by Norwood were erroneously counted because she did not execute a sworn statement as required by Ark. Code Ann. § 7-9-601.
Section 7-9-601(d)(3) specifically states:
(d) Before obtaining a signature on an initiative or referendum petition as a paid canvasser, the prospective canvasser shall submit in person or by mail to the sponsor:
...
(3) A signed statement taken under oath or solemn affirmation stating that the person has not pleaded guilty or nolo contendere to or been found guilty of a criminal felony offense or a violation of the election laws, fraud, forgery, or identification theft in any state of the United States, the District of Columbia, Puerto Rico, Guam, or any other United States protectorate.
Ark. Code Ann. § 7-9-601(d)(3). Subsection 601(b) delineates the background check the sponsor must obtain before a paid canvasser collects signatures:
(b)(1) To verify that there are no criminal offenses on record, a sponsor shall obtain, at its cost, from the Department of Arkansas State Police, a current state and federal criminal record search on every paid canvasser to be registered with the Secretary of State.
(2) The criminal record search shall be obtained within thirty (30) days before the date that the paid canvasser begins collecting signatures.
(3) Upon submission of its list of paid canvassers to the Secretary of State, the sponsor shall certify to the Secretary of State that each paid canvasser in its employ has passed a criminal background check in accordance with this section.
....
(5) Signatures incorrectly obtained or submitted under this section shall not be counted by the Secretary of State.
Ark. Code Ann. § 7-9-601(b). Furthermore, subsection (c) defines a paid canvasser as "a person who is paid or with whom there is an agreement to pay money or anything of value before or after a signature on an initiative or referendum petition is solicited in exchange for soliciting or obtaining a signature on a petition." Ark. Code Ann. § 7-9-601(c). In Benca , this court noted that a paid canvasser must be designated before the canvasser collects any signatures. Benca , 2016 Ark. 359, at 10-11, 500 S.W.3d at 749. Therefore, once the designation has been made, the sponsor must comply with the statute to obtain valid signatures. Id.
The intervenor argues that the sworn statements are not required to be submitted to the secretary of state. See Ark. Code Ann. § 7-9-601. Therefore, the secretary of state cannot be faulted for failing to invalidate signatures based on information it was not required to collect. Further, the intervenor argues that there is no specific statutory provision that allows the master to invalidate the signatures for failing to obtain a sworn statement.
The intervenor is correct that section 7-9-601(d) does not state that a failure to obtain a sworn statement will result in the signatures not being counted. However, if we were to accept the intervenor's argument, it would mean that the term "shall" in section 7-9-601(d) would become permissive. As a practical matter, that would leave no remedy for the canvasser's failure to comply with section 7-9-601. To interpret the word "shall" as permissive would lead to an absurd result, which this court will not do. See Benca , 2016 Ark. 359, at 7-8, 500 S.W.3d at 748.
Here, the special master's findings were not clearly erroneous. Section 7-6-601(d) specifically states that a prospective canvasser must execute a sworn statement before obtaining a signature as a paid canvasser. Once the requirement has been met, a prospective canvasser may be considered a paid canvasser, and the sponsor is then required to obtain a background check within thirty days before the canvasser begins to collect signatures. The special master noted that the sworn statements were executed well after the background checks had been performed and the canvassers certified to the secretary of state. Therefore, the special master's conclusion that the 1,988 signatures should be excluded was not clearly erroneous.
IV. Failure to Submit Timely Canvasser Lists
Next, we review the special master's findings that 3,088 signatures should be excluded because the intervenor failed to provide a list of paid canvassers to the secretary of state. A sponsor is required to provide a list of all paid canvassers' names and residential addresses to the secretary of state before signatures are collected by a paid canvasser. Ark. Code Ann. § 7-9-601(a)(C)(i). Additionally, the sponsor is required to update the secretary of state's records if additional canvassers are hired to collect signatures. Ark. Code Ann. § 7-9-601(a)(C)(ii). Colleen Huthmaker sent several emails to the secretary of state on June 12-14, 2018; however, the emails did not contain any attached canvasser lists. Another email was sent on June 15 with an attached list, but the attachment was password protected and could not be accessed by the secretary of state's office. A representative notified the sponsor that they could not access the canvasser lists, and a correct list was provided on June 18th, which they were able to access. The special master concluded that the sponsor did not meet the statutory requirements and that the signatures obtained during the applicable period should be excluded.
The special master's finding is not clearly erroneous. It is undisputed that the sponsor is required to submit an updated list of paid canvassers to the secretary of state before they start collecting signatures. However, the intervenor argues that even if the first three canvasser lists were excluded, the email on June 15th should not be excluded because the email contained an attached canvasser list, and there is no dispute that it contained the required information. If we were to accept the intervenor's argument, a sponsor would satisfy the mandatory requirements of section 7-9-601 by sending a canvasser list that the secretary of state could not access or utilize. We decline to do so. Therefore, the special master correctly excluded 3,088 signatures.
V. Stipulated Convictions
Lastly, we review the special master's findings that 479 signatures should be excluded because canvasser Gregory Lee had a felony conviction. A paid canvasser may not collect signatures if he or she has a felony criminal conviction. See Ark. Code Ann. § 7-9-601. The parties both stipulated that when Lee began collecting his signatures, he had a felony conviction. The special master's exclusion of these 479 signatures was not clearly erroneous.
VI. Intervenor's Cross-Claims
Next, we address the intervenor's cross-claims. Intervenor argues that the special master erred when he refused to assign error to the secretary of state's decision to cull thousands of signatures from the count. The intervenor acknowledges that the special master failed to reference five exhibits it presented during the last day of the hearings. However, we note that the intervenor filed a letter asking the master to readdress issues in his initial findings of fact. The intervenor failed to ask the master to rule on those specific exhibits. We therefore decline to address the issue. See Pritchett v. Spicer , 2017 Ark. 82, at 9, 513 S.W.3d 252, 257-58 ("The failure to obtain a ruling on an issue, even a constitutional one, precludes our review on appeal.").
Second, the intervenor argued before the special master that the secretary of state culled signatures based on a change in the voter registration date. At the hearing, Mr. Steele testified that he had created a program which compared culled signatures against data from the secretary of state to determine whether the culled voter was registered to vote in the county in which he or she signed the petition part. The special master noted that the list Mr. Steele created was unreliable because he did not account for other errors in the petition parts that resulted in the signatures not being counted.
The intervenor argues that if the special master had cross-referenced its list against the other defects the petitioner alleged, the master would have discovered that over two thousand signatures were not subject to petitioner's alleged defects. As noted above, the burden is on the moving party to obtain a ruling on an issue. Pritchett, supra. The intervenor specifically filed a petition for rehearing, styled as a letter, drawing the special master's attention to deficiencies in his first report. The intervenor did not address the special master's failure to cross-reference its list with the petitioner's challenged petition parts. Therefore, this specific argument was not presented to the special master. We therefore affirm the special master's finding on this issue.
VII. Alleged Constitutional Challenges
Lastly, we will briefly address the intervenor's constitutional challenges. First, the intervenor argues that the cumulative effect of the canvasser registration requirements violates its rights under the First Amendment and the Arkansas Constitution. Both of these challenges were addressed in McDaniel v. Spencer , 2015 Ark. 94, 457 S.W.3d at 641. There, the appellant argued that section 7-9-601 impermissibly limited its rights under article 5, section 1 of the Arkansas Constitution. However, we specifically stated:
The State clearly has an interest in ensuring that sponsors are aware of the identity of people who are being paid to solicit signatures from citizens as well as how to locate them should problems arise and to have assurance that the persons so employed are aware of the applicable laws and do not have a criminal history that calls into question their ability to interact with the public in a manner consistent with those laws. These requirements aid in the proper use of the rights granted to the people of this state. Combined with the minimal burden placed on paid canvassers and sponsors, the requirements of section 21 do not act as an unwarranted restriction on the rights of the people under article 5, § 1.
Spencer , 2015 Ark. 94, at 6, 457 S.W.3d at 648. Likewise, we rejected the argument that section 7-9-601 violated the appellee's right to free speech. Spencer , 2015 Ark. 94, at 8, 457 S.W.3d at 650.
Intervenor points out that since our decision in Spencer , the General Assembly has amended the statute twice to include additional requirements--namely, that a sponsor must retain its records for three years and to submit a final list of current residential addresses of each canvasser as well as a signature card. The record-keeping provision of section 7-9-601(e) is not implicated in this case. Additionally, the final canvasser list and signature cards are not a basis for our decision in this case. We therefore do not address intervenor's assertion that these two additional requirements render the statute unconstitutional.
Second, the intervenor argues that the term "current residence address" as used in section 7-9-601 is unconstitutionally vague. However, once again, we specifically addressed this issue in Spencer and concluded that when the term "current residence address" is juxtaposed with "permanent domicile address," it is sufficiently clear to put canvassers and sponsors on notice as to what information is required. Spencer , 2015 Ark. 94, at 6, 457 S.W.3d at 649. We decline to readdress our decision here.
Lastly, the intervenor argues that the procedures in this case were fundamentally unfair and violated its due-process rights because it had only eleven days to defend the certification and the scope of review was too broad. Due process requires that, at a minimum, a person be given notice and a reasonable opportunity for a hearing before he or she is deprived of property by state action. Owings v. Econ. & Med. Servs., a Div. of Arkansas Dep't of Human Servs. , 302 Ark. 475, 478, 790 S.W.2d 438, 439 (1990). Here, there is no dispute that the intervenor obtained a hearing in front of the special master to address the contested issues. To the extent that the intervenor argues that the eleven-day window to challenge the petition was inadequate, it has not cited any specific authority stating that the time it was provided was insufficient. See Roberts v. State , 324 Ark. 68, 71, 919 S.W.2d 192, 194 (1996) ("We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support and it is not apparent without further research that the argument is well taken."). Finally, the intervenor argues that this court should adopt a new standard of review in our review under article 5, section 1 of the Arkansas Constitution. However, the intervenor has not presented sufficient evidence that we should overturn our prior holdings, much less that the standard we employ is unconstitutional. See Thiel v. Priest , 342 Ark. 292, 300, 28 S.W.3d 296, 300 (2000) (We will uphold our previous decision unless a great injury or injustice will result.).
VIII. Conclusion
Because the special master correctly excluded a sufficient number of signatures to prevent the issue from being presented on the ballot, we decline to address the special master's other contested findings. The mandate shall issue immediately.
Petition granted.
Baker, Hart and Wynne, JJ., dissent.
I believe that Arkansas Term Limits submitted a sufficient number of valid signatures to the secretary of state for its proposed amendment to the Arkansas Constitution to appear on the November ballot. Accordingly, I dissent.
The majority affirms the master's finding that 4,371 signatures should be excluded because they were gathered by canvassers who submitted "false" affidavits regarding their current residence address. These canvassers attached supplemental affidavits to their paperwork, stating the following:
[I] did not have in mind at the time I executed my Affidavit, but am now informed, that under Arkansas law, my 'current residential address' is the place I am staying at the time I swear out my Affidavits, which may be a distinct location from my permanent out-of-state domicile.
While it is true that this court held in McDaniel v. Spencer , 2015 Ark. 94, 457 S.W.3d 641, that the term "current residence address" is not ambiguous, neither the legislature nor this court has ever defined that term. There is no evidence that the canvassers who executed the supplemental affidavits did not reasonably consider the addresses they listed on their initial affidavits to be their current residence addresses at the time those affidavits were executed. The wording of the supplemental affidavits bears this out. This contrasts sharply with the signatures excluded in Benca v. Martin , 2016 Ark. 359, 500 S.W.3d 742, in which this court held that post-office boxes could not serve as a "current residence address," as one cannot reasonably believe he or she resides in a post-office box. For the affidavits to be false, as the master found, there would have to be some evidence that the canvassers intentionally listed addresses they knew to be incorrect. There is no evidence of this kind in the record. Therefore, these signatures should not be excluded.
Next, the majority affirms the finding by the master that 1,988 signatures should be excluded because they were collected by paid canvassers before the canvassers executed the sworn statement required pursuant to Arkansas Code Annotated section 7-9-601(d)(3) (Repl. 2018). The majority admits that there is no do-not-count provision in section 7-9-601(d) as there is in section 7-9-601(b), which requires that sponsors obtain background checks on all paid canvassers before they begin collecting signatures. Ark. Code Ann. § 7-9-601(b)(1) (Repl. 2018). Nonetheless, the majority proceeds to exclude the signatures, reasoning that a failure to do so would make the word "shall" in section 7-9-601(d)(3) permissive.
In doing so, the majority completely ignores the application of the background-check provision. In McDaniel , we made it clear that the purpose of the sworn statement was to satisfy the State's interest in ensuring that paid canvassers "do not have a criminal history that calls into question their ability to interact with the public." 2015 Ark. 94, at 6, 457 S.W.3d 641, 648. When McDaniel was decided, the current background-check requirement did not exist. The function previously performed by the canvasser statement is now served to a greater degree by the background-check requirement, which clearly contains a do-not-count provision. Considering the background check now required for paid canvassers, the majority's application of the sworn-statement provision in this case renders the sworn-statement provision truly an unwarranted restriction prohibited by article 5, section 1 of the Arkansas Constitution, as it is clearly no longer necessary for its intended purpose.
I disagree with the master's reasoning, which is adopted by the majority, that the canvasser statement must be obtained before the background check can be performed because the canvasser cannot be considered a "paid" canvasser until the information required under section 7-9-601(d) has been submitted. The definition of "paid canvasser" contained in section 7-9-601(c) makes no reference to the information required under section 7-9-601(d). Obviously, the determination of whether one is a paid or unpaid canvasser must be made before the submission of the information required under section 7-9-601(d) because if the canvasser is not paid, the information is not required. Further there is no requirement in section 7-9-601 that the statement be submitted before the background check is performed. If the legislature had intended for the information required under section 7-9-601(d) to be obtained by the sponsor before the background check could be performed, it would have said so. It did not. The canvasser statement is also obviously not a practical necessity, as Arkansas Term Limits successfully obtained background checks on canvassers who had not submitted the statement. The 1,988 signatures should not have been excluded.
Finally, the majority affirms the master's decision to exclude 3,088 signatures because they were gathered before the canvasser list was submitted to the secretary of state. I agree that the 2,221 signatures in this group collected prior to June 15 were properly excluded, because Arkansas Term Limits failed to submit the lists to the secretary of state as required. Regarding the 867 signatures collected between June 15 and June 18, I disagree with the majority that these were properly excluded. Arkansas Term Limits complied with the statute by submitting the lists. The majority reasons that, despite the compliance with the statute, including the signatures would permit sponsors to submit lists to the secretary of state that the secretary of state could not access. It would do nothing of the sort. Here, there is no indication that the lists were intentionally submitted in a password-protected document. The secretary of state was able to access the lists within a few days, and there is no indication that the secretary of state was impeded at all in the performance of his duties. Under these facts, excluding the signatures collected between June 15 and June 18 serves no purpose, and they should not have been excluded.
When the number of signatures erroneously excluded by the master is added back in to the signature count, the petition contains a sufficient number of signatures to remain on the November ballot. I would deny the petition.
Baker and Hart, JJ., join.
The background-check requirement was added by Act 1219 of 2015. Act of Apr. 7, 2015, No. 1419, 2015 Ark. Acts 5596.
I would note that, while the sponsor is required to certify to the secretary of state that the background check has been performed, no information whatsoever regarding the sworn statement is required to be given to the secretary of state. | [
119,
-17,
-32,
92,
-118,
33,
26,
-114,
-13,
-119,
100,
83,
-81,
-38,
20,
81,
-21,
45,
113,
122,
-58,
-77,
111,
72,
38,
-9,
-23,
87,
36,
91,
-12,
125,
74,
112,
-24,
-43,
70,
-30,
-113,
-36,
46,
11,
11,
-27,
90,
-127,
28,
99,
64,
-125,
49,
-42,
-32,
-84,
-70,
70,
-55,
110,
89,
-107,
73,
-69,
-103,
-107,
123,
23,
-111,
-74,
25,
-126,
-48,
46,
-100,
49,
-120,
-24,
51,
-90,
-122,
-26,
75,
-103,
8,
98,
98,
-70,
-71,
-25,
-116,
-94,
70,
58,
13,
-122,
-110,
9,
107,
12,
-106,
-75,
44,
20,
10,
126,
-26,
-123,
18,
46,
-116,
-114,
-42,
-77,
20,
122,
4,
11,
-21,
-89,
-48,
117,
-52,
-9,
-36,
-57,
49,
-101,
-50,
-80
] |
ROBERT J. GLADWIN, Judge
Veronica Rivera appeals the Poinsett County Circuit Court's termination of her parental rights to G.H., born May 30, 2015, arguing that the circuit court's findings were clearly erroneous. We affirm.
I. Facts
The Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect claiming that on June 20, 2016, it took a seventy-two-hour hold on G.H. when Rivera was arrested for allegedly stabbing her stepfather. DHS claimed that Rivera had left G.H. in the custody of her mother. When Rivera arrived with G.H.'s father, Tommy Henton, to retrieve the child, both Rivera and Henton were drunk, and Rivera's mother was not home. Rivera's stepfather tried to prevent them from taking G.H., and a fight ensued. Rivera's stepfather was stabbed with a kitchen knife, and Rivera and Henton were arrested. Later, Rivera's mother tested positive for methamphetamine and MDMA. A June 28, 2016 ex parte order found probable cause to believe that G.H. was dependent-neglected (DN) and that it was in the child's best interest to remain in DHS custody.
The probable-cause order reflects that Rivera was incarcerated at the time of the hearing and did not attend. The court ordered that G.H. remain in DHS custody, and the goal of the case was reunification with Rivera. The parents were ordered to complete a myriad of tasks, including that they obey all court orders, remain drug free and submit to random drug screens, submit to a drug-and-alcohol intake at an inpatient treatment facility, obtain and maintain stable housing and employment, and resolve all outstanding criminal matters.
Rivera was present for the hearing on July 20, 2016, that resulted in an adjudication order finding the child DN, having been subjected to neglect and parental unfitness based on Rivera's extreme intoxication and first-degree-battery and aggravated-assault charges. The goal remained reunification with a concurrent plan for relative placement, permanency, and adoption.
A review order from the October 25, 2016 hearing was based on the parties' stipulation. The court found that it was in G.H.'s best interest to remain in DHS custody. The goal continued to be reunification, and the court found that DHS had made reasonable efforts to provide family services. The court found that Rivera had not cooperated with DHS nor complied with the case plan and all court orders to obtain and maintain stable employment and to successfully complete inpatient treatment.
At the review hearing on April 19, 2017, the circuit court found:
At the last court hearing that was continued, Ms. Rivera reported that she is working. However, at the hearing the mother tested positive for illegal substances. In addition, Ms. Rivera was admitted into inpatient rehab on August 31, 2016, however, the mother was discharged on September 14, 2016, for not following the rules of the program. The mother has completed parenting classes. The mother is currently receiving outpatient services; however, it has been reported that she was very rude at the last group session on March 20, 2017. The mother missed her individual therapy appointment on March 20, 2017. The court finds that Ms. Rivera is partially compliant with the case plan and orders of the court due to completing parenting classes and stating under oath that she is employed.
In a handwritten addition, the court ordered that Rivera provide a copy of her lease and proof of employment to DHS and that DHS aid Rivera in obtaining a valid driver's license and valid car registration. DHS was also ordered to establish visitation for Rivera.
The September 22, 2017 permanency-planning order set a permanent goal of adoption and allowed DHS to file a petition for termination of parental rights. The court found that DHS had made reasonable efforts to finalize a permanency plan. The court ordered that Rivera would continue to have biweekly visitation, but she was to give DHS twenty-four hours' notice and allow DHS into her home for an assessment.
DHS filed a petition for termination of parental rights on October 4, 2017, alleging five grounds under Arkansas Code Annotated section 9-27-341 (Supp. 2017), four of which applied to Rivera:
1. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) That a juvenile has been adjudicated by the Court to be [DN] and has continued to be out of the custody of the mother for twelve (12) months and, despite a meaningful effort by [DHS] to rehabilitate the mother and correct the conditions that caused removal, those conditions have not been remedied by the mother.
2. Ark. Code Ann. § 9-27-341(b)(3)(B)(ii)(a) The juvenile has lived outside the home of the parents for a period of twelve (12) months, and the parents have willfully failed to provide significant material support in accordance with their means or to maintain meaningful contact with the juvenile.
3. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for [DN] that demonstrate that placement of the juvenile in the custody of the mother is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the mother has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the mother's circumstances that prevent the placement of the juvenile in the custody of the mother.
4. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a) The parent is found by a Court of competent jurisdiction, including the juvenile division of circuit court, to: (3)(A) Have subjected any juvenile to aggravated circumstances. (B) "Aggravated circumstances" means: (i) ... there is little likelihood that services to the family will result in successful reunification." The Court should find that there is little likelihood that services to the mother will result in a successful reunification with her.
A hearing on the termination petition was held January 3, 2018. Candice Eskridge, a DHS caseworker, recommended termination because Rivera had not maintained stable housing or employment, had tested positive for illegal drugs after she had completed inpatient treatment, and had visited sporadically throughout the case. She said Rivera had lived with the child's father, then her own father, and that she then moved across state lines to Memphis. Eskridge said that she could not cross state lines to verify the appropriateness of Rivera's home, but she acknowledged that she also never saw the other two homes in which Rivera had lived and had not verified whether Rivera was working. Eskridge said Rivera had submitted to a drug assessment in August 2016 that recommended she attend inpatient treatment, which Rivera did; but Rivera was discharged prematurely because she did not follow the rules of the program. Subsequently, Rivera entered Quapaw House, and she completed residential services in November 2016. However, Rivera tested positive for methamphetamine, amphetamines, cocaine, and benzodiazepines in April 2017. DHS had obtained other drug screens but none were random because Rivera made herself available only during scheduled visits. Eskridge said Rivera's visits were inconsistent and that Rivera had not seen her son in two months. Eskridge believed G.H. was adoptable and that he would be subject to potential harm if returned to Rivera's custody because she had not shown stability in her housing, employment, or transportation, and she continued to use illegal substances.
On cross-examination, Eskridge acknowledged that (1) Rivera had hired an attorney and corrected her criminal charges by getting them nolle prossed; (2) Rivera had always maintained a home even if she was living with someone else; (3) Eskridge did not see any of those homes; (4) DHS's transportation assistant changed counties and could not always fulfill Rivera's requests to see her child; and (5) there had never been any documented instances in which DHS called Rivera to come in for a drug screen that she had refused. Upon questioning by the ad litem, Eskridge said that Rivera had not seen her son during the case much, even when the assistant was available to transport her-Rivera visited eleven times in 2016 and ten times in 2017 even though she was entitled to see G.H. biweekly.
Amanda Baker, a DHS supervisor, testified that Rivera had given her at least four addresses during the case, and DHS considered that unstable housing. She said that at one point, Rivera was living in an apartment that was missing an appliance and had no furnishings for G.H. She did not believe that Rivera had maintained stable employment because she was aware of multiple employers, including a gas station, a Waffle House, and a Mexican restaurant, but DHS had no proof of Rivera's employment in the file. She testified that Rivera was entitled to visit once every two weeks for two hours because Rivera and G.H. were placed so far apart. She said that Rivera had canceled several visits for reasons such as someone breaking into her home, work conflicts, or being hospitalized. On at least two occasions the transporter drove to Rivera's home, and Rivera did not answer the door.
Rivera testified that the day G.H. was removed by DHS, she and the child's father had been drinking and made a poor decision to leave G.H. with her mother. She acknowledged her arrest on the evening G.H. was removed and that she was jailed for six weeks. She said that she had never been referred for counseling but that she was referred for rehab, and after failing to complete twenty-one days at the first facility, she completed the twenty-one-day program at Quapaw House in Hot Springs. She said she did not see her son while she was in rehab, despite asking many times. She did not know where he was placed, and she did not see him until DHS brought him to her in Jonesboro after Thanksgiving. She said she realized that the child's father did not want to comply with court orders or have anything to do with G.H., so she separated from him and moved out.
Rivera said that she had moved to West Memphis where she had her own place with all working utilities and appliances, and nobody from DHS visited. She then moved to Marion and lived in a trailer that had no stove. She said she had been working during the times she lived in those places and was able to pay rent but that she stayed at each location only two months. She said she had no driver's license and no vehicle; however, a car accident in August 2017 resulted in a broken leg, requiring three weeks' hospitalization. This caused her to lose her full-time employment at Shoney's, where she had been working with her stepmother. She also had not been offered visitation while hospitalized despite having informed DHS of her location. She said she texted the assistant, who had relocated to another county, and she then began calling the DHS office but could rarely get someone to return her calls. She said Amanda Baker returned one call and told her she was trying to get people to help her, but that help never came. She said that she had been living in the same place in Memphis for three months with a boyfriend on whom she depended.
Rivera's stepmother, Kimberly Arreola, testified that she and Rivera's father strongly supported Rivera. She said she had worked at Shoney's for seventeen years, that she was a shift leader, and that she had helped Rivera obtain a job there. She said Rivera lost that job because of her car accident and that Rivera was still recovering. She said that she and Rivera's dad would take care of Rivera and G.H.
II. Order Terminating Parental Rights
The circuit court terminated Rivera's parental rights by order filed January 3, 2018, relying on three of the alleged grounds. The court relied on the failure-to-remedy ground as follows:
The juvenile has been out of the custody of the mother since June 24, 2016, and the Court adjudicated the juvenile [DN] on July 20, 2016, based on neglect and parental unfitness. Since that time, [DHS] has made meaningful efforts to rehabilitate the mother and correct the conditions that caused removal by offering services such as referrals for drug/alcohol assessment, referral for drug treatment, visitation, transportation, random drug screens, and case management. Despite these meaningful efforts, the mother has not remedied the conditions that caused removal in that she tested positive for METH and AMP (confirmed by the lab) in April of 2017, failed to maintain stable housing, failed to maintain stable employment, failed to maintain stable transportation, and failed to maintain regular visits with the juvenile. Thus, the mother has failed to remedy the conditions that caused removal.
The circuit court also found "some inconsistent visits since Nov. 2017 are fault of [DHS] and finds the mother moved to Memphis TN subsequent to the PPH hearing, which complicated things in this case."
The circuit court also relied on the subsequent-factors ground as follows:
Subsequent to the filing of the original petition on June 28, 2016, the mother tested positive on her hair follicle test for AMP, METH, and BENZOs on April 5, 2017. The mother took a drug screen on March 29, 2017, which was positive for METH and AMP. The juvenile came into care on June 24, 2016, which means that the mother was still taking illegal drugs almost a year into the case despite completing an inpatient drug treatment program prior to those failed drug tests. Additionally, the mother continues to miss at least 50% of her visits since the juvenile came into care, has failed to obtain stable housing, failed to obtain stable employment, and failed to obtain stable transportation. [DHS] has offered services such as a drug/alcohol assessment, drug screening, hair follicle test, parenting, visitation, and case management. Nevertheless, the mother has manifested the incapacity or indifference to remedy these subsequent issues.
The circuit court further noted, "Additionally, the mother voluntarily moved out of state where [DHS] cannot offer services."
The circuit court's basis for relying on the aggravated-circumstances ground was also that
[t]he mother has failed to consistently visit with the juvenile despite [DHS] offering her transportation throughout the case. The mother tested positive for METH, AMP, and BENZOs on her hair follicle test in April of this year despite [DHS] offering her drug treatment and drug screening. The mother has also failed to obtain stable housing, transportation, and employment despite the numerous services offered through [DHS] and case management. Thus, there is little likelihood [DHS] could offer any further services to result in a successful reunification.
The circuit court found that G.H. was adoptable and that he would be at risk of potential harm if returned based on lack of contact by the parents and their failure to maintain stable housing, transportation, and employment. This appeal timely followed.
III. Standard of Review
A circuit court's order terminating parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Bryant v. Ark. Dep't of Human Servs. , 2018 Ark. App. 375, 554 S.W.3d 295. On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. E.g. , Bryant , supra.
IV. Subsequent Factors and Potential Harm
The circuit court granted the termination petition based on three grounds: (1) failure to remedy, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) ; (2) subsequent factors, section 9-27-341(b)(3)(B)(vii)(a) ; and (3) aggravated circumstances, section 9-27-341(b)(3)(B)(ix)(a) . Rivera argues that the circuit court's reliance on the failure-to-remedy ground was in error because the court relied on factors that arose subsequent to G.H.'s removal to find that she had failed to remedy the issues causing removal. Because only one ground is necessary to support termination, and because Rivera charges that the circuit court relied on factors occurring after the termination petition was filed to support the failure-to-remedy ground, we need only address her subsequent-factors argument.
Rivera contends that the circuit court relied on the following facts in support of the subsequent-factors ground: (1) a positive urine screen on March 29, 2017, for methamphetamine and amphetamine, which was confirmed for the same drugs by a hair-follicle test on April 5, 2017; (2) sporadic visitation; (3) unstable housing, transportation, and employment; and (4) her move to Memphis, Tennessee.
Rivera argues that her positive drug screen was isolated and did not demonstrate that her drug use was contrary to responsible parenting. She contends that her relapse was not sufficiently pervasive as to warrant a finding that termination was in G.H.'s best interest. She relies on Kight v. Arkansas Department of Human Services , 87 Ark. App. 230, 189 S.W.3d 498 (2004), to contend that this court reversed the termination order in circumstances more egregious than her own. In Kight , we held that the circuit court's termination was clearly erroneous, reasoning as follows:
Beginning with A.W., the record shows that he was removed from the home due to Kight's drug use. The order adjudicating him [DN] ordered Kight to enter drug treatment and submit to random drug testing. Kight followed the court's directive and enrolled in the Freedom House. Her drug tests were negative from July 2002 through December 2002, with one positive test in January 2003. Following this test, Kight enrolled in Chance Sobriety. While CASA originally recommended a ninety-day stay, Kight actually completed six months of residential drug counseling. [Ben] Perkins's testimony regarding Kight's improvement is persuasive, particularly his testimony that she has been drug free throughout the entire program, even though she was given unsupervised weekend passes; that she has been given responsibilities in the house, including overseeing drug testing of other patients; and his belief that Kight will be successful once she reenters society.
Likewise, there was testimony that A.W. was stable with his mother and that she was his primary caregiver. In fact, [Laura] Rogers[, DHS caseworker,] stated that A.W. was doing well in Kight's care, although she was abusing drugs. Moreover, when Rogers first became involved in this case, she did not remove A.W. from the home, despite knowing that Kight had tested positive for drugs. Thus, the reason for A.W.'s removal was not that Kight was an unfit parent or unable to care for her child, but that she was abusing drugs, which she has corrected. Rogers stated that although uncooperative at first, once A.W. was removed from the home, Kight became serious about getting A.W. back, was doing well, had housing, and that she [Rogers] was prepared to return A.W. to the home. A.W. would have been in his mother's care but for a one-time relapse in January. Notwithstanding this one-time relapse, Kight has maintained full time employment while at Chance and has been clean and sober for over six months. This is exactly what DHS asked her to do. DHS has not demonstrated by clear and convincing evidence that terminating Kight's parental rights to A.W. was in his best interest.
Kight , 87 Ark. App. at 237-38, 189 S.W.3d at 502.
Here, Rivera contends that Eskridge tried to portray her drug use "as not so singular," testifying that the screens taken were not random because they had been administered during visitation and that because Rivera had moved to Memphis, she was not available for random screening. Rivera argues that she had moved to Memphis only three months before the termination hearing, which gave DHS seven months following her positive drug screen to randomly screen her. Rivera argues that her single drug use, especially in light of her inpatient drug treatment, was not a sufficient basis to support termination under the subsequent-factors ground, and her sobriety demonstrated that she was not indifferent to or incapable of remedying that issue, negating the court's finding that further services were unlikely to result in reunification. Rivera maintains that her single use of illegal drugs did not demonstrate potential harm because it was an isolated event and she had maintained her sobriety since that time.
Rivera disputes the circuit court's finding that she missed at least 50 percent of her visits since G.H. came into care. Rivera contends that the circuit court's order of October 25, 2016, contains a finding that she had regularly visited G.H. She also points to the circuit court's order that DHS establish visitation around her work schedule, which she contends indicates that her missed visits were beyond her control. She also points to the circuit court's acknowledgment that the inconsistent visits since November 2017 were the fault of DHS. She claims that if DHS was complicit in her missing visitation "at all," then it cannot be said that DHS offered her transportation in such a meaningful way as to satisfy the element of the subsequent-factors ground. She argues that had DHS provided transportation as it was ordered, she may not have been subjected to termination of her parental rights.
Rivera admits that she moved several times, relied on others for transportation, and held several jobs until she was injured in a car accident. However, she contends that she had stable housing for three months before the hearing; her father and stepmother were her support system; and she had a full-time job she could return to at Shoney's after she recovered. She relies on Strickland v. Arkansas Department of Human Services , 103 Ark. App. 193, 199-200, 287 S.W.3d 633, 638-39 (2008), where this court held that, although the children were adjudicated DN and Strickland moved numerous times when the court required that she maintain a stable residence, by the time of the termination hearing, Strickland had acquired her own apartment and had been there for three months. This court held that the reunification plan did not require Strickland to stay in a fixed location, that there was no evidence that her residences were unsafe, and that she faithfully visited her children, completed parenting classes, and obtained stable transportation. Id. Although she had a meager income, there was no evidence that this rendered Strickland unfit. Id. Likewise, Rivera argues that DHS did not present sufficient evidence to demonstrate that she was unfit or that G.H. would be subjected to potential harm if returned to her custody.
Kight , supra , is distinguishable because it addresses the failure-to-remedy ground, not the subsequent-factors ground. Further, unlike Kight , Rivera's noncompliance with the case plan demonstrated her general unfitness, and more than nineteen months had transpired in this case. By contrast, in Kight , drug use was the only basis for parental unfitness; Kight had a single isolated incident of drug use and had completed a second round of inpatient treatment, and only seven months had lapsed since the case began. Strickland , supra , is likewise distinguishable because Rivera had no income, no regular visitation with G.H. throughout the case, and no stable and adequate housing.
Rivera contends that several cases bolster her argument that the circuit court's "best interest" finding was not supported by the evidence. She cites cases in which this court reversed termination orders when the parent had a few slight lapses in judgment, such as consuming alcohol against court orders and fraternizing with friends who were drinking, as well as moving in with a partner the parent had known for only two months. See Rhine v.Ark. Dep't of Human Servs. , 2011 Ark. App., 649, 386 S.W.3d 577 ; Cranford v. Ark. Dep't of Human Servs. , 2011 Ark. App. 211, 378 S.W.3d 851. Rivera argues that there was no basis for the circuit court to find a real risk of harm to G.H. if he had continued contact with her. See Bearden v. Ark. Dep't of Human Servs. , 344 Ark. 317, 42 S.W.3d 397 (2001). Rivera argues that she showed sufficient stability to avoid termination of her parental rights.
Rivera's arguments do not warrant reversal, and clear and convincing evidence supports the circuit court's statutory grounds and best-interest findings. Failure to comply with court orders is a subsequent factor on which termination may be based. Clements v. Ark. Dep't of Human Servs. , 2013 Ark. App. 493, 2013 WL 5273040. This case spanned nineteen months and six hearings. Beginning June 29, 2016, Rivera was ordered to accomplish minimal goals to provide a suitable home for G.H. At the end of nineteen months, Rivera had failed to remedy the subsequent factors despite appropriate services having been offered. The circuit court made repeated findings that DHS had made reasonable efforts to provide family services to Rivera. None of these findings were appealed, and Rivera is barred from challenging those prior findings. Martin v. Ark. Dep't of Human Servs. , 2017 Ark. 115, 515 S.W.3d 599. Further, because only one statutory ground need be proved, Rivera's arguments related to the aggravated-circumstances finding are not addressed. See Bryant , supra.
Clear and convincing evidence supports the circuit court's best-interest finding. The same evidence that supports the subsequent-factors ground also supports the potential-harm prong of the circuit court's best-interest finding. Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48. Failure to provide stable housing and to comply with the court's orders demonstrates potential harm to the child. See Bell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 446, 503 S.W.3d 112 ; Howell , supra .
Affirmed.
Klappenbach and Brown, JJ., agree.
The petition named Veronica Rivera, mother, and Tommy Henton, putative father, as defendants. Even though parental rights were terminated as to both parents, Rivera is the subject of this appeal.
DHS was ordered to do more regarding Rivera's transportation for visitation, but the writing on the order is illegible. | [
112,
100,
-3,
108,
58,
-31,
56,
60,
83,
-13,
119,
-13,
-25,
-26,
20,
-23,
-55,
111,
113,
121,
-45,
-77,
115,
64,
-14,
-13,
-79,
-41,
115,
91,
101,
-44,
28,
112,
-118,
81,
70,
-22,
-25,
80,
-118,
1,
-21,
105,
81,
-61,
32,
59,
-102,
14,
49,
-114,
-17,
44,
-102,
-53,
12,
104,
81,
61,
-40,
104,
-37,
21,
-117,
22,
-93,
36,
-101,
35,
122,
117,
-112,
48,
0,
-24,
114,
-75,
-118,
100,
69,
-103,
-123,
100,
102,
1,
28,
-59,
-15,
-120,
-65,
-82,
-115,
-90,
-102,
57,
1,
15,
-98,
-76,
60,
16,
10,
-4,
99,
12,
108,
-20,
-56,
-50,
-108,
-111,
-36,
-56,
92,
51,
-53,
101,
48,
117,
-49,
-26,
117,
7,
123,
-37,
-114,
-14
] |
JOHN DAN KEMP, Chief Justice
Following his conviction on charges of manslaughter, manufacture of a controlled substance (marijuana), abuse of a corpse, and tampering with physical evidence, which resulted from a negotiated plea of nolo contendere, appellant Morris Dean Davis filed a petition in the trial court seeking a writ of error coram nobis. Davis alleged in his petition that he was coerced into entering the plea because he was given misleading information about the manslaughter charge and that he was insane and not competent to enter the plea. After a hearing on the petition, the trial court denied coram nobis relief, finding that Davis's claims as developed in the hearing were largely ineffective-assistance-of-counsel claims, which as such were untimely; that Davis had presented no credible evidence of coercion or insanity at the time he entered his plea; and that he failed to demonstrate diligence in pursuing at least one of his claims. The trial court's findings are well supported by the record, and it did not abuse its discretion by declining to issue the writ. Accordingly, we affirm.
Davis was initially charged with first-degree murder rather than manslaughter, and the list of original charges included an additional allegation of a sentencing enhancement for the use of a firearm that was not pursued under the negotiated plea. As set out in the charging information, the State alleged that Davis had fatally shot his girlfriend, Lisa Davis, in the face with a rifle. The court ordered a mental-health evaluation of Davis, and the report, which was filed about two years before Davis entered his plea, found that Davis was capable of understanding the proceedings and assisting counsel, that he did not present with evidence of a mental disease or defect, and that he could both appreciate the criminality of his actions and conform his behavior to the requirements of the law.
The trial court conducted two plea hearings, declining to accept Davis's no-contest plea to the charges at the first hearing. The court accepted the plea during the second hearing. During both hearings, Davis's account of what had happened was consistent with his version of events as described in the mental-health report. Davis maintained that Lisa had committed suicide, shooting herself with the rifle, but that he had not called the police or disclosed her death at the time and had only told the police about the suicide-initially denying her death and saying that Lisa had left him-when a friend he had confided in six weeks after her death went to the police. He admitted that he had left the rifle where Lisa had found it, knowing that she had attempted suicide in the past; that he had cleaned up the scene and buried Lisa a few days after her death, naked and face down in a shallow grave in the barn; and that he had covered the grave with concrete and a stack of lumber. The State contended during the plea hearing that it could prove, at a minimum, that Davis had caused Lisa to commit suicide or recklessly caused her death. Davis affirmed during the final plea hearing that no one had threatened or coerced him into changing his plea.
After Davis filed his coram nobis petition, the trial court held a hearing and heard testimony from Davis, a witness who knew the couple and had seen Lisa drunk on a number of occasions, and Davis's trial attorney. Davis indicated in his testimony that his issues with the plea were limited to the manslaughter charge, that he should have been provided a "post-trial hearing" concerning whether he was coerced or rational enough to enter the plea, that he was convicted under a different subsection of the manslaughter statute than what he believed he had agreed to, that his attorney had used a cell phone to show Davis a copy of the statute that contained a subsection that did not exist in the applicable manslaughter statute, and that he had not been diagnosed with any behavioral disorder. Trial counsel testified that he had hired a forensics expert to assist in the case; that, after consultation with that expert, he concluded that Davis's actions in destroying some evidence, cleaning up the crime scene, burying the body, and placing an ad for a woman companion after Lisa's disappearance, would have made it extremely difficult to defend a murder charge; that the earlier parole eligibility for manslaughter made the plea offer more attractive than a conviction on a murder charge, considering Davis's age; that Davis had been adamant that he would not enter a plea or admit guilt to murder because of some pending civil matters concerning his property; that Davis did not show signs of emotional distress at the time of the plea hearings that would have merited another evaluation of his mental health; and that his recollection of showing Davis the manslaughter statute on his phone included providing an explanation of the section listed on the judgment and that the statute was the correct one and did not include the section that Davis insisted had been shown to him.
Davis correctly pursued the writ in the trial court. When the judgment or conviction was entered on a plea of guilty or nolo contendere, the petition for writ of error coram nobis is filed directly with the circuit court. Thacker v. State , 2016 Ark. 350, 500 S.W.3d 736. The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Smith v. State , 2017 Ark. 236, 523 S.W.3d 354. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Id. The trial court's findings of fact, on which it bases its decision to grant or deny the petition for writ of error coram nobis, will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Id. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition are groundless. 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. Faulkens v. State , 2017 Ark. 291, 2017 WL 4837338. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. McCullough v. State , 2017 Ark. 292, 528 S.W.3d 833. 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. Id.
Davis raises some issues in his brief that were not before the trial court. When reviewing the trial court's ruling on a coram nobis petition on appeal, the appellant is limited to the scope and nature of the arguments that he or she made below that were considered by the trial court in rendering its ruling, and we therefore limit our consideration on appeal to those claims that were contained in the petition filed in the trial court and any factual support for those claims contained in the petition. Smith , 2017 Ark. 236, 523 S.W.3d 354. Here, we limit our review to Davis's claims that he was coerced into entering the plea because he was given misleading information about the manslaughter charge and that he was not competent to enter the plea.
To prevail on a claim that a writ of error coram nobis is warranted because a plea was coerced, the petitioner bears the burden of establishing that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coercion. Id. Davis based his claim of coercion on the allegation that his attorney provided him incorrect information about the manslaughter statute. Claims of ineffective assistance of counsel, as this claim is, do not support issuance of the writ. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. A claim that a petitioner's decision to plead guilty was occasioned by an erroneous interpretation of law by his trial counsel is not one cognizable in proceedings for the writ. Pelletier v. State , 2015 Ark. 432, 474 S.W.3d 500. As the trial court concluded, none of the evidence at the hearing supported grounds for a finding of coercion to support issuance of the writ. It is therefore unnecessary to examine whether, as the trial court found, Davis failed to pursue this claim with diligence.
The trial court also correctly determined that it could not elect to treat the petition as one under Arkansas Rule of Criminal Procedure 37.1 (2017). To do so, the petition must comply with the requirements and restrictions on filing a Rule 37 petition. See Green , 2016 Ark. 386, 502 S.W.3d 524. Because the petition did not meet those requirements, the trial court correctly determined that the petition was not one it could consider under Rule 37.
As for Davis's claim that he was insane, the matter of competency was one that had been submitted to the trial court and considered by it. Davis therefore failed to demonstrate that there existed some fact that would have prevented rendition of the judgment had it been known to the trial court. Westerman v. State , 2015 Ark. 69, 456 S.W.3d 374. Davis alleged that the length of his incarceration after the evaluation may have been a factor to consider, but he did not provide evidence to document a change in his mental status unknown to the court. He did not identify any behavior indicating a change in his mental status occurring after the court's decision on competency, and his attorney testified that Davis did not show signs of emotional distress at the time of the plea hearings.
Davis has not shown an abuse of the trial court's discretion in declining to issue the writ. Accordingly, we affirm the denial of relief.
Affirmed.
We note that the judgment lists Arkansas Code Annotated section 5-10-104(a)(1)(A) (Repl. 2013) as the applicable statute, which is not consistent with the factual recitation at the plea hearing. The State contended in that hearing that it could "at least" prove facts consistent with section 5-10-104(a)(2) or section 5-10-104(a)(3). This court may raise an issue of an illegal sentence sua sponte, and it is obligated to correct an apparent illegal sentence on review on appeal. Smith v. Kelley , 2016 Ark. 307, 2016 WL 4919890. Because the sentencing range under section 5-10-104(c) did not vary depending on the subsection charged, there is no issue concerning an illegal sentence. Clerical errors such as this one do not prevent enforcement of a judgment, and a circuit court can enter an order nunc pro tunc at any time to correct clerical errors in a judgment or order. Vance v. State , 2011 Ark. 243, 383 S.W.3d 325.
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. Scott v. State , 2017 Ark. 199, 520 S.W.3d 262.
The judgment was entered in January 2013. Under the applicable version of Rule 37.2, a petition for relief under Rule 37.1 must have been filed within ninety days of the date of entry of the judgment when the conviction was obtained on a plea of guilty. Ark. R. Crim. P. 37.2(c)(i) (2014). Davis's petition for relief was filed in February 2016. | [
-80,
-24,
-11,
127,
27,
33,
10,
-72,
-12,
-30,
102,
115,
-17,
-49,
1,
117,
-87,
125,
116,
105,
97,
-89,
39,
-31,
-78,
-77,
-21,
-41,
-78,
-21,
-4,
-3,
76,
-32,
-26,
125,
102,
10,
-25,
88,
-114,
17,
-119,
-16,
-62,
82,
48,
62,
94,
15,
49,
-98,
-13,
42,
21,
79,
105,
44,
91,
41,
64,
-119,
13,
13,
-19,
52,
-77,
-89,
-66,
-90,
-8,
126,
-104,
-79,
8,
-6,
19,
-108,
-126,
116,
109,
-119,
12,
96,
34,
33,
93,
-51,
-88,
-119,
63,
111,
-99,
-89,
-101,
121,
73,
109,
-105,
-3,
126,
20,
-84,
120,
125,
93,
85,
108,
0,
-34,
-76,
-125,
79,
120,
-34,
-5,
-21,
5,
48,
69,
-49,
-26,
88,
119,
120,
-37,
-120,
-105
] |
MIKE MURPHY, Judge
Appellant James Pafford appeals from an order of the Hempstead County Circuit Court denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. For reversal, he contends that the circuit court erred by denying him an evidentiary hearing on his Rule 37 petition. We affirm.
I. Relevant History
We explained the incident that led to the underlying charges in Pafford v. State , 2017 Ark. App. 700, at 2, 537 S.W.3d 302, 305 :
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.
A Hempstead County Circuit Court jury convicted Pafford of two counts of rape and two counts of second-degree sexual assault. He 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, supra. On direct appeal, Pafford argued four points: (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 not granting his new trial based on ineffective-assistance-of-counsel claims. This court affirmed the convictions on December 13, 2017, and denied the petition for rehearing on January 31, 2018. Pafford sought review from the Arkansas Supreme Court, which was denied on March 29, 2018.
On May 25, 2018, Pafford filed a verified petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1. He raised one claim of ineffective assistance of counsel premised on counsel's failure to move to quash the selected jury and failure to move for a mistrial when the circuit court allegedly excluded Pafford's family from the courtroom during voir dire. Pafford argued that this deprived him of his constitutional right to a public trial. On July 16, 2018, without holding an evidentiary hearing, the circuit court denied Pafford's petition in a four-page order. The circuit court denied relief, finding that Pafford's petition did not comply with the formatting requirements as required by Rule 37.1 and that Pafford failed to state how he was prejudiced by the alleged error of his counsel. This timely appeal followed.
II. Standard of Review
We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Vaughn v. State , 2017 Ark. App. 241, at 7, 519 S.W.3d 717, 721. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.
Our standard of review also requires that 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. In asserting ineffective assistance of counsel under Strickland , the petitioner must first demonstrate that counsel's performance was deficient. Sartin v. State , 2012 Ark. 155, 400 S.W.3d 694. This requires a showing 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, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. This requires the petitioner to show 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.
If the circuit court determines that the petitioner is entitled to no relief based on the petition, files, and records, then the petitioner is not entitled to an evidentiary hearing. Ark. R. Crim. P. 37.3(a). In such cases, the circuit court should provide sufficient written findings of fact to illustrate that the petitioner's claims are meritless. Id. Our review indicates that the petition, files, and records conclusively show that Pafford is not entitled to postconviction relief. As such, we hold that the circuit court was not obligated to hold an evidentiary hearing before denying Pafford's petition as wholly without merit.
III. Analysis
The circuit court denied Pafford's petition for relief based on his assertion that excluding his family from the courtroom during voir dire deprived him of his constitutional right to a public trial. In Pafford's Rule 37 petition, he argued that his trial counsel told his family members that they would not be allowed in the courtroom during voir dire. He claimed that the family understood that to be a directive from the circuit court and that counsel was ineffective for failing to object to the closure. However, he failed to support this assertion by attaching an affidavit or citing to the record. The circuit court responded to this claim by finding that it was not the circuit court's practice to close the courtroom, the record reflected that the court did not exclude the family, and the record further reflected the rule governing exclusion of witnesses from the courtroom was invoked only at the start of testimony. The circuit court also noted that Pafford failed to state how he was prejudiced by the alleged error.
The Supreme Court has explained that "when a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or ... to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair." Weaver v. Massachusetts , --- U.S. ----, ----, 137 S.Ct. 1899, 1911, 198 L.Ed.2d 420 (2017).
Here, Pafford made the conclusory assertion that as a consequence of not receiving a public trial, his family was not privy to the responses of potential jurors. He fails to explain how the family members' inability to hear what potential jurors said undermined confidence in the outcome of the trial. Accordingly, Pafford's assertion is speculative and insufficient to meet the burden under Strickland .
For the reasons stated herein, we affirm the circuit court's denial of Pafford's petition for postconviction relief.
Affirmed.
Harrison and Whiteaker, JJ., agree.
Pafford's ineffective-assistance-of-counsel claims asserted in the direct appeal do not correspond or overlap with this postconviction appeal.
Because the court ruled on the merits of the petition, it may be assumed that the court tacitly granted appellant leave to proceed with a nonconforming petition. Rogers v. State , 2010 Ark. 46, at 2, 2010 WL 323002. Since the court has jurisdiction to consider a petition with more lines per page than allowed by the rule, the court had discretion to rule on the nonconforming petition. Id. | [
48,
-21,
-96,
-36,
72,
-31,
26,
60,
2,
-13,
115,
-45,
47,
-44,
0,
127,
-21,
107,
100,
-15,
-46,
-73,
69,
-56,
-93,
-6,
59,
-41,
-77,
75,
-92,
-12,
88,
112,
-54,
-15,
102,
-64,
-19,
88,
-114,
3,
-119,
-8,
25,
-63,
56,
47,
84,
11,
49,
-98,
-13,
104,
20,
-53,
45,
108,
91,
-66,
72,
27,
-38,
21,
-81,
20,
-95,
52,
-97,
2,
112,
62,
-104,
57,
0,
-72,
-14,
-78,
-122,
116,
65,
-101,
41,
96,
66,
33,
25,
-57,
61,
-87,
39,
126,
-103,
-90,
-6,
41,
75,
13,
-74,
-11,
106,
20,
12,
122,
101,
-17,
117,
108,
-126,
-113,
-112,
-71,
-122,
44,
20,
-78,
-29,
13,
48,
101,
-49,
-14,
80,
-42,
112,
-37,
-82,
-78
] |
LARRY D. VAUGHT, Judge
William Starks pled guilty to two offenses in two separate cases. The Pulaski County Circuit Court entered two sentencing orders; one for each conviction. Starks appeals the sentencing orders, raising two points: (1) the circuit court erred in sentencing him based on a presentence report that contained an error; and (2) the circuit court erred in failing to advise him that he would be sentenced to imprisonment rather than probation in violation of Arkansas Rule of Criminal Procedure 25.3(c). We affirm in part and dismiss in part.
On August 21, 2017, the State charged Starks in case No. CR-17-2907 with theft by receiving and an enhancement for being a habitual criminal. On November 14, 2017, Starks was charged in case no. CR-17-3937 with theft of property and an enhancement for being a habitual criminal. On February 21, 2018, Starks signed plea statements in each case, and the State nol-prossed the habitual-offender-sentencing enhancement in each case. The circuit court requested a presentence report and set the case for a sentencing hearing on March 12, 2018.
At the sentencing hearing, the presentence report was entered into evidence. The report recited allegations supporting the charges against Starks and his criminal history that included a list of six misdemeanor convictions and nine felony convictions. The report further provided that the "Arkansas Sentencing Standards Grid offers 42 months in the Arkansas Department of Correction" for each crime. No other evidence or testimony was presented. Starks's counsel requested that Starks be sentenced to probation, which he was eligible for after the State nol-prossed the habitual-offender charges.
The court sentenced Starks to forty-two months' imprisonment for theft by receiving and forty-two months' imprisonment for theft of property, to run concurrently, with a ten-day credit in each case for time he had served in jail. Sentencing orders in each case were entered, and this appeal followed.
Before reaching the merits of Starks's points on appeal, we must address the State's contention that Starks's appeal must be dismissed for lack of jurisdiction. Arkansas Rule of Appellate Procedure-Criminal 1(a) (2018) provides that there is no direct appeal from a plea of guilty. There are three exceptions: (1) when a conditional plea of guilty is premised on an appeal of the denial of a suppression motion pursuant to Arkansas Rule of Criminal Procedure 24.3 ; (2) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself; and (3) when the appeal is from a posttrial motion challenging the validity and legality of the sentence itself. Cartwright v. State , 2017 Ark. App. 100, at 4-5, 514 S.W.3d 494, 497. Absent one of the exceptions, a defendant waives the right to appeal when he or she pleads guilty. Id. at 5, 514 S.W.3d at 497.
Because this case does not involve an appeal from a conditional guilty plea under Rule 24.3 of the Arkansas Rules of Criminal Procedure or an appeal from a posttrial motion challenging the validity or legality of the sentence, the first and third exceptions do not apply. Therefore, we must analyze this case under the second exception and determine whether Starks's points on appeal are challenging testimony or evidence presented during a sentencing hearing separate from the plea itself.
Starks's first point on appeal is that the circuit court erred in sentencing him based on an error in the presentence report that was introduced into evidence during the sentencing hearing. The appeal of this issue falls within the second exception to the general rule because Starks's appeal is a challenge to the evidence (the facts stated in the presentence report) presented during his sentencing hearing. Accordingly, we have jurisdiction over the appeal of this issue. Hill v. State , 318 Ark. 408, 887 S.W.2d 275 (1994) (holding that the appellant's appeal of evidence admitted during the sentencing hearing fell within the second exception and vested the appellate court with jurisdiction).
Starks argues that the circuit court erred when it sentenced him based on a presentence report that contained an error. He argues that the error in the report resulted in a fundamentally unfair sentence because it caused him to be punished based on conduct for which he was neither charged nor convicted. However, we cannot reach the merits of this issue because Starks did not raise this argument or objection below. At the sentencing hearing, the following colloquy occurred between the court and Starks's counsel:
COURT : Have you had a chance, a chance to look this [presentence report] over as well as you want?
DEFENSE COUNSEL : I have.
COURT : Okay.
DEFENSE COUNSEL : On page four, though, they're not numbered, but on page four it says that in 2009 he was convicted of [residential burglary] and theft of property. He was not actually convicted of theft of property.
COURT : On what date?
DEFENSE COUNSEL : December 10th, 2009.
COURT : Okay. Does that change anything?
DEFENSE COUNSEL : I don't believe it does based on the reading of the worksheet.
In order to preserve an issue for appeal, a defendant must object at the first opportunity. Lockhart v. State , 2017 Ark. 13, at 7-8, 508 S.W.3d 869, 874. Here, the circuit court specifically asked Starks's counsel whether the error on the presentence report changed anything, and Starks's counsel responded that she did not believe it did. Because Starks's attorney failed to object to the error in the presentence report at the sentencing hearing, this issue is not preserved for appeal.
We next determine whether we have jurisdiction of Starks's second point on appeal, which is whether the circuit court erred in failing to advise him that he would be sentenced to imprisonment rather than probation in violation of Arkansas Rule of Criminal Procedure 25.3(c). We again analyze this case under the second exception to the general rule that there is no direct appeal from a guilty plea.
This issue has been presented to Arkansas appellate courts multiple times. In State v. Sherman , 303 Ark. 284, 796 S.W.2d 339 (1990), the appellant entered a guilty plea, which was accepted by the circuit court, and he was informed that his offense carried a possible sentence of three to ten years in prison. After accepting his plea, the circuit court delayed imposition of sentence. Upon receiving the presentence investigation report, the circuit court decided, sua sponte, to sentence the appellant to thirty years as a habitual offender, even though he had not been charged as a habitual offender and was not informed at the plea hearing that prior convictions would be used to enhance his sentence. Sherman , 303 Ark. at 285, 796 S.W.2d at 339. The supreme court dismissed the appeal for lack of jurisdiction, holding that the appellant challenged the validity of the sentence he received as a direct result of his guilty plea; therefore, the appeal was from a sentencing procedure that was an integral part of the acceptance of the appellant's guilty plea. Id. at 286, 796 S.W.2d at 340. The second exception did not apply in that case.
Similarly, in Henagan v. State , 302 Ark. 599, 791 S.W.2d 371 (1990), our supreme court dismissed an appeal from a guilty plea where the appellant argued that the circuit court should have sentenced him to probation instead of ten years' imprisonment. The court held that it was dealing with "an appeal from the sentencing procedure which was an integral part of the acceptance of Henagan's plea of guilty." Id. at 601, 791 S.W.2d at 372. Thus, the second exception did not apply.
In Smalley v. State , 2012 Ark. App. 221, at 3-4, 2012 WL 1021531, this court dismissed the appellant's appeal of his guilty plea for lack of jurisdiction when her challenges were to the circuit court's upward departure from the sentencing guidelines and the court's failure to inform her of her right to withdraw her no-contest plea under Arkansas Rule of Criminal Procedure 25.3(b). More recently in Cartwright , 2017 Ark. App. 100, at 5, 514 S.W.3d at 497, we dismissed the appeal of a guilty plea when the appellant argued that the circuit court abused its discretion in failing to follow the sentencing mandates of Arkansas Rule of Criminal Procedure 25.3(c). We held that the case did not meet the requirements for any of the exceptions that would allow for an appeal from a guilty plea. Id. , 514 S.W.3d at 497. Likewise, in Lee v. State , 2018 Ark. App. 116, at 10-11, 544 S.W.3d 71, 77-78, we dismissed the appeal of a guilty plea, holding that Rule 25.3 did not salvage an appellant's ability to appeal from a guilty plea and that the case did not meet the requirements for any of the exceptions that would allow for an appeal from a guilty plea.
In the instant case, Starks is challenging the circuit court's sentence solely on the ground that the court should have informed him, pursuant to Rule 25.3(c), that he would be sentenced to imprisonment rather than probation. This argument is an assignment of error from a sentence or a sentencing procedure that was an integral part of his acceptance of the plea. In other words, it is nothing more than a challenge to the validity of the sentence that Starks received as a direct result of his plea, which is not permitted. Smalley , 2012 Ark. App. 221, at 3 (citing Sherman , 303 Ark. at 286, 796 S.W.2d at 340 ); see also Henagan , 302 Ark. at 601, 791 S.W.2d at 372 ; Lee , 2018 Ark. App. 116, at 10-11, 544 S.W.3d at 77-78 ; Cartwright , 2017 Ark. App. 100, at 5, 514 S.W.3d at 497. Accordingly, we hold that the second exception to the general rule that there is no direct appeal from a guilty plea does not apply, and we lack jurisdiction of Starks's second point on appeal.
Starks's reliance on Bradford v. State , 351 Ark. 394, 94 S.W.3d 904 (2003), is misplaced. In Bradford , the supreme court allowed an appeal from a guilty plea because the circuit court failed to comply with the requirements of Rule 25.3 by advising the appellant of his right to either affirm or withdraw his plea agreement. At Starks's March 12 sentencing hearing, there was no plea agreement. Because Rule 25.3(c) contemplates an existing plea agreement at sentencing, and there was none in this case, Rule 25.3(c) did not apply to Starks's sentencing hearing. Accordingly, Bradford does not apply.
Affirmed in part; dismissed in part.
Gladwin and Hixson, JJ., agree.
Our court has held that this exception applies to the sentencing phase of trial regardless of whether it was a jury or bench trial. Anderson v. State , 2018 Ark. App. 365, at 2, 553 S.W.3d 779, 780 ; Cox v. State , 2014 Ark. App. 429, at 2, 2014 WL 4215097.
Starks concedes in his brief that "there was no contemporaneous objection during sentencing as to the entry of the presentence report into evidence."
Rule 25.3 provides:
(c) If the parties have not sought the concurrence of the trial judge in a plea agreement or if the judge has declined to indicate whether he will concur in the agreement, he shall advise the defendant in open court at the time the agreement is stated that:
(i) the agreement is not binding on the court; and
(ii) if the defendant pleads guilty or nolo contendere the disposition may be different from that contemplated by the agreement.
Ark. R. Crim. P. 25.3(c) (2018).
The record in Starks's case demonstrates that the only agreement between Starks and the State was that Starks would plead guilty to theft by receiving in case No. CR-17-2907 and to theft of property in case No. CR-17-3937, and in exchange, the State would nol-pros the habitual-offender charges. On February 21, 2018, Starks and the State followed through with the terms of that agreement. There was no agreement regarding sentencing in this case. The crimes for which Starks pled guilty were Class D felonies, punishable by up to six years' imprisonment and/or a fine of up to $ 10,000, and the circuit court sentenced him within that range. | [
48,
-18,
-35,
92,
41,
65,
59,
-100,
66,
-1,
-10,
82,
-91,
-59,
5,
107,
-29,
-37,
117,
121,
-39,
-73,
85,
65,
99,
-77,
-117,
-42,
-68,
75,
-92,
-106,
95,
112,
-30,
117,
70,
-64,
-57,
90,
-114,
3,
-103,
97,
80,
69,
40,
47,
20,
15,
49,
-66,
-5,
47,
22,
74,
105,
108,
73,
-66,
80,
-109,
-104,
15,
-49,
20,
-125,
20,
-103,
6,
112,
62,
-68,
57,
64,
-56,
115,
50,
-122,
101,
73,
25,
5,
98,
98,
1,
29,
71,
-88,
-24,
62,
126,
-99,
-89,
-104,
81,
75,
13,
-105,
-108,
122,
22,
12,
-2,
100,
-116,
113,
108,
-125,
-50,
-68,
-111,
13,
117,
-44,
-69,
-29,
102,
48,
37,
-52,
-26,
92,
95,
81,
-101,
-50,
-42
] |
BART F. VIRDEN, Judge
The Craighead County Circuit Court adjudicated appellant K.O. a juvenile delinquent for committing the offense of harassment, a Class A misdemeanor. The trial court placed K.O. on probation for twelve months subject to various terms and conditions. He was also ordered to pay a fine, as well as costs and fees; perform eighty hours of public service; cooperate with and follow the recommendations of a counseling agency; obey a curfew; submit to random drug tests; and be committed to the Craighead County Juvenile Detention Center for ninety days, with credit for one day served and with eighty-nine days deferred. K.O. argues on appeal that the trial court erred in its adjudication because the State failed to prove an element of the offense. Because K.O.'s challenge to the sufficiency of the evidence supporting his adjudication is not preserved for review, we affirm without reaching the merits.
I. Background
On April 3, 2018, the State filed a petition in the juvenile division of circuit court alleging the following:
That on or about 2-25-18, in Craighead County, Arkansas, [K.O.] did violate Arkansas Code Annotated § 5-71-208 , with the purpose to harass, annoy, or alarm another person, without good cause, he, in a public place, repeatedly insults, taunts, or challenges another in a manner to provoke a violent response, namely by, grabbing the head of an eleven (11) year old female and forcing her face in his crotch, while telling her he wanted "some head," which is slang for oral sex, thereby committing the offense of HARASSMENT (A-M) against the peace and dignity of the State of Arkansas.
A bench trial was held on April 4, 2018. Following the presentation of testimony regarding the factual basis for the State's petition, defense counsel moved for a directed verdict, arguing the following:
Your Honor, at this time I make a motion for a directed verdict based on 5[-]71-208. The definition of harassment says that there has to be proof by a prepon-beyond a reasonable doubt in this new charge, that without good cause that this person either subjected a person to offensive physical contact or attempted to threaten to do so, or in a public place directed obscene language or in an order to-or in a manner to provoke a violent or disorderly response. Your Honor, out of those two possible scenarios, the State has not proven beyond a reasonable doubt that my client did either one of those two things.
The trial court denied K.O.'s motion for dismissal, and K.O. took the stand and testified on his own behalf. When defense counsel renewed her motion, she did so "with the same specificity." The trial court again denied K.O.'s motion and found the allegations in the State's petition to be true.
II. Discussion
There are several ways to commit harassment. Relevant here, a person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she:
(1) strikes, shoves, kicks, or otherwise touches a person, subjects that person to offensive physical contact or attempts or threatens to do so;
(2) in a public place, directs obscene language or makes an obscene gesture to or at another person in a manner likely to provoke a violent or disorderly response;
...
(4) in a public place repeatedly insults, taunts, or challenges another person in a manner likely to provoke a violent or disorderly response.
Ark. Code Ann. § 5-71-208(a)(1), (2) & (4) (Supp. 2017).
The State's petition tracked the language from subsection (a)(4). In her dismissal motion, defense counsel argued with respect to subsections (a)(1) and (a)(2). On appeal, K.O. specifically cites section 5-71-208(a)(2) and wrongly asserts that it was the only subdivision referenced in the State's petition. In his argument on appeal, K.O. contends that the State failed to prove that his conduct was likely to provoke a violent or disorderly response. While this element in subsection (a)(2) is common to subsection (a)(4), we hold that the dismissal motion was not sufficient to preserve K.O.'s argument for review.
Arkansas Rule of Criminal Procedure 33.1(c) provides that a motion for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient and that a motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. The reason underlying the requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the trial court the option of either granting the motion or, if justice requires, allowing the State to reopen its case and supply the missing proof. Carey v. State , 365 Ark. 379, 230 S.W.3d 553 (2006).
In moving to dismiss the charge, defense counsel simply read "the definition" of two subsections with which K.O. was not charged and said that K.O. did not do "either one of those two things." In other words, defense counsel argued below that K.O. did not commit harassment pursuant to subsections (a)(1) or (a)(2), but she did not argue any deficiency with respect to the elements of either of those subsections, much less subsection (a)(4), which K.O. was charged with violating. Accordingly, we hold that K.O.'s challenge to the sufficiency of the evidence supporting his adjudication is not preserved for review; therefore, we affirm.
Affirmed.
Gladwin and Whiteaker, JJ., agree.
Because this was a nonjury trial, defense counsel's "directed-verdict motion" was actually a motion for dismissal. Ark. R. Crim. P. 33.1(b).
We express no opinion with respect to the State's decision to charge K.O. with harassment under this particular subsection of the statute. | [
114,
-22,
-36,
-100,
10,
97,
58,
56,
18,
-93,
116,
-45,
109,
-58,
20,
43,
-85,
111,
84,
97,
-58,
-78,
23,
65,
34,
-5,
-77,
71,
-66,
-49,
-20,
-100,
90,
112,
-54,
85,
70,
72,
-27,
-36,
-114,
6,
-101,
112,
81,
70,
40,
62,
18,
7,
53,
62,
-13,
41,
28,
75,
105,
108,
89,
-82,
74,
85,
-38,
29,
-1,
20,
-93,
-90,
-101,
5,
-16,
52,
-104,
57,
4,
-24,
115,
-94,
-128,
116,
77,
-103,
12,
48,
98,
32,
12,
-57,
56,
-56,
14,
127,
-103,
-89,
-104,
105,
75,
45,
-106,
-103,
118,
20,
14,
126,
99,
-60,
51,
108,
-126,
-49,
-112,
-79,
5,
36,
94,
-71,
-29,
-79,
80,
85,
-49,
-26,
86,
-58,
114,
-37,
-122,
-73
] |
ROBERT J. GLADWIN, Judge
This is a no-merit appeal from the revocation of appellant Andrew Logan Wilson's probation and suspended imposition of sentence in three cases by the Crittenden County Circuit Court for which he was sentenced to twenty-six years in the Arkansas Department of Correction, followed by ten years' suspended imposition of sentence (SIS). Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) (2017) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, alleged to include all objections and motions decided adversely to appellant, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court provided appellant with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal within thirty days. Appellant did not file pro se points, and as a consequence, the attorney general has not filed a brief in response.
As this is a no-merit appeal, counsel is required to list each ruling adverse to the defendant and to explain why each adverse ruling does not present a meritorious ground for reversal. See Anders , supra ; Ark. Sup. Ct. R. 4-3(k)(1) ; Eads v. State , 74 Ark. App. 363, 47 S.W.3d 918 (2001). The test is not whether counsel thinks the circuit court committed no reversible error, but whether the points to be raised on appeal would be wholly frivolous. See Anders , supra ; Eads, supra. Pursuant to Anders , we are required to determine whether the case is wholly frivolous after a full examination of all the proceedings. See also Eads, supra. Because there is a nonfrivolous argument to be made for appellant on appeal, we deny counsel's motion to withdraw and order rebriefing in adversary form.
Appellant pled guilty in 2011 to residential burglary and received 60 months' probation. That probation was revoked, and appellant was sentenced on September 14, 2012, to 120 months' imprisonment and 120 months' SIS after a negotiated guilty plea and sentencing for residential burglary, theft of property, and possession of a firearm by a felon. Appellant pled guilty on October 30, 2015, to delivery of a counterfeit substance, and he was sentenced to 60 months' SIS.
In a revocation petition filed November 27, 2017, the State alleged that appellant had violated the terms and conditions under which he received the probation and SIS as set forth above by failing to pay fines, costs, and fees; failing to live a law-abiding life, be of good behavior, and not violate any state, federal, or municipal laws; failing to report to his probation officer as directed; and committing aggravated robbery on March 31, 2017.
At the revocation hearing held on December 4, 2017, appellant's probation officer testified along with two witnesses, Ashley Sumner and Alisha Dorsey, who alleged that appellant had used a gun when he robbed Sumner of money and marijuana. The circuit court denied appellant's directed-verdict motion. Thereafter, appellant testified about his previous criminal charges and sentences. He admitted stealing marijuana from Sumner but stated that she had been mad at him for stealing her weed, so she filed a false police report that he had stolen her money and phone. He also admitted that he was "guilty of missing a few visits" with his parole officer. He testified about his income and expenses, concluding that his expenses exceed his income by twenty dollars each month; thus, he claimed that he was unable to pay his fines and fees.
Appellant renewed his motion for directed verdict on the same grounds, and the court denied the motion. The circuit court found by a preponderance of the evidence that appellant had inexcusably failed to comply with the conditions of probation and SIS in his three cases: Nos. CR-15-762, CR-12-600, and CR-10-1541. First, the court found that appellant had failed to pay all fines and costs, citing the evidence of no payments in each case. Second, the court found that he had failed to report to probation as directed, citing appellant's admission of absconding, both at the revocation hearing and in sworn testimony in a separate parole proceeding. Third, the court found that appellant failed to live a law-abiding life, be of good behavior, and not violate any state, federal, or municipal law by stealing marijuana from Sumner. The court also found that, based on the adamant, unequivocal, detailed, and credible testimony of Dorsey and the adamant, consistent, unequivocal, and detailed testimony of Sumner, appellant purposely pointed a gun at Dorsey and threatened her safety and that he stole marijuana, a cell phone, and $600 in cash from Sumner. The court noted that appellant conceded he had contacted Sumner for the exchange of marijuana and that the deal had gone bad.
The circuit court noted the range of punishment for the matter was from five to forty-six years; waived all previous fines and costs in each case; sentenced appellant to 120 months' imprisonment in case number CR-15-762 (delivery of a counterfeit substance); sentenced appellant to 72 months' imprisonment and 120 months' SIS in case number CR-12-600 (theft; felon with a firearm); sentenced appellant to 120 months' imprisonment in case number CR-10-1541 (residential burglary); and ordered that the sentences be served consecutively. Appellant filed a timely notice of appeal.
In compliance with the directive in Anders and Rule 4-3(k), counsel claims that he has thoroughly examined the record of this proceeding but found no error that would support an appeal. However, in a strikingly similar case, this court recently stated as follows:
"In Arkansas, sentencing is entirely a matter of statute." Reyes v. State , 2015 Ark. App. 55, at 5, 454 S.W.3d 279, 281 (citing Walden v. State , 2014 Ark. 193, at 3, 433 S.W.3d 864, 867 ). "The decision to impose consecutive or concurrent sentences lies solely within the province of the trial judge, and the appellant assumes a heavy burden of showing that the trial judge failed to give due consideration in the exercise of that discretion." Maldonado v. State , 2009 Ark. 432, at 3, 2009 WL 3047345 (citing Smith v. State , 354 Ark. 226, at 248, 118 S.W.3d 542, 555 (2003) ). However, the Arkansas Supreme Court has held that Arkansas Code Annotated section 5-4-307(b) requires that suspended sentences imposed with terms of imprisonment for different crimes run concurrently, not consecutively. Dodds v. State , 2018 Ark. App. 86, at 4, 543 S.W.3d 513 (citing Limbocker v. State , 2016 Ark. 415, at 2-3, 504 S.W.3d 592, 593 ); Walker v. State , 2015 Ark. 153, at 3, 459 S.W.3d 300, 302. This rule holds true whether the sentences are imposed at the same time or a different time. Ark. Code Ann. § 5-4-307(b)(1) (Repl. 2006).
"The issue of an illegal sentence cannot be waived by the parties and may be addressed for the first time on appeal." Reyes , 2015 Ark. App. 55, at 5, 454 S.W.3d at 281 (citing State v. Webb , 373 Ark. 65, 69, 281 S.W.3d 273, 276 (2008) ); Cheater v. State , 2010 Ark. App. 652, at 3, 2010 WL 3902649.
Norton v. State , 2018 Ark. App. 370, at 4, 553 S.W.3d 765, 767.
As in Norton , counsel's no-merit brief in the instant matter addresses all the adverse rulings except for any argument related to sentencing. The circuit court denied appellant's request to run his sentences concurrently. Further, the circuit court sentenced appellant to consecutive terms of imprisonment and SIS for different crimes. Appellant was sentenced to 120 months' imprisonment for residential burglary; 72 months' imprisonment for theft of property; 120 months' SIS for possession of a firearm by a felon; and 120 months' imprisonment for delivery of a counterfeit substance. These sentences were consecutive to each other. Because this sentencing imposed an SIS consecutive to other terms of imprisonment, counsel is required to address whether appellant's sentencing is in violation of Arkansas Code Annotated section 5-4-307 (Repl. 2013). Further, the issue of an illegal sentence is an argument that can be raised at any time. Accordingly, we deny counsel's motion to withdraw and order rebriefing in adversary form.
Rebriefing ordered; motion to withdraw denied.
Virden and Whiteaker, JJ., agree.
The witnesses' testimony was that Wilson pointed a gun at one while robbing the other. Their testimony differed in that Sumner alleged that Wilson stole money and a cell phone, while Dorsey alleged that Wilson stole money and marijuana. | [
112,
-24,
101,
-36,
-65,
-31,
58,
-76,
-45,
-37,
125,
113,
-21,
-14,
0,
123,
-62,
15,
125,
121,
-43,
-73,
119,
-31,
99,
-77,
-39,
-43,
-15,
111,
-28,
20,
94,
-32,
-54,
69,
70,
-62,
-21,
80,
-118,
5,
-120,
85,
120,
-63,
48,
-93,
26,
11,
33,
-66,
-69,
45,
24,
-53,
40,
108,
91,
47,
64,
-103,
-112,
13,
-53,
20,
-93,
53,
-102,
7,
80,
58,
-104,
57,
1,
-24,
51,
-106,
-118,
68,
107,
25,
44,
102,
-29,
3,
16,
-41,
-72,
-120,
30,
62,
29,
-26,
-40,
89,
75,
5,
-105,
-67,
51,
20,
44,
126,
110,
-115,
17,
108,
33,
-34,
-108,
-95,
-82,
56,
54,
-38,
-29,
49,
20,
53,
-50,
-30,
92,
-41,
115,
31,
-122,
-105
] |
RAYMOND R. ABRAMSON, Judge
A Sebastian County Circuit Court jury convicted Martha Rosario Gonzales of possession of methamphetamine with the purpose to deliver, possession of hydrocodone, possession of drug paraphernalia, and possession of marijuana. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, Gonzales's attorney has filed a no-merit brief, along with a motion to withdraw as counsel, asserting that there is no issue of arguable merit for an appeal. Gonzales was notified of her right to file pro se points for reversal via certified mail. Gonzales has filed pro se points, and the State has filed a response. We affirm the convictions and grant counsel's motion to withdraw.
On March 27, 2018, the State charged Gonzales with possession of methamphetamine with the purpose to deliver, possession of hydrocodone, possession of drug paraphernalia, and possession of marijuana. On July 26, the State amended the criminal information to charge Gonzales as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(b) (Repl. 2013).
The court held a jury trial on August 7. At trial, Bryan Stanley, a narcotics detective with the Fort Smith Police Department, testified that he arranged for a confidential informant to engage in a controlled buy of methamphetamine from Rodney Stringer. He explained that the informant contacted Stringer and that Stringer sent Gonzales to perform the transaction. Stanley testified that Gonzales met the informant and that he (Stanley) monitored their meeting by audio feed. He explained that Gonzales and the informant discussed further purchases of methamphetamine. He stated that after the meeting, another officer detained and arrested Gonzales in her car. Stanley then went to the traffic stop and spoke with Gonzales. He explained that he asked Gonzales whether she had anything that she did not want "to get caught with at jail," and Gonzales retrieved several items from her pants.
Sergeant Wayne Barnett testified that he stopped Gonzales in her car after the controlled buy. He explained that he immediately removed the passenger from the car and secured him. He testified that he located a purse in the driver's side of the car where Gonzales was sitting and that the purse contained a bag of marijuana and empty Ziploc bags. He further testified that Gonzales retrieved hydrocodone pills and methamphetamine from her pants. Barnett stated that in his experience, the bags found on Gonzales were the type used to package illegal drugs.
Chris George, an employee of the Fort Smith Police Department vice and narcotics unit, testified that he assisted in the traffic stop of Gonzales. He stated that money found on Gonzales matched money that was given to the confidential informant for the controlled buy. He further testified that a leafy substance and a smoking pipe were found in Gonzales's purse.
Christy Williford, a forensic chemist with the Arkansas State Crime Laboratory, testified that she tested the substances found on Gonzales and that the substances included .7062 grams of marijuana, a bag of 4.2573 grams of hydrocodone and acetaminophen, a bag of 4.2658 grams of hydrocodone and acetaminophen, and 11.7356 grams of methamphetamine. She noted that hydrocodone and methamphetamine are schedule II controlled substances and that marijuana is a schedule VI controlled substance.
Paul Smith, the drug-task-force commander for Sebastian and Crawford Counties, testified that the amount of methamphetamine found on Gonzales-11.7356 grams-is not an amount usually seen for personal use; rather, the amount is associated with a "street-level dealer."
After the State rested, Gonzales moved for a directed verdict on only the charge of possession of methamphetamine with the purpose to deliver. She argued that the State presented insufficient evidence to show that she had the purpose to deliver the methamphetamine. She pointed out that she was not found with scales or ledgers. She further asserted that the empty bags could have belonged to the passenger in the car rather than her. The court denied the motion. Gonzales presented no evidence. The jury convicted Gonzales of all charges.
At the sentencing phase of trial, the State introduced certified copies of Gonzales's four prior felony convictions. Gonzales was thereafter sentenced as a habitual offender to fifty years' imprisonment for possession of methamphetamine with the purpose to deliver, fifteen years' imprisonment for possession of hydrocodone, five years' imprisonment for possession of drug paraphernalia, and one year in the county jail for possession of marijuana. The court ordered the sentences to run concurrently. This no-merit appeal followed.
A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract and addendum. Furo v. State , 2018 Ark. App. 23, 2018 WL 523129 (citing Ark. Sup. Ct. R. 4-3(k)(1) ). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id. (citing Eads v. State , 74 Ark. App. 363, 47 S.W.3d 918 (2001) ). This framework ensures that indigents are afforded their constitutional rights. Id. (citing Campbell v. State , 74 Ark. App. 277, 47 S.W.3d 915 (2001) ). In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. Id.
In compliance with the directives in Anders and Rule 4-3(k)(1), counsel contends that he has thoroughly examined the circuit court record of this proceeding and found no error that would support an appeal. Counsel asserts that there was only one unfavorable ruling for Gonzales-the denial of her directed-verdict motion for the charge of possession of methamphetamine with the purpose to deliver.
This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Craven v. State , 2019 Ark. App. 271, 577 S.W.3d 42. The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Caldwell v. State , 2009 Ark. App. 526, 334 S.W.3d 82. Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Id. Arkansas Code Annotated section 5-64-420(a) (Repl. 2016) states that it is unlawful for a person to possess methamphetamine with the purpose to deliver it. The purpose to deliver may be shown by any of the following factors:
(1) The person possesses the means to weigh, separate or package methamphetamine or cocaine; or
(2) The person possesses a record indicating a drug-related transaction; or
(3) The methamphetamine or cocaine is separated and packaged in a manner to facilitate delivery; or
(4) The person possesses a firearm that is in the immediate physical control of the person at the time of the possession of methamphetamine or cocaine; or
(5) The person possesses at least two (2) other controlled substances in any amount; or
(6) Other relevant and admissible evidence that contributes to the proof that a person's purpose was to deliver methamphetamine or cocaine.
Ark. Code Ann. § 5-64-420(a)(1)-(6) ; King v. State , 2014 Ark. App. 81, 432 S.W.3d 127.
In his brief, counsel adequately explains why the circuit court's denial of Gonzales's directed-verdict motion was correct. We agree with counsel that the officers' testimony concerning the controlled buy and the subsequent traffic stop provides substantial evidence to support Gonzales's conviction of possession of methamphetamine with the purpose to deliver and that there are no nonfrivolous grounds for an appeal on this point.
In her pro se points, Gonzales asserts that she received illegal sentences for her convictions of possession of methamphetamine with the purpose to deliver and possession of hydrocodone. Gonzales is incorrect. An illegal sentence is one that the circuit court is not authorized to impose. Brown v. State , 85 Ark. App. 382, 155 S.W.3d 22 (2004). In this case, Gonzales's sentences were authorized pursuant to the habitual-offenders statute. Specifically, the habitual-offenders statute provides that a person previously convicted of four or more felonies is subject to a sentencing range of six to sixty years for a Class A felony and a sentencing range of three to thirty years for a Class C felony. Ark. Code Ann. § 5-4-501(b)(2)(B) & (D).
Here, Gonzales's conviction of possession of methamphetamine with the purpose to deliver is a Class A felony, and her conviction of possession of hydrocodone is a Class C felony. See Ark. Code Ann. § 5-64-420(b)(3) (providing that possession of methamphetamine with the purpose to deliver is a Class A felony if the person possessed more than 10 grams but less than 200 grams of methamphetamine); Ark. Code Ann. § 5-64-419(b)(2)(B) (providing that possession of more than 2 grams but less than 28 grams of a schedule II controlled substance is a Class C felony). Thus, her sentences of fifty years' imprisonment for possession of methamphetamine with the purpose to deliver and fifteen years' imprisonment for possession of hydrocodone are authorized pursuant to the habitual-offenders statute and are not illegal sentences.
Affirmed; motion granted.
Gruber, C.J., and Harrison, J., agree.
The convictions are from Mesa County, Colorado. | [
48,
111,
-12,
28,
63,
-47,
58,
-72,
82,
-105,
-12,
19,
-31,
-70,
20,
57,
-21,
125,
116,
-23,
-61,
-74,
5,
-62,
114,
-9,
40,
-45,
55,
79,
-84,
-44,
29,
-80,
-54,
53,
6,
88,
-29,
24,
-126,
1,
-56,
98,
67,
-62,
48,
42,
51,
15,
97,
-98,
-31,
13,
25,
90,
109,
108,
121,
53,
-120,
-23,
-71,
21,
-17,
22,
-125,
100,
-103,
-127,
-40,
57,
-36,
57,
0,
120,
51,
-126,
10,
80,
107,
-69,
76,
96,
98,
-125,
117,
-123,
-20,
-120,
63,
-81,
-115,
-81,
90,
-23,
75,
72,
-66,
-108,
124,
27,
8,
-6,
127,
70,
37,
108,
5,
-41,
20,
-127,
14,
64,
86,
115,
-21,
33,
16,
69,
-51,
-26,
84,
95,
113,
26,
-53,
-76
] |
BART F. VIRDEN, Judge
Dawnisha Covin appeals the order of the Sebastian County Circuit Court terminating her parental rights to QJ (11/09/06) and KJ (01/04/08). On appeal, Covin asserts that termination was not in the children's best interest because the parental rights of the father, Keith Jarrett, were not also terminated. We affirm.
We begin our analysis with a recognition that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Crawford v. Ark. Dep't of Human Servs. , 330 Ark. 152, 951 S.W.2d 310 (1997). We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). In termination cases, the circuit court must find by clear and convincing evidence that a parent is unfit and that termination is in the best interest of the child. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). This normally involves a two-step analysis: (1) that the Arkansas Department of Human Services ("Department") prove one or more of the statutory grounds for termination and (2) that the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A) & (B) (Supp. 2017). Because Covin does not challenge the statutory grounds, we will address only the best-interest portion of the analysis.
I. Best Interest of the Children
Covin argues that the termination of her parental rights was not necessary or essential to protect the best interest of the children. We turn our attention to the best-interest evidence before the circuit court.
On January 3, 2017, the circuit court entered a petition for emergency custody and dependency-neglect regarding QJ, KJ, ZC, and DC. In the affidavit attached to the petition, family-service worker Steven Trout recounted the events leading up to the removal of the children from Covin's custody. On December 30, 2016, police requested that a Department family-service worker go to Covin's home. When Trout arrived, police officers had already removed Covin from the residence because she had become aggressive with an officer. Officers informed Trout that Covin's roommate called police when Covin, who was a methamphetamine user and appeared to be under the influence of amphetamines, grabbed a baseball bat and began smashing furniture. When police arrived at the apartment, they could hear the children crying and Covin screaming and cursing. They heard a heavy glass object hit the front door, and Covin shouted, "I don't want no police kicking in my fucking door." Eventually, Covin opened the door, and the officers could see broken glass all around and the children huddled together on the sofa. After a few questions from the police, Covin "seemed to completely lose any control she had at that point." She poked an officer in the chest when he tried to examine a cut on one of the children's hands, and after taking "an aggressive posture" with an officer, she was arrested. The children were very upset and afraid to speak to family-service workers. At the detention center, Trout attempted to interview Covin, but she was confrontational and aggressive, and she refused a drug screen. Covin was charged with four counts of first-degree endangering the welfare of a minor, resisting arrest, and second-degree assault. The Department alleged that the children's safety was in danger due to Covin's violent and dangerous behavior, her drug use, her refusal to be drug screened, and her arrest, which left the children without a guardian.
On the same day the emergency petition was filed, the circuit court entered an ex parte order for emergency custody and an order finding that there was probable cause that emergency conditions that necessitated the removal of the children from Covin's custody. Covin was ordered to stay in contact with the Department, submit to drug screens, and have no contact with the children.
The circuit court entered an adjudication order on June 19, 2017. In the order, the circuit court found that Covin had prior history with the Department and that "[Covin] appears to have relapsed and has engaged in behaviors that created an unsafe environment for the juveniles." Covin's arrest caused the children to be without a caregiver, and she tested positive for THC at the hearing. The court found by a preponderance of the evidence that the children were dependent-neglected, and it ordered Covin to obtain stable employment, transportation, housing, and income; complete parenting classes; undergo domestic-abuse counseling; undergo a psychological evaluation and complete any treatment recommended; submit to drug screening; resolve all criminal charges; stay in contact with the Department; and apprise the Department of her contact information and any significant events.
On November 29, the circuit court entered a review order in which it found that Covin had not appeared at the review hearing, and her whereabouts were unknown. The court found that she had not complied with the case plan. The court noted that KJ and QJ's father, Keith Jarrett, was incarcerated at the time of the adjudication hearing and that he was released shortly after the hearing; however, Jarrett had been arrested again on new drug charges and had been incarcerated since then. Neither Covin nor Jarrett had obtained stable housing, employment, or transportation, and they had not completed counseling or undergone any psychological evaluation or drug screening. The parents had not resolved their criminal charges or maintained contact with the Department.
On March 12, 2018, the court entered the permanency-planning order. In it, the court found that return of the children to Covin's custody was contrary to their welfare and that the Department's custody should continue. The court changed the goal of the case to adoption and found that the children had been out of the home for twelve months, the parents had not made significant or measurable progress in the case plan or toward reunification, and the children could not be safely returned to the parents in a time period consistent with their needs. The court noted that Jarrett was out on bond, and his whereabouts were unknown. The court found that Covin had been present at the permanency-planning hearing; however, until recently, she believed that she would receive a lengthy prison sentence and had seen no reason to participate in the case plan. When Covin accepted a plea offer that did not include prison time, she decided to rehabilitate herself. The court observed that Covin recently made "eleventh-hour efforts" to avail herself of non-Department services provided by "Sister-to-Sister," an entity Covin admitted was created by her mother, Evelyn. Evelyn also signed Covin's certificates of completion of those parenting classes. Covin testified that she would test positive for drugs if screened that day. The court found that Covin had not maintained stable employment, although she testified that she had worked at Harps bakery. Covin had not completed Department services such as parenting classes, psychological evaluation, and domestic-abuse counseling, and she had not submitted to drug screens or maintained contact with the Department.
The Department filed a petition to terminate Covin's parental rights. In the petition the Department alleged that termination was supported by six statutory grounds and that it was in the children's best interest to terminate Covin's parental rights. Specifically, the Department alleged that the children are adoptable and that regardless of adoptability, it was in the best interest of the children to terminate parental rights because the risk of harm if the children were returned to the parents outweighed the adoptability factor. The Department alleged that Covin posed the potential for both physical and psychological harm.
On April 24, the circuit court held the first of two termination hearings. At the hearing, Jennifer Pedigrew, the intake coordinator at Western Arkansas Counseling and Guidance Center, testified that Covin came in to do paperwork related to her drug-and-alcohol assessment on August 16, 2017, but she left the premises before the assessment could take place. Covin "no-showed" three times after that.
Covin also testified at the hearing. She opined that her ongoing domestic-violence issue with her husband, Devorin Covin, from whom she was separated, "has nothing to do with this." Covin offered lengthy testimony downplaying the physical abuse from Devorin and the negative effect witnessing the abuse had on the children.
The second termination hearing was held on May 11. Covin testified that Jarrett was incarcerated again, and because she learned that he was "married or something" she decided to end their relationship. Covin testified that up until his incarceration he frequently visited the children when they were placed with her sister and that he loves them.
Family-service worker Natosha Lowery testified that she was the primary caseworker until mid-June 2017. Lowery explained that the Department offered services to assist with housing, employment, and transportation, as well as parenting classes, domestic-abuse counseling, a drug-and-alcohol assessment, drug screening, and a psychological evaluation. Lowery testified that as far as she knew, Covin had not complied with the case plan except that "for a short stint" Covin had worked at Harps bakery and that she completed her psychological evaluation the week before the hearing. Covin had explained to Lowery that she had anticipated a thirty-two-year sentence in one court and a twenty-one-year sentence in another. Lowery explained that because Covin thought she was going to prison she did not avail herself of Department services. Lowery stated that when Covin did contact her it was about visitation, but she never showed up. Even though there was a no-contact order in place when the children were living with Covin's sister Darrasha, Lowery believed that the parents had unauthorized visitation with the children until they were removed from Darrasha's home. According to Lowery, the one hair-follicle drug test that Covin submitted to in February 2018 showed that she was positive for cocaine, benzos, and THC. Lowery noted that in 2011 and 2012, Covin had received the same services offered this time, and the current situation was a "mirror image" of what had occurred in 2011 to cause removal. Lowery explained that in 2011, the children were removed for parental drug use, environmental concerns such as broken glass and destruction of the home, guns in the home, and drug sales from the home. Lowery testified that from the Department's standpoint, Covin had not been rehabilitated in any way, and she had never been observed visiting with the children. Lowery opined that the children were at risk of psychological and physical harm if returned to Covin's custody.
Lowery testified that QJ is outgoing, does well in school and that she interacts well with others. KJ is outgoing, sweet, open-minded, and compassionate. Lowery opined that the children are adoptable. She explained that it was in the children's best interest to terminate Covin's parental rights because the family had been involved with the Department for over seven years, and the same problems existed. Lowery testified that
due to the illegal drug abuse, constant arrests, domestic violence, instability, can't prove to the Department that we can maintain a job. There's been no material support offered to the Department in respect to paying for clothes, paying for anything at the school. There's been no acknowledgment that they want to have their kids back in their home.
Caseworker Jasmine Brainard offered similar testimony that Covin had an unstable lifestyle, and she lived with her mother whose home the Department had determined was an unsuitable placement for the children. Brainard testified that Covin had only once tested negative for drugs during the pendency of the case and that she had been offered services but had not remedied the cause of removal.
Covin testified that she currently lived with her mother and grandmother in a four-bedroom, two-bathroom home. Covin stated that she was newly employed with Mom 365 taking photographs for hospitals and that she had worked for Harps bakery from March to October until Harps closed. Covin testified that she had a car, a valid driver's license, and insurance. She submitted a certificate stating that she had completed parenting classes. Covin stated that she had been attending domestic-abuse counseling since February, and she had attended nine out of twenty classes. Covin explained that for the first twelve months she did not complete any courses or avail herself of services because she was afraid to have contact with the Department. Covin had been anticipating a fifty-two-year prison sentence and wanted to stay away from court and "feds."
At the hearing, the court granted Jarrett's motion to dismiss the termination petition against him because sixty days had not passed from the date of service; thus, his allotted time to respond had not yet run, and filing was premature. All parties agreed to the dismissal as to Jarrett, and the court granted the motion and stated, "[O]h absolutely, this is without prejudice."
The circuit court entered the order terminating Covin's parental rights on October 16, 2018. The court found that the petition for termination of Jarrett's parental rights was voluntarily dismissed without prejudice and that neither Jarrett nor his attorney had appeared at the May 15 hearing. The court also found that Jarrett's paternity of QJ and KJ had been established and that he is the legal and biological father of both children. The court found that all the statutory grounds alleged by the Department were supported by clear and convincing evidence. The Department had offered services as ordered, and despite the Department's efforts, the parents had reverted to past behaviors and "are no more fit today than when the Department first came into contact with them in 2011[.]"
The court also found that it was in the children's best interest to terminate Covin's parental rights, considering both the likelihood that the children would be adopted and the potential for harm if returned to Covin's custody. Specifically, the circuit court found that even though KJ and QJ would not be available for adoption at termination, it was still in their best interest to terminate Covin's parental rights. The court found that "the existence of her rights is a disruptive force" in the children's lives, and the risk of physical and psychological harm outweighs the issue of the testimony of adoptability. The court found Brainard's and Lowery's testimony to be credible, as was the testimony of the other witnesses for the Department, all of whom testified that there was risk of harm if the children were returned to Covin. The court found that Covin was "completely lacking in credibility," that she denied or minimized substance-abuse issues, domestic-violence issues, parenting issues, criminal acts, and overall stability issues. Covin timely filed a notice of appeal.
Covin argues that the termination of her parental rights was not necessary to protect the best interest of the children. She asserts that Jarrett's parental rights were intact at the time of the termination of her parental rights; thus, termination did not serve to achieve permanency for the children. Covin also contends that there was no proof that she posed the potential for harm to the children.
Covin asserts that this case is similar to Cranford v. Arkansas Department of Human Services , 2011 Ark. App. 211, 378 S.W.3d 851, Caldwell v. Arkansas Department of Human Services , 2010 Ark. App. 102, 2010 WL 374432, and Lively v. Arkansas Department of Human Services , 2015 Ark. App. 131, 456 S.W.3d 383. In Caldwell and Lively , the child was in the permanent care of the mother, and in Cranford , the children were in the custody of the grandparents. This court reversed those termination decisions, finding that termination would not necessarily result in greater permanency or stability for the children in those particular circumstances. However, in Hayes v. Arkansas Department of Human Services , 2011 Ark. App. 21, 2011 WL 135198, we affirmed the termination of parental rights because of the risk of harm to the children should they ever be returned to the father despite the need for permanency. Covin argues that Hayes is inapplicable to the facts of this case because there is no evidence that she subjected the children to violence and abuse sufficient to warrant termination, and unlike Hayes, she had recently achieved a stable home and transportation, and she was actively availing herself of Department services such as parenting classes and domestic violence counseling.
Covin's arguments are misplaced. At the time of the hearing, the children were in the custody of the Department. As to Jarrett, who was incarcerated, the termination proceeding was delayed only to allow for the full amount of time to respond; thus, placement with Jarrett is not ensured as a permanent or stable option. The court also found that Covin lacked credibility, she had not demonstrated stability or fitness as a parent, she had abandoned her children for most of the case, and she had failed to comply with the case plan until just before the termination proceedings. It is well settled that credibility determinations are left to the circuit court. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, 489 S.W.3d 186. Covin's argument is a request for this court to reweigh the evidence, which it does not do. Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71, at 6, 542 S.W.3d 873, 876.
This case more closely resembles Brumley v. Arkansas Department of Human Services , 2015 Ark. 356, 2015 WL 5895440. In that case, our supreme court held that termination was appropriate despite the child's being placed with an aunt because Brumley, who was incarcerated, lacked essential components of the case plan, including stable housing and employment. Here, Covin had abandoned the children for most of the case, and any progress she made was late in the case plan, as far as twelve months after the filing of the original petition. Covin did not acknowledge either the seriousness of the domestic violence she experienced or the physical danger she had placed her children in during her violent outbursts, and she admitted that she had not made an effort to comply with the case plan for the first year of the case.
When determining the best interest of the child, the circuit court takes into consideration (1) the likelihood that the child will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii).
Arkansas Code Annotated section 9-27-341(b)(3) requires a circuit court's order terminating parental rights to be based on clear and convincing evidence. 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. Baker v. Ark. Dep't of Human Servs. , 340 Ark. 42, 8 S.W.3d 499 (2000). When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the circuit court's finding was clearly erroneous. Payne v. Ark. Dep't of Human Servs. , 2013 Ark. 284, 2013 WL 3322339. 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. See id. This court gives high deference to the circuit court because that court is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. See id.
On the basis of these facts, and given our high deference to the circuit court's determination of the evidence and the credibility of the witnesses, the circuit court's finding of best interest was not clearly erroneous.
Affirmed.
Gladwin and Whiteaker, JJ., agree.
Termination of Covin's parental rights to ZC (12/03/08) and DC (05/11/13) are not at issue in this appeal. | [
48,
-18,
-11,
108,
42,
97,
26,
30,
83,
-117,
-9,
115,
105,
-29,
20,
105,
-86,
67,
113,
105,
-45,
-74,
85,
40,
80,
-13,
112,
-44,
-77,
73,
100,
-12,
76,
120,
-118,
-43,
70,
64,
-49,
-112,
2,
3,
-53,
125,
81,
-126,
56,
123,
18,
15,
49,
-81,
-13,
46,
56,
-64,
44,
14,
27,
-68,
88,
114,
-118,
7,
-35,
22,
-77,
100,
-104,
18,
-40,
45,
-104,
57,
9,
-20,
51,
36,
-118,
116,
79,
25,
-120,
113,
119,
-109,
28,
-25,
-72,
-120,
-81,
45,
-97,
-90,
-104,
120,
11,
71,
-66,
-76,
79,
20,
15,
-4,
98,
13,
118,
108,
0,
-50,
-44,
-95,
13,
-71,
20,
35,
-29,
103,
48,
117,
-57,
-32,
85,
71,
51,
-37,
-82,
-10
] |
William F. Sherman, Special Justice.
Pam Baysinger, the appellee, filed an action against Wal-Mart, Appellee’s former employer, alleging that Wal-Mart terminated her for prosecuting a claim for injuries under the Workers’ Compensation Act, in violation of public policy and statute. The complaint also alleged that Wal-Mart was liable for the tort of outrage. The case came to trial before a jury in Benton County Circuit Court on February 15, 1990. The trial court instructed the jury on wrongful discharge, that is, wilful discrimination in the hiring or tenure of work of an individual on account of her claiming workers’ compensation benefits. There was no instruction on the allegation of outrage. The jury returned a verdict for Pam Baysinger against Wal-Mart in the sum of $24,000.00 in compensatory damages. The amount or measure of damages is not an issue on appeal.
Ms. Baysinger began working for Wal-Mart at its Warehouse No. 2 in Bentonville, Arkansas on January 14, 1982. She remained there until her termination on October 1, 1986. She received evaluations each year, sometimes two, which were generally very good, and pay increases with each evaluation, except for June, 1986, from $4.95 per hour to her final pay of $6.30 per hour. An evaluation in January, 1984 stated she would work in any area where needed. She was employed in a number of different capacities, including janitor.
On August 28,1986, Ms. Baysinger sustained a back injury while lifting a box. She suffered an acute lumbosacral strain, which caused back stiffness. She was examined and treated by Dr. Robert E. Holder, after referral by Wal-Mart. On September 2,1986, Dr. Holder placed Appellee on restrictions to lift no more than ten pounds, then on September 8,1986, no more than twenty pounds. She received physical therapy and wore a lumbosacral corset. She was allowed to work on September 11 under the lifting restrictions and with modified duty. On September 12, she was sent home. She returned to work on September 17. On September 26, 1986, Appellee suffered a recurrence of the back injury reported on August 28, 1986. The physician found that she had a recurrent injury with “thoracic spine strain.” She returned to work on September 29 and September 30, but was sent home both days because of her September 26 injury. She reported for work on October 1, 1986 and was told to see the personnel manager at Warehouse No. 2, Ernest Mika. Mr. Mika told her she was being terminated because she could not perform her job or any other job in Warehouse No. 2. On the exit interview form, Mr. Mika stated he had been advised by Dr. Holder that continued exposure to this type work could lead to more serious injury for Pam Baysinger. On another form, Mika wrote as the reason for termination that Ms. Baysinger was “unable to perform her job, limited medically,” and that Wal-Mart did not expect to rehire Ms. Baysinger. On a notice of separation form it was stated she was not eligible for reemployment.
On the request for medical care form, Dr. Holder had noted the patient should consider another type work because of the recurrent nature of her injuries. He then noted she could return to her regular duties on September 29, 1986. Appellee came to Mika’s attention when he saw the comments on the request for medical care form signed by Dr. Holder, which were not specific on her limitations. Mr. Mika’s notes show that he discussed the case with a claims supervisor for the workers’ compensation service company, who suggested they write Dr. Holder regarding the specific restrictions. Mr. Mika noted: “Depending on Dr. Holder’s reply, we should consider placing her — if available in a lighter duty job and if none available termination.” Mika directed Ms. Sheila Shepherd to find some work for Appellee at another location. Ms. Shepherd reported back that there was nothing available. On September 27, Mika wrote Dr. Holder requesting more specifics on the restrictions. Dr. Holder replied to Mika by letter dated October 1, received after the termination, observing that Appellee had a history of frequent injuries, “not always related to her low back,” that she was a small girl and “obviously not physically built for heavy labor,” and that it was difficult to know whether or not recurring injuries were due specifically to true accidents or were somewhat psychologic in nature. The doctor stated he understood that Wal-Mart had gone the “second mile in trying to find her a non-heavy duty source of employment.” He observed that her 8th grade education placed “some limits on job options.” The doctor recommended that Appellee “not do any lifting over twenty pounds” and do a “minimal amount of bending, stooping, squatting and pulling type work.” He said she could do those things as long as it was not a repetitive job, in other words, “continuous heavy lifting.” He did not say how long such restrictions should last. Dr. Holder testified he did not advise Mr. Mika that “continued exposure to that type of work” could lead to more serious injury, that he could not recall that Mika told him he could not find light duty work for Appellee, and that he did not know on October 1 Appellee was being terminated.
On October 3, 1986, Dr. Holder signed an Arkansas Rehabilitation Services General Medical Examination Record in an attempt to obtain assistance from the State for Appellee. The purpose was rehabilitation, to assist herfin obtaining training for work not involving common labor. Under “orthopedic,” the doctor stated she had “stiff back,” could not “touch toes, squat;” she had a cautious gait; and her major disabling condition was chronic low back strain and an 8th grade education.
Mr. Mika testified that if Dr. Holder had given no restrictions, Appellee would still be working at Wal-Mart, as she was a good worker. To Mr. Mika, there was nothing in the documentation to indicate the restrictions were other than permanent and Appellee had permanent limitations for lifting, bending and stooping. He stated this was why a leave of absence did not apply to her.
Pam Baysinger had had no back problems before her employment with Wal-Mart. She had sustained back injuries on October 28, 1982 and June 6, 1983, for which she received medical benefits under workers’ compensation. After her August 28, 1986 injury, Wal-Mart paid medical benefits and temporary total disability benefits from August 29, 1986 to September 21, 1986. The last payment of weekly benefits was made after her termination.
Appellant’s first argument is that the Benton Circuit Court lacked jurisdiction over the subject matter because the Workers’ Compensation Act provides an exclusive remedy for employee claims against employers and that there is no cause of action for wrongful discharge. Appellant cites Ark. Code Ann. § 11-9-105 that the rights and remedies of an employee against his employer under the Workers’ Compensation Act are exclusive. Appellant cites two Arkansas cases. In Cain v. Union National Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986), this Court affirmed the dismissal of a complaint alleging an employee had suffered emotional distress, humiliation, and embarrassment from the respondent’s bad faith in not settling a workers’ compensation claim. Noting that there were statutory remedies for late payment, the Court held that the Workers’ Compensation Act provides the exclusive remedy for such a claim. The Court followed its decision in Johnson v. Houston General Ins. Co., 259 Ark. 724, 536 S.W.2d 121 (1976), the second case cited by Appellant, which also involved late payments and alleged purposeful delay in settling a valid claim. The Court stated that the rights and remedies provided in the Workers’ Compensation Act were exclusive, and the lower court’s dismissal of the complaint was affirmed. In Johnson, the employee contended the “retaliatory action on the part of employer-respondent for filing a workman’s compensation claim is actionable in a court of law,” but the Court declined to address the point. The Court is now prepared to reach this issue.
It is the general rule that “when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause.” Griffin v. Erickson, 277 Ark. 433, 436, 642 S.W.2d 308, 310 (1982). Generally, “employment is held only by mutual consent, and at common law the right of the employer to terminate the employment is unconditional and absolute.” Griffin v. Erickson, supra, 227 Ark. at 436.
There are well-defined exceptions to this general rule. Four exceptions to the at-will doctrine under Arkansas law were identified by the United States District Court in Scholtes v. Signal Delivery Service, Inc., 548 F.Supp. 487 (W.D. Ark. 1982). The Arkansas Supreme Court recognized the public policy exception to the general rule in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), which involved the dismissal of Oxford, the employee, by Sterling Drug, Inc. Sterling Drug supervisors believed that Oxford had reported Sterling to the GSA for pricing violations, resulting in fines against Sterling in the sum of $1,075,000 in a 1984 settlement. Oxford sued Sterling. Drug for wrongful discharge and outrage. The Court cited its decision in M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 273, 596 S.W.2d 681 (1980), in which the Court recognized certain exceptions to the at-will doctrine, including discharge for exercising a statutory right, for performing a duty required by law, or “that the reason for the discharge was in violation of another well established public policy.” In Sterling, this court noted the development of a case law in other states accepting the public policy exception to the employment at-will doctrine. A public policy exception has been found in cases where employees were discharged for filing workers’ compensation claims. See, e.g., Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353 (1978); and Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973).
In Sterling Drug, Inc. v. Oxford, supra, 294 Ark. at 249, this Court considered whether the public policy exception to the employment at-will doctrine should be founded upon contract or tort. The Court found a cause of action in contract to be more appropriate in such cases. There is an implied understanding that an employer will not wrongfully discharge an employee. The Court adopted the contract theory of liability, observing that “if an employer’s conduct in breaking a contract of employment is sufficiently egregious or extreme, the employee can still claim tort damages on a cause of action for outrage.” Sterling Drug, Inc., supra, 294 Ark. at 249.
The public policy of a state is found in its constitution and statutes. Sterling Drug, Inc., supra, 294 Ark. at 249. The Workers’ Compensation Act provides a criminal penalty for “any employer who willfully discriminates in regard to the hiring or tenure of work or any term or condition of work of any individual on account of his claiming benefits” or “who in any manner obstructs or impedes the filing of claims for benefits.” Ark. Code Ann. § 11-9-107 (1987). It is the clear purpose of workers’ compensation laws to compensate workers who are injured on the job, and, in return for that guarantee, to give employers general assurance that claims made under the law will provide injured workers with an exclusive remedy. It is the policy of this State that valid claims will be paid. An employer violates this public policy when he discharges an employee for claiming workers’ compensation benefits under the Act.
Wal-Mart argues that Baysinger has no cause of action because the Arkansas General Assembly has not adopted a statute providing a civil cause of action for injured employees. Appellant’s argument has no merit, for the public policy exception comprehends conduct by the employer which contravenes the statute, Ark. Code Ann. § 11-9-107, and the stated objectives of the Workers’ Compensation Act. Conviction pursuant to a criminal statute requires the State to satisfy its burden of proof beyond a reasonable doubt. That is not the standard of proof required in a case alleging wrongful discharge. The criminal statute is a clear statement of a policy against discharging employees for pursuing workers’ compensation benefits. The plaintiff, Pam Baysinger, had the ultimate burden to prove with a preponderance of the evidence that she was discharged in violation of a well-established public policy of this State, more specifically, that policy set forth in Ark. Code Ann. § 11-9-107 (1987).
The burden of proof to establish a prima facie case of wrongful discharge is upon the employee. See Larson, The Law of Workmen’s Compensation, Vol. 2A, § 68.36(c) (1990). Aprima facie case is made by substantial evidence that the workers’ compensation claim was a cause of the discharge. When an employee has made a prima facie case of retaliation, or wrongful discharge, the burden shifts to the employer to prove that there was a legitimate, non-retaliatory reason for the discharge. See Larson, The Law of Workmen’s Compensation, Vol. 2A § 68.36(d) (1990). Such a reason might be the one offered by WalMart in the present case, that Appellee did not have the physical ability to do her job, or any other job which might have been provided at that point in time. The court did not instruct the jury on the employer’s burden to prove a legitimate reason for the discharge, and no such instruction was requested by either party. The evidence offered to support Appellant’s reason for terminating Appellee was not convincing.
There was substantial evidence to support the jury verdict for wrongful discharge. The verdict may be supported by direct or circumstantial evidence. As it is quite unlikely that an employer would announce that the employee was being discharged because of a workers’ compensation claim, the injured employee must normally rely upon circumstantial evidence. There is sufficient evidence in the record that Wal-Mart discharged Pam Baysinger because of the workers’ compensation claim. After her August 28, 1986 injury, she received workers’ compensation benefits. There was a recurrence of her injury on September 26. The personnel supervisor stated on the exit interview form he was told by the physician that continued exposure to this type of work could lead to more serious injury for the claimant, but the physician testified he had no recollection of saying such a thing. Otherwise, why would the physician release the claimant to return to work on September .29? There was too much unknown in Pam Baysinger’s condition for the employer to conclude that she could no longer perform her work. A warehouse operations manager testified there were several types of light duty jobs which required little or no lifting, but Ms. Baysinger was not given an opportunity to fill one of them because she lacked the mathematical skills. She also was not given an opportunity to request medical leave in accordance with the Wal-Mart Associates’ Handbook. The employer terminated Appellee, hurriedly, without adequate information of her medical condition or of the likelihood that she would heal.
Wal-Mart contends that no cause of action exists for retaliatory discharge until the employee files a claim with the Workers’ Compensation Commission. The Court rejects this argument, which if allowed would permit the employer to discharge an injured employee before the employee would have had an opportunity to file a claim. Under the Arkansas Workers’ Compensation Act, an injured employee may receive full benefits without ever filing an A-7 Form with the Workers’ Compensation Commission. The record indicates that an A-7 Form was filed on November 19, 1986. There is a division in other jurisdictions which have addressed this issue, but we find the better rule to be that it is not required for the injured employee to file a formal claim to create the cause of action. It is sufficient that workers’ compensation benefits are anticipated from the injury, whether or not a claim has been or will be filed. See Wright v. Fiber Industries, Inc., 60 N.C.App. 486, 299 S.E.2d 284 (1983).
Appellant also argues that it is not responsible because a separate company, Corporate Service (CSI), actually processes workers’ compensation claims on behalf of Wal-Mart. The record shows that injured workers are paid through funds from Wal Mart. The Wal-Mart personnel supervisor discussed Appellee’s claims with a CSI representative on the day of her last injury. Wal-Mart is not insulated from liability through its employment of a separate service corporation to handle its workers’ compensation claims.
Appellant presents two additional arguments, both alleging errors in the jury selection. Appellant contends first that the court erred in disqualifying any prospective juror who owned WalMart stock, regardless of amount. Twenty-two prospective jurors who owned Wal-Mart stock were excused for cause. There is scant authority on this issue, but the few cases hold it is reversible error for a trial court to refuse to strike a juror who owns securities in a corporation which is party to the litigation. See Chestnut v. Ford Motor Company, 445 F.2d 967 (4th Cir. 1971); Wallace v. Alabama Power Company, 497 So.2d 450, 453-54 (Ala. 1986); Southern Bell Telephone & Telegraph Company v. Shepard, 204 S.E.2d 11, 12 (S.C. 1974).
The issue of a juror’s qualifications lies within the sound discretion of the trial court. Montgomery v. State, 277 Ark. 95, 97, 640 S.W.2d 108 (1982). The appellant, Wal-Mart Stores, Inc., occupies a predominant economic position in the Bentonville, Arkansas area. It was not an abuse of discretion for the trial court to excuse for cause all jurors who owned stock of the defendant corporation.
The appellant contends further that the lower court committed error in failing to strike a prospective juror who was a retired labor union official. Appellant’s counsel asked him if he would be “rooting for Mrs. Baysinger.” The prospective juror replied, “I fought for people like that.” Appellant’s counsel asked the prospective juror “do you feel that because of that you could give one hundred percent partiality to this case today?” The prospective juror replied, “I think so.” Appellant’s counsel asked that he be excused. The Court, inquiring as to the veniremen’s qualifications, asked whether he could set aside any past experiences, could decide the case on the evidence presented, and could be fair to both parties; and the prospective juror responded affirmatively. It is apparent that the prospective juror did not understand the question concerning his “partiality,” thinking the question asked for his “impartiality.”
Nothing further was said by the Court or by counsel concerning the prospective juror’s impartiality or his qualifications. He was called as a juror, and Appellant used a peremptory challenge to strike him. Three other veniremen identified themselves as former labor union members, and no objection was made. Appellant bears the burden of proving a prospective juror’s disqualification. Montgomery v. State, supra, 277 Ark. at 97. There was no abuse of discretion by the trial judge in failing to strike the juror for cause.
Affirmed.
Dudley and Corbin, JJ., not participating.
Hays and Brown, JJ., and Special Justice Alan Epley dissent. | [
-80,
-2,
-79,
77,
8,
-61,
50,
58,
119,
-89,
37,
91,
-17,
-27,
93,
105,
-13,
125,
-47,
105,
-109,
-93,
3,
-54,
-46,
-109,
57,
-63,
-78,
107,
-12,
-9,
77,
48,
10,
-59,
-58,
-62,
-59,
28,
-128,
6,
11,
-2,
-7,
-64,
40,
58,
-48,
71,
49,
-68,
59,
44,
20,
-49,
40,
108,
111,
43,
64,
-80,
-78,
13,
-1,
18,
-111,
2,
30,
47,
-38,
31,
-104,
-80,
32,
-4,
123,
-74,
-62,
52,
19,
-99,
-124,
99,
98,
-77,
5,
-59,
-20,
-72,
14,
-1,
-115,
-124,
-128,
-72,
26,
11,
-74,
-100,
124,
4,
20,
93,
-2,
77,
29,
44,
-53,
-122,
-74,
-79,
-49,
-28,
92,
-86,
-5,
-121,
56,
101,
-50,
-94,
93,
7,
122,
-106,
79,
-70
] |
Donald L. Corbin, Justice.
Appellant, RLI Insurance Company, seeks to set aside an $8,002,178.15 judgment entered August 11, 1989, in the Circuit Court of LaFayette County in favor of appellee, Jackie Sue Coe. Appealing from the trial court’s denial of its Motion for Relief from Judgment and its Motion for New T rial, appellant makes four assignments of error. We find no merit in any of the arguments presented and affirm.
On December 12,1987, Brad Beaty, appellee, and two other passengers were traveling from Taylor, Arkansas, to Lewisville, Arkansas, in Beaty’s truck. It was an hour and a half before appellee’s wedding was to take place and the four were on their way to the church where the ceremony was to be performed. Beaty was driving. The truck crossed the center line and hit a bridge, injuring the three passengers. On April 1,1988, appellee and the two other passengers filed suit against Beaty in the Circuit Court of Lafayette County, alleging the wreck was caused by his negligent acts and omissions. Beaty and one of the passengers were Oklahoma residents. Appellee and the other passenger, her sister, were both Arkansas residents. Appellee alleged she suffered damages for past and future medical expenses, past and future pain, suffering and mental anguish, past and future loss of earnings, and disfigurement, in the amount of $725,000.00.
Brad Beaty was covered by a policy of liability insurance issued by Farmers Insurance Company, Inc., (hereinafter referred to as “Farmers”) and having limits of $250,000.00 per person. He was also a named insured on a separate policy issued by appellant to William R. Beaty, his father, which provided “umbrella” coverage for up to an additional one million dollars.
Farmers, as primary carrier, employed G. William Lavender to defend the suit. Appellant was notified of the suit and made an agreement with Farmers that Lavender would forward to it copies of all pleadings and correspondence relating to the loss. On August 15, 1988, appellant forwarded a “reservation of rights” letter to William R. Beaty. On January 20,1989, appellant filed suit in Oklahoma against William R. Beaty, seeking a declaratory judgment that it was entitled to rescind the policy for material misreprentations made in the application.
Lavender forwarded all correspondence relevant to the case to appellant until he determined that no answer was going to be filed to the declaratory judgment action against William R. Beaty. He then notified Farmers that due to a conflict of interest he would no longer be able to communicate with appellant. The last correspondence forwarded by Lavender to appellant was dated January 31, 1989.
On March 23, 1989, a trial was held at which evidence and testimony were received by the court. On April 20, 1989, a judgment was filed along with findings of fact and conclusions of law. Following an August 10, 1989 Motion for Entry of Final Judgment filed by appellee, the court, pursuant to Ark. R. Civ. P. 54, entered such a judgment. It was filed August 11, 1989.
On August 25, 1989, appellant filed a Motion to Intervene for the limited purpose of filing a Motion for Relief from Judgement and for New Trial; the same day it filed the Motion for Relief from Judgment and for New Trial. On November 3,1989, appellant filed a Supplemental Motion to Intervene and a Supplemental Motion for Relief from Judgment. On November 6, 1989, following a hearing at which appellant presented testimony and evidence in support of its motions, the trial court entered an order allowing appellant to intervene, denying appellant’s Motion for Relief from Judgment, and making various factual and legal findings in support of its rulings. It is from the adverse rulings included in the November 6, 1989 order this appeal comes.
I.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE PROCEEDINGS UPON WHICH JUDGMENT WERE HAD DENIED APPELLANT DUE PROCESS OF LAW.
Appellant cites the Fourteenth Amendment to the United States Constitution and Davis v. University of Arkansas Medical Center and Collection Serv., Inc., 262 Ark. 587, 559 S.W.2d 159 (1977), in support of this argument. In Davis this court, when considering a due process issue, quoted the following language from Goss v. Lopez, 419 U.S. 565 (1975):
There are certain bench marks to guide us, however, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), a case often invoked by later opinions, said that ‘[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’
Davis, 262 Ark. at 589, 559 S.W.2d at 161.
Appellant asserts that from the Mullane language it can be seen that in the context of civil litigation in the state courts of Arkansas, due process of law requires prior notice of the adjudication and prior opportunity for hearing, both being appropriate to the nature of the case. Appellant contends that, in light of the nature of this case, neither the required notice nor the required hearing was afforded.
Appellant argues that at the time of the March 23, 1989 hearing, it was “the only party having an interest adverse to Jackie Sue Coe” and as it had no notice of the hearing, it was denied due process of law. Appellant relies on Ideal Mutual Ins. Co. v. McMillian, 275 Ark. 418, 631 S.W.2d 274 (1982), in making this argument. In that case, Ideal Mutual Insurance Company insured an airplane that crashed, killing the pilot and injuring McMillian, the passenger. After the pilot’s estate was closed, a negligence action was filed by McMillian against the estate of the pilot. A statute of nonclaims barred any action except to the extent that liability insurance was available. The county sheriff was appointed special administrator. He attempted to give notice of the suit to Ideal Mutual Insurance Company by mailing letters to both the attorney for the owner of the plane and Ideal Mutuel’s issuing agent. The attorney received the letter addressed to him. However, the letter addressed to the issuing agent was incorrectly addressed and the issuing agent denied ever receiving it. The trial court found the notice to the insurance company was sufficient and, as the complaint was never answered, entered a default judgment against the estate of the pilot. After learning of the default judgment, the insurance company filed a Motion to Intervene under Ark. R. Civ. P. 24(a). The motion was denied. It then filed a Motion to Set Aside the Default Judgment alleging insufficient notice of the proceeding. The trial court denied that motion also. On appeal, this court reversed and remanded finding that under the statute, although the estate was the named defendant, the insurance company was the only party financially interested in the outcome of the case and pursuant to Ark. R. Civ. P. 24(a) could have intervened as a matter of right. We held that because the insurance company did not receive notice of the suit, the Motion to Set Aside the Default Judgment should be granted and the insurance company should be allowed to intervene.
In Ideal Mutual, the insurance company was not ' given notice the action had been filed. In the case at bar, appellant admittedly knew of the pending action; it complains of not receiving notice of the March 23, 1989 trial, what it refers to as “the adjudication.” Although appellant had a financial interest in the outcome of the case, and may not have been given notice the case had been set for trial, it had notice of the proceedings in that it knew the lawsuit was pending. Like the insurance company in Ideal Mutual, it also could have intervened as a matter of right, Ark. R. Civ. P. 24(a). Had it so intervened, it could have been present to protect its own interests.
Appellant received correspondence from Mr. Lavender until and even after the time it filed the declaratory judgment action in Oklahoma, by which it placed itself in a position adverse to that of Brad Beaty. Among the correspondence forwarded to appellant regarding the pending suit was a letter from appellee’s counsel to Mr. Lavender, mailed late in 1988. In the letter, appellee offered to settle the lawsuit for $1,250,000.00. Accompanying the letter was a copy of the videotape, “a day in the life of Jackie Sue Coe.”
Notice that the lawsuit is pending is the notice required to satisfy the due process requirement. See Ideal Mutual, supra. Appellant had not only notice the lawsuit was pending, but also notice the primary coverage would probably be exhausted.
II.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE RELIEF REQUESTED WAS NECESSARY TO PREVENT THE MISCARRIAGE OF JUSTICE.
Ark. R. Civ. P. 60, Relief from Judgment, Decree or Order, states in part:
(b) Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.
Appellant maintains that at the March 23, 1989 hearing there was no justiciable controversy between the parties before the court and, thus, the machinery of the court system was used as an instrumentality for later extortion against a non-party. It maintains that such extortion was the object of the trial is obvious from the following: the parties acquiesced in the entry of a judgment for more than ten times the damages pleaded; appellant was not notified of the entry of the judgment at the time it was entered; and almost exactly thirty days after entry of the judgment, appellee sued appellant for over eight million dollars on the basis of an assignment of rights she received from Brad Beaty. Appellant claims these events resulted in a miscarriage of justice which should have been prevented by the trial court’s granting it relief pursuant to Rule 60.
The only limitation on the exercise of the power to set aside the judgment pursuant to Rule 60 is addressed to the sound discretion of the court. Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980).
Appellant maintains the trial court’s finding that it failed to make a prima facie case showing any defense to the original cause of action as required by Rule 60(d) is inapplicable. Rule 60(d) provides as follows:
(d) Valid Defense to Be Shown. No judgment against a defendant, unless it was rendered before the action stood for trial, shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense.
Appellant contends “the action” in this case includes what were at the time the judgment was entered, the pending claims of the other two passengers, and therefore, the hearing of March 23, 1989, comprised only a part of the action. Appellant maintains that as the requirement of establishing a meritorious defense is inapplicable where the judgment from which relief is sought “was rendered before the action stood for trial” and the judgment in the case at bar was rendered before “the action stood for trial,” the requirement of a prima facie showing of a valid cause of action is inapplicable.
Appellant fails, however, to support this contention with either convincing argument or authority. As we have said many times, assignments of error which are unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989).
Alternatively, appellant contends the requirement of the establishment of a prima facie case of a meritorious defense was met. It contends that in its Supplemental Motion for Relief from Judgment it pleaded that Brad Beaty had a valid defense to the claim of appellee in that she was a participant along with Beaty in a joint enterprise within the contemplation of such Arkansas cases as Lewis v. Chitwood Motor Co., 196 Ark. 86, 115 S.W.2d 1072 (1938).
This court in Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), defined “meritorious defense” as:'
[E]vidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.
Tucker, 275 Ark. at 66, 628 S.W.2d at 283-84.
In Neal v. J.B. Hunt Transp. Inc., 305 Ark. 97, 805 S.W.2d 643 (1991), this court considered whether the trial court’s giving a jury instruction on joint enterprise was error. In Neal, both the driver of a car and the passenger brought a negligence action against a trucking company, alleging one of the company’s trucks ran them off the road. The jury found in favor of the trucking company. On appeal, the driver and passenger argued it was error to give a joint venture instruction absent a showing of some business relationship or purpose common to them both. We stated that a finding of a joint enterprise requires a showing of “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.” Neal, 305 Ark. at 101, 805 S.W.2d at 645. We found a basis for the joint enterprise instruction in testimony of the driver. She said she would have turned the driving back over to the passenger if he had asked. We stated that assuming the evidence is sufficient to raise an issue of negligence on the part of the driver of the vehicle and it remains the same on the matter of right to control the vehicle, the giving of an instruction on joint enterprise was not error; the essential question is whether the parties can be found by implication to have agreed to an equal voice in the management of the vehicle, and in the normal and usual case is an issue of fact for the jury.
In the case at bar, appellant asserted the defense of joint enterprise in its November 3, 1989 Supplemental Motion for Relief from Judgment. However, the record is devoid of any evidence that appellee had an equal right to direct and govern the movements and conduct of Brad Beaty “in respect to the common object and purpose of the undertaking.” Because there is no evidence to justify a determination of the issue, we cannot say the trial court abused its discretion by refusing to set aside the August 11, 1989 Final Judgment.
III.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE UNCONSCIONABLE FRAUD WAS PRACTICED BY JACKIE SUE COE IN OBTAINING THE JUDGMENT.
Appellant argues that pursuant to Ark. R. Civ. P. 60(c)(4), the trial court should have set aside the judgment for fraud practiced by appellee, by and through her counsel. The relevant portion of Rule 60 provides as follows:
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment.. . has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For fraud practiced by the successful party in obtaining the judgment.
Appellant relies on Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987), in which we construed Rule 60 and held that “fraud” sufficient to compel the setting aside of a judgment is:
[A] breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declared fraudulent because of its tendency to deceive others . . . Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.
Davis, 291 Ark. at 476, 725 S.W.2d at 847, (quoting Lane v. Rachel, 239 Ark. 400, 389 S.W.2d at 621 (1965). We note that the cases involving fraud under Ark. R. Civ. P. 60 are cases of fraud upon the court. However, the language in the definition of fraud adopted by this court simply requires a “tendency to deceive others.”
Appellant claims the breach of legal or equitable duty is patent, and the actions of appellee, by and through her counsel, evidence this breach of duty. The alleged actions of appellee upon which appellant bases its argument are: 1) hastily contriving a hearing on a case knowing appellant, the only party with an interest adverse to Coe, had not been given notice of the hearing and thus would not have opportunity to defend; 2) misrepresenting to the trial court at the commencement of the trial that there was no settlement agreement,when in fact the entire controversy between Coe, Brad Beaty, and Farmers was settled and Beaty had agreed to assign to Coe all rights he had against appellant; and 3) conspiring with Beaty to induce the trial court to enter an excessive judgment in reliance on reports and other material which were never introduced into evidence and therefore, were not a part of the record.
We cannot say any action of appellee, by and through her attorney, in any way deceived appellant. In light of the circumstances at the time, the actions of appellee’s attorney were taken in her best interest. Appellee had past medical expenses and would certainly incur substantial additional medical expenses. She was not able to pursue her career. Her interest in going forward with the lawsuit is apparent. Appellant had notice of the lawsuit and that the amount of damages sought exceeded the amount of primary coverage. We cannot say that appellee’s actions in expediting the lawsuit deceived appellant.
As for the alleged misrepresentation to the court concerning any settlement agreement, at the November 3, 1989 hearing on appellant’s motions, the court heard testimony from the attorneys involved in the March 23,1989 trial. Appellee’s attorney testified that on March 23,1989, there was an oral agreement between the parties. He said it had hot been reduced to writing and that, depending on the proceedings that day, was subject to being changed. Brad Beaty’s attorney testified the parties had “an oral agreement to be consummated in writing and subject to the approval of this clients and my client.” He continued by saying that “we had one in principle before, but, we had a binding agreement after the trial.” Both attorneys testified that the trial court was aware of the tentative agreement. We cannot say that any party by these actions practiced a fraud upon the court.
Appellant’s contention that appellee conspired with Beaty to induce the trial court to enter the judgment is without merit. Although not all the evidence was introduced into evidence to be made a part of the record, the evidence was before the court. In its Findings of Facts and Conclusions of Law, the court referred to the various items of evidence and the testimonies of the different witnesses. Under the circumstances, there was no need for appellee to establish a detailed record. We cannot say her failure to do so was part of a conspiracy to induce the court to enter an excessive judgment.
IV.
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING APPELLANT’S MOTION FOR NEW TRIAL UNDER RULE 59(a)(1) and (a)(4) TO BE DEEMED DENIED.
On August 25,1989, appellant filed a Motion for Relief from Judgment and for New Trial. On October 24, 1989, appellant filed a Notice of Appeal and Designation of Record, by which it sought to appeal “from any effectual deemed denial by the trial court of its request for a new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure.”
The bases of appellant’s Motion for New Trial are Ark. R. Civ. P. 59(a)(1) and (a)(4), which provide as follows:
(a) Grounds. A hew trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; ... (4) excessive damages appearing to have been given under the influence of passion or prejudice^]
Appellant argues that “irregularities in the proceedings” occurred in the trial court which compelled the ordering of a new trial. The alleged irregularities include both the entry of a judgment in excess of ten times the amount of damages pleaded, where said judgment was based on the obvious collusion between appellee and Brad Beaty, the named defendant, and the inducement of the trial court to enter judgment based upon matters not introduced into evidence or made a part of the record.
Appellant also contends the $8,002,178.15 judgment was excessive and appears to have been given under the influence of passion or prejudice. Appellant contends the language used in the Findings of Facts and Conclusions of Law indicates the award of damages was affected by passion. The specific language appellant refers to is the use of the word “grotesque” by the court in describing the tissue grafting on appellee’s ankle; the court’s stating that it “certainly understands the plaintiffs testimony regarding the embarrassment theses scars and disfiguring areas cause her;” and the court’s stating that it was “impressed with” the testimonies of appellee, her family, and her fiance.
On appellate review, the test of a denial of a motion for new trial is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable infer enees permissible under the proof. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987).
A review of the record reveals that the court received testimony and evidence at the March 23, 1989 trial. The parties stipulated to past medical expenses in the amount of $ 130,230.43. Also stipulated was a transcribed statement of appellee’s attending physician, Dr. Shubert of Baylor University Medical Center in Dallas, Texas. The parties also agreed that a vocational assessment report, which was being prepared by Dr. Wayne Werner, would be submitted to the court. A videotape of “a day in the life of Jackie Sue Coe” was played, followed by testimony from appellee as well as her mother, father, sister, and fiance.
Appellee testified about her past work experience and the prospects for the future concerning her job. She also told the court about the activities she enjoyed prior to the accident such as softball, water skiing, and horseback riding. She said since the accident the only outdoor recreation in which she could participate was fishing. She talked about the pain and anxiety she experienced in undergoing some twenty-five surgical procedures on her ankles. She said several more surgeries would be necessary and, according to her doctor, the possibility still existed that she might lose one of her legs. The other witnesses related their observations concerning appellee’s pain and suffering and the changes in her lifestyle since the accident.
In the Findings of Fact and Conclusions of Law filed August 11,1989, the court sated that it “further is of the opinion that the proof in this cause of action far exceeds the amount plead for and the pleadings should be deemed amended to conform to the evidence offered in this case.” Although the judgment was in excess of the amount of damages pleaded, there is substantial evidence to support the court’s entering judgment as it did. We cannot say that the alleged irregularities were such that appellant was prevented from having a fair trial. Finally, the language used by the court in its Findings of Fact and Conclusions of Law is simply descriptive and, in light of the evidence and testimony before the court, is not inappropriate. We certainly cannot infer from that language that the entry of the judgment was based on passion. Therefore, we cannot say the trial court erred in allowing appellant’s Motion for New Trial under Ark. R. Civ. P. 59(a) to be deemed denied.
Affirmed.
Hays and Glaze, JJ., concur.
Brown, J., not participating. | [
48,
-18,
-80,
60,
13,
-93,
35,
26,
87,
-93,
53,
83,
-17,
-26,
5,
41,
-26,
13,
-27,
122,
-13,
-93,
23,
50,
-14,
-69,
123,
-58,
-101,
79,
110,
-44,
76,
56,
-118,
-59,
-26,
-54,
-124,
92,
-50,
-122,
-71,
-4,
-39,
84,
48,
-5,
70,
7,
117,
-121,
34,
46,
57,
75,
45,
44,
123,
-23,
73,
-79,
-62,
7,
127,
1,
-95,
4,
-102,
1,
90,
15,
-108,
49,
32,
-8,
115,
-90,
-106,
116,
32,
-103,
12,
-90,
99,
0,
5,
-19,
-24,
-120,
7,
122,
15,
-91,
-42,
56,
27,
79,
-73,
29,
122,
86,
14,
-4,
120,
69,
29,
96,
5,
-54,
-44,
-95,
-51,
48,
-100,
10,
-17,
-121,
48,
117,
-55,
-30,
95,
71,
51,
-69,
87,
-10
] |
Donald L. Corbin, Justice.
Appellant shot his ex-wife, Paula M. Hubbard, in the presence of police officers at the parking lot of the McDonald’s restaurant in Brinkley, Arkansas. Approximately one month after the shooting, the victim died and appellant was charged by amended felony information with murder in the first degree, a violation of Ark. Code Ann. § 5-10-102 (1987). Appellant was tried and convicted by a Monroe County jury; he was then sentenced to life in prison without parole. He appeals the judgment of conviction of first-degree murder entered by the Monroe Circuit Court. We affirm.
There are five issues presented in this appeal. Appellant’s counsel assigns four points of error to the trial court. We discuss these in the language and in the order in which they were presented to us. Finally, we discuss the issue of whether appellant received a speedy trial, an issue on which appellant received our permission to argue pro se.
I.
THE COURT ERRED IN ADMITTING DR. MICHAEL SIMON’S TESTIMONY EXPRESSING AN OPINION AS TO APPELLANT’S MENTAL CAPACITY BECAUSE HE WAS NOT QUALIFIED AS A PSYCHIATRIST.
The only testimony offered by the state concerning appellant’s mental capacity was that of Dr. Michael Simon, a forensic psychologist at the Arkansas State Hospital. Appellant claims Dr. Simon’s opinion as to appellant’s capacity to conform his conduct to the requirements of the law should not have been admitted because Dr. Simon is not a psychiatrist; appellant maintains the trial court’s order for appellant’s psychiatric evaluation required the evaluation be conducted by a psychiatrist. Appellant argues further that Dr. Simon’s testimony did not comply with the requirement of the court’s order and Ark. Code Ann. § 5-2-305 (1987) in that neither did he express an opinion as to whether appellant possessed the requisite culpable mental state for first-degree murder nor, in making his evaluation of appellant, did he consider any of appellant’s prior psychiatric and psychological records.
Appellee responds by stating that the trial court’s order tracks the language of section 5-2-305 and that while the order requires psychiatric evaluation of appellant, the statute does not so require. Appellee argues it is reasonable to assume that since the trial court’s order tracks the statutory language, it intended that the statutory procedure be followed. In support of this argument, appellee cites Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983), for the proposition that there be substantial compliance with section 5-2-305.
Appellant’s challenge is to the admission of Dr. Simon’s testimony. In evidentiary determinations, the trial court has wide discretion, and we will not reverse absent an abuse of that discretion. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). Determinations of an expert’s qualifications lie within the sound discretion of the trial court; the standard for measuring an expert’s qualifications is flexible, and if some reasonable basis exists from which it can be said that the witness has knowledge of the subject beyond the knowledge possessed by ordinary persons, his testimony is admissible. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). As Dr. Simon is a forensic psychologist who evaluated appellant pursuant to the trial court’s order, we cannot say the trial court abused its discretion in allowing Dr. Simon to testify concerning his evaluation of appellant’s mental capacity. The trial court acted within its discretion in permitting Dr. Simon’s testimony.
Whether Dr. Simon’s evaluation substantially complied with the trial court’s order appears to be a sub-issue argued by appellant. The trial court entered three commitment orders in this case. On October 7, 1988, the trial court entered an “Order for Commitment of Indigent Defendant for Psychiatric Examination.” This order committed appellant to “the East Arkansas Regional Mental Health Center, Helena, Arkansas, as an outpatient, for expert medical and psychiatric observation, examination, and treatment.” On February 16, 1989, the trial court entered a second “Order for Commitment of Indigent Defendant for Psychiatric Examination.” Inter alia, this order acknowledged that the court had previously entered a commitment order on October 4,1988, re-committed appellant to the East Arkansas Regional Mental Health Center, and stated:
5.
That the “psychological evaluation conducted by the East Arkansas Regional Mental Health Center does not address itself to the issue of the Defendant’s lack of capacity; that it is necessary for the indigent defendant to be evaluated by a qualified psychiatrist for a determination of his psychiatric state at the time of the offense alleged.
6.
That the defendant has informed his counsel that he has been institutionalized for psychiatric problems several times in the past, and the records from such former institutionalization should be made available to a qualified psychiatrist for a determination of his lack of capacity to commit the crimes with which he is charged.
Following these previous two orders, on October 6, 1989, the court entered nunc pro tunc an “Order for Commitment to the Arkansas State Hospital for Psychiatric Evaluation.”
The relevant statute, section 5-2-305, states in pertinent part:
(a) Whenever a defendant charged in circuit court:
(1) Files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause; or
(2) Files notice that he will put in issue his fitness to proceed, or there is reason to doubt his fitness to proceed, the court, subject to the provisions of §§ 5-2-304 and 5-2-311, shall immediately suspend all further proceedings in the prosecution. . . .
(b) Upon suspension of further proceedings in the prosecution, the court shall enter an order:
(1) Directing that the defendant undergo examination and observation by one or more qualified psychiatrists at a local regional mental health center or clinic; or
(2) Appointing at least one (1) qualified psychiatrist to make an examination and report on the mental condition of the defendant; or
(3) Directing the Director of the Arkansas State Hospital to examine and report upon the mental condition of the defendant; or
(4) Committing the defendant to the Arkansas State Hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty (30) days, or.such longer period as the court determines to be necessary for the purpose.
(c) Upon completion of an examination at a local regional mental health clinic or center pursuant to subsection (b) of this section or in lieu of such an examination, the court may enter an order providing for examination pursuant to subsections (b)(2) or (3) of this section and may further order the defendant committed to the Arkansas State Hospital for further examination and observation if the court determines that commitment and further examination and observation are warranted.
(d) The report of the examination shall include the following:
(1) A description of the nature of the examination;
(2) A diagnosis of the mental condition of the defendant;
(3) An opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense;
(4) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time of the conduct alleged; and
(5) When directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.
The October 6, 1989 Commitment Order mirrors the language of section 5-2-305 and states that:
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the Defendant shall be admitted to the Arkansas State Hospital for inpatient psychiatric evaluation to determine the competency of the Defendant to stand trial on the charges filed herein; that the psychiatrist shall provide the Defendant, the State and the Court with an opinion as to the extent, if any, to which the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time of the conduct alleged; and also for an opinion as to the capacity of the Defendant to have the culpable mental state that is required to establish an element of the offense charged, namely, intent.
We have previously held that a trial court must substantially comply with the requirements of section 5-2-305. Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983). In Ball, we held there was substantial compliance with the statute where a psychiatrist issued his report in the form of two letters. The letters contained all the statutorily required information, although they were not written in the language of the statute.
We adhere to the view that the statute requires substantial compliance. The trial court’s actions did indeed substantially comply with section 5-2-305. We note that while parts of the statute speak in terms of “psychiatric” examination or “psychiatric” evaluation, section 5-2-305(b)(4) speaks only in terms of “the examination” which is to be conducted during a thirty day stay at the state hospital. Thus, the examination conducted during appellant’s stay at the state hospital by Dr. Simon, who is admittedly a psychologist rather than a psychiatrist, substantially complies with the statute.
The record is abounding with evidence of the trial court’s concern with appellant’s psychiatric evaluation. The trial court committed appellant for evaluation, then re-committed him for further evaluation after having determined the initial evaluation was lacking in some respects. After the second commitment order was entered, the trial court, apparently still not satisfied with the report of appellant’s evaluation, entered nunc pro tunc an order committing appellant to the state hospital for further psychological evaluation. At trial then, the court allowed Dr. Simon’s testimony over appellant’s objections. Given the detailed attention of the trial court to the issue of appellant’s evaluation, we are confident the trial court was satisfied that Dr. Simon’s testimony was in substantial compliance with section 5-2-305. Again, we cannot say the trial court abused its discretion in allowing Dr. Simon’s testimony.
II.
THE COURT ERRED BY ALLOWING THE PROSECUTING ATTORNEY TO CONFUSE THE JURY ON THE ISSUE OF STANDARDS FOR INVOLUNTARY COMMITMENT TO THE STATE HOSPITAL.
Dr. George Jones, witness for the defense and clinical psychologist at East Arkansas Regional Medical Health Center, testified that he examined appellant, pursuant to the trial court’s order, to determine appellant’s fitness to stand trial and aid in his defense. On cross-examination, during the same general discussion, Dr. Jones testified about the standards for both involuntary commitment to the state hospital and the standards for determining a mental disease or defect for criminal purposes.
Appellant relies on Ark. R. Evid. 403 and argues the standards concerning involuntary commitment are wholly irrelevant to the standards concerning the legal definitions of mental disease and defect and are of no probative value to this case, but serve only to confuse or mislead the jury. The trial court allowed Dr. Jones’ testimony regarding the standards for involuntary commitment over appellant’s relevance objection because Dr. Jones had referred to these standards in his written report.
Ark. R. Evid. 403 provides that 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. “The relevancy or prejudice matter must be decided by someone. The trial court has been assigned that responsibility in our system and it is the logical and proper place to make such determination. Unless that discretion is abused, we will not reverse the trial court.” Hoback v. State, 286 Ark. 153, 158, 689 S.W.2d 569, 572.(1985). We cannot say the trial court abused its discretion here.
III.
THE COURT ERRED BY ALLOWING A SERIES OF LETTERS EXCHANGED BETWEEN APPELLANT AND HIS EX-WIFE, THE VICTIM, TO BE INTRODUCED INTO EVIDENCE.
During May and June of 1988, several months prior to the murder on September 9, 1988, appellant and his victim exchanged a series of letters relating their personal lives. These letters were admitted by the state as evidence of appellant’s state of mind during the period after the divorce from his victim until the time he shot her.
Appellant argues the letters were too remote in time to the date of the offense to be relevant and that their probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The balancing of probative value against prejudice is a matter left to the sound discretion of the trial court, and his decision on such a matter should not be reversed absent a manifest abuse of discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). As the letters were written just a few months prior to the murder and as they related to appellant’s motive or state of mind, we cannot say the trial court abused its discretion in admitting the letters into evidence.
IV.
THE COURT ERRED BY REFUSING TO GIVE A PROPOSED JURY INSTRUCTION TO THE EFFECT THAT AN ACQUITTAL ON THE BASIS OF MENTAL DISEASE OR DEFECT WOULD NOT MEAN THAT APPELLANT BE SET FREE.
Appellant proffered a jury instruction concerning the consequences which result when a defendant is acquitted on the grounds of mental disease or defect. The trial court denied appellant’s proposed instruction which was based on Ark. Code Ann. § 5-2-314 (1987). The proffered instruction stated that if appellant were acquitted on the ground of mental disease or defect, he would be committed to the custody of the Director of the Department of Human Services, and he would have the burden of proving by clear and convincing evidence that his release therefrom would not create a substantial risk of bodily injury to another person or serious damage of property of another due to mental disease or defect.
We have held that a jury is not to be told the options available to the trial court when a defendant is found not guilty by reason of mental disease or defect. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981). We have most recently affirmed this position in Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991).
Appellant concedes this argument is contrary to our present case law. However, appellant asks us to reverse the current law and adopt his view that since the jury is informed about the possible sentences if appellant were to be found guilty, the jury should also be informed about the nature and extent of the consequences to appellant should he be acquitted by reason of mental disease or defect. Appellant cites us to no authority supporting his position and we decline to reverse our current law to adopt his viewpoint. The trial judge was correct in refusing appellant’s proposed instruction.
V.
SPEEDY TRIAL.
On motion, appellant received our permission to argue pro se the speedy trial issue. The dates which are relevant to the speedy trial date are as follows. On September 9, 1988, appellant was arrested for shooting his wife. On October 7,1988, on appellant’s motion, the trial court entered its first order committing appellant to the East Arkansas Regional Mental Health Center for psychiatric evaluation. On November 17,1988, the East Arkansas Regional Mental Health Center issued its report of appellant’s psychological evaluation. As a result of deficiencies in this report, a second order for commitment to the East Arkansas Regional Mental Health Center was entered on February 16, 1989. After experiencing delays in obtaining the ordered evaluation, an order for the commitment of appellant to the state hospital was entered on October 6, 1989 nunc pro tunc to February 16, 1989. On December 29, 1989, appellant filed a motion to dismiss on speedy trial grounds pursuant to Ark. R. Crim. P. 28.1 and 28.2(a). His motion was dismissed, and appellant was tried on February 13, 1990.
Pursuant to Ark. R. Crim. P. 28.1, the state has twelve months from the time provided in Ark. R. Crim. P. 28.2 to bring appellant to trial, excluding only such periods of necessary delay as provided in Ark. R. Crim. P. 28.3. It is undisputed that the time for trial commenced running on September 9, 1988, the date of appellant’s arrest. The trial was some five months after the speedy trial deadline.
Once it is determined that a trial is held after the speedy trial date has expired, the state has the burden of showing that any delay was the result of appellant’s conduct or was otherwise legally justified. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We hold the state has met its burden here. The period of delay resulting from an examination and hearing on the competency of the defendant is excludable from the twelve-month period. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988); Ark. R. Crim. P. 28.3(a).
Here, the speedy trial date was September 9, 1989, and appellant was tried on February 13,1990. Clearly then, with the period in excess of eight months excluded as a result of appellant’s psychiatric evaluations, the state has complied with the speedy trial rules.
In holding that appellant was not denied a speedy trial, we note appellant’s argument that the trial court failed to make a written order or docket entry stating the number of days to be excluded as required by Ark. R. Crim. P. 28.3(i). We have previously stated that a trial court should enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). However, we have also stated that a trial court’s failure to comply with Ark. R. Crim. P. 28.3(i) does not result in automatic reversal. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). When a case is delayed by the accused and that delaying act is evidenced by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Id.; see Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).
Here, the details relating the specifics of exactly when appellant was admitted for his various examinations, the length of his stay, and the date any reports were filed are absent from the record. However, the commitment orders entered in this case reveal that appellant made one petition for commitment and two motions for psychiatric evaluation. All three of these actions resulted in commitment orders and consequent psychiatric evaluations of appellant. Appellant cannot now complain about the delays he requested for psychiatric evaluation. We hold the record is sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i).
As required by Ark. Sup. Ct. R. 11(f), the objections decided adversely to appellant have been abstracted; we have reviewed these objections and find that none of them merits reversal.
For the foregoing reasons, the denial of appellant’s motion for new trial is affirmed. | [
48,
-22,
-35,
-66,
25,
-30,
58,
-98,
114,
-22,
96,
115,
47,
-37,
21,
105,
35,
-1,
117,
105,
-44,
-73,
7,
96,
-6,
-5,
58,
-57,
-78,
-49,
-28,
-68,
73,
96,
-26,
81,
-30,
72,
-31,
-40,
-118,
-126,
-103,
112,
80,
-46,
32,
46,
68,
15,
49,
-97,
-89,
46,
23,
-117,
73,
40,
75,
46,
80,
-88,
-54,
15,
-49,
20,
-77,
-92,
-101,
1,
-16,
60,
-104,
-79,
8,
-24,
115,
-90,
-126,
116,
127,
-103,
12,
96,
98,
0,
25,
-51,
-88,
-119,
7,
46,
-99,
-89,
-104,
1,
73,
68,
-98,
-97,
122,
116,
12,
120,
120,
-36,
121,
108,
8,
-34,
20,
-79,
-27,
120,
-36,
-30,
-21,
67,
48,
113,
-49,
-30,
93,
70,
121,
-37,
-102,
-42
] |
Per Curiam.
After a per curiam order was delivered on June 3, 1991, a motion by the appellants to establish a briefing schedule was submitted. The appellants wish to brief both the equal protection issue referred to in the mandate of the United States Supreme Court and an issue concerning federal legislation and the supremacy clause which they raised, but which was not considered, in the first appeal. The appellants will be permitted to brief both issues. The briefing schedule is amended so that the appellants’ brief will be due 40 days from this date, and the times for remaining briefs to be filed will be governed by the provisions of Rule 7 of the Rules of this Court. | [
-16,
-26,
-11,
-3,
8,
97,
48,
-100,
74,
-29,
101,
83,
47,
-106,
21,
117,
-97,
99,
87,
107,
-44,
-89,
119,
64,
126,
-78,
-78,
-42,
-73,
110,
-27,
126,
72,
112,
-62,
-47,
86,
-54,
-55,
22,
-94,
1,
-71,
-23,
-111,
102,
60,
123,
90,
15,
61,
94,
-93,
108,
24,
86,
40,
120,
-55,
20,
-64,
49,
-101,
-113,
127,
38,
-79,
5,
56,
-122,
112,
15,
92,
52,
18,
-24,
49,
-26,
-110,
116,
-17,
-71,
-128,
2,
98,
-111,
76,
-11,
28,
-120,
116,
90,
-113,
-90,
-101,
112,
105,
34,
-74,
-72,
116,
-108,
39,
126,
-49,
-59,
95,
36,
79,
-114,
-62,
-93,
95,
88,
-72,
106,
-29,
19,
24,
124,
-56,
-6,
-38,
98,
19,
-13,
-58,
-96
] |
David Newbern, Justice.
Leon Ashworth contends the Municipal Court, in which he was convicted of driving while intoxicated and failure to maintain control of a motor vehicle, lacked jurisdiction. Ashworth was arrested in Fayetteville where the offenses allegedly occurred but tried in the Elkins Municipal Court. He contends that county-wide jurisdiction granted to Municipal Courts by Ark. Code Ann. § 16-17-206(b) (Supp. 1989) violates the Arkansas and United States Constitution.
We affirm the conviction. The real issue here is whether the Washington County Circuit Court had jurisdiction when it tried Ashworth de novo. If the Elkins Court had no jurisdiction, then neither did the Washington County Circuit Court. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988); Bynum v. Patty, 207 Ark. 1084, 184 S.W.2d 254 (1944). We have clearly held that the Statute does not violate the Arkansas Constitution, and we do not consider the questions argued here with respect to the United States Constitution because they were not raised in the Circuit Court.
1. The record
As his first point, Ashworth contends the Circuit Court should have granted his motion to remand to the Municipal Court to make a record of his constitutional arguments made there, citing Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1980). The point of our decision in the Horn case was that the constitutional issue had not been raised in the Circuit Court and would not be reviewed on appeal. We review only the decision of the Circuit Court. Pshier v. State. 297 Ark. 260, 760 S.W.2d 858 (1988). Here the Circuit Court considered the issue of the validity of the Statute, and Ashworth has in no manner been prejudiced by the lack of a record of his contentions in the Municipal Court.
2. Constitutionality
Because Ashworth did not raise the federal constitutional question in Circuit Court, it will not be considered on appeal. Even constitutional issues will not be considered for the first time on appeal. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).
In State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915), this Court held there was no express constitutional limitation upon the General Assembly’s power to vest jurisdiction in Municipal Courts beyond the geographical limits of the municipalities. Although not by unanimous decisions, this Court has upheld legislative granting of extraterritorial jurisdiction to Municipal Courts against every challenge based on Ark. Const, art. 7. Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988); Pshier v. State, supra; Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981).
Affirmed.
Corbin, J., concurs. | [
116,
-22,
-47,
62,
10,
-64,
18,
-116,
18,
-93,
101,
115,
-81,
-53,
21,
113,
-13,
91,
117,
105,
-59,
-73,
87,
65,
50,
-77,
107,
71,
-74,
75,
-26,
-52,
76,
-80,
-54,
93,
71,
78,
-57,
-36,
-50,
0,
-117,
117,
120,
-125,
40,
98,
82,
15,
49,
-99,
-62,
62,
26,
-61,
109,
44,
89,
-92,
88,
18,
-52,
95,
79,
20,
-93,
36,
-99,
35,
120,
60,
-124,
49,
104,
-8,
-13,
-90,
-128,
-12,
15,
-103,
-120,
34,
99,
32,
28,
-49,
-88,
-119,
14,
-82,
29,
-89,
24,
49,
75,
8,
-105,
-99,
127,
86,
13,
124,
-14,
69,
80,
108,
-92,
79,
-108,
-95,
-58,
108,
-128,
83,
-21,
71,
80,
117,
-51,
-42,
93,
71,
82,
27,
-34,
-12
] |
David Newbern, Justice.
The appellant, Joe Brawley, was convicted of murder and sentenced to life imprisonment in connection with the shooting death of his stepfather-in-law, Ray Tittle. He was arrested at the scene of the shooting on May 3, 1988. The evidence showed he had been involved in an on-going altercation with his estranged wife throughout the day, and the couple had exchanged threats. At 9:00 p.m. they were involved in a scuffle at a liquor store broken up by a police officer called to the scene. Brawley was obviously under the influence of intoxicants at that time and was told by the officer to go home. Instead he followed his wife and son to the home of her parents and waited outside in his truck with a 30.06 rifle. When she and her stepfather came out of the house to obtain items from her car Brawley fired in their direction. The bullet struck Mr. Tittle who fell injured behind the car. Brawley’s wife ran into the home where her mother was in the process of calling the police. Brawley broke into the house with the rifle. The two women grabbed the gun, and they were all struggling for it when the police arrived. Brawley and the gun were taken into custody. Before being taken away in an ambulance, Mr. Tittle identified Brawley as his assailant. Brawley admitted firing the fatal shot in a statement given shortly after his arrival at the county jail. Some two hours later a blood alcohol test was administered, and Brawley’s blood alcohol measured .11%.
On September 27,1988, Brawley filed a motion requesting a psychiatric evaluation. He could not make bail and had been held in custody since his arrest. The Court granted the request, and an appointment was made for Brawley at the George Jackson Mental Health Center for October 5, 1988. Brawley was not taken to the appointment. A second appointment was set for October 28, 1988. Again, he was not taken to meet the appointment. He was not taken for an evaluation until May 9,1989, and he was returned to jail on the same day. The report finding him competent for all purposes was received by the Court on July 24, 1989. Brawley remained incarcerated.
Before his trial on September 12, 1989, Brawley made an oral motion in chambers to dismiss the charges due to a violation of his right to a speedy trial. The motion was denied. He also asked the Court to suppress his confession on the ground that he could not, due to his intoxication, make a knowing and voluntary waiver of his rights. Both requests were renewed in a post-trial motion for new trial filed by new counsel. Following a hearing the Trial Court held that, because Brawley requested the psychiatric evaluation, the entire period of time between his request and the receipt of the report was excludable and that he was not too intoxicated to waive his rights and make a voluntary statement.
Brawley contends the Court erred in denying his motion to dismiss for violation of his right to a speedy trial and that the court erred in finding his custodial statements admissible. We affirm the conviction, as there was no violation of the speedy trial guarantee, and the totality of the circumstances indicates that the custodial statement was voluntarily made.
In accordance with our Rule 11(f), the record has been examined to determine the Court made no error prejudicial to the defendant.
1. Speedy trial
Brawley was arrested on May 3,1988. He argues that he was entitled, pursuant to Ark. R. Crim. P. 28.1(c) and 28.2(a), to be brought to trial by May 3, 1989. Instead he was tried in September, approximately 132 days in excess of the one year period. He contends that, as he was not brought to trial within the speedy trial period set out in Ark. R. Crim. P. 28.1, the State had the burden to show that any delay was the result of Brawley’s conduct or was otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). At a hearing before trial and on the new trial motion the State argued the delay was the result of Brawley’s request for a psychiatric examination.
We have held that under Ark. R. Crim. P. 28.3(a), a period of delay resulting from an examination and hearing on the competency of the defendant is excludable. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988). In the case now before us, the motion granting the evaluation was entered on September 27,1988, and the report was filed on July 24, 1989. That is the period the Trial Court excluded. Brawley argues that the period of 9 and 3/) months from the granting of the request to receipt of the report is not excludable because he was not responsible for the fact that he missed his appointment set for October 5, 1988. He argues that the burden of justifying the delay beyond that date shifts back to the State as he was incarcerated at that time and had no control over the matter of keeping the appointment. He points out that there is no explanation offered for the failure of the State to ensure that he arrived at his appointment.
In response to this argument the State asserts that as the oral motion was not made a part of the record and this specific argument was not included in the motion for new trial it is waived and should not be considered. It is clear from the reconstructed record that the Trial Court found to the contrary and ruled that the argument was made in the pretrial motion and again in the new trial motion.
As there is no procedural bar to consideration of this issue, we proceed to consider the argument that the State did not meet its burden by merely raising the period after the motion for psychiatric examination as an excludable period. Brawley’s argument continues that once he presented proof that the appellant missed the scheduled appointments, and the Trial Court found that the delay was not attributable to him personally, the burden shifted back to the State to come forward with an explanation. The literal language of Rule 28.3(a) states simply that the period required by a competency examination is excluded. Brawley cites no authority for his assertion that the burden should shift back to the State, and we are not persuaded by his argument.
2. Suppression of the statement
Brawley argues the blood alcohol test administered some two hours after he gave his statement, and showing that his blood contained .11% alcohol, showed he was too intoxicated to waive his rights voluntarily and intelligently or to make a statement.
All the officers involved in his arrest and in the taking of the subsequent statement testified that, while Brawley had been drinking and the odor of alcohol did emanate from his person, he appeared lucid and to understand what was going on. Their testimony was unequivocal that Brawley did not show any signs of intoxication, that he was completely responsive and coherent, and that there was no coercion or deception involved in the obtaining of the statement.
The test for voluntariness of both the waiver and statement are essentially the same in this case. When a custodial statement is challenged, the State has the burden of proving by a preponderance of the evidence that the statement was voluntarily given. Baker v. State, 299 Ark. 430, 711 S.W.2d 816 (1986). On appeal we make an independent determination of this issue considering the totality of the circumstances and affirm the trial court’s ruling unless it is clearly wrong. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court recognized the inherently coercive nature of custodial waivers and held that a suspect’s waiver of rights is valid only if it is made voluntarily, knowingly, and intelligently. The voluntariness requirement is concerned with any sort of coercive or deceptive police activity. The knowledge and intelligence requirements are concerned with the level of comprehension of the accused. Only if the “ ‘totality of the circumstances surrounding the interrogation reveals’ both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989); Moran v. Burbine, 475 U.S. 412, at 421 (1986).
In our review of the totality of the circumstances, we defer to the trial court with respect to the credibility of witnesses. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).
Brawley argues that he was so intoxicated that he does not recollect his statement at all nor does he recall signing the waiver. In a similar case, Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), the appellant claimed he had taken drugs prior to the time he was interrogated and was unable to remember being questioned or signing the confession. We found the State’s evidence that the appellant appeared to be lucid and understood his rights was sufficient and concluded that it was for the Trial Court to weigh the evidence and resolve the credibility of the witnesses. The testimony here suggests that Brawley was sober enough. There is no evidence of any sort of duress. We cannot say the Trial Court was wrong in refusing to suppress the statement.
Affirmed.
Dudley, J., concurs. | [
-16,
-22,
-40,
92,
9,
33,
58,
-36,
99,
-78,
-26,
115,
-87,
-41,
69,
41,
122,
99,
85,
105,
-16,
-89,
51,
1,
-14,
-77,
33,
-41,
-77,
-54,
-27,
-43,
76,
112,
-118,
69,
-30,
-54,
-27,
64,
-114,
-108,
-87,
-32,
66,
18,
32,
63,
92,
14,
49,
-114,
-89,
42,
84,
-114,
72,
42,
91,
44,
80,
-88,
-119,
-123,
-113,
20,
-93,
-89,
-100,
34,
-40,
62,
-103,
-79,
0,
-24,
113,
-108,
-124,
116,
13,
-115,
12,
102,
51,
36,
77,
76,
-88,
-23,
-81,
114,
-99,
39,
-103,
112,
65,
12,
-107,
-35,
106,
52,
46,
124,
101,
84,
104,
108,
20,
30,
-74,
-79,
13,
48,
-42,
-94,
-21,
5,
36,
97,
-51,
-18,
84,
117,
121,
-101,
-119,
-48
] |
Jack Holt, Jr., Chief Justice.
The appellant/cross-appellee, Ernest McElroy, initially filed suit in the Boone County Chancery Court requesting equitable relief in the cancellation of a warranty deed, option contract, and deed for sale, as well as the quieting of title to the real estate in question. These requests were predicated, in part, on Mr. McElroy’s allegations that the deed and contracts between him and the appellees/cross-appellants, C. C. Grisham, Bill Doshier, and H. K. McCaleb, individually and doing business as BBS Company, constituted a usurious scheme to loan money.
The chancellor found that the transaction was a usurious loan and that the deed from the appellant to the appellees “was in fact a mortgage” and issued his orders accordingly.
While appellant McElroy agrees with chancellor’s finding that the transactions amounted to a usurious loan, he contends, on appeal, that the chancellor erred: 1) in determining the amount of interest he paid; 2) in refusing to award twice the amount of interest paid; 3) in refusing to award him attorney’s fees; and 4) in awarding post judgment interest on the balance found due to the appellees.
On cross-appeal, the appellees contend that the chancellor erred in finding the transaction was a usurious loan and in denying their motion for summary judgment, in which they argued that a release signed by Mr. McElroy constituted a release and termination of the contract at issue.
We agree with the chancellor’s findings that the transaction was usurious but reverse and remand as to his calculation of interest paid and the award of a penalty. We affirm the trial court as to the appellees’ cross-appeal.
Mr. McElroy is engaged in the residential home construction business. In 1984 and 1985, he acquired a total of 104 acres of' property for which he paid $238,357. In addition, Mr. McElroy claims to have invested approximately $19,200 preparing the land for residential development.
By early 1987, Mr. McElroy was experiencing financial difficulties and contacted Mr. C. C. Grisham for help. He claims to have requested an initial loan of $100,000 from Mr. Grisham. This proposal was rejected, but, after lengthy negotiations, the parties agreed that Mr. McElroy would deed the property to Mr. Grisham and his partner, Mr. H. D. McCaleb, in exchange for $80,000. In addition, Mr. McElroy was to receive a contract for deed allowing him to repurchase the property for $120,000, of which $40,000 was to be paid in one year and the balance of $80,000 at the end of two years.
Mr. Grisham referred Mr. McElroy to Mr. Bill Doshier, an attorney, to complete the necessary legal work. Mr. Doshier was subsequently brought into the transaction as an equal partner with Mr. Grisham and Mr. McCaleb, which partnership was named BBS Company. At Mr. Doshier’s suggestion, the contract for deed was changed to an option contract and, on February 13, 1987, the parties executed a warranty deed, in which Mr. McElroy conveyed the property to the appellees, and an option contract, wherein Mr. McElroy was given one year to exercise his option to repurchase the property; $40,000 to be paid at the time of purchase and $80,000 to be paid within a total of two years, interest free. The appellees disbursed $80,000 to Mr. McElroy through an abstract and title company and required Mr. McElroy to obtain release of over $120,000 in liens against the property.
Mr. McElroy claims that in February, 1988, before the expiration of the option contract, he approached the partnership about exercising his option. This is disputed by the appellees who claim that Mr. McElroy allowed the option contract to expire. In either event, the parties disregarded the option contract and executed a contract for deed on March 1, 1988, in which Mr. McElroy agreed to pay $125,000 for repurchase of the property (less three lots to be retained by the “sellers”). This price was $5,000 more than the “option price”. Mr. McElroy was to pay $ 16,000 at closing and the balance of $ 109,000 in installments, at an annual rate of 10%, which was evidenced by a promissory note. The parties have stipulated that during the term of this agreement, Mr. McElroy made payments to the appellees total- ling $45,195.
In April, 1989, Mr. McElroy was informed by the appellees that he still owed over $86,000 on the debt. He filed suit in the Boone County Chancery Court shortly thereafter.
Following trial, the chancellor entered two opinion letters in which he held that “the underlying and real purpose of this transaction was a loan to plaintiff in the amount of $80,000, and that since it was a loan, under its terms, it exceeded the lawful rate of interest.” The court found that Mr. McElroy had repaid $45,195, of which $10,866 was interest, leaving $34,329 paid on the principal and $45,671 owing. This amount was offset by a penalty of $ 16,300, assessed against the appellees, which resulted in a final judgment of $29,371 in favor of the appellees. Mr. McElroy was ordered to pay the debt within 30 days of judgment or face foreclosure.
Since all the issues before us hinge on the central question of whether there was, in fact, a usurious loan, we address the appellees’ arguments on cross-appeal, first.
I. USURIOUS LOAN
Initially, we note that while we review chancery cases de novo, we recognize the superior position of the chancellor to weigh issues of credibility and therefore we do not reverse unless the chancellor’s findings are clearly erroneous. Taylor’s Marine, Inc. v. Waco Mfg., 302 Ark. 521, 792 S.W.2d 286 (1990).
In denying that the transactions amounted to a usurious loan, the appellees first contend that the documents were not usurious on their face. While it is true that, taken alone, the original warranty deed and option contract appear to be documents concerning only the sale of land, and no mention of a loan or obligation on the part of Mr. McElroy to repay the appellees is recited, these transactions call to mind an oft quoted maxim: “The law shells the covering and extracts the kernel. Names amount to nothing when they fail to designate the facts.” Sparks v. Robinson, 66 Ark. 460, 515 S.W. 460 (1899). In Sparks, we upheld the trial court’s conclusion that an absolute bill of sale of a sewing machine, coupled with an absolute right of redemption, amounted to nothing more than a mortgage with a usurious rate of interest.
Here, the chancellor found that the purported sale and option to repurchase were nothing more than a cloaking device to hide the true transaction—a loan in the amount of $80,000 to be repaid in two years, with interest totalling $40,000. Such a transaction has been historically recognized as one of several simple devices to evade Arkansas usury laws. See G. Collins and V. Ham, The Usury Law of Arkansas: A Study in Evasion, 8 Ark. L. Rev. 399 (1954).
The burden is upon the one asserting usury to show the transaction is usurious, and usury will not be presumed, imputed, or inferred where an opposite result can be fairly reached. Winkle v. Grand Nat’l Bank, 267 Ark. 123, 601 S.W.2d 559 (1980). The test, however, is not whether the “lender” intended to violate the usury laws, but whether the lender knowingly entered into a usurious contact intending to profit by the methods employed. See Id.; Davidson v. Commercial Credit Equip. Corp., 255 Ark. 127, 499 S.W.2d 68 (1973). Furthermore, it is unnecessary that both parties intend that an unlawful rate of interest be charged; if the lender alone charges or receives more than is lawful the contract is void. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980) (decision under prior law).
The chancellor was faced with conflicting testimony throughout the trial in this case. He obviously found Mr. McElroy’s version of the events to be the more credible and, deferring to his advantage in observing the witnesses’ demeanor and in considering the evidence presented in the record, we cannot conclude that his decision was clearly erroneous.
Mr. McElroy testified that prior to contacting the appellees, he had approached a number of banks and individuals for a loan and had been rejected. He testified that he was in dire financial trouble and that the appellees were aware of his situation.
Mr. McElroy contacted Mr. Grisham and initially requested a loan of $100,000. This request was rejected but, after further discussions, Mr. Grisham agreed to a loan of $80,000, of which $40,000 was to be repaid in one year and another $80,000 within the following year. This agreement later developed into a warranty deed combined with an option to purchase. Mr. McElroy admitted it was he who proposed the terms finally agreed upon, and we have said that a debtor may be estopped from asserting the defense of usury when the debtor created the infirmity in the contract in order to take advantage of the creditor. Ford Motor Credit Co. v. Hutcherson, 277 Ark. 102, 640 S.W.2d 96 (1982). Such was not the case here. Mr. McElroy stated that he was in financial straits and testified repeatedly that it was never his intention to relinquish his land, but simply to arrange a loan for temporary financial relief. Clearly, it was the appellees, not Mr. McElroy, who received an unfair advantage.
Furthermore, there was testimony from Mr. McElroy’s expert witness that the land was valued at $227,200, and, in fact, Mr. McElroy states that he paid approximately $238,357 for it. This evidence reflects a gross disparity between what Mr. McElroy paid for it, and the appellees’ purchase price of $80,000.
There was also disagreement in the record as to the execution of the contract for sale. The appellees maintained that Mr. McElroy simply failed to exercise his option in time and that a lawful contract for deed was then executed after the allegedly usurious transaction was obsolete. Again, the trial court gave credence to Mr. McElroy’s testimony that he began discussing the exercise of his option before the February 13,1988, expiration date. The parties discussed Mr. McElroy selling a condominium to the appellees for $45,000, which could be rolled over to the option contract, but this plan was not carried out. When it became apparent that Mr. McElroy would be unable to make the $40,000 payment, as required by the option contract, the parties renegotiated and executed the contract for deed with new terms of payment. Although the document was signed on March 1, 1988, Mr. McElroy claims that its terms were decided prior to the expiration of the option and introduced into evidence a typewritten memo setting out such terms, which he claims to have signed on February 13, 1988.
In deciding whether a certain transaction is usurious, all attendant circumstances must be taken into consideration. Sammons-Pennington Co. v. Norton, 241 Ark. 341, 408 S.W.2d 487 (1966). Mr. McElroy’s obvious financial troubles, his expressed intent to keep the land, the substantial disparity between what Mr. McElroy paid for the property and the appellees’ purchase price, and the appellees’ immediate renegotiation of a contract for deed when it became apparent Mr. McElroy could not “exercise his option,” all point to the conclusion that none of the parties intended for the property to come into the hands of the appellees any more than was necessary to secure the loan and for the appellees to make a profit from such loan.
Similar transactions have previously been scrutinized by this court and all were deemed usurious. See Tillar v. Cleveland, 47 Ark. 287, 1 S.W. 516 (1886); Sparks v. Robinson, 66 Ark. 460, 51 S.W. 460 (1899); Banks v. Walters, 95 Ark. 501, 130 S.W. 519 (1910); Ringer v. Virgin Timber Co., 213 F. 1001 (E.D. Ark. 1914); Sleeper v. Sweetser, 247 Ark. 477, 446 S.W.2d 228 (1969). We have no trouble in reaching the same conclusion and uphold the chancellor’s finding that all of the transactions constituted one scheme to loan money at a usurious rate of interest.
II. RELEASE
The appellees’ second argument on cross-appeal challenges the trial court’s denial of their motion for summary judgment in which it was argued that a “release agreement” signed by Mr. McElroy effectively terminated the contract for deed and resulted in Mr. McElroy’s forfeiture of the property.
We do not consider this argument, however, since the denial of a motion for summary judgment is not subject to review on appeal, even after a trial on the merits. See Rick’s Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).
In addition, the appellees’ failure to cite any legal authority in support of this argument further merits its dismissal. See May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990).
Having disposed of the appellees’ cross-appeal, we now turn to Mr. McElroy’s arguments on direct appeal.
III. INTEREST PAYMENT
Mr. McElroy first contends that the trial court erred in determining the amount of interest he paid on the loan. Ark. Const, art. 19, § 13(a) provides that the maximum rate of interest shall not exceed 5 % per annum above the applicable Federal Reserve Discount Rate. This was established at trial to be 10.5 %. Art. 19, § 13 further provides that all contracts having a rate of interest in excess of the maximum lawful rate will be void as to the unpaid interest.
Although the chancellor determined that the usurious transaction at issue involved the initial “loan” of $80,000 at a repayment of $120,000 (i.e. interest in the amount of $40,000), he erroneously relied on appellee Doshier’s calculation of interest under the second contract for deed, which called for a payment of $125,000 to be made in installments at a 10% interest rate. These figures were calculated by Mr. Doshier during a discussion with Mr. McElroy concerning his repayments under the contract for deed and the chancellor understandably relied on them as no other calculations regarding the amount of interest already paid by Mr. McElroy were offered. The calculations showed that a total of $46,000 paid by Mr. McElroy, $10,866 of that amount went to interest under the terms of the contract. In determining whether a contact is usurious, it must be viewed as of the time it is entered into. Hayes v. First Nat’l Bank of Memphis, 256 Ark. 328, 507 S.W.2d 701 (1974). Since the usurious transaction began with the original loan of $80,000 to be repaid at $120,000, the amount of interest paid must be calculated on the basis of that initial transaction, rather than the second contract for deed.
At trial, Mr. Danny Criner, President of Newton County Bank, testified that an $80,000 loan, repaid at $40,000 in one year and $80,00 the following year, would result in an annual interest rate of 30 to 35%. No further testimony or calculations were offered to explain these figures. Mr. McElroy’s computations place the illegal rate at approximately 25%.
Because of these discrepancies, we remand the case so that the correct annual interest rate of the original transaction can be calculated.
In addition, we instruct the trial court to determine, in accordance with the dates and amounts of payments made by Mr. McElroy, how much of the payments already made constitutes payment toward the principle debt and how much constitutes interest. There is sufficient evidence of the exact dates and amounts of the payments in the record from which to calculate the interest. Mr. McElroy has suggested a method of calculation using a 25% rate of interest, and a 365 exact-day interest formula. We note that this is one of four acceptable methods of computing simple interest, and refer the trial court to our discussions in Martin’s Mobile Homes v. Moore, 269 Ark. 375, 601 S.W.2d 838 (1980), and Ford Motor Credit Co. v. Hutcherson, supra, for guidance as to the appropriate method of calculation.
IV. PENALTY
Mr. McElroy next argues that the chancellor erred in refusing to award twice the amount of interest paid. We agree.
Art. 19, § 13(a)(ii) provides:
All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. It is unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate in effect at the time of the contract, and any person who does so shall be subject to such punishment as may be provided by law. (Emphasis added).
The trial court interpreted the above language to be discretionary and awarded only $16,300 as penalty, based on an interest calculation of $10,866. Whether this specific provision is mandatory or discretionary has not been decided by this court, although we have upheld awards for twice the amount of interest paid. See Taylor’s Marine v. Waco Mfg., supra.
In Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983), however, we reaffirmed our principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only. 278 Ark. at 574, 647 S.W.2d at 459 (1983) (citing Edwards v. Hall, 30 Ark. 31 (1875)). Art. 19, § 13, as we interpret it, is penal in nature. This is evidenced by the language following the provision for recovery of interest. The purpose of the article was obviously to discourage ursurious contracts, and to allow the trial courts to dispense with the penalty at their discretion would be to defeat this purpose.
Furthermore, we reminded, in Arkansas State Racing Comm’n v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956) that “[i]t is of course a familiar rule of statutory construction that ‘may’ is to be construed as ‘shall’ when the context of the statute so requires.” Constitutional provisions are construed in the same manner as statutes. See Shepherd v. City of Little Rock, 183 Ark. 244, 35 S.W.2d 361 (1931); McDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971).
We hold that the language in Art. 19, § 13 is mandatory, and further remand with directions to award Mr. McElroy twice the amount of the interest to be calculated in accordance with our previous instructions.
V. ATTORNEY’S FEES
Mr. McElroy next argues that he should have been awarded attorney’s fees under Ark. Code Ann. § 16-22-308 (Supp. 1989). This statute allows a prevailing party in a civil action to recover reasonable attorney’s fees for various causes of action, including breach of contract. Mr. McElroy claims that a usurious transaction falls within this category.
We do not address this argument, however, since the trial court did not rule on the issue. Although Mr. McElroy asked for attorney’s fees in his complaint, and in a letter to the trial court following its first opinion letter, the trial court did not rule upon the request, either in its second letter of opinion or in its final order.
The burden of obtaining a ruling is on the movant; objections and matters left unresolved are waived and may not be relied upon on appeal. Carpetland of N.W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991).
VI. POST JUDGMENT INTEREST
Finally, Mr. McElroy contends that if this court decides not to adjust the interest calculation or penalty assessed so as to award a net judgment in his favor, the trial court’s decision should be modified to eliminate the requirement that he pay post judgment interest.
Whether or not post judgment is awarded in Mr. McElroy’s favor, will depend on the trial court’s decision on remand. However, we do not agree with Mr. McElroy’s argument that Art. 19, § 13 bars post judgment interest. Art. 19 voids only the payment of interest under the usurious contract and has nothing to do with the interest due on the judgment amount. Should the trial court award net judgment again in favor of the appellees, it may also again award post judgment interest on that amount.
The decision of the trial court is affirmed in part and reversed and remanded in part, with instructions not inconsistent with this opinion. | [
-12,
106,
-11,
108,
-118,
96,
42,
-118,
107,
-128,
55,
91,
-81,
-60,
5,
101,
-9,
121,
-27,
122,
85,
-78,
103,
99,
-47,
-77,
-37,
-43,
-80,
79,
-28,
-41,
76,
16,
-62,
85,
-58,
-118,
-31,
22,
10,
5,
11,
108,
-39,
64,
52,
-69,
28,
79,
1,
-113,
-13,
44,
29,
107,
104,
40,
91,
61,
-48,
-112,
-101,
-123,
95,
7,
-111,
5,
-104,
67,
74,
10,
-112,
53,
1,
-24,
118,
-74,
-106,
116,
75,
-103,
8,
38,
98,
34,
-63,
-19,
-4,
-40,
46,
-2,
31,
-90,
-109,
88,
98,
1,
-74,
-99,
88,
80,
7,
126,
-26,
-115,
28,
109,
45,
-49,
-42,
-125,
-113,
116,
-97,
11,
-1,
7,
32,
64,
-51,
-90,
93,
102,
127,
-101,
14,
-35
] |
Robert H. Dudley, Justice.
Appellant, Dennis Russell, tried to kill his daughter and mother and, as a result, was charged with two (2) counts of attempted first degree murder. The counts were tried together. He was convicted of attempted first degree murder for the attack on his daughter and attempted second degree murder for the attack on his mother. He appeals from both convictions in this one appeal. We affirm both convictions.
The evidence, when viewed most favorably to the appellee State, is as follows. On the evening of the attack, the appellant was driving his mother’s car from Benton to Mena. His mother, Mary Nelson, was in the front passenger’s seat. Two (2) children were in the rear seats; his eight-year-old niece, Kelly Russell, was in the right rear seat, and his two-year-old daughter, Christi Russell, was in the left rear seat. He drove slowly and made frequent stops to smoke cigarettes. His mother became agitated and asked him to speed up. He stopped the car, hit his mother in the face, and choked her. He then began stabbing her with a screwdriver. He started the car and began to drive. He steered with his left hand and continued to stab his mother with the screwdriver in his right hand. His mother finally grabbed the steering wheel and turned the car. He had to stop. She jumped out and fell down into a culvert. When she was found later, she had twenty-two (22) stab wounds, some of them being deep.
A state trooper saw her and stopped. She told him what had happened. He radioed for emergency medical help for the mother, left her with a motorist who had stopped, and started looking for appellant. He found him about half a mile away, near the mother’s parked car. Inside the parked car were the two (2) girls. His two year old daughter, Christi, had numerous stab wounds, one stab being so vicious that it had broken a bone in her chest.
Shortly thereafter, an ambulance driven by Scott Brakefield, arrived. Brakefield and the other emergency medical technician placed the mother, Mary Nelson, and the two-year-old, Christi, in the back of the ambulance and put the eight-year-old niece, Kelly, in the front passenger’s seat. Brakefield started driving the ambulance to the nearest hospital which was in Hot Springs.
At trial, Brakefield testified that Kelly was talking nervously and told him that she was scared. She was rambling and said, “He was stabbing her.” Brakefield asked, “Who was stabbing?” and Kelly replied, “Dennis.” Brakefield also stated that Kelly told him, “Dennis told Mary he was going to kill her.” Brakefield was at the scene for a total of twelve (12) minutes and the ambulance ride took forty-two (42) minutes.
Appellant objected to this testimony on the ground of hearsay and, more specifically, that the excited utterance exception did not apply because too much time had elapsed between the startling event and the girl’s statements. On appeal, Russell argues; (1) that the girl’s statements did not come within the excited utterance exception and (2) that there was no evidence that the girl possessed sufficient intelligence to render her statements reliable.
As for his first argument, A.R.E. Rule 803(2) provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
The following are requirements for admissibility of hearsay under the excited utterance exception:
(a) Nature of the occasion. There must be some occurrence, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. . . . [I]n practically all of the instances — involving statements after corporal injury by violence — such conditions are in fact present, and this requirement is fulfilled. . . .
(b) Time of the utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.
It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. . . .
Furthermore, there can be no definite and fixed limit of time. Each case must depend upon its own circumstances: . . .
(c) Subject of the utterance. The utterance must relate to the circumstances of the occurrence preceding it. . . . (Emphasis in the original.)
6 J. H. Wigmore, Evidence § 1750 (Chadbourn rev. 1976)
Upon the ordinary principal applicable to all testimonial evidence, and therefore to hearsay statements offered under these exceptions, the declarant must appear to have had an opportunity to observe personally the matter of which he speaks. . . . (Emphasis in the original. Citations omitted.)
Id. at § 1751.
Here, the declarant was an eight-year-old girl who witnessed her uncle commit a violent attack upon her grandmother and two-year-old cousin. By the very nature of the occurrence, it was a startling event for her. Less than one hour elapsed between the event and Kelly’s statements to the ambulance driver. Her statements were made under the influence of the excitement of the startling event. She made them while riding in the ambulance with her profusely bleeding and seriously injured grandmother and cousin. Her speech was rambling, and she said she was still scared.The statements were obviously related to the preceding startling event. Thus, the trial court properly admitted Kelly’s statements under the hearsay exception for excited utterances.
In the second part of his argument on the excited utterance, appellant contends that the trial court erred in admitting the statement without a showing that Kelly was competent to testify. No such showing was necessary, as we explained in Bryan v. State, 288 Ark. 125, 702 S.W.2d 785 (1986). The reason is that, although the hearsay statement lacks the safeguard of being made under oath, the probability of truth in an excited utterance supplies a reliable safeguard.
Appellant next argues that the trial court erred in admitting the opinion testimony of a second emergency medical technician, Reith Stanley, concerning the instrument which caused Mary Nelson’s wounds. Stanley attended Nelson in the ambulance. During the State’s direct examination of him, he stated that he had previously observed wounds made by screwdrivers. He testified that Nelson’s wounds were square-shaped. He stated that it was his opinion that her wounds were caused by a square-headed or a Phillips head screwdriver. Appellant argues that Stanley should not have been allowed to testify concerning the cause of the wounds because this is a matter which requires specialized training and expertise.
A.R.E. Rule 701 states:
Opinion testimony by lay witnesses. 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.
Lay witnesses are permitted to give their opinion as to the cause of death or other physical condition if the witness is qualified by experience and observation with regard to the subject matter. McAway v. Holland, 266 Ark. 878, 599 S.W.2d 387 (Ark. App. 1979).
We have written that the requirements of Rule 701 are as follows:
[I]n order to satisfy the first requirement of Rule 701, the testimony must initially pass the personal knowledge test of A.R.E. Rule 602. But, even if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connections test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’” Id. at 701-11. If however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. Id. at 701-12, -13.
Carton v. Missouri Pac. R.R., 303 Ark. 568, 571-2, 798 S.W.2d 674, 675 (1990) (quoting 3 Weinstein’s Evidence ¶ 701 [02], at 701-11, -12, -13 (1987)).
Here, Stanley’s testimony concerning the instrument with which Mrs. Nelson’s injuries were inflicted was based on his personal knowledge and the observation of her wounds. The opinion was one which a normal person who had previously seen puncture wounds made by screwdrivers would form. Finally, his opinion was helpful to the determination of a fact in issue, the cause of Mrs. Nelson’s wounds. The trial court did not abuse its discretion in admitting the testimony.
Russell’s final argument is that the trial court erred in not granting his motion for a mistrial based upon Nelson’s testimony that she had to assist appellant with visitation of his daughter “[b]ecause he’d made so many threats against his ex-wife—.” Nelson gave this testimony during the State’s rebuttal. Appellant objected and asked for a cautionary instruction to the jury. The trial court sustained his objection and instructed the jury to disregard the testimony. Russell later moved for a mistrial after the direct rebuttal examination was completed. The court denied this motion.
The testimony to which appellant objected followed his own direct testimony in which he testified:
And, then we proceeded to go to Mena to pick up my baby, my little girl. And, she let me off at McDonald’s because they don’t want me to know where my ex-wife lives or nothing, you know, and they’ve got all kinds of judgments and things saying I can’t go see her or nothing so she can stay hid out from me.
Russell further testified that he could see his daughter only when he was accompanied by his mother. With this testimony, Russell “opened the door” to questions concerning why he was unable to see his ex-wife and, therefore, needed assistance with visitation of his daughter. “One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he was responsible.” Berry v. State, 278 Ark. 578, 583, 647 S.W.2d 453, 457 (1983).
More importantly, it is a settled rule of law that a mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge and the exercise of that discretion should not be disturbed on appeal unless an abuse of the discretion is shown. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979).
Considering all the evidence in this case, Nelson’s statement was not so prejudicial as to warrant a mistrial. The court acted properly in admonishing the jury to disregard her statement and continuing the trial.
Affirmed. | [
81,
-20,
-92,
-66,
27,
97,
42,
10,
113,
-101,
-27,
-13,
-85,
-53,
65,
107,
-50,
-91,
116,
105,
-73,
-77,
7,
105,
-6,
-13,
49,
-43,
-94,
73,
-76,
-9,
12,
80,
-54,
85,
98,
11,
-27,
-48,
6,
2,
-88,
-16,
75,
18,
-92,
123,
86,
7,
117,
-114,
-30,
42,
28,
-61,
-120,
42,
75,
-67,
88,
49,
13,
-105,
-97,
16,
-94,
-58,
-66,
-127,
-38,
62,
-103,
57,
0,
-84,
115,
-122,
2,
84,
109,
-119,
12,
98,
98,
3,
-7,
-59,
-23,
-120,
46,
110,
-115,
-121,
26,
105,
1,
5,
-65,
-71,
126,
52,
14,
-16,
-1,
85,
93,
108,
36,
-49,
20,
-95,
-51,
40,
90,
104,
-29,
13,
38,
117,
-35,
-14,
68,
69,
19,
-37,
18,
-109
] |
Steele Hays, Justice.
The appellee, Steven Earl Bonds, is an inmate currently confined in the Arkansas State Penitentiary serving a thirty-year sentence for a conviction of burglary in 1985. Bonds worked on the Capitol grounds from August 1988 to February 1989. Bonds filed a grievance with the Arkansas Department of Correction, Wrightsville Unit, seeking good-time benefits under Ark. Code Ann. § 12-30-408 (1987) (Act 440 of 1983) for the work done at the Capitol. He received no response. After Bonds wrote to the Governor, George Brewer, Classification Administrator for the Department of Correction, responded to Bond’s letter and informed him that Act 440 was repealed by Act 814 of 1983 and, therefore, inmates are not eligible to earn good-time under the provisions of Ark. Code Ann. § 12-30-408.
Thereafter Bonds filed a pro se petition in the Pulaski Circuit Court challenging the constitutionality of Act 709 of 1989 which amended the Arkansas Administrative Procedures Act by excluding prison inmates from judicial review of administrative adjudications. The respondents (now the appellants) moved to dismiss alleging that Bonds had no standing. The motion was denied. Bonds subsequently filed an amended petition seeking declaratory relief and reasserting that Act 709 was unconstitutional.
After a hearing, the Circuit Court found that the only issue addressed was the validity of Act 709 and held that Act 709 was unconstitutional. Appellants raise two grounds for reversal of the circuit court’s judgment: Bonds did not have standing to challenge Act 709 and the trial court erred in holding the act unconstitutional. We hold that the appellant had standing to challenge the constitutionality of Act 709; and the trial court did not err in finding the Act unconstitutional.
I
STANDING
Appellants state that their primary position has always been that while Bonds has standing to seek declaratory judgment of his rights regarding “good-time” under Act 440, he does not have standing to challenge Act 709, because there has been no administrative adjudication in this case.
But whether or not there was an administrative adjudication is not relevant where the sole issue is the constitutionality of Act 709 of 1989. Bonds sought declaratory relief pursuant to our Declaratory Judgment Act, Ark. Code Ann. §§ 16-111-101 through -16-111-111 (1987). Section 16-111-104 of the Act provides:
Any person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder.
See also Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985). (A defendant who had been convicted in a municipal court had standing to seek declaratory relief, to challenge the constitutionality of legislation creating the court, as a person whose rights were affected by the legislation).
Bonds argues that he had no other avenue through which he could obtain judicial review and Act 709 of 1989 specifically excludes such review for inmates. Bonds’ rights are directly affected by Act 709, thus, he has standing to challenge it.
II
Act 709 of 1989
Act 709, codified at Ark. Stat. Ann. § 25-15-212 (Supp. 1991), and entitled, Administrative Adjudication- Judicial Review, provides in part:
(a) In cases of adjudication, any person, except an inmate under sentence to the custody of the Department of Correction, who considers himself injured in his person, business, or property by final agency action shall be entitled to judicial review of the action under this sub-chapter. Nothing in this section shall be construed to limit other means of review provided by law. (Emphasis added).
Bonds contends that Act 709’s preclusion of inmates from judicial review of administrative action in state courts constitutes an unconstitutional denial of due process.
We review challenges to the constitutionality of statutes under the principle that statutes are presumed to be constitutional. First Nat’l Bank v. Arkansas State Bank Comm’r, 301 Ark. 1, 781 S.W.2d 744 (1989). Additionally, the burden of proving a statute unconstitutional is upon the party challenging it. Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991). On appeal, if it is possible to construe a statute as to meet the test of constitutionality, we will do so. Id.
We have recognized that administrative agencies, due to their specialization, experience, and greater flexibility of procedure, are better equipped than courts to analyze legal issues dealing with their agencies. First Nat'l Bank v. Arkansas State Bank Commissioner, supra. This accounts for the limited scope of review of administrative action and the reluctance of a court to substitute its judgment for that of the agency. Id.
In particular, the administration of prisons has generally been held to be beyond the province of the courts. Stevens v. State, 262 Ark. 216, 555 S.W.2d 229 (1977); Walker v. Lockhart, 713 F.2d 1378 (8th Cir. 1983). An exception to the courts’ reticence to entertain prisoner’s administrative complaints occurs when the petitioner asserts an infringement upon constitutional rights. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Glick v. Sargent, 696 F.2d 413 (8th Cir. 1983), Whittington v. Norris, 602 F.Supp. 954 (E.D. Ark. 1984). Likewise, it is a general rule that judicial review of administrative action may be granted or withheld by a legislature in its discretion except when the Constitution requires it. R. Pierce, S. Shapiro and P. Verkuil, Administrative Law and Process § 5.2 (1985); 73 A. C.J.S. Public Administrative Law and Procedures § 174 (1983); 2 Am. Jur. 2d Administrative Law § 565 (1962). H. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953).
Despite the dicta in case law and the strong suggestions advanced by the United States Supreme Court, as well as scholarly analysis, whether a statute that bars judicial review of a constitutional matter would be per se unconstitutional has not been clearly answered in present law. See 5 K. Davis, Administrative Law Treatise % 28:3 (2d ed. 1984). Whether there must be judicial review of the decision of an administrative body to revoke good-time credits was raised in Superintendent, Mass. Corr. Institution v. Hill, 472 U.S. 445 (1985). In Hill, the Supreme Court declined to directly answer the question by finding that the Massachusetts Court, in requiring judicial review, relied on state law rather than on federal constitutional principles; however, the Hill court did note that “[t]he extent to which legislatures may commit to an administrative body the unreviewable authority to make determinations implicating fundamental rights is a difficult question of constitutional law.” Id. at 451. The court also remarked, “[w]hether the Constitution requires judicial review is only at issue if such review is otherwise barred. . .” Id.
In this case, while it was suggested that inmates have other means of judicial review in state courts, nothing was shown justifying that conclusion. Representative Ron Fuller, the sponsor of Act 709, testified about the objective of the legislation and its emergency clause which states “. . . inmates of the Depart ment of Correction have numerous avenues of administrative due process; that it is not necessary to provide them with judicial review under the Arkansas Administrative Procedure Act. . . .” Fuller could not recall receiving any factual data to support that contention at the time he presented the bill to the judiciary committee. The other testimony relevant to this issue was a characterization of the disciplinary and grievance procedures held within the Department of Correction which were described by the appellant, the assistant to the director for the Department’s public and legislative relations, and the Wrightsville Unit’s Warden. There was evidence that an inmate has the right to appeal action taken in a disciplinary proceeding, however, that process ends at the level of the Director within the Department. That being so, it does not clearly appear from the record that an inmate in the Department of Correction has a means of judicial review in state courts of constitutional questions arising from administrative decisions.
We are reluctant to find legislative acts unconstitutional, however, we are compelled to affirm the trial court’s decision to insure that due process is afforded under the Arkansas and United States Constitutions. In doing so, we emphasize that Act 709 unconstitutionally deprives inmates of review of constitutional questions because judicial review of all other administrative questions may be granted, or withheld, according to the Legislature’s discretion.
Affirmed.
“And except when the Constitution requires it judicial review of administrative action may be granted or withheld as Congress chooses.” Estep v. United States, 327 U.S. 114, 120 (1946); “Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to courts is essential to the decision of such questions. . .” California v. Sanders, 430 U.S. 99, 109 (1977); see also, Johnson v. Robinson, 415 U.S. 361 (1974). | [
20,
-19,
-43,
-2,
11,
-63,
27,
-100,
115,
-85,
-91,
83,
-87,
-1,
16,
123,
49,
107,
117,
121,
93,
-73,
113,
97,
106,
-13,
-40,
87,
50,
75,
-4,
28,
72,
112,
-114,
-47,
-58,
-64,
-59,
28,
-118,
9,
-118,
88,
81,
-64,
48,
111,
30,
11,
113,
-98,
-85,
36,
16,
-22,
77,
108,
73,
45,
81,
-71,
-70,
13,
-17,
4,
-95,
-123,
-102,
7,
-40,
62,
-100,
52,
1,
-8,
51,
-74,
-122,
100,
111,
-103,
36,
98,
98,
-112,
53,
-9,
-88,
-88,
22,
-5,
-115,
-89,
-109,
81,
107,
69,
-122,
-99,
122,
-108,
6,
-4,
106,
-27,
92,
44,
13,
-50,
-2,
-95,
44,
121,
-108,
-85,
-53,
33,
112,
117,
-50,
-26,
95,
87,
121,
-33,
-50,
-44
] |
JOSEPHINE LINKER HART, Judge.
_JjThe Lamar Co., LLC d/b/a Lamar Advertising of Greenville (Lamar) appeals from the circuit court’s order affirming the Arkansas State Highway Commission’s decision to affirm appellee Arkansas State Highway and Transportation Department’s (AHTD) decision to deny Lamar’s request to renew permits for twenty-seven billboards because Lamar failed to timely renew the permits. On appeal, Lamar argues that the circuit court erred in not remanding the case to the Commission so it could consider a change in renewal deadlines, that the circuit court erred in not conducting a de novo review, and that the Commission’s decision was arbitrary, capricious, and an abuse of discretion. We affirm.
In 1997, the highways adjacent to the property on which these billboards are located were designated by AHTD as “scenic byways.” Pursuant to federal law, billboards cannot be |2erected on “scenic byways” unless they conform to federal guidelines. 23 U.S.C. § 131(g) (2006). None of these guidelines are met by the billboards in question. 23 U.S.C. § 131(c). Nevertheless, federal statutes and regulations allow states to adopt “grandfather clauses,” which allows signs lawfully erected prior to a change in regulations to remain but are then classified as “nonconforming.” 23 U.S.C. § 131(o); 23 C.F.R. § 750.707(c) (2011). The regulations de- fíne a nonconforming sign as “[o]ne which was lawfully erected, but which does not comply with the provisions of State law or State regulations passed at a later date or which later fails to comply with State law or State regulations due to changed conditions.” 23 C.F.R. §§ 750.803(e), 750.707(b). Other regulations provide that, for a nonconforming sign to be continued and maintained, it “must have been lawful on the effective date of the State law or regulations, and must continue to be lawfully maintained.” 23 C.F.R. § 750.707(d). Thus, under federal law, Lamar’s billboards at issue would be deemed “nonconforming.”
The Arkansas Highway Beautification Act, codified at Arkansas Code Annotated §§ |R27 — 74—101 to -502 (Repl.2010), was adopted pursuant to this congressional directive. Our General Assembly vested the State Highway Commission with regulatory authority to enforce the Act. Ark.Code Ann. §§ 27-74-203, 27-74-211. State law thus acknowledges the federal law’s limitations on the erection of billboards on scenic byways. See Ark.Code Ann. § 27-74-204(c). Further, state law reflects that nonconforming billboards may be granted exceptions. See Ark. Code Ann. § 27-74-204(b).
AHTD regulations provide two different types of permits, Class A permits for conforming devices and Class B permits for existing nonconforming devices. See Revised Regulations for Issuance of Permits for Outdoor Advertising Devices and Signs, Section 3, p. 21. Class B permits, the type of permits issued for the twenty-seven billboards in question, are subject to renewal on a biannual basis in December of even-numbered years. Under the regulations in force at the time, if permits were not renewed by December 31, the permit holder could still renew the permits by January 31 following the renewal date.
By letter dated November 30, 2004, Lamar was notified of the need to renew its Class B permits by December 31, 2004. Lamar failed to request renewal or pay the renewal fee for its permits until February 28, 2005. The untimely applications were denied. AHTD then informed Lamar that it could request new permits for the billboards. Lamar followed that advice and applied for new permits. However, AHTD denied Lamar’s new requests on the basis that its agreement with the federal government would not allow it to grant new Class B permits for signs along a scenic byway. Lamar appealed that decision to the Arkansas State Highway Commission, and a hearing was held on February 7, 2006.
14After the hearing, but before the Commission released its decision, the Commission issued a Minute Order on February 22, 2006, that authorized AHTD to issue regulations that made uniform the renewal processes for various types of permits. AHTD adopted regulations that provided:
Commencing December 2006, and each year thereafter, if the renewal application and fee are not received from the permit-owner by December 31, a second renewal notice will be sent to the permit-owner granting until January 31 to renew the permit.
If the renewal application and fee are not received from the permit-owner by January 81, a third renewal notice will be sent by certified mail stating that the permit has expired and a renewal application and fee must be received by the Arkansas State Highway and Transportation by the thirtieth day after January 31....
If the renewal application and fee are not received from the permit-owner by the thirtieth day after January 31, then the sign must be removed.
The new regulation thus extended the deadline by an additional thirty days past what was contemplated by the old regulation. Thus, had the regulation been in effect at the time Lamar sought renewal, its applications would have been timely.
On February 6, 2007, the Commission entered its order on Lamar’s appeal. It found that Lamar untimely submitted its applications for renewal of its Class B permits on February 28, 2005. The Commission also concluded that, because the highways were scenic byways, the billboards became illegal after the expiration of their permits on December 31, 2004. It further concluded that the state was not required to pay compensation for the removal of illegal billboards. Accordingly, the Commission affirmed AHTD’s decision to deny Lamar’s permit applications.
On February 27, 2007, Lamar filed its petition seeking judicial review of the IsCommission’s order. On May 31, 2007, Lamar filed a motion asking the circuit court to remand the case to the Commission so that the Commission could consider and give retroactive effect to the February 22, 2006 Minute Order and regulations. Lamar argued that the Minute Order should be given retroactive effect because it was procedural and remedial. After a hearing, the circuit court denied the motion to remand, finding that the Minute Order and new regulations were not relevant.
Lamar amended its petition for review. The petition alleged that Lamar’s interests in the billboards were constitutionally protected by the Arkansas Constitution and, therefore, Lamar was entitled to a de novo review pursuant to ArkCode Ann. § 27-74-203. In the alternative, Lamar sought to appeal pursuant to the Arkansas Administrative Procedure Act.
The circuit court entered an order finding that substantial evidence supported the Commission’s decision affirming AHTD’s determination and that it was neither arbitrary and capricious nor an abuse of discretion. Further, the court affirmed the Commission’s decision to deny compensation and found that Lamar was not entitled to a de novo review of the Commission’s decision.
Review of administrative agency decisions, by both the circuit court and the appellate courts, is limited in scope. See Seiz Co. v. Arkansas State Highway & Transp. Dep’t, 2009 Ark. 361, 324 S.W.3d 336. The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency’s findings. See id. The appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, ^insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. See id. When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. See id. We review issues of statutory interpretation de novo; however, the interpretation placed on a statute or regulation by an agency or department charged with its administration is entitled to great deference and should not be overturned unless clearly wrong. See id.
Lamar first argues that the circuit court erred in failing to remand this case to the Commission so that, under the new renewal deadlines, its applications for renewal of its permits would be considered timely. The general rule is that, unless expressly stated otherwise, statutes and regulations are presumed to apply only prospectively, unless they are remedial or procedural. See JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 183 S.W.3d 560 (2004). Here, the regulation specifically provides that it commences with renewals in December 2006, indicating that it was intended to operate prospectively only. See Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007); Jur-isDictionUSA, supra. Therefore, the circuit court did not err in not remanding the case to the Commission for consideration of the regulation and its effect on Lamar’s applications.
In its second point, Lamar argues that the circuit court erred in not conducting a de novo hearing under Ark.Code Ann. § 27-74-203(e), which provides in part as follows:
Any person whose business or property has been injured by a final adverse decision from the commission shall be entitled to a judicial hearing de novo ... in the Pulaski County Circuit Court if the interests affected by the decision of the commission are constitutionally or statutorily preserved, or preserved by private |7agreement, so that their enforcement is a matter of right.
In Lamar Outdoor Advertising, Inc. v. Arkansas State Highway & Transportation Department, 84 Ark.App. 72, 133 S.W.3d 412 (2003), we held that Lamar was not entitled to a de novo appeal to circuit court because its right to a permit to erect a billboard was not statutorily protected. Lamar argues that Lamar Outdoor Advertising is inapplicable because it involved the erection of a billboard, not the denial of a renewal permit. The present case is similar to the earlier case, however, because compliance with the regulations is required in order to either erect or maintain a billboard. Ark. Code Ann. § 27-74-203(a). Moreover, our supreme court has said that
[t]he outdoor advertising sign ... is not maintainable as a matter of right; such signs have been prohibited altogether. See the extended discussion in General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935).
Board of Adjustment v. Osage Oil & Transp., Inc., 258 Ark. 91, 94, 522 S.W.2d 836, 838 (1975); see also Donrey Comme’ns Co. v. Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (1983).
Lamar also argues that it is entitled to de novo review under section 27-74-203(c) because its rights are statutorily preserved by section 27-74-208, which requires payment of compensation when AHTD requires the removal of a billboard. Section 27-74-208 provides in pertinent part as follows:
(a) The State Highway Commission is authorized and empowered to require the removal of all outdoor advertising signs, displays, and devices not in conformity with this subchapter, which right may be enforced by means of a mandatory injunction or other appropriate remedy.
_|& • • •
(c) Compensation shall be paid for the taking from the owner of any sign, display, or device, of all right, title, leasehold, and interest in, any sign, display, or device, and the taking from the owner of the real property on which the sign, display, or device is located, of the right to erect and maintain any signs, displays, and devices thereon.
Ark.Code Ann. § 27~74-208(a), (c). It is important to note that the decision under review is the denial of renewal permits, not a takings claim. At this point, AHTD has not ordered Lamar to remove the billboards and Lamar has not filed a claim seeking compensation from AHTD, either before the Commission or the circuit court. Until that happens, Lamar’s argument about being entitled to compensation is premature, as is its claim to entitlement to a de novo hearing on compensation. Thus, Lamar’s right to a permit was not statutorily or constitutionally protected, and it was not entitled to de novo review of the decision denying its renewal permits.
Finally, Lamar argues that the commission’s decision to deny the permits was arbitrary and capricious because it was based on an erroneous view of the law. This point has several parts. The requirement that the agency’s decision not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Collie v. Arkansas State Med. Bd., 370 Ark. 180, 258 S.W.3d 367 (2007). To be invalid as arbitrary or capricious, an agency’s decision must lack a rational basis or rely on a finding of fact based on an erroneous view of the law. Id. Where the agency’s decision is supported by substantial evidence, it automatically follows that it cannot be classified as unreasonable or arbitrary. Id.
Under this point, Lamar first argues that its signs were misclassified as 1 ¿‘nonconforming,” based on the designation of several of the highways on which they were located as “scenic byways” in 1997. Lamar relies on Ark.Code Ann. § 27-74-204(e):
(c) The erection of outdoor advertising signs, displays, and devices along a scenic byway shall be limited to those permitted by 23 U.S.C. § 131(c).
Based on this language, Lamar argues that nothing in section 131 prohibits the maintenance of signs already erected. It also argues that neither state nor federal law prohibits the maintenance of a billboard lawfully erected before the highway to which it is adjacent was reclassified as a “scenic byway.” As already noted, however, section 131(c), by its terms, limits billboards to only directional and official signs within view of the highways. See State of South Dakota v. Adams, 587 F.2d 915, 917 n. 3 (8th Cir.1978). In Arkansas State Highway and Transportation Department v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996), our supreme court noted that permits are required and, without a permit, a billboard cannot be lawfully maintained. Lamar’s signs were initially lawfully erected and permitted. Conditions changed in 1997 when the highways were redesignat-ed as scenic byways. Lamar continued to renew the Class B permits for those signs until December 2004, when it failed to timely submit renewal applications. Upon the failure to renew the permits, they expired. Thus, the billboards could not be lawfully maintained without permits.
Lamar next argues that it was entitled to notice sent by certified mail pursuant to Ark.Code Ann. § 27-74-207. This issue is not preserved for appeal because Lamar did not obtain a ruling on the issue of the applicability of section 27-74-207 from the Commission. The only statement contained in the agency’s ruling pertaining to notice was that Lamar was properly notified that its permits had been changed to Class B permits. It is well settled that we will not |inset aside an administrative determination on a ground not presented to the administrative agency because to do so would deprive the agency of the opportunity to consider the matter, make its ruling, and state the reasons for its action. See Seiz Co., supra. This preservation rule applies even though Lamar raised the issue in the circuit court. Arkansas Bd. of Examiners in Counseling v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998).
Lastly, Lamar argues that the Commission erred in excluding evidence of AHTD’s discriminatory practices. Lamar argues that it was arbitrary and capricious for the agency not to consider all relevant and material evidence.
Lamar sought to have Larry Long, the head of AHTD’s Beautification Section for more than twenty years, testify as to two active Class B permits that were apparently issued after a Class A permit was not timely renewed or a change in conditions occurred. The hearing officer excluded the evidence as being irrelevant. Lamar then proffered Long’s testimony and the applications for the two permits.
Administrative action may be viewed as arbitrary and capricious only when it is not supported by any rational basis. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). It appears that the two permits identified by Long were for signs located within city limits in commercial zones. On the other hand, Lamar’s permits were for signs adjacent to scenic byways for which no new permits could be issued. It was Lamar’s burden to show that it was similarly situated to the other permit holder so that there would be no rational basis for the difference in treatment. Pine Bluff for Safe Disposal v. Arkansas Pollution Control & Ecology Comm’n, 354 Ark. 563, 127 S.W.3d 509 (2003). It did not do so. Based on |nthe differences in the facts surrounding the two permits discussed in the proffer and the lack of evidence showing that Lamar was similarly situated, we cannot say that the agency was arbitrary or capricious in not considering the evidence.
Affirmed.
GRUBER and BROWN, JJ., agree.
. Section 750.707(c) reads as follows:
(c) Grandfather clause. At the option of the State, the agreement may contain a grandfather clause under which criteria relative to size, lighting, and spacing of signs in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way apply only to new signs to be erected after the date specified in the agreement. Any sign lawfully in existence in a commercial or industrial area on such date may remain even though it may not comply with the size, lighting, or spacing criteria. This clause only allows an individual sign at its particular location for the duration of its normal life subject to customary maintenance. Preexisting signs covered by a grandfather clause, which do not comply with the agreement criteria have the status of nonconforming signs.
. Section 303(e) goes on to provide that illegally erected or maintained signs are not nonconforming signs while section 707(b) provides some examples of what are changed conditions.
. Lamar also relies on a comparable provision of federal law that also requires just compensation. See 23 U.S.C. § 131(g) (2006). | [
-79,
-1,
-43,
-84,
75,
-64,
82,
-107,
-101,
-15,
109,
83,
-17,
-14,
28,
59,
-85,
47,
113,
75,
-43,
-77,
1,
32,
70,
-41,
-61,
-41,
48,
91,
-10,
126,
76,
48,
-54,
-43,
68,
74,
-123,
-40,
-18,
1,
25,
121,
-111,
-59,
56,
43,
70,
-113,
69,
-99,
-13,
62,
25,
74,
105,
108,
89,
43,
74,
-72,
-40,
93,
107,
4,
-77,
52,
27,
5,
88,
8,
-108,
48,
8,
-8,
115,
54,
102,
36,
79,
-39,
-120,
48,
103,
0,
25,
-1,
-116,
-88,
71,
-38,
-119,
-90,
-126,
25,
75,
5,
-97,
20,
116,
6,
7,
122,
126,
-43,
83,
108,
3,
-50,
56,
-79,
117,
112,
-124,
65,
-21,
-63,
-79,
85,
-49,
-26,
87,
-97,
16,
30,
-122,
-28
] |
JOHN MAUZY PITTMAN, Judge.
| ,This appeal involves the admissibility of expert-witness testimony. Appellant Terry Richardson was employed by appel-lee Union Pacific Railroad Company and its predecessor as a brakeman, conductor, and hostler from 1971 until 2006, when he was diagnosed with a type of cancer known as multiple myeloma. He brought this action against appellee under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (FELA), alleging that his exposure to diesel fuel, diesel exhaust, creosote, and pesticides during his employment with ap-pellee caused his cancer. The Pulaski County Circuit Court on March 9, 2010, granted appellee’s motion in limine excluding appellant’s experts’ testimony. Because appellant could not prove causation without the experts’ testimony, the court granted summary judgment to appellee. Appellant then pursued this appeal.
12Summary 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. Green v. Alpharma, Inc., 878 Ark. 378, 284 S.W.3d 29 (2008). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. When a party cannot present proof on an essential element of his claim, the moving party is entitled to summary judgment as a matter of law. Schmoll v. Hartford Cas. Ins. Co., 104 Ark. App. 215, 290 S.W.3d 41 (2008).
It is not disputed that the material question of causation was left unanswered in the absence of the excluded testimony, so the question before us is whether the trial court erred in granting appellee’s motion in limine. Appellant advances a plethora of arguments on this issue, but they resolve into two crucial questions: What is the standard of review in an appeal from a trial court’s ruling on the scientific validity underpinning expert opinion, and to what extent must a toxic-tort plaintiff prove the degree of exposure to the allegedly toxic substance in order to establish causation? We hold that the abuse-of-discretion standard is applicable. We further hold that causation requires more than mere proof of exposure to above-ambient |slevels of the alleged toxin, and instead requires evidence of the levels of exposure that are hazardous to human beings generally, as well as the plaintiffs actual level of exposure to the defendant’s toxic substance.
FELA provides for concurrent jurisdiction of the state and federal courts. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007); 45 U.S.C. § 56 (2011). Although state courts use state procedural rules, substantive issues, such as causation, are governed by FELA. Norfolk S. Ry. Co. v. Sorrell, supra. The test of causation under FELA is much easier to prove than in state tort cases; it is whether the railroad’s negligence played “any part, even the slightest,” in the injury that is the subject of the suit. Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); see also Fletcher v. Union Pac. R.R. Co., 621 F.2d 902 (8th Cir.1980), cert. denied, 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981).
In a FELA context, when there is no obvious origin to an injury and it has multiple potential etiologies, expert testimony is necessary to establish causation. Aurand v. Norfolk S. Ry. Co., 802 F.Supp.2d 950 (N.D.Ind.2011). The trial court must engage in a three-step inquiry before admitting expert testimony. First, it must determine whether the witness is qualified; second, whether the expert’s methodology is scientifically reliable; and third, whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. Id.
A toxic tort plaintiff must adduce evidence of both general and specific causation. Id. General causation addresses whether a particular agent can cause a particular illness. Id. |4Specific causation addresses whether that agent in fact caused the particular plaintiffs illness. Id. There is a two-step process in examining the admissibility of causation evidence in toxic-tort cases. First, the trial court must determine whether there is general causation; second, if it concludes that there is admissible general-causation evidence, it must determine whether there is admissible specific-causation evidence. Id. In toxic-tort cases, an expert may be able to testify that a chemical can cause the plaintiffs illness, but not that this chemical caused this particular illness. Id. Differential etiology is a methodology commonly used to determine the cause of an illness. Id. The doctor rules in all of the potential causes, and then, by systematically ruling out causes that would not apply to this plaintiff, the doctor arrives at what is the likely cause of the illness. Id. Whether such a methodology supporting an expert’s opinion is reliable is determined on a case-by-case basis. Id.
Appellant obtained Roger Wabeke, an industrial hygienist and toxicologist, and Nachman Brautbar, M.D., who is board-certified in internal medicine, ne-phrology, and forensic medicine, as expert witnesses. With supporting opinions from its own experts, appellee moved to exclude their opinions on the grounds that they were unreliable and did not meet the requirements of Arkansas Rule of Evidence 702 and the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which the Arkansas Supreme Court adopted in Fami Bureau Mutual Insurance Company of Arkansas, Inc. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000). Rule 702 (2011) provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the | r,evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Under Daubert and Foote, the circuit court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts of the case. Coca-Cola Bottling Co. of Memphis v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003).
In Daubert, the United States Supreme Court imposed an obligation upon a trial judge to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. A primary factor for a trial court to consider in determining the admissibility of scientific evidence is whether the scientific theory can be or has been tested; other factors include whether the theory has been subjected to peer review and publication, the potential error rate, and the existence and maintenance of standards controlling the technique’s operation. Id. It is also significant whether the scientific community has generally accepted the theory. Id. The Court established the following inquiry to be conducted by a trial judge when faced with a proffer of expert scientific testimony:
[T]he trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.... Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.
I r509 U.S. at 592-93,113 S.Ct. 2786.
The Court stated that some general observations, however, are appropriate:
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested....
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability ... and in some instances well-grounded but innovative theories will not have been published .... The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dis-positive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.
Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error....
Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” United States v. Downing, 753 F.2d [1224], at 1238 [ (3d Cir.1985) ]. See also 3 Weinstien & Berger ¶ 702[03], pp. 701-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” Downing, 753 F.2d, at 1238, may properly be viewed with skepticism.
509 U.S. at 593-94, 113 S.Ct. 2786.
The Court also indicated that certain devices, such as vigorous cross-examination, presentation of contrary evidence, careful instruction on the burden of proof, or the entry of a directed verdict, rather than wholesale exclusion, are appropriate safeguards where the basis of “shaky but admissible” scientific evidence meets the standards of Rule 702. 509 U.S. at 596, 113 S.Ct. 2786. The Court explained:
|7The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
509 U.S. at 594-95, 113 S.Ct. 2786. The Court stressed in Daubert that the inquiry envisioned by Rule 702 analysis is a flexible one, that many factors will bear on the inquiry, and that it did not presume to give a definitive checklist.
In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the trial judge’s basic gatekeep-ing function imposed in Daubert applies to all, and not just scientific, expert testimony; it emphasized that the trial court has broad latitude in determining the reliability of an expert’s testimony and that the Daubert factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony. The Court discussed the objective of the trial judge’s gatekeeping requirement as follows:
The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the particular questions that it mentioned will often be appropriate for use in determining the reliability of challenged expert testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other 1 ¡¡proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert’s relevant testimony is reliable. Our opinion in [General Electric Co. v.] Joiner [522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ] makes clear that a court of appeals is to apply an abuse-of-discretion standard when it “review[s] a trial court’s decision to admit or exclude expert testimony.” 522 U.S., at 138-139, 118 S.Ct. 512. That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion. Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary “reliability” proceedings in ordinary cases where the reliability of an expert’s methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises. Indeed, the Rules seek to avoid “unjustifiable expense and delay” as part of their search for “truth” and the “jus[t] determin[ation]” of proceedings. Fed. Rule Evid. 102. Thus, whether Daubert’s specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine. See Joiner, supra, at 143, 118 S.Ct. 512.
526 U.S. at 152-53, 119 S.Ct. 1167.
The Arkansas Supreme Court first applied the Daubert analysis in Foote, supra, affirming the trial court’s refusal to allow an Arkansas State Police investigator to testify about the superior ability of his canine partner to detect the presence of accelerants after a fire. The court noted that, according to Daubert, a key consideration is whether the scientific theory or technique can be or has been tested and that other considerations include whether the theory or technique has been subjected to peer review and publication, the potential rate of error, the existence and maintenance of standards controlling the technique’s operation, and the general acceptance in the scientific community. The court explained its decision as follows:
In the present case, we conclude that the proffered testimony concerning the dog’s alleged superior ability to detect the presence of accelerants does not pass muster using either the Daubert or Prater [v. State, 307 Ark. 180, 820 S.W.2d 429 (1991) ] ^analysis. Farm Bureau simply did not make any showing regarding the scientific validity of the evidence. For instance, Estes did not produce the study allegedly conducted by Lockridge, so there was no way of ascertaining the techniques used or the potential rate of error. There was no evidence that this scientific theory had ever been tested or subjected to peer review, or that it had been otherwise embraced by the particular scientific community. In short, Farm Bureau, as the proponent of the novel scientific evidence, failed to carry its burden of proof on the issue of reliability.
341 Ark. at 117, 14 S.W.3d at 520. As in Kumho, the Arkansas Supreme Court has held that the requirements of Rule 702 apply equally to all types of expert testimony, not simply to scientific expert testimony. Coca-Cola Bottling Co., supra.
In Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001), this court followed Foote, supra, and applied the Daubert guidelines in affirming the trial judge’s refusal to admit, as unreliable, the testimony of an expert witness as a defense to the crimes with which the appellant had been charged (raping his stepsons). The witness opined that Paxil, an antidepressant, caused deviant sexual behavior; however, she had conducted no clinical studies or laboratory research and had based her opinion on drug-experience reports and medical literature. This court explained:
The record contains no testimony or evidence that Dr. Tracy cited to demonstrate that the use of Paxil would cause a person to engage in deviant sexual activity or that Paxil specifically caused appellant to rape his stepsons. Moreover, the record demonstrates that the trial judge considered the factors enumerated in Foote in making his decision to exclude Dr. Tracy’s testimony. The court noted that Dr. Tracy’s methodology in conducting studies and reaching her conclusions were suspect and did not follow any accepted scientific method. The court further stated that Dr. Tracy’s proffered testimony displayed prejudice toward an entire series of drugs or classification of drugs, and that Dr. Tracy appeared to be on a crusade to eliminate the use of certain drugs, including Paxil. The court concluded that Dr. Tracy’s testimony would not be reliable or relevant and that even if the evidence were relevant, the testimony would mislead and confuse the jury.
1 mTrial judges serve as evidentiary gatekeepers for ensuring the reliability of proposed expert testimony. In this case, appellant failed to demonstrate 1) that the scientific community generally accepted Dr. Tracy’s theory that Paxil would cause a person to engage in deviant sexual activity, 2) that the theory could be or had been tested, 3) that the theory had been subject to peer review and publication, 4) the potential error rate of the theory, and 5) the existence and maintenance of standards of control. We hold that the trial court did not abuse its discretion by excluding Dr. Tracy’s testimony after finding that her methodology in conducting studies and reaching the conclusions on which her testimony was based were suspect and likely to mislead or confuse the jury.
75 Ark. App. at 28-29, 53 S.W.3d at 60-61.
In the present case, appellee argued in support of its motions in limine and for summary judgment that appellant had no evidence of his actual level of exposure; that Roger Wabeke’s and Dr. Brautbar’s opinions lacked valid methodology, reliability, and helpfulness; and that Dr. Braut-bar’s causation opinion should also be excluded because it lacked valid and reliable methodology. Appellant’s deposition was an exhibit to appellee’s brief in support of its motions in limine and for summary judgment. Appellant testified about his work conditions with appellee from 1971 until 2006. He described his job duties and how they brought him into contact with diesel exhaust, diesel fuel, and creosote-coated railroad ties. He also described his physical symptoms resulting from that exposure.
Appellee also offered the deposition of Roger Wabeke as an exhibit to its motions in limine and for summary judgment. Wa-beke testified that he read appellant’s deposition to get a sense of his work-place exposures; the affidavits of two of appellant’s co-workers, Fred Carrigan and Randy Smith; and a work history of appellant provided by his counsel. He said that, although he saw air measurements taken by appellee, he did not believe that it had Infollowed the standard of care for monitoring workplace exposure. He considered appellant’s exposure to diesel exhaust to be chronic, severe, extensive, and, at times, acute; he said that diesel-exhaust exposure generally results in a respiratory response and eye irritation; that he would measure respirable particulates in the breathing zone of locomotive-operating personnel and compare them to ambient concentrations of respirable particulates; and that the railroad’s air-monitoring tests were not taken within the breathing zone of operating personnel. He said that ap-pellee failed to protect employees from exposures in locomotive cabs and that it failed to provide mechanical local-exhaust ventilation at the fuel rack at its North Little Rock railyard, which he had not personally inspected. He said that benzene, which is present in gasoline and diesel, has been recognized as a human carcinogen by the Environmental Protection Agency, the American Conference of Governmental Industrial Hygienists, and the National Institute for Occupational Safety and Health. He said that benzene in diesel will pass through human skin and is distributed systematically, including to the bone marrow. He added that, at some level, benzene is ubiquitous. Wabeke’s reports to appellant’s counsel included abstracts of several research articles that he had studied. In his September 8, 2009 report, he stated:
I apologize for not including abstracts of several research articles that I studied in preparing my report. These articles are attached to this letter.
I did not perform an exhaustive review of the scientific literature on cancer and the relationship to diesel exhaust, benzene, and herbicides. It was not necessary. Over the years of my practice, I studied many too numerous to count. Some recent are attached. The epidemiology of benzene as a hemato-poietic carcinogen spans many decades that precede Mr. Richardson’s employment.
| Ti>These are enough for any corporate medical and occupational health department and them physicians and the industrial hygienists to treat as significant sentinel alerts for their employees. As I stated in my report, Union Pacific Railroad has an affirmative duty to preserve health of employees from exposures to all harmful toxicants. Occupational health professionals never wait for the nth study before they intervene. The evidence in these articles is sufficiently compelling to implement an occupational health program for the diesel fuel-, diesel exhaust-, and herbicide-exposed employees of Union Pacific.
These abstracts were of articles written by various authors, covering topics such as “Herbicides and cancer”; “Diesel asthma”; “Cancer mortality among licensed herbicide applicators”; “A retrospective cohort study of lung cancer and diesel exhaust exposure in railroad workers”; “An update on the immuno-pathogenesis of asthma as an inflammatory disease enhanced by environmental pollutants”; “Differences between cytokine release from bronchial epithelial cells of asthmatic patients and non-asthmatic subjects; effect of exposure to diesel exhaust particles”; “Respiratory effects of exposure to diesel traffic in persons with asthma”; “Respiratory effects of diesel exhaust emission”; “Different airway inflammatory responses in asthmatic and healthy humans exposed to diesel”; “Diesel exhaust enhances airway responsiveness in asthmatic subjects”; “Cancer incidence among pesticide applicators”; “Italian multicentre case-control study of hemoto-lymphopoietic malignancies”; “Pesticides and cancer risks in agriculture”; and “Paradigm change in the assessment of myeloid and lymphoid neoplasms associated with occupational benzene exposure.” Wabeke also submitted OSHA’s “Generic Cancer Policy” to support his opinion that appellant inhaled excessive benzene vapor and diesel-exhaust particulates.
| isThe deposition of Dr. Nachman Braut-bar was an exhibit to appellee’s brief in support of its motions in limine and for summary judgment. He said that he did a physical examination of appellant on July 18, 2007, and reviewed the medical literature, using the methodology of physicians in the fields of occupational medicine and toxicology to determine general causation, and then, specific causation. He also reviewed Mr. Wabeke’s report. He stated:
It [appellant’s exposure] is not quantitative, measured by parts per million, but it is qualitative. I did not make assumptions. I relied on Mr. Wabeke’s reports and what Mr. Richardson told me, what he described in his deposition, as to the conditions, frequency and severity of his exposure to diesel exhaust. Mr. Wabeke’s report talks of qualitative exposure as being substantial and extreme. He said inhalation exposures were not only excessive but would have been easily preventable by the railroad. The reports and depositions speak for themselves. The exposure to diesel exhaust was excessive, and it was more than someone not working on the railroad would be exposed to.
Dr. Brautbar described the peer-reviewed, scientific studies and articles that he had reviewed to support his opinion. He said that, although benzene levels can be measured in some circumstances, he had seen nothing to indicate that appellee had measured any of appellant’s work sta tions in his time with the railroad. “I did not have any quantitative number to evaluate his exposure. In occupational toxicology, it is rare to have a quantitative number. That’s why the standard of practice in this field requires a qualitative analysis — that is, frequency, extent and duration of exposure.” He stated that it was his opinion, with reasonable medical probability, that a substantial cause of appellant’s multiple myeloma was his exposure to diesel exhaust, creosote, herbicides, and pesticides. On cross-examination by 114appellee’s counsel, he agreed that benzene is everywhere and that we all are exposed to it at one level or another. He stated that it was not absolutely known how benzene causes leukemia, but the research over the last fifteen years had recognized that benzene damages many types of DNA. He stated, “Among experts you will always find some disagreements, but in the weight of the literature and with experts including toxicologists, epidemiologists, and occupational physicians, it is generally accepted that benzene causes multiple myeloma.”
The studies relied upon by Dr. Brautbar included: “Benzene Exposure and Multiple Myeloma, A detailed Meta-analysis of Benzene Cohort Studies,” by Peter In-fante; “A Case-Control Study of Multiple Myeloma Nested in the American Cancer Society Prospective Study” by P. Boffetta; “Airborne Concentrations of Benzene Due to Diesel Locomotive Exhaust in a Roundhouse” by Amy Madl; and “Is There a Causal Relationship Between Exposure to Diesel Exhaust and Multiple Myeloma?” by Otto Wong. Appellee also submitted the affidavit of Peter Valberg, Ph.D., a toxicologist. He stated that very little is known about the etiology of multiple myeloma; that various studies have not found an increased risk of multiple myeloma due to exposure to diesel fuel or diesel-engine exhaust; that there were serious flaws in Dr. Brautbar’s opinion; and that the articles Dr. Brautbar relied upon did not support his opinion. In detail, he described many flaws in Dr. Brautbar’s assertions:
52. Mr. Richardson’s exposure to herbicides was likely extremely limited when compared to typical exposures in occupations such as farming, and herbicide manufacture and application. In the 21-year time period between 1972 and 1992, Mr. Richardson rode the train that sprayed for weed containment along the right of ways approximately four or five times in total. The spraying process usually lasted for 2-3 weeks per track, and Mr. Richardson was on the train for a few days at a time in 10-{121E hr shifts. Mr. Richardson does not know the names of chemicals used for weed spraying. He would sit on the lead car (boxcar and not the engine, and upwind of the spraying) and watch workers spraying the tracks on each side right beside him. The boxcar was not air conditioned but had windows, and was approximately 10 feet by 20 feet in dimension. Mr. Richardson agreed that he never handled chemicals or had them on his person, and that he never experienced adverse symptoms associated with the weed spray.
53. In summary, all studies discussed in this section, and cited in Dr. Brautbar’s report, likely involved much higher exposures to herbicides than Mr. Richardson encountered during the few times that he was on the weed spraying train. Even in these literature studies, there is limited to no evidence for herbicide use being associated with increased incidence of MM. Alexander et al. (2007) reached a similar determination regarding the lack of evidence in the epidemio-logic literature for exposures to pesticides or herbicides, including those of applicators or sprayers, as a risk factor for multiple myeloma, concluding, “[R]e-sults among pesticide production workers, applicators, handlers and licensed users have been inconsistent; and collectively, do not provide strong support for an underlying causal association.” Caution is warranted when interpreting the outcomes of these studies because exposure was based on questionnaires and in some instances the questions were answered by proxy, i.e., by the partner or family member of the deceased, which renders the result heavily subject to recall bias. None of the reported associations were based on actual measurements of occupational and nonoccupational dermal or inhalation exposure to herbicides, and the length of use of these chemicals was absent in most cases. Moreover, the majority of the studies cited by Dr. Brautbar do not identify specific herbicides, rather they identify whether subjects had been exposed to any type of herbicide. Importantly, none of the studies cited by Dr. Brautbar identified railroad workers as being at increased risk for MM. Overall, based on my review of the relevant scientific literature and the information provided by Mr. Richardson on his possible exposure to herbicides during his employment with Union Pacific Railroad, it is my opinion that his exposure to herbicides cannot be expected to have been a substantial contributing factor to his developing MM.
Conclusions
54. In summary, I am not aware that any public-health or occupational-health agency has concluded that multiple mye-loma is an established health risk for railroad workers. Moreover, one of the more recent comprehensive reviews of the epidemiologic literature for multiple myeloma (Alexander et al., 2007) concluded, 1 ifjThere are currently no reliable or consistent predictors of risk for developing multiple myeloma, beyond race, age, and sex.” Considering the weight of available evidence, it is my opinion, to a reasonable degree of scientific certainty, that there is no sound toxicology or epidemiologic basis for concluding that Mr. Richardson’s work history with the Union Pacific Railroad and with diesel-engine locomotives caused or contributed to his multiple myeloma.
In response, appellant submitted Dr. Brautbar’s affidavit; the Infante article; the Boffetta article; Wabeke’s affidavit, with exhibits, including the affidavits of Fred Carrigan and Randy Smith; Material Data Safety Sheets; appellee’s responses to discovery; air-monitoring reports from 1986 and 1987; an article authored by Susan Woskle, “Estimation of the Diesel Exhaust Exposures of Railroad Workers”; and OSHA’s Generic Cancer Policy.
Along with the depositions, appellee submitted the affidavit of James Shea, Jr., a certified industrial hygienist, who criticized the methodology and the reliability of Dr. Brautbar’s and Mr. Wabeke’s opinions in detail and concluded that appellant was not exposed to unreasonable or unacceptable levels of diesel exhaust constituents or other chemicals during his employment. Appellee submitted Shea’s supplemental affidavit thoroughly criticizing Wabeke’s opinion. It further filed the affidavit of Bill Tranum, M.D., who is board-certified in internal medicine, hematology, and oncology. Dr. Tranum averred that the etiology of multiple myeloma remains unknown, although risk factors have been identified. He stated, “Exposure to irradiation has been the only consistent association with an increase in the development of multiple myeloma. Benzene, as a pure agent, or as a constituent of fuels, fumes, or vapors has been the most frequently investigated chemical.... ” He further stated:
|1710. In the major summary article by Dr. Infante, BENZENE EXPOSURE AND MULTIPLE MYELOMA, Ann. N.Y. Acad. Sci. 1076: 90-109 206, he reviews 8 cohort studies. In 7 of the studies, there is no statistically significant association between benzene exposure and the development of multiple myeloma. The remaining study involves the Pliofilm cohort from Ohio. In preparation of a water repellent sheeting, pure benzene and raw rubber were mixed. This study by Rinsky et al. had the most complete monitoring of benzene exposure and the development of disease than any published study. An elevated incidence of acute myeloid leukemia was noted in workers exposed to chronic elevated levels of benzene. In this study, published in 1987, there was a marginally elevated incidence of multiple myeloma. The same cohort of exposed workers was updated in a report by Rinsky et al. in 2002. Between the 1987 report and the 2002 update, there had been 4 additional cases of multiple myeloma identified, 3 in the control group and 1 in the exposed group. The statistical analysis at the time of the update failed to show a significant increase in the group exposed to benzene. They concluded that chronic exposure to inhaled benzene did not result in an increased incidence of multiple myeloma.
11. In the review article by Dr. In-fante referred to above, he included the 1987 report by Rinsky which had a marginal increase in multiple myeloma, but did not include the 2002 update which had no increase in multiple myeloma. My observation is that 8 cohort studies that show no statistical relationship between benzene exposure and the development of multiple myeloma are made no more reliable by applying selected exclusion and pooling of data to imply that a relationship does exist.
12. In an attempt to put to rest the notion that benzene and multiple myelo-ma are related, 5 of the leading myeloma clinicians, and 2 of the leading epidemiologists on the effect of benzene, authored a review article, Bergsagel, D.E. et. al., BENZENE AND MULTIPLE MYELOMA: APPRAISAL OF THE SCIENTIFIC EVIDENCE, Blood 94:1174 1999. Their conclusion was: “there is no scientific evidence to support a causal relationship between exposure to benzene or other petroleum products and the risk of developing multiple myeloma.”
At an evidentiary hearing on February 5, 2010, appellee presented the testimony of Dr. Peter Valberg, James Shea, and Dr. Bill Tranum. The circuit court granted appellee’s motion in limine, making the following ruling:
In support of his allegations, Richardson retained Mr. Wabeke as an industrial hygiene expert and Dr. Brautbar as medical doctor of toxicology expert. Mr. Wabeke |1sconcluded that Richardson was excessively exposed to diesel exhaust, herbicides, and other substances during his employment, relying heavily upon anecdotal testimony and one result of Union Pacific carbon monoxide testing performed in July 1986.
Richardson’s causation expert, Dr. Brautbar, concluded that Richardson’s exposure to diesel exhaust fumes, creosotes, herbicides and pesticides caused his multiple myeloma. Dr. Brautbar cited to many medical journal articles in support of his opinions, but testified that three articles upon which he relies are Flodin, U. et al. Multiple Myeloma and Engine Exhausts, Fresh Wood, and Creosote: a Case-referent Study, Am. J. Ind. Med.1987; 12(5):519-29; Boffetta, P. et al. A Case-control Study of Multiple Myeloma Nested in the American Cancer Society Prospective Study, Int. J. Cancer, 1989 Apr. 15;43(4):554-9; and Infante, P. et al. Benzene Exposure and Multiple Myeloma: A Detailed Meta-analysis of Benzene Cohort Studies, 2006 Ann. N.Y. Acad. Sci. 1076:90-109.
Union Pacific filed a motion to exclude the opinions of Mr. Wabeke and Dr. Brautbar. In support of its motion, Union Pacific offered the affidavits and testimony of Jim Shea, a certified industrial hygienist; Peter A. Valberg, Ph.D., a toxicologist; and Bill Tranum, M.D., a board certified oncologist and hematologist. Union Pacific also submitted various medical journal articles and other evidence in support of its motion. In opposition to the motion, Richardson submitted affidavits of Mr. Wabeke and Dr. Brautbar, which also attach various depositions, articles, and other documents.
The Court agrees with Union Pacific that the opinions of Richardson’s experts, Mr. Wabeke and Dr. Brautbar, do not meet the Ark. R. Evid. 702 and Daubert standards. With regard to Dr. Brautbar, it is apparent his literature citations are selective and, in part, are misconstrued and/or not relevant to the issues presented. He fails to consider numerous studies on the issues presented or to explain his rationale for not doing so, and he relies upon studies where the authors themselves limit or qualify the implications of their findings. Unsupported conclusions that do not consider relevant data lack reliability and the scientific methodology necessary to be considered valid expert opinions. Dr. Brautbar also lacks a reliable analysis, using generally accepted criteria, as to whether a finding of causation (as opposed to association) is supported. See Federal Judicial Center, Reference Manual on Scientific Evidence 333, 336, 375 (2nd ed.2000).
With regard to Mr. Wabeke, he has no evidence as to Plaintiffs actual exposure levels, and his opinions are not the result of a valid, reliable methodology that would be helpful to the factfinder. The lack of a valid, reliable methodology is demonstrated, in part, by: exposure opinions based upon anecdotal testimony without reliable ¡^scientific corroboration; the rejection, and rationale thereof, of Union Pacific industrial hygiene testing reports; and the citation to one Union Pacific testing result allegedly beneficial to his position, despite rejecting the validity of this and the remaining results.
Under these circumstances, the opinions of Mr. Wabeke and Dr. Brautbar remain nothing more than guesswork and are unreliable and unhelpful to the factfinder. See Savage v. Union Pac. R.R. Co., 67 F.Supp.2d 1021 (E.D.Ark.1999); see also Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir.1996); Ramsey v. Consolidated Rail Corp., 111 F.Supp.2d 1030 (N.D.Ind.2000). Based on the evidence submitted, the Court hereby grants Union Pacific’s Motion in Limine.
Appellant argues that the trial court erred in granting the motion in li-mine, acknowledging that the general rule is that whether to allow a witness to give expert testimony rests largely within the sound discretion of the trial judge, and that determination will not be reversed absent an abuse of that discretion. Coca-Cola Bottling Co., supra. In this case, however, he argues that the “abuse-of-discretion” rule should not apply; instead, he frames the issue on appeal as one of law, for which the appropriate standard of review is de novo. See Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004). He states:
But this standard of review is employed when examining how trial courts apply the applicable Rules of Evidence when the standards for their application are well known. This case is different. It examines precisely what the Rules of Evidence and the Daubert/Foote analysis require trial courts to do in reaching their decisions on scientific evidence in toxic tort cases where highly-qualified experts disagree on complex scientific issues. In other words, this case asks what the rules on admissibility are, not how they are to be applied.
Appellant contends that this court should establish the correct legal standards to be applied for expert testimony in toxic tort cases by following the Nebraska Supreme Court’s decisions in King v. Burlington Northern Santa Fe Railway Co., 277 Neb. 203, 762 N.W.2d 24 (2009), and Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006), and the Nebraska Court of Appeals’s decision in Boren v. Burlington Northern & Santa Fe Railway, 10 Neb. App. 766, 637 N.W.2d 910 (2002). Appellant asserts that the trial court erred, as a matter of law, in requiring him to prove, with a precise parts-per-million measurement, his exact exposure to toxic chemicals, and that, in doing so, it exceeded the Daubert “gatekeeper” role. “[W]hile the trial court acts as the evidentiary gatekeeper, it is not a goalkeeper.” King, 762 N.W.2d at 43.
We think that appellant’s argument has mischaracterized the trial court’s ruling as requiring precise proof of the degree of exposure to toxic chemicals, and we decline to adopt the Nebraska authorities urged by appellant. The rules of admissibility, even for toxic-tort cases in which experts disagree, were established in Daubert and Foote, and the controlling issue in this appeal is whether the trial court abused its discretion in applying those rules. In Kumho, supra, the United States Supreme Court made it clear that the appellate court is to apply an abuse-of-discretion standard in reviewing a trial court’s decision to admit or exclude evidence, adding, “That standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion.” 526 U.S. at 152, 119 S.Ct. 1167. Furthermore, the Arkansas Supreme Court has already rejected the precise argument raised by appellant, i.e., that a de novo standard of review should apply to review of a trial court’s ruling regarding the admissibility of evidence in the context of Daubert. In Green v. Alpharma, Inc., supra, a case involving the admissibility of expert testimony concerning a purported relationship between exposure to an arsenical compound in chicken litter and leukemia, the Arkansas Supreme Court refused to apply a de novo standard of review. Adhering to well-established, | ¾1 longstanding precedent holding that the appellate courts review the admission of expert testimony under an abuse-of-discretion standard, that court stated, “In discussing our standard of review for eviden-tiary rulings, we have 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.” 373 Ark. at 397, 284 S.W.3d at 43. In concluding that the trial court had not abused its discretion in excluding expert testimony, the supreme court emphasized that it gives the circuit court considerable leeway in deciding how to determine whether particular expert testimony is reliable and that the person offering such proof carries the burden of proof on the issue of reliability.
In King, supra, the Nebraska Supreme Court reversed a trial court’s entry of summary judgment for a railroad, holding that it had erred in determining that the expert opinion offered by the appellant (the administratrix of the estate of the decedent, a former railroad employee who died of multiple myeloma) was unreliable. The expert opined that the decedent’s exposure to diesel-exhaust fumes while working for the railroad more likely than not was a contributing cause of his disease. He testified that a body of evidence, including human data and toxicology studies, supported his conclusions but did not cite any epidemiological study concluding that exposure to diesel exhaust caused multiple myeloma. The railroad’s expert testified that the causes of multiple myeloma were unknown and that the majority of epidemiological studies failed to show that diesel exhaust can cause multiple myeloma. The trial court excluded the appellant’s expert under Daubert on the grounds that |22his opinion did not have general acceptance in the field, that the studies he relied on failed to conclusively state that exposure to diesel fuel exhaust causes multiple myelo-ma, and that his differential etiology was unreliable. The trial court then granted summary judgment to the railroad. The appellate court reversed, noting that the trial court had not inquired into the methodology used by the expert and held that individual epidemiological studies need not draw definitive conclusions on causation before experts can conclude that an agent can cause a disease.
The court began its analysis with an explanation of the distinction between general causation and specific causation:
Other courts have similarly distinguished between general and specific causation. In a toxic tort case, general causation addresses whether a substance is capable of causing a particular injury or condition in a population, while specific causation addresses whether a substance caused a particular individual’s injury. To prevail, a plaintiff must show both general and specific causation. But a court should first consider whether a party has presented admissible general causation evidence before considering the issue of admissible specific causation evidence.
The Federal Judicial Center’s Reference Manual on Scientific Evidence (Reference Manual) explains that epidemiology focuses on general causation rather than specific causation. Plaintiffs do not always need epidemiological studies to prove causation. Yet, frequently, plaintiffs find epidemiological studies indispensable in toxic tort cases when direct proof of causation is lacking.
762 N.W.2d at 34-35.
The court explained, at length, the types of studies that epidemiologists use to determine whether an association exists between a suspected agent and a disease, ways to assess their reliability, and the inferences that can be drawn from them. It noted that precise | ^information about the exposure necessary to cause harm and the plaintiffs exact exposure level are not always necessary to demonstrate that a substance is toxic to humans with substantial exposure; in occupational settings, humans are rarely exposed to chemicals in a manner permitting quantitative determination of adverse outcomes. It noted that the Eighth Circuit Court of Appeals had held, in Bonner v. ISP Technologies, Inc., 259 F.3d 924 (8th Cir.2001), that a plaintiff need not produce a mathematically precise table equating levels of exposure with levels of harm to show that he was exposed to a toxic level of a substance:
The court concluded that a plaintiffs claim does not fail simply because the medical literature had not yet conclusively shown the connection between the toxic substance and the plaintiffs condi tion. Thus, the court held that a plaintiff adduces sufficient evidence if a reasonable person could conclude that the plaintiffs exposure probably caused her injuries.
We have similarly upheld an expert’s reliance on evidence of the plaintiffs substantial exposure to a known toxic substance. So allowing semiquantitative or qualitative estimates of exposure from occupational studies and the plaintiffs testimony seems appropriate here. The evidence shows that the safe exposure levels to diesel exhaust are set low because it can unquestionably cause some diseases.
762 N.W.2d at 41.
The court exhaustively set forth broad standards to assist trial courts in determining the reliability of expert testimony based on epidemiological evidence, stating that the significance of epidemiological studies with weak positive associations is a question of weight, not admissibility, and that it would decline to impose a statistical-significance requirement if an expert shows that others in the field would nonetheless rely on the study to support a | ¡^causation opinion and that the probability of chance causing the study’s results is low. It had the following to say about the number of studies relied upon by an expert:
Epidemiological studies assume an important role in determining causation when they are available, and particularly when they are numerous and span a significant period. Courts should normally require more than one epidemiological study showing a positive association to establish general causation, because a study’s results must be capable of replication. But courts are understandably reluctant to set a specified minimum number of studies showing a positive association before an expert can reliably base an opinion on them — particularly when there are other, nonepidemiological studies also supporting the expert’s opinion.
But we do not preclude a trial court from considering as part of its reliability inquiry whether an expert has cherry-picked a couple of supporting studies from an overwhelming contrary body of literature. Here, however, we need not determine whether Frank relied on a sufficient number of epidemiological studies. While BNSF contests Frank’s studies on other grounds, it acknowledges that several studies have shown positive associations between multiple myeloma and exposure to diesel exhaust or benzene.
762 N.W.2d at 48.
The appellate court concluded that the district court had erred in concluding that the appellant’s expert witness’s causation opinion was unreliable because he could not point to a study that concluded that exposure to diesel exhaust caused multiple myeloma:
As explained, individual epidemiological studies need not draw definitive conclusions on causation before experts can conclude that an agent can cause a disease. If the expert’s methodology appears otherwise consistent with the standards set out above, the court should admit the expert’s opinion. But here, the court did not inquire into Frank’s methodology.
Instead, the court summarily dismissed Frank’s testimony as showing his reliance “on the ‘totality of information regarding multiple myeloma, benzene and diesel exhaust’ to reach his own subjective conclusions.” Yet Frank, while admitting that studies existed finding no relationship, testified that a body of evidence supported his conclusion that diesel exhaust can cause multiple myeloma. The evidence he cited | ^included human data studies, animal studies, and toxicology studies. Contrary to the district court’s finding, Frank’s testimony did not reflect a disconnect between an expert opinion and the underlying data. Frank’s inquiry required him to consult the relevant scientific literature and draw a conclusion. We recognize that we have not previously set out legal standards for trial courts to follow in these cases. But, here, the court only considered whether the studies Frank relied upon showed a definite conclusion on a causal relationship. The court erred in applying a “conclusive study” standard.
It is true that King’s evidence has some deficiencies. For some of the supporting studies Frank relied on, King only submitted to the court an abstract, or synopsis, of the study. And Frank failed to explain the criteria he used to reach his conclusion on causation. But these failures do not prove fatal here.
Although Frank did not personally conduct studies on the relationship between diesel exhaust and multiple mye-loma, he was qualified to interpret studies on that relationship. And his reasoning appears consistent with the causation criteria discussed above. More important, these deficiencies played no role in the district court’s decision because it only considered whether a study’s results showed a conclusive causal relationship. We reverse the decision of the Court of Appeals with directions to remand the cause to the district court for further proceedings, and the parties can present methodology evidence on remand.
We recognize that a court’s wrestling with this type of evidence is no small task. On remand, however, the district court may conduct a Daubert/Schafers-man [v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) ] hearing. It should resolve any questions that it has or that BNSF raises regarding the sufficiency of the underlying studies or the reliability of Frank’s opinion testimony. But the court should remember that regarding the sufficiency of the underlying studies, it should focus on whether no reasonable expert would rely on the studies to find a causal relationship — not whether the parties dispute their force or validity. And regarding the admissibility of Frank’s opinion, the focus must be on the validity of his methodology and whether good grounds exist for his opinion — not whether his ultimate conclusion differs from that of other experts.
762 N.W.2d at 48-49.
On the issue of specific causation, the court further held that the trial court had erred in determining that the appellant’s expert’s differential etiology (which refers to determining 12iithe causes of a disease or disorder) was unreliable. It concluded that “the primary admissibility issue for Frank’s opinion on specific causation is whether he had good grounds for ruling in Bradley’s diesel exhaust exposure as a plausible cause of his cancer.” 762 N.W.2d at 51.
In Epp v. Lauby, supra, the court held that, when an expert bases his opinion on a reliable methodology, a court should not exclude it solely because a disagreement exists between the parties’ qualified experts.
In Boren v. Burlington, supra, the Nebraska Court of Appeals affirmed a trial court’s entry of judgment on a jury verdict for a plaintiffs toxic-tort claim under FELA for harm caused by long-term exposure to toxic chemicals while working for the railroad. On appeal, the railroad ar gued that the trial court had erred in denying its motions for summary judgment and in allowing the plaintiffs experts to testify. It contended that the medical-causation experts lacked a proper factual basis for their opinions because they did not have information on the specific chemicals that the plaintiff had been exposed to or on the specific doses, length, or level of exposures. The court concluded that there was sufficient evidence of both the specific chemicals to which the plaintiff was exposed and the level of exposure:
There is no dispute that Boren was unable to present any specific information concerning the dose or level of any of the chemicals to which he was exposed. Burlington asserts that such evidence was necessary before the proffered expert opinions could be deemed admissible. As noted, this argument comprises the bulk of Burlington’s brief on appeal. However, we conclude that Boren did not need any more specific evidence than was presented on this issue.
Boren presented general testimony concerning how often he would use the various chemicals and for how long he would use them on various occasions. Other employees of Burlington that testified also testified concerning how long various tasks la7would take, during which time an employee would be exposed to the chemicals. However, Boren had no specific evidence concerning exact dosage levels.
Dr. Frank testified that in his experience as a specialist in occupational medicine, information on specific dosage levels is generally unavailable. He testified that there is generally no way for an employee to measure such levels or doses of exposure and that the only way such information would be available would be if the employer were to make measurements and keep records. Dr. Frank testified, however, that such specific information is not necessary to form an opinion on causation. Dr. Frank testified that such specific information is not necessary when conducting a differential diagnosis because there was evidence that Boren was exposed to the variety of chemicals over a period of years, that there was evidence that such exposure could cause the medical problems experienced by Boren, and that there was evidence to rule out other possible causes of Boren’s medical problems. In addition, Dr. Frank testified that the fact that Boren had acute reactions to the chemicals on a number of occasions, including skin reactions, breathing problems, and headaches, was indicative of the level of exposure being adequate to form an opinion on causation.
Although Burlington cites this court to a number of federal cases that have held, on their particular facts and records, that expert opinions were inadequate without specific evidence of levels or doses of exposure, we find them unpersuasive in the instant case. See Curtis v. M & S Petroleum, Inc., 174 F.3d 661 (5th Cir.1999); Mitchell v. Gencorp, Inc., 165 F.3d 778 (10th Cir.1999) (concerning need for quantifiable evidence of levels of exposure); Savage v. Union Pacific R. Co., 67 F.Supp.2d 1021 (E.D.Ark.1999). In the present case, there was specific evidence presented that an opinion of causation is not dependent on having evidence of specific levels of exposure. Boren did not need to produce a mathematically precise table equating levels of exposure with levels of harm in order to show that he was exposed to a toxic level of the various chemicals. See Bonner v. ISP Technologies, Inc., 259 F.3d 924 (8th Cir.2001). Rather, he needed only to present evi dence from which a reasonable person could conclude that his exposure probably caused his injuries. See id.
On the specific facts of the present case, Boren established that over a period of 30 years, he was exposed to a variety of chemicals. He established in general terms the length of time he would spend using the various chemicals. He testified regarding acute reactions to the symptoms. He presented evidence of other workers to confirm the acute reactions experienced by other workers. He presented evidence that ruled out other causes of his medical condition. He presented evidence that various medical literature has long suggested a causal link between the chemicals he was exposed to and the medical condition he experienced. He also presented evidence that all of these | ^factors are sufficient to form the basis of an opinion on causation. On these specific facts, we do not find that the trial court abused its discretion in concluding that Boren presented adequate evidence of levels of exposure.
637 N.W.2d at 922-23.
These Nebraska eases are not in accord with federal precedent based on Arkansas law. In support of its decision in the present case, the trial court cited Wright v. Willamette Industries, Inc., 91 F.3d 1105 (8th Cir.1996), in which residents near a manufacturing plant brought a negligence action against the plant owner for harm they allegedly suffered from their exposure to emissions of wood-fiber particles that contained formaldehyde. The federal district court entered judgment for the plaintiffs. The Eighth Circuit, however, reversed, holding that the plaintiffs failed to satisfy Arkansas tort law’s requirement that they produce evidence that they were exposed to a hazardous level of formaldehyde. The court of appeals held that a plaintiff in a common-law toxic-tort case must prove the levels of exposure that are hazardous to human beings generally, as well as the plaintiffs actual level of exposure to the defendant’s toxic substance:
At a minimum, we think that there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered.... We do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant’s emission has probably caused a particular plaintiff the kind of harm of which he or she complains before there can be a recovery.
91 F.3d at 1107 (citation omitted).
_[aIn Savage v. Union Pacific Railroad Co., 67 F.Supp.2d 1021 (ED.Ark.1999), the district court granted the defendant railroad’s motion to exclude the causation testimony of the plaintiffs experts in a FELA suit. The court held that his expert’s opinions that his basal cell carcinoma was caused by exposure to creosote were not scientifically reliable. It recognized the “tension between the Daubert standard for admission of expert testimony and the FELA standard on causation for submission of a case to a jury.” 67 F.Supp.2d at 1027. Noting that, under FELA, the quantum of evidence sufficient to present a jury question of causation is less than it is in a common-law tort action, it held that even in FELA cases, courts must still demonstrate some causal connection (more than a mere possibility) between a defendant’s negligence and their injuries; the negligence of the defendant need not be the sole cause of the plaintiffs injuries.
The court acknowledged that the Eighth Circuit’s decision in Wright requires hard evidence of levels of exposure, although some other appellate courts have applied a more relaxed standard. It stated:
Of course, knowledge of the extent of exposure to a potentially harmful substance is essential to any reliable expert opinion that the particular substance caused a disease. In order to carry the burden of proving a plaintiffs injury was caused by exposure to a specified substance, the plaintiff must demonstrate “the levels of exposure that are hazardous to human beings generally as well as the plaintiffs actual level of exposure.” Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir.1996). The existence of this requirement is not surprising. As one court has explained, “[t]he underlying predicates of any cause-and-effect medical testimony are that medical science understands the physiological process by which a particular disease or syndrome develops and knows what factors cause the process to occur.” Black v. Food Lion, Inc., 171 F.3d 308, 314 (5th Cir.1999). However, the evidence regarding exposure does | snnot have to be “mathematically precise.” Wright, 91 F.3d at 1107. The Fourth Circuit has cautioned that
while precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiffs exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert’s opinion on causation.
Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir.1999); see also, Heller v. Shaw Industries, 167 F.3d 146, 157 (3d Cir.1999) (noting “that even absent hard evidence of the level of exposure to the chemical in question, a medical expert could offer an opinion that the chemical caused plaintiffs illness”). fn6
fn6 The more “relaxed” standards described above in Westberry and Heller appear to be in conflict with the Eighth Circuit’s opinion in Wright, which seems to require hard evidence of levels of exposure. However, it is the Court’s opinion that the Plaintiff, Mr. Savage, has not even met the “relaxed” standards of Westberry and Heller.
67 F.Supp.2d at 1031-32.
The court held that the plaintiff had failed to present the fundamental information necessary to establish the scientific validity of the expert’s opinions with respect to creosote:
There is sufficient evidence that Plaintiff was around and physically in touch with the creosote. In Dr. Boyd’s view the Plaintiff had “prolonged exposure,” indeed, “years” of exposure. But Plaintiff has produced no scientific data showing the nature of creosote exposure required to initiate or promote the development of basal cell carcinoma. Nor has he shown the level of such exposure needed to cause such skin cancer in humans generally. Nor does he show with any degree of scientific reliability the level of his own exposure.
67 F.Supp.2d at 1033-34. Accord Junk v. Terminix Int’l Co., Ltd. P’ship, 628 F.3d 439 (8th Cir.2010); McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir.2005); Mitchell v. Gencorp, Inc., 165 F.3d 778 (10th Cir.1999); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998), cert. denied, 526 U.S. 1064, 119 S.Ct. 1454, 143 L.Ed.2d 541 (1999); Wintz v. Northrop Corp., 110 F.3d 508 (7th Cir.1997); Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir.1996); Missouri Pac. R.R. Co. v. Navarro, 90 S.W.3d 747 (Ct.App.Tex.2002).
In Navarro, supra, a railroad worker who had been diagnosed with multiple myeloma brought a FELA action claiming that she had acquired her disease from the diesel exhaust she had been exposed to at work. She obtained a jury verdict. On appeal, the Texas Court of Appeals reversed, holding that her experts’ testimony (about the level of her exposure and causation) should not have been admitted. One of her experts relied on the Boffetta article relied on by appellant’s expert in this case:
Dr. Hari Dayal, an expert in cancer epidemiology, also testified for Navarro. Dr. Dayal testified that railroad workers who come in contact with diesel exhaust have six times the risk of developing multiple myeloma. He also testified that exposure to diesel exhaust contributed to the development of Manuela’s multiple myeloma. In reaching his opinion, he looked at many studies. One study he relied on is the Boffetta study, conducted by the American Cancer Society, which, according to Dr. Dayal, showed that railroad workers have a six times greater risk of developing multiple myeloma. The Boffetta study, however, does not reach the same conclusion Dr. Dayal reaches. In the Boffetta study, there were only three cases of multiple myeloma in railroad workers reported. Thus, the authors of the Boffetta study concluded that the results regarding railroad workers (and several other occupations) and multiple myeloma were inconclusive because they were either statistically insignificant or based on only a small number of exposed subjects. The authors concluded that people who reported they had been exposed to diesel exhaust had no statistically significant increased risk of getting multiple myeloma. The Boffetta study does show diabetes as a risk factor for multiple myeloma. It is undisputed that Manuela and others in her family suffered from diabetes.
Dr. Dayal also relied on the Hansen study. According to Dr. Dayal, the Hansen study shows a statistically significant relationship between being a truck driver extensively exposed to diesel exhaust and developing multiple myeloma. Dr. Dayal conceded that the author of the Hansen study actually concludes there is no | ^relationship, but he believes that finding is a false negative. In other words, even though the study says there is no relationship, he believes there really is a relationship because the measurement of exposure was not perfect.
Dr. Hansen, the author of the Hansen study, admits there are problems with the data in her study. She concluded that, based on the observation of only five deaths from multiple myeloma, the finding was statistically significant but may have been due to chance. Dr. Dayal, however, does not agree with Dr. Hansen’s conclusion.
90 S.W.3d at 752.
The railroad’s expert, Dr. Wong, testified that it was his opinion that there is no causal relationship between exposure to diesel exhaust and the risk of developing multiple myeloma, that he had performed his own study, and that he had looked at the Boffetta and Hansen studies:
The Boffetta study found only half of the railroad workers in the study were even exposed to diesel exhaust and concluded the risk factor for railroad workers was not statistically significant or it was based on too small a number of exposed subjects. Dr. Wong also reviewed the Hansen study and determined it showed a significant risk, but the numbers are too small to rely on. He reviewed other studies that show no increased risk. The majority of the studies show no statistically significant risk. Dr. Wong testified that in this case there has been no quantification of the exposure levels of a particular chemical agent. Dr. Wong did state that when there are no records of exposure levels, the best we can do is look at individual job titles and consider the exposure levels for those respective job titles.
90 S.W.3d at 758.
The court found that Dr. Dayal’s methodology was unreliable:
The author of the Bojfetta study noted that because there were only three railroad worker deaths from multiple myeloma in the study, there was no statistical significance between railroad workers and multiple myeloma. Further, the Bojfetta study recognized that less than 50% of railroad workers even reported exposure to diesel exhaust. Thus it is impossible to tell whether any or all of the three railroad workers who developed multiple myeloma were even exposed to diesel exhaust. Dr. I^Dayal disagreed with Boffetta’s refusal to find a statistically significant relationship. In other words, Dr. Dayal took the data collected by Boffetta and reached a conclusion regarding causation that Boffet-ta himself was unwilling to make.
The Hansen study is similar to the Bojfetta study in that the author likewise refused to find that exposure to diesel exhaust causes multiple myeloma. Dr. Hansen concluded that, although the finding was statistically significant, it may have been due to chance. Dr. Dayal disagreed and chose to rely on the Hansen report for his opinion that exposure to diesel exhaust causes multiple myeloma. Dr. Dayal’s methodology for determining causation has been rejected as unreliable. See General Electric Co. v. Joiner, 522 U.S. 136, 145, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (holding where authors of study on which plaintiffs experts relied were unwilling to find causal relationship between exposure to toxic substance and plaintiffs disease, such study does not support plaintiffs expert’s causation conclusion).
Dr. Dayal also looked at several other studies, some of which he stated were almost statistically significant. And, he admitted there were other studies which showed no association between diesel exhaust and multiple myeloma. He chose to ignore those studies, however, and only relied on his interpretation of the data collected by Boffetta and Hansen. Dr. Dayal’s testimony is further flawed in that he was unable to testify as to what level of diesel exhaust would create a risk of multiple myeloma.
90 S.W.3d at 757.
The court also held that another expert’s testimony, that there is no safe level of exposure to certain components of diesel exhaust, should not have been admitted because that reasoning had been rejected in other cases. It concluded:
The theory that diesel exhaust causes multiple myeloma has been tested in the many epidemiological studies that were reviewed in this case by the experts. None of the studies found a causal relationship — Navarro’s experts are the only ones who have been willing to make the connection, based on only two studies, whose authors expressly declined to find causation. The theories Navarro’s experts relied on are quite subjective, given the fact that no scientific studies support their opinions. The theory that exposure to diesel exhaust causes multiple myeloma has been subjected to peer review and the majority found no heightened risk. The technique’s potential rate of error is incapable of being analyzed. The evidence clearly shows Navarro’s witnesses’ theories have not been generally accepted as valid by the scientific community and the |S4theories have been put to no non-judicial uses. The record shows that Navarro’s expert witnesses are alone in the scientific community in their opinions that exposure to diesel exhaust causes multiple myeloma. Their opinions were developed solely for the purpose of using them to prove causation in this lawsuit. Opinions that have been formed only for the purpose of testifying are more likely to be biased toward a particular result. [E.I. du Pont de Nemours & Co. v.] Robinson, 923 S.W.2d [549, 559 (Tex.1995) ].
90 S.W.3d at 758.
Applying the applicable abuse-of-discretion standard, we cannot say that the trial court abused its discretion in granting the motion in limine. The fact that some studies showed that higher levels of benzene could cause multiple myeloma does not prove that the lower levels of that chemical found in diesel exhaust and fuel played a role in causing appellant’s disease. Appellant produced no reliable data of his actual exposure to diesel exhaust or benzene.
Dr. Brautbar’s reliance on Infante’s study was misplaced, in view of the fact that it analyzed chemical workers, not railroad employees, with direct exposure to nearly-pure benzene. Dr. Brautbar’s reliance on the Boffetta study was also misplaced, as the study’s author did not conclude that diesel exhaust caused multiple myeloma. He did not explain the limitations of the Flodin study and its author’s recognition of those limitations. The Hansen study, on which Dr. Brautbar also relied, was expressly rejected in Navarro. Appellee also demonstrated that Dr. Brautbar ignored studies that did not support his opinion. Wabeke only relied on anecdotal testimony about that subject and, in fact, refused to consider appellee’s test results, and defined “excessive exposure” as anything above ambient levels. We agree with those courts that have rejected Wabeke’s belief that any dose above background levels can cause multiple mye-loma. See Missouri Pac. R.R. Co. v. Navarro, supra.
|aBAffirmed.
HART and ROBBINS, JJ., agree.
. When Daubert was decided, Arkansas Rule of Evidence 702 was identical to Federal Rule of Evidence 702. | [
112,
-20,
-2,
-116,
8,
96,
56,
-70,
81,
-89,
103,
83,
-17,
-38,
29,
47,
-26,
61,
85,
43,
-12,
-93,
71,
67,
-42,
-73,
122,
87,
48,
74,
116,
-39,
77,
112,
-118,
-43,
-26,
88,
-57,
88,
-50,
13,
-71,
98,
-39,
-64,
-92,
115,
50,
95,
49,
-34,
-29,
46,
25,
-62,
-55,
58,
123,
-67,
72,
120,
-86,
-115,
111,
2,
-77,
68,
-99,
6,
-8,
11,
16,
49,
0,
-20,
114,
-74,
-125,
-12,
75,
-87,
8,
98,
99,
33,
29,
-89,
-20,
-104,
47,
126,
15,
-92,
-8,
9,
75,
9,
-98,
-67,
116,
118,
-90,
110,
-20,
5,
95,
44,
10,
-57,
-108,
-79,
15,
48,
-108,
-125,
-17,
-77,
20,
116,
-52,
-6,
92,
6,
51,
31,
-42,
-74
] |
David Newbern, Justice.
This is an interlocutory appeal of a circuit court’s refusal to certify a class action. The appellants are Charles and Wilma Summons who brought the action on behalf of themselves and their children, Kellen and Tanya Summons. They seek to represent a class of several thousand persons who were evacuated from their homes or businesses as the result of a railroad accident in which a chemical tank car overturned in North Little Rock. The appellees are Missouri Pacific Railroad (MOPAC), which operated the train, and Union Carbide Corporation, the shipper of the chemical. We agree with the Summonses’ argument that the Trial Court abused its discretion in refusing to certify the class, and thus the decision is reversed and remanded.
The accident occurred mid-morning on July 8, 1987. A liquid substance was observed to be leaking from the overturned car which was carrying ethylene oxide, an allegedly highly volatile and toxic chemical. The evacuation began with an order by local emergency services personnel at approximately 10:40 a.m. The order was lifted at approximately 4:15 p.m. when it was determined that the liquid leaking from the car was not ethylene oxide, but a non-hazardous refrigerant which was part of the overturned car’s container system.
The Summonses alleged that they and others who were evacuated were frightened, their lives were disrupted, they were forced to spend money for food, clothing, and shelter, and that they suffered pain and mental anguish. They alleged that some persons were forced to seek medical treatment. They contended that MOPAC and Union Carbide were wilfully and wantonly negligent, and they asserted a strict liability claim based on shipment of an ultra-hazardous product.
The complaint stated that the class the Summonses sought to represent consisted of about 5,000 persons, that joinder of so many claims would be impractical, that there were questions of law and fact common to the claims, and that the interests of the class outweighed those of individual members. It was also alleged that the Summonses’ claim was typical of members of the class, they had obtained competent counsel, they were aware of their responsibilities as members of the class, and a class action was the superior method of deciding the claims of the class members.
In its answer, MOPAC denied negligence, denied that the transportation of ethylene oxide was an ultra-hazardous activity giving rise to strict liability, and denied all of the allegations supporting the certification of the class. Union Carbide filed a similar answer, adding that the injuries claimed were the result of actions of parties over whom Union Carbide had no control or were the result of intervening causes.
A hearing was held on the Summonses’ motion to certify the class. Janet Jones, an employee of McHenry Law Firm, testified that she compiled a list of persons claiming damages as a result of the evacuation. The list numbered 5,321 persons, many of them living in the Eastgate Terrace, Shorter Gardens, and Dixie Addition sections of North Little Rock. On cross-examination Ms. Jones testified about the differences in the claims. She said some were for motel and meal expenses, and some were for loss of work because, for example, of inability of claimants to return to their homes to obtain uniforms to wear. Also, on cross-examination, Ms. Jones pointed out that she had no first-hand knowledge that anyone from MOPAC or Union Carbide assisted the North Little Rock police in the evacuation procedure.
Testimony was also taken from potential class members about the general effect of the evacuation upon their lives on the day in question.
The operative portion of the Court’s order was as follows:
1. A class action proceeding would result in indeterminate and chaotic litigation and would cause judicial extravagance rather than judicial economy.
2. A class action would be an inappropriate method of dealing with the proposed claims.
3. This action should not be maintained as a class action because the prerequisites of Rule 23 . . . have not been satisfied. ...
1. Rule 23 requirements
At the time the decision was made, Rule 23(a) contained the “prerequisites” to a class action as follows: “Where the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.” The Rule has since been amended to list the prerequisites as follows:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Whichever version is applied, we find the prerequisites satisfied.
a. Numerosity
The Trial Court stated in his conclusory remarks that “you could have conceivably some 3,500 plaintiffs in a case,” and that he knew of no rule which would prohibit it. There was no explanation why a class action would not be superior where there is such an “unwieldy” number of plaintiffs. Joinder of so many claims is obviously, in the language of the Rule, “impracticable.”
In City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981), we held that 17 potential plaintiffs was too small a number to satisfy the Rule. In Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986), we held that 184 were enough. In International Union of Electrical, Radio & Machine Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), we held that “at least several hundred” class members were enough. The fact that there are several thousand claimants in this case is enough to satisfy the numerosity requirement.
b. Common questions
MOPAC’s brief seems to concede that there are common questions of law and fact relating to its conduct and that of Union Carbide. It argues, however, that they do not predominate the issues of causation and damages which will be different with respect to each claimant. Union Carbide’s brief adds the contention that plaintiffs who suffered physical injury may be entitled to recover for mental anguish but that the many who do not claim to have suffered physical injury will have to show wilful and wanton misconduct to recover.
It may indeed be true that the class can be and will be divided into subclasses with respect to theory of recovery if it is determined that MOPAC and Union Carbide were engaged in mere negligence, wilful and wanton negligence, or an ultrahazardous activity. The predominate question, however, in any case will be factual. The defendants’ actions will have to be determined, and then it will have to be determined if those actions were wrongful and to what degree. We have no hesitancy in saying there are common questions.
As to whether the common questions predominate others, such as causation in terms of class definition and damages, there is a clear overlap with the question of whether the class action is a superior method of handling the litigation in prospect. See H. Newberg, Class Actions, § 4.22 (1985). We will discuss it below along with the abuse of discretion standard of review.
c. Typicality
MOPAC and Union Carbide contend that the Summonses’ claim or claims are not typical of those of the other members of the class they seek to represent because, unlike some members, the Summonses allege no physical harm and only seek to recover for their inconvenience and fear in having to leave their home and for the expense of eating out.
The typicality requirement is discussed in H. Newberg, Class Actions, § 3.13, supra, as follows:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims. [Footnotes omitted.]
Although the Summonses’ allegations as to their injuries and damages are different from those they describe for other members of the class, their claims are typical in the sense that they arise from the alleged wrong to the class which includes the wrong allegedly done to them, and that is sufficient.
d. Representation
Mrs. Summons testified that she understood her obligations in undertaking representation of the class and the possible costs involved. She said she would do whatever was necessary in that respect. The Summonses have alleged that they are represented by counsel competent to handle a class action, and MOPAC and Union Carbide have given us no reason to doubt that allegation.
2. Rule 23 (b)
Whether common questions of law or fact predominate and whether a class action is a superior method of deciding the case are, to a degree, necessarily subjective questions and very much related to the broad discretion conferred on a trial court faced with them.
In International Union of Electrical, Radio and Machine Workers v. Hudson, supra, we discussed the line of cases in which we have held that a trial court has broad discretion to protect the interests of the members of the class and to allow or disallow an action to proceed as a class action. The essence of the case now before us is the decision we must make whether the Trial Court abused its discretion in refusing the certification, and the questions of predominance and superiority are integral to that decision.
If the predominance of the liability aspects of the claims of the class members were to be judged solely on the basis of the number of cases in which the same issues of liability are to be decided, predominance of the common questions would undoubtedly be established. We recognize, however, that there are other factors to be considered.
In its brief, MOPAC emphasizes its contention that each of the potential class members will have to demonstrate the element of causation, and cites Ryan v. Eli Lilly & Co., 84 F.R.D. 230 (D.S.C. 1979), in which a United States District Court determined a class action would be inappropriate. The claim in that case was on behalf of daughters of mothers who had been administered a drug manufactured by the defendant. The drug which was used by the mothers resulted in an abnormal vaginal condition in the daughters. The Court discussed the fact that there would be varying factors with respect to liability as follows:
In deciding the issue of predominance this Court must predict the evidence likely to be introduced at trial. This is particularly true when purported class members are not standardized. See Windham v. American Brands, Inc., 68 F.R.D. 641 (D.S.C. 1975). Standardized in this sense refers to a class of individuals whose claims against a common defendant arise out of essentially identical fact patterns. The case at bar presents a different class of plaintiffs. The mothers of the proposed plaintiffs in this case each used a synthetic estrogen; however, the length of exposure, the reason for the drug’s use, the specific chemical formulation of the drug, the state of the art at the time of consumption or the manufacturer’s knowledge of synthetic estrogen’s carcinogenic effect and possible medical result in the absence of the estrogens are all specific points going toward proximate causation which will require proof for each individual class member. The Court is aware of decisions such as Samuel v. University of Pittsburgh, 506 F.2d 355 (3rdCir. 1974); wherein a bifurcation of trials between the liability and damages issues was held appropriate. Bifurcation here would not cure the deficiencies of the instant class action, since the liability issue alone will require individual proof as to each party plaintiff. It is the necessity of such separate evidentiary showings that leads this Court to conclude the common questions of fact do not predominate.
In this case, the liability question may be complicated in terms of the theories of liability advanced, however, those issues may be the same with respect to each of the claimants, and unlike the Ryan case, they will at least be the same as to members of subclasses such as those who claim physical injury and those who do not.
Cases such as Strauss v. Long Island Sports, Inc., 60 A.D. 501, 401 N.Y.S.2d 233 (1978), cited by Union Carbide, are not as easily distinguished. In the Strauss case, certification of a class of plaintiffs claiming injury from misleading advertising was held to be an abuse of discretion because each member of the class would have had to prove reliance. While we might say that that holding differs because each member of the class would have to prove an element of the tort, we cannot see a real difference from this case in which each claimant must, after proving basic negligence or other tortious conduct, prove causation, or that he or she was uprooted, disrupted, and otherwise injured by the acts of the defendants. We can only assume that the Strauss case is a traditionally hostile interpretation of the New York class action rule of the sort from which we are willing to part.
The Court in the Ryan case points out that the Advisory Committee to the Federal Rules of Civil Procedure commented that the class action is “ordinarily not appropriate” in “mass accident” torts because questions not only of damages but of liability and defenses to liability may affect different claimants in different ways. In 7B C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure, § 1783 (1966), both sides of the controversy are presented. The other side is as follows:
In many ways [Federal] Rule 23(b)(3) seems particularly appropriate for some tort cases of this type. Thus, some courts have ignored the Advisory Committee’s doubts and have allowed mass tort cases to be brought under subdivision (b)(3). The central issue of liability, for example, may be a difficult one that occasionally will require lengthy expert testimony, perhaps concerning the physical condition of a vehicle or the state of a technological art in a particular field of transportation or manufacturing. If the various tort claims were tried individually, the evidence would have to be repeated time and again. . . . [Footnotes omitted.]
The repeated litigation of the liability question and the attendant possibilities of inconsistent results in a case like this one outweigh the admitted fact that each claimant will have different damages evidence. A factor we recognized in Drew v. 1st Fed’l S & L Ass’n of Ft. Smith, 271 Ark. 667, 610 S.W.2d 876 (1981), and in the International Union case, and which is central to the result we reach here is the basic consideration of fairness. An ingredient of that consideration is the point of our decision in the International Union case:
By limiting the issue to be tried in a representative fashion to the one that is common to all, the trial court can achieve real efficiency. The common question here is whether the unions can be held liable for . the actions of their members during the strike. If that question is answered in the negative, then the case is over except for the claims against the named individual defendants which could not be certified as a class action. If the question is answered affirmatively, then the trial court will surely have ‘splintered’ cases to try with respect to the damages asserted by each member of each of the subclasses, but efficiency will still be achieved, as none of the plaintiff's would have to prove the unions’ basic liability.
Is that unfair? It is not unfair to the unions, as they will be able to defend fully on the basic liability claim, and they will have the opportunity to present individual defenses to the claims of individual class members if their liability has been established in the first phase of the trial. They lose nothing. Would it be fair to the class members to require them to sue individually? The evidence so far shows that each putative class member has a claim that is too small to permit pursuing it economically. If they cannot sue as a class, the chances are they will not sue at all. We agree with the unions’ argument that the sole fact that the claims are small is not a reason to permit a class action, but it is a consideration which has appeared when other courts, as we must do, have considered whether the class action is superior to other forms of relief. See C. Wright, A. Miller, and M. Kane, supra, § 1779, n. 21, citing Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978), affirmed on other grounds, sub nom. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980); Werfel v. Kramarsky, 61 F.R.D. 674 (D.C.N.Y. 1974); and Buchholtz v. Swift & Co., 62 F.R.D. 581 (D.C. Minn. 1973).
We recognize that the trial court has substantial power to manage a class action even though the directions given in our Rule 23 are not as extensive as those given in the comparable federal rule. This power to manage the action contributes to the discretion we find in the trial court to determine whether a class should be certified. We conclude there was no abuse in this case.
Our opinion in the International Union case was hardly an exhaustive review of all the considerations leading to the conclusion that the class action is the superior manner of deciding the typical mass tort case. That has been done, however. D. Rosenberg, Class actions for Mass Torts: Doing Individual Justice by Collective Means, 62 Ind. L. Rev. 560 (1986-1987). Here are some excerpts from the article:
In mass tort cases involving claims or personal injury, which pose daunting problems of causation and remedy, the price of individual justice is notoriously high. Because they typically involve complex factual and legal questions, mass tort claims are exceedingly, if not prohibitively, expensive to litigate. The questions of whether the defendant’s conduct failed to satisfy the governing standard of liability frequently entail interrelated technological and policy issues that require extensive discovery, expertise, and preparation to present and resolve adequately. Equally demanding are the causation issues in mass tort cases, such as whether the plaintiffs condition was caused by exposure to the substance in question or to some other source of the disease risk.
The case-by-case mode of adjudication magnifies this burden by requiring the parties and courts to reinvent the wheel for each claim. The merits of each case are determined de novo even though the major liability issues are common to every claim arising from the mass tort accident, and even though they may have been previously determined several times by full and fair trials. These costs exclude many mass tort victims from the system and sharply reduce the recovery for those who gain access. Win or lose, the system’s private law process exacts a punishing surcharge from defendant firms as well as plaintiffs.
***
These conditions generally disadvantage claimants. Because defendant firms are in a position to spread the litigation costs over the entire class of mass accident claims, while plaintiffs, being deprived of the economies of scale afforded by class actions, can not, the result will usually be that the firms will escape the full loss they have caused and, after deducting their attorney’s shares, the victims will receive a relatively small proportion of any recovery as compensation. As a consequence, the tort system’s primary objectives of compensation and deterrence are seriously jeopardized.
***
Because of their cost-spreading advantages, a defendant firm typically can afford not only to invest more in developing the merits of the claim than the opposing plaintiff attorney, but also to finance a “war of attrition” through costly discovery and motion practice that depletes the adversary’s litigation resources. The consequences of redundantly litigating common questions thus skews the presentation of the merits, promotes abusive strategic use of procedure, needlessly consumes public resources, and ultimately drains away a large amount of the funds available to redress by judgment or settlement, victim losses.
We can cite no case like this one where it has been held that the trial court abused its discretion by denying certification. We can, however, cite a very similar case where it was held that the trial court did not abuse its discretion in certifying a class alleging injury as the result of a chemical fire caused by a railroad accident. Reynolds v. CSX Transportation, Inc., 55 Ohio App.3d 19, 561 N.E.2d 1047 (Ohio App. 1989). In that case, a master recommended against certification because there would be five ill-defined sub-classes of plaintiffs. The Trial Court disagreed. The Court of Appeals held there was no abuse of the Trial Court’s discretion.
In applying Ohio Civil Procedure Rule 23A, which was apparently like the Federal Rule and like the current Arkansas Rule, and Rule 23B containing the same rather subjective criteria as the parallel sub-sections of the Arkansas and Federal Rules, the Trial Court was quoted as follows:
One time answers can be had to the issues of negligence and malice, such as: What were the duties of the respective defendants? What did they undertake to do or not do in respect to those duties, if any? Was there a breach of duty? Was there a conscious disregard for the rights and safety of others that had a great probability of causing substantial harm?
The Court of Appeals then wrote:
We conclude that the trial court’s decision to certify the plaintiffs’ case as a class action to the issues of negligence and malice was not an abuse of discretion. The court’s order was not unreasonable, arbitrary or unconscionable. Rather, it was a well-reasoned decision based upon the trial court’s unique ability to determine which procedural devices are best for handling such unwieldy cases.
As noted above, the Reynolds decision was a bow to a trial court’s discretion, and thus hardly in direct support of our conclusion here. It does, however, provide an example of a case where that which the plaintiffs ask here has been found to be reasonable under very similar circumstances.
We are well aware of our remark in the International Union case that, had the Trial Court refused to certify the class we might well have affirmed, but we have not held that a trial court’s discretion is so broad on this issue that it cannot be reviewed. If a trial court’s decision not to certify a class action in this type case is at all reviewable, then this is the time and the sort of case in which to review it. That is especially so when it is possible that a large number of persons who may have legitimate claims not worth pursuing because of the costs of our system of justice may lose those claims if they are not allowed to proceed together as a class. By not certifying a class, a trial court can cause the problem to “go away” to the extreme disadvantage of the claimants unless that decision is reviewable. It is especially important that we review an order such as the one in this case given the newness of our decision in the International Union case and the recent changes in Rule 23(a).
Given our conclusion that the Trial Court erred in stating that the facial prerequisites of Rule 23(a) were not satisfied, we are left with consideration of the Trial Court’s remarks at the conclusion of the certification hearing and the final order. Most of the factors he noted seem to us to support certification. The language of the Trial Court’s order is not helpful to an understanding of the decision because it consisted only of conclusions without reasons.
We conclude this opinion with a caveat; the only issue we have addressed is whether the class should have been certified. We have not intimated, nor have we meant to intimate, that any of the class members will or should recover. The question of liability is not at all before us.
The order refusing to certify the class is reversed and remanded for proceedings consistent with this opinion.
Hays, J., dissents.
Brown, J., concurs. | [
48,
-8,
101,
44,
11,
-31,
56,
-118,
85,
-125,
-27,
83,
-17,
-40,
-111,
35,
-25,
61,
-15,
57,
-42,
-94,
65,
3,
-42,
-45,
58,
-59,
48,
78,
100,
127,
76,
32,
-22,
-43,
70,
-62,
-57,
24,
-114,
35,
41,
-62,
121,
16,
40,
-14,
22,
15,
113,
-98,
-14,
46,
24,
-53,
77,
46,
-5,
-3,
-62,
115,
-117,
7,
111,
2,
-95,
100,
-101,
-91,
120,
92,
-104,
49,
33,
-24,
50,
-90,
-128,
-12,
99,
-119,
-128,
-94,
101,
1,
21,
-57,
-68,
40,
47,
-118,
15,
38,
-46,
49,
11,
5,
-98,
-97,
104,
16,
30,
-4,
-2,
5,
92,
-20,
-121,
-50,
-74,
-77,
13,
96,
-100,
3,
-21,
-89,
52,
116,
-51,
112,
94,
7,
63,
27,
79,
-66
] |
Robert L. Brown, Justice.
The appellants, including John P. Gill, filed a complaint wherein they contended that they were entitled to participate in the experience rate of Gill’s predecessor law firm for purposes of determining their unemployment compensation taxes. After answering, the appellees, which include the Arkansas Employment Security Division (AESD), moved for summary judgment, and the chancery court granted that motion. The appellants appeal from that order.
The facts reveal numerous communications involving the three entities: AESD, Gill’s predecessor law firm, and the present Gill law firm. On April 1, 1986, Gill officially terminated his relationship with his old firm. Shortly thereafter, he was advised by AESD that the agency had established 3.4 percent (the amount fixed by statute for new employers generally) as the experience rate applicable to his new firm. Ark. Code Ann. §§11-10-702 (1987) and 11-10-706 (Supp. 1989). At John Gill’s predecessor law firm, the unemployment compensation rate was 1.3 percent due to its favorable past experience. Gill began a campaign to convince AESD that his new firm should have part of the favorable experience associated with his old law firm transferred to it. From April 1, 1986, to June 1987, Gill negotiated with his predecessor law firm over the percentage of business acquired and the portion of the experience to be transferred.
On May 29,1986, Gill sent a Report to Determine Liability form to AESD, which showed that he had acquired 40 percent of the predecessor business. He was subsequently advised by letter that his new firm qualified as an employer for unemployment compensation purposes and that if he disagreed with the decision, he could ask for a hearing. Gill requested a hearing the next day, June 20, 1986. In August 1986, AESD sent a second letter advising him of his new employer status and right to a hearing. He again requested a hearing on his liability status on September 2, 1986.
The communications between Gill and AESD came to a head on September 15,1986, when William D. Gaddy, administrator of AESD, wrote Gill a letter explaining his status:
This is to confirm the telephone conversation you had with one of our staff attorneys, George Wise, Jr., on September 10, 1986, wherein it was agreed that the administrative hearing scheduled for your law firm on October 29, 1986 would be cancelled.
As Mr. Wise explained, we thought your request for a hearing was to contest the liability of your law firm for unemployment contributions. It appears, however, you are seeking a transfer of a portion of the experience rate of your former law firm. This is a procedure for which no hearing is allowed by law or actually needed. To request such a transfer you simply need to send me a petition (it may be in letter form) signed by all interested parties (your former law partners) setting out the percentage of experience that should be transferred. The relevant law is found at Ark. Stats. Ann. §81-1108(c)(2).
Mr. Wise tells me that you have agreed to submit your petition by October 29, 1986. If you are unable to submit such a petition, we will have no choice under the law but to deny the transfer request.
Neither Gill nor his former law partners filed a petition by October 29,1986. It should be noted in this regard that an AESD supervisor wrote Gill a letter dated August 15,1986, in which he stated that a spokesman for Gill’s predecessor law firm had told the supervisor on three occasions that the firm would not agree to any transfer of the experience to Gill’s new firm. The next contact between AESD and Gill occurred in March 1987, when AESD advised Gill that his experience rate would be 3.4 percent. In reaction to this, Gill wrote his predecessor law firm on March 30, 1987, and requested that the firm execute an authorization transferring 35 percent of the firm’s experience in accordance with “our settlement agreement.”
Rather than execute the authorization form, Mike Rainwater, on behalf of the predecessor firm, wrote AESD administrator Gaddy on April 2, 1987, advising him that the firm and Gill had reached an agreement for the assignment of 35 percent of the firm’s experience to Gill. Rainwater stated that the agreement further provided that if the assignment cost the firm additional expense, Gill would pay the amount to the firm. Rainwater then asked Gaddy to provide him with the amount of any additional cost to the firm that might be occasioned by the transfer. Rainwater concluded by saying that his firm would assign 35 percent of the experience to Gill after receiving figures for any additional cost from AESD.
Gaddy replied to Rainwater by letter dated April 10, 1987, notifying him that any future costs could not now be calculated. Gaddy then set out the position of AESD relative to Gill’s failure to meet the October 29, 1986 deadline:
Efforts by members of our Contribution staff to resolve the transfer of experience issue last summer proved futile. One of our staff attorneys, George Wise, Jr., explained our position to Mr. Gill in a telephone conversation last September 10, 1987. Mr. Gill agreed to submit a petition requesting transfer of the experience rate signed by all interested parties by October 29,1986. In confirming this agreement, I advised Mr. Gill that should he be unable to meet the October 29, 1986, deadline, we would have no choice under the law but to deny his request.
Although you may submit a petition requesting transfer of the experience rate, a petition submitted now would be untimely. Your letter of April 2,1987, is not acceptable as a petition as it is not signed by all interested parties. Further, in our opinion, a petition may not be conditioned on future experience rates (see Arkansas Statute Annotated Section 81-1108(e)(2).
Gill was not sent a copy of this letter until the latter part of 1987.
From April 1, 1986, forward, Gill paid unemployment compensation taxes based on the 1.3 percent experience rate assigned to his former firm. AESD, however, adhered to the 3.4 percent rate and assessed additional taxes and interest against Gill in the amount of $4,860.70. To enforce the assessment, AESD filed liens against the appellants’ property. On October 6, 1988, the appellants filed their complaint against the appellees in chancery court and prayed 1) to enjoin AESD from executing on the liens and to expunge those liens; 2) to declare that AESD’s actions were violative of Gill’s due process rights; and 3) to order a transfer of part of the experience from Gill’s predecessor law firm to his present law firm. AESD moved for summary judgment on May 1, 1989, and the chancery court granted the motion.
Gill argues first that there were issues of material fact that militate against summary judgment in this case. The appellants are correct that we have held many times that summary judgment is an extreme remedy; that if there are issues of material fact to be decided, summary judgment is not appropriate; that the burden of proving no issues of material facts was on the appellees; and that all proof submitted must be viewed in favor of the appellants and all inferences and doubts resolved against the appellees. See, e.g., Car Transportation v. Garden Spot Distributors, 305 Ark. 82, 805 S.W.2d 632 (1991); Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991); Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990); see also Ark. R. Civ. P. 56(c).
In this case, however, the law is clear and specific on what is required to transfer part of a predecessor firm’s experience from one employer to another. See Ark. Code Ann. § 11 -10-710(b)(1) (1987). The statute first contemplates an acquisition by the successor employer of part of the predecessor’s business. It then requires that “if the successor desires to obtain any benefit of his predecessor’s experience, the successor must file with the administrator a petition, signed by all interested parties, within thirty (30) days after the transfer setting out the percentage of the predecessor’s experience that should be transferred to the succes sor’s account.” Under the statute, if the AESD administrator finds the facts “substantially as represented,” he shall transfer the proportionate share of the predecessor’s experience to the new employer. See Ark. Code Ann. § 11-10-710(b)(2) (1987).
Here, no petition signed by all interested parties was ever filed with AESD. Indeed, under the facts before us there is no evidence that Gill’s predecessor law firm and his new law firm ever consummated a transfer of experience. Rainwater’s letter to Gaddy only contemplates such a transfer. And under the statute it is the consummated transfer that triggers the filing of the petition. Moreover, according to the complaint and discovery, Gill and his predecessor firm did not even agree on the portion of the predecessor business acquired by Gill until June 1987. The percentage of the business acquired would have a bearing on, if not be conclusive of, the portion of experience to be transferred.
Gill argues before us that the Rainwater letter to Gaddy dated April 2,1987, was, in effect, evidence of the transfer of the experience rate to Gill and that it should have been treated also as a petition to AESD for the transfer of the segregable experience under Ark. Code Ann. § 11-10-710(b)(1).
But the Rainwater letter only sets forth the percentage of the experience tax rate to be transferred, and therein lies the problem. If no portion of the experience had been finally transferred as of April 2,1987 (and the letter from Rainwater to Gaddy confirms that), there could be no valid petition to submit to AESD. A transfer of the experience between employers must necessarily precede the filing of the petition signed by all interested parties under § 11-10-710(b)(1). Even had a transfer occurred as of the date of Rainwater’s letter, the letter does not qualify as substantial compliance with the petition requirement because it does not ask for approval and was not signed by all interested parties. The chancellor, therefore, was eminently correct in her finding of lack of compliance with the requirements of § 1 l-10-710(b)(l).
We have held in the past that substantial compliance with §11-10-710(b)(1) is sufficient for the transfer of a predecessor’s experience. See Hayes v. Ward Ice Cream Co., 258 Ark. 309, 523 S.W.2d 923 (1975). In Hayes the new employer mailed to AESD the Report to Determine Liability signed by him and reflecting the names and addresses of the predecessor and successor firms and the date of acquisition of a portion of the business. The successor employer did not file a petition with AESD, however, requesting a transfer of part of the predecessor’s experience rating. Nevertheless, we held that the information contained in the Report to Determine Liability was enough information to constitute an application for a portion of the predecessor’s experience rating. It bears mention, however, that the acquisition in Hayes occurred in 1970, which was prior to the enactment of Act 35 of 1971. Act 35 required for the first time that a petition, signed by all interested parties, be filed with the AESD. {See, for example, Act 93 of 1963, which was in effect in 1970 and which required that only an “application” be submitted by the successor employer.)
Here, insufficient information was provided to AESD to evidence a definite acquisition of part of the business by Gill or any transfer of part of the predecessor’s experience. First, Gill does not argue that his Report to Determine Liability was in the nature of a petition, as was done in Hayes, though that Report, filed on June 2, 1986, shows an acquisition of 40 percent of the predecessor firm. He argues instead that Rainwater’s letter to Gaddy dated April 2, 1987, was in the nature of a petition. Yet, that letter quotes their agreement whereby the predecessor firm will “use their best efforts” to assign 35 percent of their rating to Gill, conditioned on there being no additional cost to the firm. By its terms the letter is void of the definiteness and specificity necessary to qualify for a factual finding by the AESD administrator that a transfer of experience should occur.
The chancery court was further correct in finding that Gaddy’s response to Rainwater did not amount to a “determination” by AESD under the Code. See Ark. Code Ann. § 11-10-710(d)(1) (1987). Without the completed acquisition of a portion of the predecessor’s firm’s business and without the actual transfer of a specific percentage of the predecessor firm’s experience and without a petition filed with AESD and signed by all interested parties so that AESD could finalize the transfer, it logically follows that there can be no determination of the allocated experience by the AESD administrator. Under these circumstances the existence of a determination was not a material issue of fact remaining to be decided.
Nor did the chancery court err in finding that Gill never sought a hearing before AESD regarding its acquisition of part of the predecessor firm in June 1987. It is clear that Gill requested two hearings pertaining to his liability as a new employer in 1986. But equally as clearly, those requests could not have related to a June 1987 acquisition and the resulting transfer of experience, and it is that acquisition to which the chancery court referred. Even if Gill is correct that the experience transfer was evidenced by Rainwater’s April 2,1987 letter, requests for hearings made in 1986 were premature. Moreover, § 11-10-710(b)(1) does not contemplate hearings on experience transfers, and Gaddy so advised Gill in his letter of September 15, 1986.
But the statute does provide ample opportunity for a disgruntled employer to pursue his remedies. First, he has the right to file an application for review and redetermination within twenty days of a determination. Ark. Code Ann. § 11-10-711(d)(1) (1987). Gill believed that the AESD administrator made a determination in his April 10, 1987 letter to Rainwater, but Gill did not apply for review. An employer’s remedies also lie in chancery court. See Ark. Code Ann. § 11-10-710(d) (3) (1987); Jones v. Crouch, 231 Ark. 720, 332 S.W.2d 238 (1960). And this is the course that Gill chose to pursue.
For his second issue Gill argues that a material issue of fact exists regarding whether the General Assembly has delegated to predecessor employers the authority to control successor employers’ unemployment compensation taxes. To be sure, §11-10-710(b)(1) appears to contemplate an agreement between predecessor and successor employers on the experience to be transferred, when it refers to a petition “signed by all interested parties.” Contrary to Gill’s argument, however, the General Assembly has not delegated taxing authority to the predecessor firms. The tax rate for new employers is fixed by legislative enactment. See Ark. Code Ann. §§ 11-10-702 (1987) and 11-10-706 (Supp. 1989). The General Assembly has also specifically established a statutory mechanism for AESD to administer transfers of portions of a predecessor’s experience, when the predecessor and successor employers agree. In effect, the AESD administrator performs a ministerial function in examining the accuracy of the experience to be transferred. In the event there is no agreement, or, as Gill argues, the predecessor firm is recalci trant, the successor employer may pursue his remedies against the predecessor in court. These remedies against the predecessor are in addition to any remedies that the successor employer may have against AESD under the statute, as already noted. Here, Gill pursued his remedy in chancery court, and the chancellor found no illegal delegation due to the requirement that the predecessor firm concur in the petition to transfer. We agree.
Nor does the process set out in Ark. Code Ann. §11-10-710 constitute an illegal exaction due to predecessor control for the reasons already stated.
The chancery court order is affirmed.
Newbern, J., not participating. | [
80,
-21,
-60,
44,
-120,
-30,
50,
-66,
89,
-61,
39,
115,
-25,
26,
25,
125,
-9,
77,
81,
107,
-41,
-73,
87,
43,
-46,
-69,
-5,
-27,
-71,
79,
-26,
-36,
76,
16,
-62,
-43,
-26,
-62,
-123,
24,
70,
3,
-86,
108,
120,
-76,
48,
47,
112,
11,
97,
-100,
-5,
44,
61,
15,
76,
110,
45,
-81,
80,
-79,
-102,
13,
119,
16,
-77,
-64,
-6,
7,
80,
30,
-120,
-80,
41,
-32,
114,
54,
-122,
117,
35,
-103,
0,
96,
102,
34,
-111,
-25,
-12,
-128,
-90,
-70,
-115,
-32,
-47,
120,
91,
9,
-102,
-100,
122,
4,
-122,
-4,
-21,
-123,
29,
36,
10,
-50,
-10,
-93,
-51,
100,
-34,
11,
-13,
74,
-76,
117,
-118,
-30,
93,
71,
58,
31,
-94,
-11
] |
Robert H. Dudley, Justice.
Appellant was arrested and charged by police citation with three (3) misdemeanors. At the time of appellant’s arrest, the charging officer’s personnel file did not contain a psychological evaluation, and as a result, the officer did not meet the minimum standards established by the Commission on Law Enforcement Standards and Training. The statute then in effect provided that any action taken by an officer who did not meet the minimum standards “shall be held as invalid.” Ark. Code Ann. § 12-9-108(a) (1987). After appellant’s arrest, but before his trial, the statute was amended to provide that “[a]ctions taken by law enforcement officers . . . shall not be held invalid merely because of the failure to meet the standards and qualifications.” Act 44 of 1989; Ark. Code Ann. § 12-9-108(a) (1990-91 Advance Code Service). The amendment additionally provided that it was applicable to all pending cases.
Appellant filed a motion to dismiss the citation on the ground that it was invalidly issued since the officer did not meet the standards and, in addition, filed a motion to suppress all evidence gathered by the officer. The trial court applied Act 44 and denied both motions. Upon trial, appellant was convicted of the misdemeanors. He appeals and makes four (4) assignments of error. We have previously decided the four (4) arguments adversely to appellant’s contentions.
Appellant first contends the police citation was invalid, and therefore, the trial court erred in refusing to quash it. The trial court did not err. Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991). He also argues that the trial court erred in refusing to suppress the evidence gathered by the officer. Again, the trial court did not err. State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991) and Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).
He argues that the application of Act 44 to a pending case violated the prohibitions against ex post facto laws. The argument is without merit. Ridenhourv. State, 305 Ark. 90, 805 S.W.2d 639 (1991). His final argument is that he was deprived of procedural due process because the police citation was invalid. This argument is also without merit. Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991).
Affirmed. | [
112,
-22,
-24,
-100,
43,
65,
58,
-90,
-45,
-125,
-1,
114,
-83,
-61,
12,
113,
104,
123,
116,
89,
-33,
-78,
35,
67,
102,
-13,
-23,
65,
51,
77,
-4,
-44,
78,
56,
-54,
-43,
6,
72,
-115,
88,
-122,
35,
-119,
85,
120,
-112,
52,
53,
96,
15,
113,
-97,
-30,
42,
18,
-53,
-23,
44,
73,
-72,
65,
-16,
-104,
29,
-1,
20,
-77,
86,
-101,
-115,
80,
54,
-104,
49,
17,
-8,
115,
-126,
-126,
-12,
127,
27,
-124,
98,
98,
0,
25,
-18,
-72,
-84,
62,
58,
29,
-90,
-104,
73,
75,
13,
-105,
-75,
38,
-112,
14,
-10,
115,
-99,
83,
108,
-90,
-49,
-76,
-103,
13,
96,
-42,
-29,
-53,
51,
16,
116,
-50,
-29,
86,
23,
19,
-37,
-58,
-42
] |
Tom Glaze, Justice.
The state charged appellee, a minor, with two counts of delivery of marijuana, a controlled substance, and, pursuant to Ark. R. Cr. P. 36.10(b) and (c), it appeals the trial court’s dismissal of those charges.
At the commencement of trial, both the state and the appellee announced to the court, sitting non-jury, that they were willing to stipulate as to the results of the tests of the state chemist in order to avoid the necessity of his having to appear in court. Afterwards, however, the state did not introduce the controlled substance, so appellee moved to dismiss the charges against him. Appellee argued that, without the marijuana having been introduced into evidence, the state failed to show the substance that appellee gave the police officer, Roger Ahlf, was a controlled substance. He also argued that, without the marijuana, the state was unable to establish the chain of custody necessary to admit into evidence the chemist’s test results. In sum, appellee argued below, and now on appeal, that because the marijuana itself was not introduced by the state, the state could not prove the charges against appellee.
We have consistently held that it is not essential to proof of charges of delivery or attempted delivery of a controlled substance that the substance itself, or the corpus delecti, be produced in court. Marshall v. State, 289 Ark. 462, 712 S.W.2d 894 (1986); Williams v. State, 271 Ark. 435, 609 S.W.2d 37 (1980); Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); Washington v. State, 248 Ark. 318, 451 S.W.2d 449 (1970). We have cautioned, however, that in those instances where the substance is not produced in court, there must be accompanying testimony by one sufficiently experienced with the substance so as to testify that it was indeed the substance. Id.
Here, the state called Officer Ahlf as a witness who testified that on November 30, 1989, while acting as an undercover agent, he had spoken with the appellee about obtaining marijuana, and appellee advised that “up front money” in the amount of $ 110.00 would be required for an ounce of marijuana. Officer Ahlf testified that he later gave the appellee $110.00 for an ounce of marijuana and that appellee and another individual reciprocated by delivering a bag containing three-quarters of an ounce of marijuana and $20.00, since the amount was less than the requested ounce.
Officer Ahlf offered testimony showing that he was an expert who could identify marijuana. Based upon his experience, Ahlf opined without objection that the substance delivered to him by appellee and his companion was marijuana. The trial court did not rule Ahlf s testimony was insufficient to establish the material given him was marijuana. Instead, it ruled that, as a matter of law, appellee was entitled to have the state introduce the marijuana into evidence so he could show the state failed to establish that its chain of custody was sufficient to prove the offense against appellant. As we stated above, the case law reflects the trial court was wrong in this specific respect.
Accordingly, we hold that it was error of the trial court to have dismissed the state’s charges.
Although the state had charged appellee with two counts of delivery arising from separate episodes on November 30, 1989 and December 14, 1989, it was stipulated near conclusion of trial of the November 30, 1989 episode that the proof would be essentially the same as to both. | [
-79,
-19,
-3,
-116,
58,
96,
114,
-80,
65,
-93,
116,
83,
-19,
98,
21,
49,
-27,
63,
116,
73,
-59,
-73,
103,
73,
-42,
-9,
120,
-45,
55,
-53,
-84,
-36,
77,
-108,
-117,
-43,
102,
88,
-21,
88,
-114,
0,
-119,
72,
113,
-126,
32,
-93,
50,
15,
113,
-105,
-29,
41,
25,
-49,
73,
44,
75,
-67,
-64,
-32,
-102,
21,
47,
22,
-77,
36,
-103,
-83,
-40,
62,
-104,
49,
17,
-6,
115,
-90,
-126,
116,
91,
-103,
-120,
100,
-30,
32,
61,
-19,
-68,
-116,
54,
62,
31,
-89,
88,
73,
75,
-119,
-74,
-67,
108,
18,
-82,
-2,
123,
-115,
93,
124,
2,
-50,
-80,
-111,
9,
96,
30,
67,
-49,
-89,
16,
65,
-51,
-14,
84,
85,
80,
-37,
-57,
-41
] |
Donald L. Corbin, Justice.
Appellant, Neal Hall, was tried and convicted by a Pope County jury for the rape and kidnapping of an eleven-year-old girl. He was sentenced to forty years imprisonment for the rape charge and five years for the kidnapping charge; the sentences were to run concurrently. Appellant appeals the denial of his motion for new trial. We affirm.
The evidence presented at trial reveals that at approximately 8:00 or 8:30 on the morning of October 18, 1989, appellant kidnapped his eleven-year-old victim as she was walking to school. He flashed a gun at her, represented himself to be an undercover policeman, and told her to get in his car. He then took her into a wooded area, undressed her, blindfolded her, and raped her vaginally, anally and orally.
This evidence was presented through the testimony of the victim herself. The victim’s testimony was in complete accord with numerous other witnesses. Dr. Kingsley Bost, the pediatrician who examined the victim, testified she had been vaginally, anally and orally raped. Mike Modika, a school bus driver, testified that on the morning of October 18, 1989, he saw a girl who looked a lot like the victim get into a white car. Modika identified a photograph of appellant’s car as the car he saw the girl enter. Two other witnesses testified that on the morning of October 18,1989, they saw a white car pulled off the road in an area near the rape scene. Both of these witnessed identified photographs of appellant’s car as the car they saw. Still another witness testified that on October 18,1989, he picked up the victim on the roadside; she was terrified and crying. Yet another witness, Gladys Franklin, testified that she was a passenger on the bus driven by Modika. Franklin stated she knew both appellant and the victim and that she saw the victim enter appellant’s car on the morning of October 18, 1989. She also testified that she saw appellant’s car leave after the victim entered it.
As the single point presented in this appeal, appellant asserts the trial court erred in denying his motion for a new trial based upon the prosecutor’s failure to comply with the discovery request to notify appellant’s counsel of the felony convictions of material witnesses. Specifically, appellant argues the prosecutor should have notified counsel of the May 30, 1990 arson conviction of Gladys Franklin. Appellant alleges the prosecutor’s failure to disclose requested information precluded him from attacking Franklin’s credibility.
Appellant’s trial occurred on July 23 and 24, 1990. On February 5, 1990, appellant filed a “Request For Disclosure” specifically requesting “prior criminal convictions or charges or allegations of misconduct against persons whom the prosecuting attorney intends to call as witnesses____” The state responded to the request on February 20, 1990, listing Franklin as a witness, but failing to list any charges or convictions. The state’s response also stated that the response would be amended upon the finding of other witnesses or information. Although there was further written communication between the prosecutor and appellant’s counsel regarding discovery, no mention of Franklin’s guilty plea and sentence of ten years probation entered May 30, 1990, was made.
After trial and upon discovery of Franklin’s conviction, appellant moved for a new trial stating that the prosecutor’s failure to disclose the information prejudiced him in that he was precluded from impeaching Franklin’s testimony with the arson conviction. At a hearing on the motion, the trial court noted the state’s failure to comply with the request was not intentional, but an oversight. Not convinced that evidence of Franklin’s prior conviction would have made any difference in the trial, the trial court denied appellant’s motion.
Ark. R. Crim. P. 17.1(a) states in pertinent part:
(a) Subject to the provisions of rule 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.
We have previously held that reversible error exists when a prosecutor in fact fails to comply with an appellant’s timely request for discovery information which results in prejudice to the appellant. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
There can be no doubt as evidenced in the foregoing discussion, that appellant filed a timely request for the information in question and that the state in fact failed to provide the requested information due to an oversight. Although we have previously considered a prosecutor’s intent in deciding whether there was a discovery violation, Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981), such intent or lack thereof is no longer relevant. See Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).
The key issue then is whether appellant was prejudiced by the prosecutor’s failure to disclose the requested information; absent a showing of prejudice, we will not reverse. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). We hold appellant has not met his burden of showing prejudice. First, as noted by the trial court, given our lack of knowledge of whether the facts relating to Franklin’s arson conviction concern her truthfulness, we can only speculate that appellant’s counsel would have been allowed to impeach her credibility with this information. Second, the evidence of appellant’s guilt is overwhelming even absent Franklin’s testimony.
Excluding Franklin’s testimony, the overwhelming evidence against appellant consists of the testimonies of the witnesses, which are related at the beginning of this opinion and the victim’s testimony,which is corroborated by other evidence. When taken together, the testimonies of these other witnesses place both the victim and appellant’s car near the rape scene at the same time the day the rape occurred. The victim gave an extremely detailed account about her rapist and the circumstances surrounding the crime. Both in a photographic line-up and at trial, she identified appellant as her rapist and kidnapper. The reliability of her identification of appellant is strengthened by the numerous facts to which she testified and which were corroborated by other evidence.
The facts to which the victim testified and the other evidence which corroborates her testimony follow. The victim testified that while she was walking to school, a man wearing a jean jacket, bluejeans, black boots, and blue hat pulled beside her in a car and showed her a gun. She later identified a B-B pistol taken from appellant’s apartment as the gun she saw in the car. She testified that a hat taken from the dumpster in front of appellant’s apartment looked familiar to her. She also identified a picture of the boots taken from appellant’s apartment as the ones her rapist wore. The victim testified her assailant smoked Winston cigarettes; Winston cigarettes were found at appellant’s apartment. She stated her attacker had shoulder-length hair that was dirty blond. Appellant admitted his hair was long, but that he cut it when he learned he was a rape suspect. Hair clippings were found in appellant’s bathroom. The victim testified the car she was kidnapped in was white with a blue interior and that she heard tools or cans rattling in the back of the car. She later identified photographs of appellant’s car as the one in which she was kidnapped. The truck of appellant’s car was filled with aluminum cans.
It is true that the record indicates the jury deliberated for quite some time before reaching a verdict. Appellant contends this indicates the jury had difficulty in reaching a verdict. This contention is purely speculation on his part and it does not mean the jury would have reached a different verdict had Franklin’s testimony been impeached. It simply means the jury deliberated for a while; we can only speculate as to the reason. They could have had difficulty in recommending sentencing provisions.
In holding that appellant has not met his burden of showing he was prejudiced by the prosecutor’s failure to disclose the requested information, we in no way intimate approval of the prosecutor’s actions in this case. Whatever the reason, whether it be intentional or oversight, a prosecutor’s failure to disclose discoverable information to a criminal defendant is an action which should be avoided. In this case, there was no prejudice resulting from the prosecutor’s negligence; it is this absence of prejudice that forms the basis of our decision.
The decision to grant a new trial in a criminal case is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice. Allen v. State, 297 Ark. 155, 760 S.W.2d 69 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). As there was a plethora of evidence other than Franklin’s testimony to support a determination of guilt, we cannot say there was an abuse of discretion and appellant has not demonstrated any prejudice. Thus, the denial of the motion for new trial is affirmed.
Affirmed.
Holt, C.J., Dudley and Newbern, JJ., dissent. | [
80,
-20,
-67,
-67,
25,
-31,
110,
24,
-93,
-13,
48,
-45,
-81,
70,
0,
107,
-113,
59,
85,
97,
-35,
-73,
87,
97,
-80,
123,
123,
-41,
-13,
79,
36,
-11,
76,
112,
-54,
-47,
-30,
-56,
-27,
80,
-114,
-121,
-70,
-28,
16,
-64,
38,
126,
124,
15,
37,
-116,
-77,
42,
20,
-49,
-55,
44,
91,
63,
72,
25,
-78,
7,
-113,
52,
-77,
-90,
-70,
1,
-8,
29,
-44,
-79,
0,
-7,
114,
-90,
-128,
-12,
77,
-119,
-84,
32,
98,
-127,
28,
-9,
-88,
-119,
62,
30,
-88,
-89,
88,
41,
64,
101,
-73,
29,
112,
-44,
15,
122,
-27,
-58,
93,
100,
46,
-49,
54,
-79,
-115,
40,
-62,
-69,
-29,
25,
52,
113,
-51,
-12,
86,
68,
120,
-5,
74,
-77
] |
Robert H. Dudley, Justice.
Plaintiffs, Mark and Suzanne Charette, bought a three-acre wooded corner lot in a subdivision in Saline County. For the next year and a half, they removed pine trees and cleared undergrowth and damaged hardwood so that the healthy hardwood would grow. They plan to build a lake on the southern part of their lot and to build their home on the northern part of it. They left a grove of the best hardwood trees along the road on the west side of their property so that they could have a tree-lined drive beside their home. Unfortunately, First Electric Cooperative Corporation made a mistake about the location of its easement and cut down twenty-one (21) of plaintiffs trees along the road.
The plaintiffs sued First Electric for its destruction of the hardwood trees. They prayed for the replacement value of the destroyed trees and for treble damages for intentional destruction of the trees pursuant to Ark. Code Ann. § 18-60-102 (1987). At trial, the jury heard evidence of the cost of replacing the trees, as well as evidence of the fair market value of the land before and after the removal of the trees. At the close of all the evidence, and over the objection of First Electric, the trial judge instructed the jury that if it found for the plaintiffs, it should determine the amount of money which would compensate the plaintiffs for the reasonable expense of necessary repairs to the damaged property. The jury found that First Electric was negligent in cutting down the trees, but that it had not intentionally destroyed them, and it awarded plaintiff recovery in the amount of $8,300.00. The trial court entered judgment in that amount. We affirm.
Appellant First Electric argues that allowing the replacement measure of damages can result in an unfair recovery to the trespasser when, as in the present case, the evidence shows that the cost of replacing trees is almost as much as the value of the land. Plaintiff Mark Charette testified that he and his wife, Suzanne, purchased the land in the spring of 1987 for $13,900.00 and that the land was worth $24,000.00 in the fall of 1989, before appellant cut the trees along the road. On the other hand, First Electric’s expert, a real estate appraiser, testified that the fair market value of the land was only $ 14,000.00 before the appellant cut down the twenty-one (21) trees and that the land was worth more after the trees were cut. Plaintiffs’ expert, a nurseryman, testified that it would cost $16,555.00 to replace the trees.
In the recent case of Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), we adopted the rule that when ornamental or shade trees are injured, the use made of the land should be considered and the owner compensated by damages representing the cost of replacement of the trees. We also said that the evidence in each case will determine whether an instruction on the difference in the value of the land before and after an occurrence (AMI 2222) or one on the cost of restoration (AMI 2223) should be given.
In the present case, the evidence showed that the appellant had destroyed a relatively small number of hardwood trees. The plaintiffs had intentionally left these trees growing along the roadside because they wanted a beautiful tree-lined road by their home. In effect, the trees that First Electric destroyed were part of the landscaping the plaintiffs had undertaken in preparation for building their house. Under these facts, we cannot say that the trial court abused its discretion in instructing the jury on the replacement measure of damages. Certainly we can envision fact situations in which recovery of the replacement cost of trees would yield a result grossly disproportionate to the fair market value of the land and would, therefore, be an inappropriate measure of damages, but this is not such a case.
First Electric secondly argues that the replacement measure of damages was improper in the present case because the plaintiffs had not yet put the land to their intended use for it by building their house or lake. This argument has no merit. In another recent case, Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991), we held that it is proper for a trial court to consider the intended use of property when determining the appropriate measure of damages. In that case, we allowed replacement value damages for shade trees on property which the appellees intended to use as a trailer park.
Affirmed. | [
-48,
108,
-40,
-116,
8,
-32,
58,
-102,
91,
-96,
-32,
87,
-83,
-117,
73,
35,
-93,
-35,
117,
104,
-41,
-93,
3,
35,
-112,
-69,
113,
77,
-71,
77,
-28,
-59,
72,
112,
-54,
-43,
-62,
64,
-19,
-40,
14,
-122,
-117,
117,
-55,
64,
52,
-85,
2,
75,
113,
14,
-77,
45,
17,
-61,
72,
44,
-53,
57,
81,
56,
-72,
23,
127,
23,
1,
-60,
-72,
-125,
-54,
42,
-112,
49,
24,
-24,
115,
50,
-121,
116,
13,
-103,
12,
96,
102,
16,
12,
-17,
-24,
-104,
47,
-74,
13,
-90,
-64,
104,
67,
73,
-66,
-106,
100,
16,
22,
126,
-14,
-123,
95,
108,
7,
-114,
-108,
-95,
-115,
32,
-98,
3,
-21,
7,
50,
117,
-49,
-30,
92,
71,
50,
-37,
15,
-9
] |
Constance G. Clark, Special Justice.
Guy Thomas, a truck driver for Tyson Foods, Inc., was injured on May 13,1987, while working on a trailer in the course and scope of his employment with Tyson. On March 23, 1990, Mr. Thomas’s guardian, the City National Bank of Fort Smith, and his wife, Mary Thomas, filed suit in Johnson County Circuit Court to recover damages for personal injuries sustained as a result of the accident. The plaintiffs named as defendants in the action Valmac Industries, Inc., Tyson Foods, Inc. and four other persons not parties to this appeal. Mr. Thomas claimed that his injuries were the proximate result of the defendants’ negligence and the unreasonably dangerous condition of the trailer, which he alleged was owned by and had been defectively modified pursuant to instructions from Valmac. The complaint also alleged that on May 25, 1988, Valmac merged with Tyson and that Tyson thereby succeeded to the liabilities of the predecessor corporation.
Valmac and Tyson filed a motion to dismiss the complaint pursuant to Rule 12(b)(1) and (b)(6) of the Arkansas Rules of Civil Procedure. They contended that the plaintiffs’ exclusive rights and remedies were those provided under the Arkansas Workers’ Compensation Act and, therefore, the circuit court lacked jurisdiction over the subject matter of the action and the complaint failed to state facts upon which relief could be granted. The trial court granted the motion and dismissed the complaint as against Valmac and Tyson. Pursuant to the joint motion of the parties, the court then entered a final judgment under Ark. R. Civ. P. 54(b), paving the way for this appeal by the Thomases. We conclude that the trial court did have jurisdiction of the subject matter of the action and that the complaint stated facts upon which relief could be granted and, therefore, reverse.
The issue presented by this appeal is one of first impression in this state—does the exclusivity provision of our Workers’ Compensation Act bar an injured worker from pursuing a tort claim against his employer as the successor to the liabilities of the alleged tortfeasor? We find that an injured employee who would otherwise have a valid third-party claim against the alleged tortfeasor should not be barred from pursuing his action simply because the tortfeasor merged with the injured worker’s employer.
It has long been settled that, as a general rule, an employer who carries workers’ compensation insurance is immune from liability for damages in a tort action brought by an injured employee. Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987); Brown v. Patterson Constr. Co., 235 Ark. 433, 361 S.W.2d 14 (1962). This so-called exclusivity doctrine arises out of Ark. Code Ann. § 11-9-105 (1987), which provides that “[t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee . . . .” Certain narrow exceptions to the general rule have been carved out by the courts. For instance, an employer who wilfully and intentionally injures his employee is not immune from a common law tort action. Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28 (1950).
Litigants in some states attempted to circumvent the exclusive remedy principle by professing to bring suit against their employers in some capacity other than as employers—for example, as owners of property upon which a job-related injury occurred or as manufacturers or vendors of hazardous equipment causing injury on the job. Under this dual capacity doctrine, an employer who would ordinarily be protected from tort liabilities by the exclusivity rule could become liable in tort if, in addition to his relationship as employer, he occupied some other capacity that could be said to confer upon him obligations independent of those imposed upon him as an employer. Professor Larson explains in his treatise why the dual capacity doctrine formerly embraced by some courts has now fallen into disfavor:
When one considers how many such added relations an employer might have in the course of a day’s work—as landowner, land occupier, products manufacturer, installer, modifier, vendor, bailor, repairman, vehicle owner, shipowner, doctor, hospital, health services provider, self-insurer, safety inspector—it is plain enough that this trend could go a long way toward demolishing the exclusive remedy principle. 2A A. Larson, The Law of Workmen’s Compensation, § 72.81(a) (1990).
Professor Larson goes on to state that while the dual capacity doctrine is unsound, the dual persona doctrine, which recognizes the duality of legal persons, is a legitimate concept. Thus, says Larson,
An employer may become a third person, vulnerable to tort suit by an employee, if—and only if—he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person. 2A A. Larson, The Law of Workmen’s Compensation, § 72.81 (1990).
It is the dual persona doctrine which the appellants urge us now to adopt.
We recently discussed the dual capacity and dual persona doctrines in Landers v. Energy Systems Management Co., 305 Ark. 267, 807 S.W.2d 33 (1991). The plaintiff in that case, Kenneth Landers, was employed by PSC Laboratory Management Services, which was participating in a joint venture with Energy Systems Management Co. (Ensco). Landers’ suit against Ensco for negligence was barred by the trial court on the ground that the plaintiffs remedy was limited to workers’ compensation benefits. The plaintiff argued that Ensco should not be immune from tort liability because, in addition to its role as a joint venturer and employer, it occupied a second, or dual, capacity that conferred upon it obligations independent of those imposed upon it as an employer. Specifically, Landers argued that Ensco owned the property on which the joint venture did business, it was required to but failed to provide a barrel tilter (an implement required by federal safety regulations), and its employee was responsible for safety within the entire Ensco premises.
While not rejecting the dual persona concept, we concluded in Landers that the doctrine did not apply to the facts of that case. In fact, it is apparent that in the Landers case, we were really dealing with a dual capacity argument and not one founded on the dual persona theory. The plaintiff merely alleged that Ensco occupied a capacity or relationship in addition to that of joint venturer and employer. He could not establish that Ensco possessed a second persona completely independent from and unrelated to its status as an employer.
In contrast to Landers, the appellants in this case bring their action against Tyson not as Guy Thomas’s employer, but as the successor corporation to Valmac. The appellants look to the Arkansas Business Corporation Act to establish liability on the part of Tyson. Ark. Code Ann. § 4-26-1005(b) (1987) provides that when a merger has been effected:
(1) The several corporations parties to the plan of merger or consolidation shall be a single corporation which, in the case of a merger, shall be that corporation designated in the plan of merger as the surviving corporation ....
(2) Subject to § 4-26-1008, the separate existence of all corporations parties to the plan of merger or consolidation, except the surviving or new corporation, shall cease.
* * *
(6) Such surviving or new corporation shall henceforth be responsible and liable for all the liabilities and obligations of each of the corporations so merged or consolidated. Any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted as if the merger or consolidation had not taken place, or such surviving or new corporation may be substituted in its place. . . .
The appellants contend that under the language of this statute, Tyson, as the surviving corporation, is responsible for any liabilities of Valmac, the merged corporation. We find that this is precisely the type of situation which calls for the application of the dual persona doctrine.
One of the first cases to embrace the dual persona theory was the decision of the Court of Appeals of New York in Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 412 N.E.2d 934, 432 N.Y.S.2d 879 (1980). In Billy, the plaintiffs decedent, an employee of USM Corporation, was killed when a 4,600 pound “jam” from a vertical boring mill broke loose and struck him. Although the decedent’s widow applied for and received workers’ compensation benefits, she also brought a tort action against USM Corporation, the parent corporation of USM and three other corporations which had been absorbed by USM through corporate mergers prior to the accident. USM moved for summary judgment on the basis of the exclusive remedy provision of New York’s workers’ compensation law. The lower courts agreed with USM that the exclusivity provision of the workers’ compensation act barred the common law tort claim, but the Court of Appeals reversed.
After first rejecting the dual capacity doctrine, the Billy court adopted what is now known as the dual persona doctrine, reasoning that USM should not be permitted to avoid the obligations it inherited through corporate merger simply because of the “fortuity” that the injured party was its employee. The court went on to explain:
Conceptually, the deceased employee’s executrix is suing not the decedent’s former employer, but rather the successor to the liabilities of the two alleged tortfeasors. That USM also happens to have been the injured party’s employer is not of controlling significance, since the obligation upon which it is being sued arose not out of the employment relation, but rather out of an independent business transaction between USM and Farrel. . . .
Through its merger with Consolidated and Farrel, USM voluntarily assumed any obligations that those corporations may have had to individuals who might suffer injury as a result of a defect in their product. It would be grossly inequitable to permit USM to avoid its assumed obligations solely because the injured party was coincidentally an employee and the injuries in question arose in the course of his employment. 51 N.Y.2d at 161-62, 412 N.E.2d at 940, 432 N.Y.S.2d at 884-85.
Accord Robinson v. KFC National Management Co., 171 Ill. App. 3d 867, 525 N.E.2d 1028 (1988); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 550 N.E.2d 127 (1990); and Schweiner v. Hartford Accident & Indemnity Co., 120 Wis. 2d 344, 354 N.W.2d 767 (Ct. App. 1984).
This court believes the application of the dual persona doctrine is called for even more strongly here than it was in Billy. There, the merger of Consolidated and Farrel (the designer and installer, respectively, of the “ram” that killed the decedent) into USM occurred a number of years prior to the accident. Here, the merger of Valmac into Tyson, according to the unrefuted allegations in the plaintiffs’ complaint, did not take place until May 25,1988, one year after the accident. Thus, in this case, Guy Thomas clearly had a third-party claim against Valmac at the time he sustained his injury.
Tyson’s argument centers around the assertion that, prior to his injury, Guy Thomas was an employee of Valmac. Tyson also maintains in its brief that in October of 1984, Tyson “acquired Valmac through a tender offer” and, shortly thereafter, “assumed responsibility and control of Valmac operations and Valmac employees, including Thomas, became Tyson employees.” Thus, Tyson contends that even if it succeeded to any liability on the part of Valmac, it also succeeded to the immunity from suit which Valmac possessed as Mr. Thomas’s employer.
The problem we have with this argument is that Tyson does not dispute the complaint’s allegation that on May 13,1987, the date of his injury, Guy Thomas was an employee of Tyson. Furthermore, Tyson offered no evidence, in the form of an affidavit or otherwise, to refute the allegation of the complaint that the merger of Valmac and Tyson occurred on May 25,1988. Tyson’s argument is based entirely upon statements contained in its brief. We have previously held that it is incorrect to base a decision on a motion to dismiss (or a motion for summary judgment) upon allegations contained in the parties’ briefs. Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985). In this case, taking the unrefuted allegations of the complaint as true, Valmac was not Mr. Thomas’s employer on the day of his injury. Consequently, Tyson had no immunity to inherit when the merger took place one year later.
In conclusion, we find that under the particular facts of this case, the exclusivity provisions of our Workers’ Compensation Act do not bar the appellants from maintaining their tort action againstTyson Foods, Inc. Because the trial court does have jurisdiction of the subject matter of this action, and because the complaint on its face states facts upon which relief could be granted, we hold that the trial court erred in granting the motion to dismiss.
We would add that the appellants also asserted that the trial court may have treated the appellees’ motion to dismiss as one for summary judgment pursuant to Ark. R. Civ. P. 56. The appellants submit that if the trial court did treat the motion to dismiss as one for summary judgment, it improperly dismissed the complaint because there were genuine issues of material fact. We do not find it necessary to reach this issue, inasmuch as we conclude that the trial court’s ruling on the Rule 12(b)(1) and (b)(6) motion was in error.
Reversed.
Hays, J., dissents.
Brown, J., not participating. | [
-48,
-8,
-111,
12,
8,
-32,
58,
-66,
115,
-93,
37,
83,
-25,
68,
21,
111,
-25,
125,
65,
107,
-11,
-93,
3,
-32,
74,
-77,
-7,
71,
-70,
74,
100,
-10,
77,
48,
10,
-43,
-26,
2,
-55,
28,
110,
4,
106,
-7,
121,
2,
56,
-2,
80,
71,
49,
-108,
-5,
40,
24,
-57,
12,
40,
75,
-92,
-47,
113,
-61,
13,
127,
18,
-77,
4,
-104,
39,
-40,
30,
-112,
-71,
40,
-56,
82,
-74,
-94,
116,
107,
-99,
0,
34,
98,
35,
29,
-91,
108,
-72,
38,
-17,
31,
-124,
-80,
41,
11,
11,
-65,
29,
90,
20,
8,
126,
-4,
93,
31,
104,
-121,
-114,
-108,
-95,
-89,
-32,
29,
-109,
-17,
15,
-78,
117,
-52,
-80,
93,
5,
123,
-33,
95,
-42
] |
Edwin B. Alderson, Jr., Special Chief Justice.
Appellants appeal an Order of Dismissal of the lower court which granted the Appellees’ Motion to Compel Arbitration and for Dismissal. The court in that Order dismissed Appellants’ Complaint and stated “. . . if they desire to further pursue their alleged claims against the Defendants, (Plaintiffs) must do so in accordance with the arbitration agreements entered into by the parties”.
Appellants, Jeff England and Don Ragar, (along with Keith French who joined in the complaint in the lower court but did not appeal the decision) while working in the Little Rock branch of E. F. Hutton negotiated in the Fall of 1987 with Appellees Dean Witter Reynolds, Inc. and Appellees Robert W. Bass, a Vice President of Dean Witter and the branch Manager for its Securities Operations in Little Rock. The negotiations concluded with agreement among the parties that Appellants would become employees of Dean Witter. The parties executed a letter agreement dated December 11, 1987, an Account Executive Employment Agreement dated December 15, 1987 and a Uniform Application for Securities Industries Registration or Transfer dated December 16, 1987 known in the industry as a “Form U-4”. The December 15 Agreement provided for arbitration and also that it would be governed by Arkansas Law. The Form U-4 contained a comprehensive arbitration agreement providing for arbitration of “any dispute, claim or controversy that may arise . . .” in accordance with Rule 347 of the New York Stock Exchange which likewise calls for arbitration of any controversy arising out of the employment.
Almost instantly problems arose between Appellants and Appellees and Appellants’ employment ceased in early 1989. England, Ragar and French filed their complaint in the lower court in August, 1989 alleging fraudulent inducement, intentional misrepresentation, gross negligent misrepresentation, prima facie tort and tort outrage. Their prayer was for unspecified compensatory damages plus $20,000,000 punitive damages. Appellees filed a Motion to Compel Arbitration and for Dismissal of the Complaint. The Order of Dismissal granting the motion and dismissing the Complaint was entered in February, 1990.
The Points of Appeal relied on by the Appellants are as follows:
1. All authorities, state and federal, require an agreement to arbitrate the specific subjects involved and the matter is one of contract.
The “choice of law by agreement” issue was entirely omitted from the lower court’s ruling. 2.
The lower court failed to follow the rules for construction of contracts under Arkansas Law. 3.
The lower court ignored the rules requiring jury determination when the making of an agreement to arbitrate is in issue. 4.
The lower court erred by its determination of material and disputed fact issues which is an unconstitutional usurpation of the jury function and a denial of the right to a jury trial. 5.
All parties admit that the Form U-4 was executed by the parties. As a contract involving interstate commerce it is covered by the Federal Arbitration Act. The Federal Arbitration Act provides that if the making of the Arbitration Agreement is in issue a party may demand a jury trial. Notwithstanding the plethoric arguments by Appellants’ counsel it was clear to the lower court and it is clear to this court that there was indeed an agreement to arbitrate. In this connection we think that the lower court should have made a specific finding that there was no material issue of fact to be determined.
While the substantive issues are determined by the Federal Arbitration Act the procedural issues are determined by Arkansas*Law. Appellees argue that the order of the lower court is not appealable. Most states which have adopted the Uniform Arbitration Act have held that an order compelling arbitration is not appealable. In Chem-Ash, Inc. v. Arkansas Power and Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988) this court held that the lower court’s order compelling arbitration is not appealable. The court stated:
If we permit an Appeal from every order referring a case to arbitration, the policy favoring arbitration would be frustrated, and we would be twice reviewing a case.
Substantively the lower court made the correct decision, however its order must be modified to show a clear determination that with respect to the existence of an agreement to arbitrate there was no material issue of fact to be determined. In addition the lower court is directed not to dismiss the action but to retain jurisdiction of the controversy until the arbitration process has been concluded. Accordingly, the Appeal is dismissed and Mandate issued consistent with this Opinion.
Special Justice Janet L. Burtness joins in this opinion.
Holt, C. J., Dudley, J. and Brown, J., not participating. | [
-80,
-24,
-39,
44,
-104,
101,
58,
-66,
116,
-95,
103,
83,
41,
87,
89,
121,
-13,
89,
85,
107,
82,
-77,
21,
48,
67,
-109,
83,
-51,
-80,
79,
-28,
-105,
72,
121,
66,
-123,
-58,
-62,
-55,
28,
70,
37,
27,
-20,
-7,
-60,
48,
-6,
16,
79,
97,
-74,
-5,
40,
28,
-61,
109,
44,
123,
-88,
82,
-111,
10,
12,
127,
19,
51,
-123,
-70,
5,
-48,
44,
-128,
49,
57,
-31,
50,
38,
-106,
116,
107,
25,
8,
104,
99,
2,
-107,
-25,
-100,
-72,
38,
58,
-115,
-90,
-110,
89,
74,
9,
-74,
-99,
-2,
4,
3,
-2,
-6,
13,
31,
108,
5,
-50,
-106,
-79,
-81,
112,
28,
11,
-21,
-50,
48,
117,
-114,
-26,
93,
71,
18,
-109,
6,
-48
] |
Robert L. Brown, Justice.
This appeal is a probate matter in which the appellant, Garland F. Morris, Jr., contests the performance of the appellee, Sophia R. Cullipher, as executrix of the decedent’s estate on various grounds, including breach of fiduciary duty. The probate court entered an order denying relief on September 13, 1990. Morris Jr. now appeals and raises five points for reversal. There is no merit in any of the arguments, and we affirm.
The decedent, Garland F. Morris, Sr., died testate in Garland, Miller County, Arkansas on January 7, 1985. He was survived by Cullipher, who was his second wife and who has since remarried, and by Morris Jr., who was his only son by a previous marriage. Morris Sr. divorced his first wife in 1966 and married Cullipher that same year. Prior to the divorce Morris Sr. had lived in Texas but upon remarrying, he and Cullipher moved to Garland. For the duration of their marriage, they farmed 1,123.22 acres of land in Miller County — 370 acres were owned solely by Cullipher, 633.22 acres were owned as tenants by the entirety, and 120 acres were owned solely by Morris Sr. As they made money, they bought certificates of deposit from four Texas banks in their joint names. They also held their Arkansas farm operation as tenants by the entirety and used the money derived from that operation to buy farm equipment and livestock.
Morris Sr. died in 1985, and his will was admitted to probate. Cullipher was appointed executrix of his estate, which was valued at approximately $295,000. The jointly held Texas certificates of deposit which Cullipher determined passed to her by right of survivorship under Arkansas law were valued at $268,848. Cullipher took ownership of those certificates and transferred them to Arkansas. More than two years later on November 17, 1987, Morris Jr. petitioned to have Cullipher removed as executrix. Hearings on this petition and other matters relating to discovery and the administration of this estate were held with the final hearing commencing on May 3, 1990. The probate judge denied the petition and entered his order with accompanying findings of fact and conclusions of law on September 13, 1990.
I.
REMOVAL OF EXECUTRIX
Morris Jr. urged the probate judge to remove Cullipher for multiple reasons. His first argument was premised on a perceived failure on her part to prepare inventories and accountings for the estate in a satisfactory manner. The facts, however, undermine Morris Jr.’s assertions. On April 29,1985, Morris Jr. waived the necessity for an inventory and accounting. A year later on May 22, 1986, he changed his mind and withdrew his waiver. He further petitioned to compel Cullipher to file the documents. The probate judge ordered her to do so on August 11, 1986, but directed that the documents not be filed as part of the probate clerk’s record. Cullipher proceeded to prepare and send an inventory and accounting to counsel for Morris Jr. within thirty days of that order. She then filed amended and supplemental accountings on March 7, 1988, and November 28, 1989. On March 30, 1990, she filed a comprehensive accounting and amended inventory. The comprehensive accounting replaced previous accountings filed. On May 1, 1990, she filed a supplemental accounting.
We have held that where there is. substantial compliance with the executrix’s obligation to file an inventory and accounting and no evidence of wrongdoing, we will deny relief for a fiduciary breach. See Petty v. Lewis, 285 Ark. 3, 684 S.W.2d 250 (1985). Here, it is clear from the above that Cullipher did prepare and furnish accountings as well as an inventory after Morris Jr. withdrew his waiver. Although Morris Jr. contests the sufficiency of these documents, the probate judge found no deficiency in Cullipher’s performance in this regard. We agree and affirm the probate judge’s ruling.
Morris Jr. also presses the point that a fiduciary breach occurred because Cullipher refused to comply with the decedent’s “desire” in his will that Cullipher and Morris Jr. engage in joint farming operations. This language is clearly precatory and, as such, is ineffective to dispose of property. In addition, the Arkansas farm passed to Cullipher by right of survivorship, and, therefore, was not affected by language in the will. See Estate of Wells v. Sanford, 281 Ark. 242, 663 S.W.2d 174 (1984).
Nor does the will direct or require Cullipher to make disbursements of money to Morris Jr. There is only the “desire” that Cullipher do so which, again, is precatory. Allegations were also made regarding Cullipher’s administration of the Texas C.D.’s and claims against the estate. These issues are discussed more fully below but, in sum, we agree that evidence of wrongdoing is lacking, as the probate judge found. Finally, Cullipher’s failure to close out the estate has been due in no small part to the multiple lawsuits prosecuted by Morris Jr. against Cullipher and the estate. There was no error in the probate judge’s refusal to find any breach of fiduciary duty.
II.
DISCOVERY RESTRICTION AND CONTINUANCE
Though the original petition for removal of Cullipher was filed by Morris Jr. on November 17,1987, the trial on the petition did not commence until March 16, 1990. No discovery had been conducted by Morris Jr. at the time the trial commenced. The probate judge recessed the trial on March 19,1990, until May 3, 1990, and subsequently entered a scheduling order on March 27, 1990, which mandated preparation of the comprehensive accounting and inventory and which contemplated additional discovery pertaining to the bank accounts and C.D.’s. On March 30, 1990, Cullipher filed a comprehensive accounting and inventory. On April 12,1990, Morris Jr. filed requests for production of business documents regarding the decedent’s farm operation going back twenty-three years, which were to be furnished in five days. The ostensible reason for the request was to trace the title of the property to determine what was individually owned by the decedent or jointly owned. On May 1, 1990, the probate judge entered a protective order denying the expansive discovery, and on July 30, 1990, the probate judge struck subsequent discovery which had been served by Morris Jr. on Cullipher. (Cullipher contends in this regard that most of the title records to personal property were provided to Morris Jr. in advance of the May 3, 1990 hearing.) When the trial reconvened on May 3, Morris Jr. moved for a continuance on the basis that he had not had an opportunity to review all of the provided material. The motion was denied as untimely.
Lack of diligence is a factor to consider in denying a continuance. Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984). Moreover, a trial judge has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by this court absent abuse of discretion which is prejudicial to the appealing party. See Bolden v. Carter, 269 Ark. 391, 602 S.W.2d 640 (1989); Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). Also, when the continuance is based on a request for additional discovery, the appellant must not only show that there has been an abuse of discretion, but also that the additional discovery would have changed the outcome of the trial. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). We hold that the probate judge was correct, and that there was no abuse of discretion regarding discovery and the continuance.
III.
PAYMENT OF CLAIMS
Morris Jr. next contests the procedure by which Cullipher paid claims filed against the estate. Specifically, he argues that certain claims timely presented as debts of the decedent were not filed with verifications and allowed by the court prior to payment. The Statute of Nonclaim is not raised by the appellant as an issue.
It is true that the probate judge did not allow these claims prior to their payment by Cullipher. But the judge approved their payment after the fact in his September 13,1990, order. In the past we have held that substantial compliance with the formalities for filing and approving claims is sufficient under certain circumstances. See Merritt v. Rollins, 231 Ark. 384, 329 S.W.2d 544 (1959) (registered mail of claim to personal representative as specified by statute not required when claim is personally delivered). Because of the probate judge’s subsequent approval of these claims, we hold that there was substantial compliance in this case.
Morris Jr. further contests payment of significant legal and accounting fees as administrative expenses of the estate. The authorizing statute reads:
(b) Claims for expenses of administration may be allowed upon application of the claimant or of the personal representative, or may be allowed at any accounting, regardless of whether or not they have been paid by the personal representative.
Ark. Code Ann. § 28-50-105(b). Morris Jr. maintains that the fees claimed and paid were excessive in view of the size of the estate.
The fees are high — $81,932 for legal fees and $23,450 for accounting fees, according to Morris Jr. — but the value of such services rendered is primarily a matter within the discretion of the probate judge, and we will not reverse that finding absent an abuse of discretion. Again, we note, as did the probate judge, that there were “numerous” lawsuits brought against Cullipher and the estate by Morris Jr. We are not privy to precisely what those lawsuits entailed, since they are not part of the record. The probate judge, however, found that they were suits against Cullipher in her official capacity, and there is nothing before us to counter that. We also agree with the probate judge that in the instant case Cullipher’s actions, which are now contested by Morris Jr., were taken in her official capacity. The legal defense of lawsuits brought by Morris Jr. as principal descendant of the testator as well as his demand for comprehensive accountings undoubtedly enhanced the administrative claims.
It is true that had the statutory formula been used for the award of attorney’s fees, the award would have been much less than the $81,932 paid in legal fees, even if part of the decedent’s property passing to Cullipher by operation of law had formed part of the estate. See Ark. Code Ann. § 28-48-108 (d) (1987). But, the probate judge has authority to approve legal fees in excess of the statutory legal fees under § 28-48-108(d) and did so in this case. He further was authorized to approve accounting fees under Ark. Code Ann. § 28-48-108(e) (1987). For the reasons set out above, we hold that his ruling on the fees did not constitute an abuse of discretion.
IV.
CHOICE OF LAW
The choice of law question lies at the heart of Morris Jr.’s appeal. Specifically, there is the issue of whether the Texas C.D.’s legitimately passed by right of survivorship under Arkansas law or whether one-half of the C.D.’s should have become part of Morris Sr.’s estate under Texas’s community property law. Morris Jr. argues vigorously that the C.D.’s were movable personal property and, as such, the law of the situs state — Texas — should apply. Texas, unlike Arkansas, requires a separate writing signed by the parties evidencing a survivorship intent in order for the C.D.’s to pass by operation of law. See Texas Probate Code Annotated § 439 (Vernon, 1980). Under Arkansas law no separate writing is required for the C.D.’s to pass automatically to the survivor at time of death. See Ark. Code Ann. § 23-32-1005(3) (1987). And Cullipher contends that the applicable law for the C.D.’s is Arkansas law which is the law of the domicile of the decedent at the time the C.D.’s were acquired.
There is no question but that the Texas C.D.’s were placed in the joint names of Morris Sr. and Cullipher while husband and wife and were purchased either with funds from the Arkansas farm operation or from Morris Sr.’s separate property. The C.D.’s were purchased and held in Texas. The decedent also had other Texas contacts, but he lived in Arkansas and was living in Arkansas at the time the C.D.’s were purchased. We turn to Leflar on Conflicts for resolution of the issue and find a legitimate policy in favor of applying the law of the domicile:
As between the spouses on divorce, or [a]s between a surviving spouse,. . .the whole of their movable property will be most fairly divided if the distribution can be in accord with some single basis of marital ownership and the rule which refers the question to the law of the domicile is the only one which can approximate this result. Otherwise the place of acquisition of each item of personalty, including choses in action, acquired by either of the spouses will have to be remembered, and its law studied, to learn what marital property interests exist in the item, though it may have long since been intermingled with the mass of the spouses’ personalty at their domicile.
Id. at 646. See also Restatement of Conflict of Laws § 290 (1934). R. Leflar, American Conflicts Law, § 233, p. 647 (1986). Leflar further states that the great body of American authority favors the law of the domicile at the time the marital property is acquired. Id.
Morris Jr. cites a 1933 case in support of his position that Texas law should apply. See Francis v. Turner, 188 Ark. 158, 67 S.W.2d 211 (1933). In Francis our court did appear to honor Mississippi law to determine title to a Mississippi bank account, though the decedent had been a resident of Arkansas. We believe Francis is distinguishable on its facts, since the widow in that case agreed that the bank account should pass through the estate. That is not the situation in the case before us. Rather, Cullipher exerted ownership by right of survivorship. This court did indicate that had a localized Mississippi bank account been properly proven, Mississippi law would have been applied. This is contrary to Leñar on Conflicts, as noted above, and our holding today. To the extent that Francis v. Turner stands for the proposition that the marital property law of the situs as opposed to the domicile applies to movable personal property, we overrule it.
Along this same line Morris Jr. argues that certain farm equipment and livestock should have passed through the estate and not to Cullipher by right of survivorship. It was undisputed, though, that this personal property was either purchased with the proceeds from the Arkansas farm operation which Cullipher and Morris Sr. jointly held as husband and wife or was given to them as tenants by the entirety. This court held early on that a tenancy by the entirety could exist in personal property. See Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57 (1922). We have further held that personal property acquired with the proceeds of land held by the entirety also constituted an estate by the entirety. See Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984). It was, therefore, appropriate for the farm equipment and livestock to pass to Cullipher by operation of law.
V.
For his final point, Morris Jr. requests review of his petition for affirmative relief filed on April 12, 1990, where he asks for penalties, interest, and rents on property which should be included in the estate together with attorney’s fees. Since we hold against the appellant on all points, we find it unnecessary to consider this argument. Morris Jr. further asked in that petition for the inclusion in the estate of a vendor’s lien note originally held jointly by Morris Sr. and Cullipher. In Arkansas there is a strong presumption that a promissory note held by husband and wife was held as tenants by the entirety. See Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1985). There is nothing to suggest otherwise in this case.
Affirmed. | [
48,
108,
-11,
28,
10,
-32,
-118,
-70,
83,
-93,
101,
83,
111,
-42,
21,
107,
-30,
41,
101,
-23,
-42,
-77,
87,
-64,
123,
-5,
-71,
-42,
-78,
-35,
-27,
-41,
76,
120,
-118,
85,
70,
10,
-57,
80,
-114,
80,
9,
117,
-39,
-48,
52,
-21,
86,
15,
17,
-98,
-77,
58,
57,
-26,
104,
44,
-7,
-67,
80,
-80,
43,
12,
127,
7,
-95,
5,
-72,
-120,
88,
46,
16,
48,
-128,
-24,
51,
-74,
-122,
84,
11,
25,
8,
98,
102,
0,
-115,
-49,
-96,
-120,
15,
-66,
-115,
-89,
-6,
88,
75,
103,
-74,
-105,
125,
16,
-118,
-4,
-26,
29,
28,
108,
5,
-49,
-42,
-127,
32,
56,
-100,
27,
-21,
35,
48,
113,
-49,
-30,
93,
71,
51,
-101,
-114,
-15
] |
Steele Hays, Justice.
On the evening of April 26, 1990, Art’s Liquor Store on Asher Avenue, Little Rock, was robbed. Two clerks were murdered. Appellant, Michael Porchia, was one of five persons charged with capital murder and aggravated robbery. Appellant moved to sever his trial from the co-defendants and the motion was granted. Appellant also moved to suppress a custodial statement. Following an omnibus hearing the motion to suppress was denied and the state waived the death penalty.
Appellant was tried by a jury on December 4, 1990, and convicted of aggravated robbery, theft of property and two counts of second degree murder. The court found appellant to be a habitual offender and the jury then sentenced appellant to twenty-five years on each count of second degree murder, forty-five years for the aggravated robbery and seventeen years for the theft of property.
Appellant now brings this appeal, making two arguments for reversal; first, that the trial court erred in denying his motion to suppress the custodial statement in which he implicated himself and his co-defendants, and, second, in refusing to instruct on a lesser included offense.
I
At the suppression hearing, appellant testified he did not make the statement to police, that he could not have given any statement voluntarily or knowingly due to heavy drinking prior to the time he spoke with the police, nor did he waive his Miranda rights. On appeal appellant argues that under the facts in his case, the trial court erred in denying suppression. There is no merit to appellant’s contention.
Custodial statements are presumed to be involuntary and the state has the burden of proving otherwise. This court makes an independent review of the totality of the circumstances and will reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Shaw v. State, 299 Ark. 474, 733 S.W.2d 827 (1989). The credibility of the witnesses who testify to the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).
The factors to consider for both the voluntariness of the waiver and the statement are essentially the same. They include: age, education and intelligence of the accused, length of detention, repeated or prolonged questioning, the use of mental or physical punishment and the advice or lack of advice of constitutional rights. Shaw v. State, supra.
This case resembles McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988), where the appellant had also claimed he did not voluntarily or knowingly waive his rights as he was under the influence of drugs and alcohol at the time. We cited previous cases where we have stated that the fact that a defendant may have been under the influence of drugs or alcohol at the time of his statement will not of itself invalidate his confession, but will only go to the weight accorded it. And, whether an accused had sufficient capacity to waive his constitutional rights or was too incapacitated due to drugs or alcohol to make an intelligent waiver has remained a question of fact to be resolved by the trial court. See McDougald v. State, supra.
The essence of appellant’s proof, which included the testimony of a girlfriend and uncle of the appellant, was that appellant had consumed large quantities of alcohol and had smoked marijuana on the day he surrendered to police. Appellant’s witnesses testified to his drinking that day and further stated that his speech was affected, he smelled of alcohol and needed help to stand up. Appellant testified he was intoxicated at the time he surrendered himself to police, that he was threatened with the death penalty by officers and that he never gave a statement to the police. He also denied being told he had a right to have an attorney present and denied the initials on the rights waiver form were his.
The state presented evidence from Detective Vince Mayer and Sergeant Carl Beadle. Both testified that appellant was advised of his Miranda rights, that he waived them and made a statement incriminating himself. Both stated that appellant did not smell of alcohol or otherwise exhibit signs of intoxication. Mayer testified that neither he nor Sergeant Beadle offered any promises or inducements to obtain a statement, nor did they coerce or threaten appellant in any way. He further stated that appellant signed the statement three times in his presence, and that in his opinion appellant made the statement voluntarily. Beadle testified that in his opinion, appellant understood his rights.
Appellant told the officers he was seventeen years old, had attended school through the eleventh grade, and had a G.E.D. The officers testified that they did not see any sign that appellant had been drinking when he was advised of his rights and chose to give his statement.
The basic points of any contention in this case are matters of credibility which are left to the trial court. We cannot say under the totality of the circumstances that the findings were against the preponderance of the evidence.
II
As his second point for reversal appellant argues the trial court erred in refusing to instruct the jury on a lesser included offense. Appellant contends the jury was instructed on capital felony murder, first degree felony murder and second degree murder as well as aggravated robbery, theft of property and accomplice liability. Appellant also requested two instructions on manslaughter based on Ark. Code Ann. §§ 5-10-104(a)(3) and (4) (1987), but the court refused and appellant maintains this was error.
We decline to reach this question on the basis of Ark. Sup. Ct. R. 9. While appellant did abstract the two instructions he requested, none of the other instructions given were abstracted, and we have no way of knowing from the abstract what instructions were actually given. Obviously, when addressing a lesser included offense argument by appellant we must have the other instructions before us in order to make a proper review of the trial court’s action.
It is fundamental that the record on appeal is confined to that which is abstracted. Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990). A failure to abstract a critical document precludes the court from considering issues concerning it. Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1991). Nor can the record be contradicted or supplemented by statements made in the briefs. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989); Bridger v. State, 264 Ark. 789, 575 S.W.2d 155 (1979).
Affirmed. | [
112,
-17,
-4,
60,
42,
-64,
58,
56,
83,
-125,
116,
-13,
101,
-59,
21,
107,
111,
77,
117,
121,
84,
-74,
71,
65,
106,
-9,
-47,
-41,
-70,
-49,
-84,
-76,
14,
112,
-22,
69,
98,
-56,
-63,
88,
-82,
1,
-119,
-12,
113,
86,
32,
106,
80,
15,
-79,
-98,
-13,
43,
18,
-56,
41,
56,
11,
-81,
64,
-71,
-120,
-105,
-33,
80,
-79,
36,
-68,
2,
-16,
29,
-100,
113,
1,
-8,
115,
-106,
-122,
84,
75,
27,
-84,
102,
98,
32,
93,
-49,
-88,
-120,
46,
62,
-99,
-89,
-40,
32,
75,
76,
-106,
-99,
120,
20,
14,
-2,
109,
30,
89,
108,
-116,
-50,
-76,
-77,
105,
40,
6,
27,
-5,
33,
112,
101,
-49,
-18,
92,
119,
122,
-101,
-114,
-43
] |
Per Curiam.
Appellant Mary Anne Stephens (defendant below) brings this interlocutory appeal from the following orders;
Order of March 12, 1991
Order of March 14, 1991
Restraining Order of April 1, 1991
Order for Attorney’s Fees of April 11, 1991
Appellant Jackson T. Stephens has moved to dismiss the appeal on the grounds that appellant’s Notice of Appeal, filed on April 12,1991, is untimely as to the March 12 order. Moreover, he contends the orders appealed from are interlocutory and not appealable under Arkansas Rules of Appellate Procedure, Rule 2.
The order of March 12 contains findings of fact and conclusions of law in response to a request by the plaintiff for a protective order as to discovery matters and for closed hearings and trial. Citing Rule 26(c) of the Arkansas Rules of Civil Procedure, which gives the trial court broad authority to enter protective orders, and Ark. Code Ann. § 16-13-318 (1987), empowering chancery courts in domestic cases either upon application of all litigants or upon their own initiative, to hear such matters in chambers, the trial court found and concluded that such orders should be entered. The order of March 14, styled “Protective Order” constitutes the protective order adverted to in the March 12 order.
The order of April 1 is responsive to motions of both parties for restraining orders and generally enjoins either party from disposing of or removing from this jurisdiction any property belonging to the parties except by agreement, ordinary course of business or further orders of the court. “Ordinary course of business” is defined as including transactional moves in both parties’ stock and bond trading accounts at Stephens, Inc., including buying and selling of stocks or bonds and payments of calls and dividends to prevent a loss or realize a gain and for the general preservation of the assets reflected by these accounts. The order directs Stephens, Inc. to hold all assets of either party in trust pending a final determination as to ownership.
The order of April 11 is in response to defendant’s petition for attorney’s fees and recites that some $80,000 has been expended to date on attorney’s fees. The order recognizes the plaintiffs ability to pay suit money and the propriety of both parties having legal and accounting services. The order finds that $400 per hour for defendant’s New York counsel is not reasonable by Arkansas standards, that the defendant will be responsible for such portion of attorney’s fees from her separate assets but that such out-of-state fees would be considered by the court in the final disposition of assets. The order directs each party to submit monthly requests for fees and costs as they accrue and refers to the final disposition of the case as a determinant of fees.
Appellee’s motion to dismiss, as we have noted, is grounded on the premise that these orders merely establish the procedures by which the chancellor will administer this divorce case during discovery and trial and do not finally resolve any separable part of this action. Appellee cites John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991); Ricks Pro Dive 'N Ski Shop v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991); Arkansas Department of Human Services v. Lopez; 302 Ark. 154, 787 S.W.2d 686 (1990); Tate v. Sharp, 300 Ark. 126, 777 S.W.2d 215 (1989); Budd v. Davis, 289 Ark. 373, 711 S.W.2d 478 (1986).
Appellant responds that these orders are “injunctive in nature” and therefore appealable under Rule 2. We disagree with that contention. We note that the orders restrain both parties from disposing of marital assets and do not purport to affect one party more or less than the other. They appear to be the type of preliminary order entered routinely in divorce suits and are expressly subject to further orders of the court as the case evolves. Appellant has not shown how the orders operate with finality in any sense and we can conceive of none.
There is a clear and distinct thread that binds our cases relative to appealability and that is that the order must end the litigation or some separable branch of it. See generally, Malone & Hyde, Inc. v. West & Co. of L.A., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989); Cash v. Cash, 273 Ark. 32, 616 S.W.2d 13 (1981); Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982); Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987); Scoff v. Scoff, 5 Ark. App. 300, 635 S.W.2d 292 (1982).
Appellant contends that Ark. Code Ann. § 16-13-318 (1987), permitting private hearings in divorce actions is unconstitutional, citing Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983). But the issue in Tedder was the extent to which the media can be denied access to a criminal trial and has only scant relevance to this case. Suffice it to say that we are unwilling to address the constitutionality of a legislative enactment in the context of a summary review of the appealability of interlocutory orders, particularly when the Attorney General has been afforded no opportunity to defend those enactments. Arkansas Code Ann § 16-111 -106(b) (1987). If there is an appeal after this case is finally concluded at the trial level, and the defendant can demonstrate prejudicial error attributable to the orders of March 12 or March 14, we see no reason it cannot be corrected in conventional fashion, by reversal and remand.
For the reasons stated, the appeal is dismissed. | [
-15,
-7,
-68,
-68,
10,
98,
56,
-70,
113,
-61,
101,
-45,
41,
86,
17,
123,
-13,
9,
113,
105,
95,
-77,
71,
64,
126,
-13,
-79,
-43,
-65,
-49,
-28,
-106,
73,
96,
-54,
-47,
70,
-62,
-61,
20,
14,
1,
-104,
108,
113,
66,
48,
-69,
20,
3,
53,
-34,
-21,
45,
24,
106,
104,
44,
-21,
-84,
-48,
-103,
-101,
15,
95,
23,
-111,
4,
-102,
68,
88,
126,
-104,
49,
40,
-23,
114,
-94,
-106,
116,
71,
25,
8,
96,
98,
3,
65,
-25,
-40,
-88,
38,
-3,
-97,
-89,
-46,
89,
75,
77,
-74,
-105,
121,
-128,
7,
-2,
-70,
-51,
90,
108,
15,
-49,
-42,
-93,
-121,
19,
28,
3,
-22,
-125,
48,
65,
-50,
-30,
92,
90,
50,
-109,
-114,
-14
] |
Allen W. Bird II, Special Chief Justice.
Appellants, Jim C. Pledger, Director of the Arkansas Department of Finance and Administration, and Tim Leathers, Commissioner of Revenues, were charged with the enforcement of the Arkansas Income Tax. Appellees consist of a certified class of Arkansas residents who have retired from employment with various United States civil service agencies, with the various branches of the United States Armed Services, and with other states’ agencies and political subdivisions.
Appellees filed suit in the Chancery Court of Pulaski County, Arkansas, against appellants Pledger and Leathers in their respective capacities, along with Jimmie Lou Fisher, in her capacity as Treasurer of the State of Arkansas. Appellees contended that the provisions of Ark. Code Ann. § 26-51-307 (1987), which provided a full exemption from Arkansas Income Tax for the retirement income received by retirees from the Arkansas Public Employees, Teachers, State Highway Police, and State Highway Employees Retirement Systems, while allowing an exemption for only the first $6,000 of appellees’ and all other retirees’ retirement income, was in violation of the principles of intergovernmental tax immunity by favoring retired employees of the State of Arkansas and local government employees over retired federal employees and retired employees of other states and political subdivisions thereof. The Chancellor, citing the United States Supreme Court case of Davis v. Michigan Dep’t of Treasury, 489 U.S. 803 (1989), agreed with appellees’ contention, and on November 1, 1989, ordered the appellants to refund to all members of the class all such income tax collected on their retirement income since 1985 and awarded appellees’ counsel an attorney’s fee from a portion of this refund. From this decision and decree entered by the Chancellor appellants have perfected this appeal. We affirm the lower court.
Initially we must determine whether the appeal herein is final for the purposes of Rule 2 of the Arkansas Rules of Appellate Procedure. Neither the appellants nor the appellees have raised this issue; however, we addressed the issue during oral argument of the case. Even though the parties to an appeal do not raise the issue of the appealability of an order, it is the duty of this court to do so, as a determination that the order appealed from is not final would deprive this court of jurisdiction to hear the appeal. Associates Fin. Serv. Co. of Okla., Inc. v. Crawford County Memorial Hosp., Inc., 297 Ark. 14, 759 S.W.2d 210 (1988). The existence of a final order is a jurisdictional requirement for bringing an appeal, which this court is obliged to raise even though the parties do not. 3-W Lumber Co. v. Housing Auth., 287 Ark. 70, 696 S.W.2d 725 (1985); John Cheeseman Trucking Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991).
The Arkansas Rules of Appellate Procedure state at Rule 2:
(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court; . . .
9. An order certifying a case as a class action in accordance with ARCP Rule 23. . . .
This action was filed as a class action, and the complaint and its amendments specifically prayed that a class be certified pursuant to Arkansas Rule of Civil Procedure 23. The Chancellor entered his order on August 22,1989, finding that class certification was proper under Rule 23.
In addition, the complaint asked the lower court to: (i) find that the Arkansas Income Tax unconstitutionally discriminates against retired federal employees and retired employees of other states who receive or have received retirement benefits in excess of $6,000; (ii) enjoin the defendants from appropriating and expending any of the funds collected pursuant to a levy of the illegal income taxes and account for the amounts so collected to date; (iii) refund to the class the illegally collected income taxes, together with interest; and (iv) award reasonable attorney’s fees and reimbursement of costs under Ark. Code Ann. § 26-35-902 (1987).
On November 1,1990, the Chancellor entered his order and (i) found that the Arkansas income tax laws violated the principles of intergovernmental tax immunity and 4 U.S.C. § 111; (ii) enjoined the defendants from collecting the income tax found to be unconstitutional; (iii) ordered an accounting for and refund of the income taxes to all taxpayers represented by the class to the extent such taxes were collected in excess of the lawful taxes as determined by the court; and (iv) stated an intention to allow a reasonable part of the taxes to be refunded as attorney’s fees.
The class certification order entered on August 22, 1989, was an.appealable order pursuant to Arkansas Rule of Appellate Procedure 2(a)(9). International Union of Elec., Radio and Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). Although the appellees have not raised the issue of timeliness of appeal of the class certification issue, timeliness of the appeal is also jurisdictional for this court. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980). However, whether the appellants failed to appeal that order in a timely manner is moot because we affirm for the reasons set forth below. The remaining issue on appealability is whether the balance of the appeal is properly before this court as a final order.
The test of finality and appealability of an order is whether the order puts the court’s directive into execution, ending the litigation or a separable branch of it. Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). We have often held that in order for an order to be appealable it must be such a final determination of the issues as may be enforced by some appropriate manner. Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 757 S.W.2d 546 (1988); Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). The members of the class, in the court below, asked for relief common to the class, including a declaration that certain provisions of the income tax laws of the state are unconstitutional, an injunction against using the funds illegally collected, a refund to the class, and attorney’s fees for the attorney. The order of the Chancellor granted the prayer in favor of the members of the class on all of those issues. There appears to be no question that the Chancellor’s rulings are final as to those issues which are common to the class. The only real issue as to appealability before this Court is whether the final rulings on those issues are rendered nonappealable when coupled with the ruling awarding attorney’s fees in an unliquidated amount, and a requirement that the appellants submit a plan for providing notice to the class of their rights to a refund and establishing the procedures for such refunds.
We view the action left to be taken after the entry of the order appealed from, relating to notice to the members of the class (1) to be remote and collateral to the main issues before the court, (2) to require an examination of factors beyond the issues needed to be decided with the merits of the original complaint, and (3) to be a largely ministerial task similar to assessing the traditional items of cost. Collateral action, such as this, is action that does not make any direct step toward final disposition of the merits of a case, will not be merged in the final judgment, is not an ingredient of the cause of action, and does not require consideration with the main cause of action. Such collateral and ministerial orders need not be final for purposes of Arkansas Rule of Civil Procedure 54 nor Arkansas Rule of Appellate Procedure 2. In Farm Bureau Mutual Ins. Co. v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983) we were faced with a property insurer who was faced with a second action based upon a policy. The insurer had confessed judgment and tendered the policy limits, plus penalty and interest into the registry of the court in an action in Hot Spring County. The matter of attorney’s fees was still pending in the Hot Spring County action when the insured filed a second action in Pulaski County. We said in that action, “The only part of the Hot Spring County case still pending is that of determining the amount of the attorney’s fees to be assessed against [the insurer]. For- all practical purposes the original action is not pending.” 281 Ark. at 145, 662 S.W.2d at 386.
The same is true in the case at bar. The order appealed from in this matter otherwise terminates the action as it was requested by the moving parties in the complaint on the issue of the constitutionality of the tax, the injunction and the refund. We view the matter of the details of notice and attorney’s fees to be primarily collateral and ministerial and in furtherance of the enforcement of the court’s decision. It is not required under our interpretation of Rule 2 that such collateral ministerial matters be final. The order appealed from granted all the relief prayed for in the complaint and was thus final. See Terket v. Lund, 623 F.2d 29 (7th Cir. 1980).
Upon questioning during oral argument, counsel for the appellees was asked whether he was seeking additional attorney’s fees for which additional orders of the chancery court might be necessary. Counsel indicated that he reserved his rights to seek fees pursuant to 42 U.S.C. §§ 1986 and 1988. Does such a stated intention prevent the order from which appeal is taken from being final for the purposes of Rule 2? We think not. Such actions under 42 U.S.C. §§ 1986 and 1988 may in some cases even be by separate action. See Johnson v. Snyder, 639 F.2d 316 (6th Cir. 1981). Such a claim for attorney’s fees raises a collateral and independent claim for determination by the lower court, and thus a judgment on the merits on the other issues raised in the complaint is final as to the relief prayed of that court. See Obin v. Dist. No. 9 of the Int’l Ass’n of Machinists and Aerospace Workers, 651 F.2d 574 (8th Cir. 1981). It would be fruitless, and, under our interpretation of the rule, we are not required to anticipate all of the relief the parties may ask in the future when making determinations as to finality under Rule 2.
We thus hold that the lower court’s order on the issues of class certification, constitutionality of the tax, the injunction, the refund and the right to attorney’s fees to be final for purposes of appeal.
DID THE CHANCELLOR ERR IN INCLUDING WITH THE CERTIFIED CLASS MILITARY RETIREES AND RETIREES FROM OTHER STATES’ GOVERNMENTAL AGENCIES?
For its first ground for reversal, the appellants argue that the Chancellor erred in including within the certified class military retirees and retirees from other states’ governmental agencies. In order to understand the basis for the argument by the appellees, we must consider the United States Supreme Court case upon which the appellants’ case is based, Davis v. Michigan Dept. of Treasury.
Paul S. Davis is a former federal employee. He brought suit in Michigan seeking a refund of state taxes paid on his federal retirement benefits. He argued that the constitutional Doctrine of Intergovernmental Tax Immunity as codified at 4 U.S.C. § 111 prohibited discrimination against him, when compared with an employee retired from the employment of the State of Michigan. Section 111 allows states to tax pay or compensation for personal services as a federal officer or employee if the taxation does not discriminate against the federal employee because of the source of the pay or compensation. Michigan claimed that its laws did not violate section 111 because Mr. Davis was an “annuitant” rather than an employee and therefore section 111 did not protect him from discrimination. All of the courts in Michigan agreed with the state. Davis v. Dep’t of Treasury, 160 Mich. App. 98, 408 N.W.2d 433 (1987).
Mr. Davis asked the Supreme Court to review the matter. The Supreme Court found that section 111 did protect Mr. Davis because section 111 protected current federal employees as well as retirees. The Supreme Court reasoned that retirement pay, though not actually disbursed during the time an individual is working, is based and computed upon the individual’s salary and years of service, and was thus deferred compensation for past service. The Supreme Court reviewed the constitutional Doctrine of Intergovernmental Tax Immunity which bars those taxes that discriminate against a sovereign or those with whom it deals. In Davis v. Michigan Department of Treasury, the United States Supreme Court pointed out that section 111 constitutes an affirmative statutory grant of immunity from discriminatory state taxation equal to the constitutional Doctrine of Intergovernmental Tax Immunity, which applies between the states and the federal government and among the states themselves. Thus, if we find in this case that the Arkansas tax scheme discriminates against retirees from the federal government or other states when compared to the treatment given retirees from the State of Arkansas, we must find that the tax is in violation of the Constitutional Doctrine of Intergovernmental Tax Immunity. Phillips Chemical Co. v. Dumas Indep. School Dist., 361 U.S. 376 (1960).
The appellants argue that in light of our decision in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), the Arkansas statutory tax scheme is presumptively valid, which is true. However, that presumption is not conclusive. The appellees argue that Davis did not involve military retirees, which is also true. But again, the fact that the taxpayer in Davis was not a military retiree is not determinative of how this Court should rule.
The crux of this first point is whether the tax levied by the State of Arkansas discriminates against the taxpayers because of the source of the pay or compensation. If the source is the basis for the discrimination, then the state tax cannot withstand the constitutional prohibition found in the Doctrine of Intergovernmental Tax Immunity which forbids such discrimination. If the discrimination is based upon the nature of the compensation then the Doctrine does not forbid discrimination. The appellants argue that military pay is not a pension or deferred compensation, but actually represents reduced pay for reduced service, and thus the Arkansas tax is discriminatory only as to the nature of the compensation, i.e., compensation for military service rather than compensation for state civil service. We disagree with the appellants’ argument that military pay is reduced pay for reduced service, and believe that those cases which hold that military pay is actually deferred compensation or in the nature of a pension represent the better reasoned application law. See Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986), Womack v. Womack, 16 Ark. App. 108, 697 S.W.2d 930 (1985).
Appellants also argue that retirees from another state were not discriminated against under the Arkansas tax laws. Obviously that other state’s retirees’ pay is in the nature of a pension, just like the Arkansas state retirees. Thus the discrimination between the retired Arkansas civil service employee and the retiree from the civil service of another state is even more clear than in the case of the military retiree. The Arkansas tax levied upon the compensation of the military retirees and retirees from the civil service of other states is discriminatory when compared with the tax levied upon the compensation of the Arkansas civil service retirees. In other words, the tax discriminates based upon the source of the payment, since the source of one payment is the State of Arkansas and the source of the military pay is the federal government, and the source of the pay to a retiree from the civil service of another state is that other state’s government, and therefore such tax violates 4 U.S.C. § 111 and the Doctrine of Intergovernmental Tax Immunity. Finally, since the retirees of the governments of other states and the military retirees are part of the same class of plaintiffs here, and are discriminated against on the same basis, they are properly in the same class. Ross v. Arkansas Communities, Inc., 258 Ark. 925, 529 S.W.2d 876 (1975). The Chancellor is given wide latitude in certifying classes, and we find the certification in this case to be correct. International Union of Elec., Radio & Mach. Workers v. Hudson.
DID THE CHANCELLOR ERR IN AWARDING REFUNDS OF THE ARKANSAS INCOME TAX COLLECTED ON RETIREMENT INCOME OF THE CERTIFIED CLASS?
Next the appellants argue that the Chancellor erred in awarding refunds of the Arkansas income tax collected on retirement income of the certified class. The issue here is whether we are to apply retroactively our finding that the Arkansas tax is unconstitutional. Davis is of no value here since there the state of Michigan admitted that under their laws a refund was due. However there is other guidance. Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) sets forth three factors which must be considered in determining the retrospective application of Davis. As made applicable to this case, they are first if the Davis decision establishes a new principle of law, either by overruling clear past precedent on which litigants have relied, or by deciding issues of first impression not clearly foreshadowed, then the decision need not be applied retroactively, otherwise it must. Hanover Shoe v. United Shoe Machinery Corp. 392 U.S. 481 (1968). Second, this court must weigh the merits and demerits of retroactive application based upon the prior history of the doctrine, the purpose and effect and whether retroactive application will further or retard its operation. Linkletter v. Walker, 381 U.S. 618 (1965). Third, if the retroactive application of Davis produces substantial inequitable results, and such hardship may be avoided, the rule need not be applied retroactively. Cipriano v. City of Houma, 395 U.S. 701 (1969).
The Supreme Court of Virginia has held that Davis need not be applied retroactively. See Harper v. Virginia Dept. of Taxation, 401 S.E.2d 868 (Va. 1991). The Virginia Court looked to American Trucking Associations, Inc. v. Smith,_U.S._, 110 S.Ct. 2323, 110 L.Ed. 2d 148, 58 U.S.L.W. 4704 (1990), and determined that the Chevron test must be used. After an analysis of Chevron the Virginia court held that retroactivity was not necessary. We respectfully disagree with that holding.
The appellees argue that regardless of the three Chevron factors, our ruling here must be applied retroactively, citing McKesson Corporation v. Division of Alcoholic Beverages and Tobacco, 110 S.Ct. 2238 (1990), Dep’t of Business Regulation, 110 L.Ed. 2d 17, (1990), American Trucking Associations, Inc. v. Smith,_U.S_, 110 S. Ct. 2323, 111 L.Ed.2d 148 (1990); Ashland Oil, Inc. v. Caryl, Tax Commissioner,_U.S_, 110 S.Ct. 3202, 111 L.Ed. 2d 734 (1990) and National Mines Corporation v. Caryl, Tax Commissioner,_U.S. _, 110 S.Ct. 3205, 111 L.Ed. 2d 740 (1990). Under either theory, we hold that Davis, 489 U.S. 803, must be applied retroactively.
In support of the satisfaction of the first Chevron prong, the appellants argue that Davis and thus presumably our holding here, would be a new principle of law and a case of first impression, and therefore need not apply retroactively. We disagree. We believe that neither Davis nor our opinion here establishes a new principle of law. A review of the extensive historical discussion in Davis will clearly show that the Doctrine of Intergovernmental Tax Immunity has been applied for decades. The fact that this issue has never been before this court, or the Supreme Court, on these facts does not make this a new principle of law or a case of first impression, just a fresh statement of the applicability of a long standing doctrine.
In support of the applicability of the second Chevron prong, the appellants argue that since the General Assembly immediately changed the law to comply with Davis retroactivity would not advance the Doctrine of Intergovernmental Tax Immunity. Again, we disagree. Obviously retroactive application will advance the doctrine for the members of this class. Also, a refusal to apply the doctrine in this case may retard the recognition of it in other matters which come before the Arkansas legislature which might fall under the scope of the doctrine.
As to the third prong, the appellants argue that evidence presented at trial showed that the retroactive application of this decision would create hardships for the State of Arkansas, its political subdivisions, and taxpayers. No doubt the State of Arkansas will suffer financial loss by making a refund to the members of this class who follow the procedures for such refund. However, the third prong of Chevron requires that the decision be applied retroactively unless a substantial inequitable result will occur as a result of the decision. If inequitable results occur whether retroactively is applied or not, we must make the ruling retroactive. Our decision in this case itself does not create the hardship. It will exist regardless of the outcome of this case. Clearly if the members of this class are not given the relief they have prayed for, they will be treated inequitably in that they will have paid an unconstitutional tax. Someone here will suffer, either the state or the taxpayers. We are not simply picking the class for refund based on need, nor are we penalizing the state. We are determining that since one of two inequitable results must occur, we are required to apply the ruling retroactively.
DID THE CHANCELLOR ERR IN ALLOWING REFUNDS TO MEMBERS OF THE CLASS WHO HAD NOT FILED AMENDED INCOME TAX RETURNS FOR 1985?
Next the appellants urge for reversal the proposition that the Chancellor erred in allowing refunds to members of the class who had not filed amended income tax returns for 1985. Appellants point to Ark. Code Ann. § 26-18-507 (1987) as the authority for its proposition. That statute sets forth the procedure for making a claim for a refund. The appellees argue that requiring strict compliance with § 26-18-507 by every member of the class would ignore one of the bases for class actions suits, i.e. to deal with these types of issues in a single action rather than requiring all members of a class to bring suit. Although this court has not ruled on this precise issue as applicable to tax refunds, there is ample authority for the appellees’ position and we adopt that reasoning. See Santa Barbara Optical Co. v. State Bd. of Equalization, 47 Cal. App.3d 244, 120 Cal. Rptr. 609, (1975); Ware v. Idaho State Tax Commission, 98 Idaho 477, 567 P.2d 423 (1977); Clark v. Lee, 273 Ind. 572, 406 N.E.2d 646 (1980); Thorn v. Jefferson County, 375 So.2d 780 (Ala. 1979); and Florito v. Jones, 39 Ill. 2d 531, 236 N.E.2d 698 (1968).
Our decision in International Union of Elec., Radio & Mach. Workers discusses the issues presented here as applicable to class actions generally, and we believe supports the Chancellor in his application of the rules to this class.
DID THE CHANCELLOR ERR IN AWARDING ATTORNEY’S FEES?
Finally, the appellants argue that the Chancellor erred in awarding attorney’s fees in this case. This assignment of error is based upon an argument that only when the attorneys for the class establish or preserve a fund for the class are they entitled to attorney’s fees. The appellants maintain that the fund here is established by the legislature as the Income Tax Refund Account for the payment of refunds to all taxpayers. The appellees maintain that the appellants have no standing to argue that attorney’s fees should be awarded under the common fund doctrine, citing Boeing Co. v. Van Gemert, 444 U.S. 472 (1980).
An order of the Chancellor, obtained though the efforts of the attorneys for the appellees, required the Income Tax Refund Account to be maintained at an amount not less than $8,000,000. Presumably this account would have been depleted or returned to the state treasury if not needed for other refunds if the order had not been entered. The attorneys for the class obtained the order which kept the fund at a minimum of $8,000,000 and thus we hold that the common fund was preserved by the attorneys for the class, and thus an award from that fund was proper.
Affirmed.
Special Justices Ray Baxter and Carolyn Clegg join in this opinion.
Holt, C.J., and Glaze and Corbin, JJ., not participating.
Dudley, Hays, and Newbern, JJ., dissent. | [
116,
-18,
-11,
124,
40,
-63,
50,
-126,
82,
-83,
39,
83,
111,
107,
21,
123,
-13,
61,
120,
123,
-41,
-77,
119,
104,
74,
-77,
-103,
-43,
-68,
79,
-92,
-106,
8,
49,
-22,
-43,
70,
66,
-59,
24,
-18,
6,
-117,
77,
121,
68,
48,
-21,
48,
15,
33,
-114,
-5,
58,
24,
-53,
104,
44,
89,
-86,
80,
-109,
-118,
13,
-1,
21,
35,
37,
-102,
-57,
80,
58,
-100,
49,
0,
-24,
115,
-90,
-126,
116,
107,
-71,
0,
96,
100,
0,
-79,
-19,
-100,
8,
6,
-1,
29,
-90,
-46,
57,
106,
13,
-106,
-98,
126,
20,
5,
-2,
-26,
-59,
95,
108,
-115,
-50,
-50,
-79,
44,
96,
20,
18,
-17,
65,
-110,
117,
-52,
-30,
93,
71,
50,
-101,
-58,
-48
] |
Robert H. Dudley, Justice.
Shelley Sanford, the victim in this aggravated robbery case, drove her car to the parking lot of the Harvest Foods store at 12th and Battery Streets in Little Rock. It was about 9:00 at night. She got out of her car and walked up to the doors of the store only to discover that the doors were locked and the store was closed. She noticed appellant and a companion standing nearby. She made a remark to them about the store’s closing hours and walked back to her car. As she was unlocking her car door, appellant came up behind her and said that he wanted to tell her something. As she turned toward him, he said, “This is a robbery.” He moved his hand inside his jacket pocket; it appeared that he had a pistol pointed at her. He had a serious look on his face. She saw a group of people coming out of a nearby building. She screamed as loudly as she could for help. Appellant and his companion ran to their car which was parked in front of the victim’s car. The victim jumped into her car. She was able to read the license number on appellant’s car. She hurriedly drove away, and after she had gone some distance, stopped long enough to write the license number on a piece of paper. She then drove several miles to another grocery store and called the police. Two days later, she viewed a police photo spread and identified appellant as her assailant.
Appellant was convicted of violating Ark. Code Ann. § 5-12-103(a)(1) (1987), which provides:
(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:
(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; . . .
Ark. Code Ann. § 5-12-102 (1987) provides in part:
A person commits robbery if, with the purpose of committing ... a theft... , he employs or threatens to immediately employ physical force upon another.
Appellant’s sole argument on appeal is that the proof is not sufficient to show his intent to commit theft. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). Circumstantial evidence can be sufficient to support a finding of guilt in a criminal case if it excludes every other reasonable hypothesis consistent with innocence. Smith v. State, supra.
Here, the victim testified that appellant approached her and said, “This is a robbery.” It appeared to her that he had a pistol in his pocket and had it pointed at her. When she screamed for help, he ran away. The only reasonable inference to be drawn is that appellant intended to take property from the victim.
In the second part of his argument, the appellant contends that the only reasonable inference to be drawn from the evidence is that his intent was to play a joke on the victim. Such an argument is a restatement of the first part of the argument. It is a different way of arguing that there are reasonable inferences to be drawn from appellant’s conduct other than an intent to take property. Such an argument has already been rejected. In addition, we note that the appellant did not testify the event was a joke. There is no evidence that appellant or his companion were acquainted with the victim. He approached a stranger at night on the parking lot of a closed store. When she screamed he did not try to explain that he was only joking. He looked and acted serious. The only reasonable inference to be drawn about appellant’s intent is that which the jury drew. As previously stated, there was substantial evidence to support appellant’s conviction for aggravated robbery.
Affirmed. | [
81,
-18,
-8,
-67,
41,
-32,
56,
-70,
-45,
-125,
100,
-109,
-27,
-64,
20,
105,
125,
-51,
85,
97,
-108,
-73,
7,
33,
-14,
115,
27,
-47,
50,
-53,
-18,
-44,
29,
112,
-54,
93,
102,
8,
-27,
-40,
78,
-123,
-87,
81,
-47,
0,
40,
58,
68,
15,
-31,
-100,
-29,
34,
26,
-50,
41,
108,
75,
-65,
-32,
122,
-56,
13,
-1,
22,
-93,
102,
-67,
1,
-14,
24,
-104,
49,
0,
-8,
115,
-90,
-126,
68,
109,
-101,
-124,
98,
114,
2,
41,
-22,
-120,
-127,
-82,
126,
-115,
-90,
-44,
105,
65,
44,
-97,
-97,
127,
-108,
2,
-14,
115,
78,
27,
108,
7,
-33,
112,
-79,
-115,
112,
18,
121,
-53,
21,
48,
113,
-50,
-18,
85,
69,
122,
-101,
-114,
-43
] |
Robert L. Brown, Justice.
This appeal arises from the conviction of the appellant, Arthur L. George, for first degree sexual abuse where the jury assessed a sentence of ten years. The victim was a young girl who was 2 'fi years old at the time of the offense and 3 '/2 years old at the time of the trial. When the events that are the subject of this appeal occurred, she was under the care of the appellant, who ran a private day care service with his wife in his home in the City of Texarkana. The appellant was age 68 at the time of the criminal charge. The primary issues on appeal relate to the confrontation rights of the appellant under the Sixth Amendment and the introduction into evidence of the appellant’s prior conviction for a similar offense as part of the state’s case-in-chief.
Paul and Ginger Oliver enrolled their daughter in day care with the appellant and his wife for approximately one year, from August or September 1988 to September 1989. The victim stayed with the Georges during work hours Monday through Friday. Because of the fact that there was only one other child at the Georges’ in August 1989, the Olivers moved their daughter to a new day care facility in September named Tot’s Landing where she could be with other children. The daughter, however, did return to the Georges’ on occasion in September and October 1989 for visits, including a visit Halloween night on October 31. Mrs. Oliver testified that her daughter did not want to go to the Georges’ on Halloween night but had wanted to go by for a visit two weeks earlier.
On the night of November 2, 1989, Mrs. Oliver was awakened by her daughter who was having a nightmare. She had had a series of nightmares recently, but on this occasion she complained of dinosaurs in her room which might bite her. The dinosaur fear apparently was inspired by a film that she had seen at Tot’s Landing about dinosaurs entitled The Land Before Time. Mrs. Oliver tried to allay her daughter’s fears, but the daughter responded, according to Mrs. Oliver, “Yes, there’s dinosaurs in there and they are going to bite me and they are going to bite me like Papaw George bites me.” Mrs. Oliver pursued what her daughter meant, and her daughter said, according to Mrs. Oliver, “He bites me on my tee tee.” She then pointed to her genital area.
Mrs. Oliver asked her daughter again about George and she replied, according to her mother, “Yes, he bites me like the dinosaurs are going to bite me.” Mrs. Oliver went back to bed, but about fifteen minutes later her daughter awoke and again brought up George and the dinosaurs.
Mrs. Oliver relayed her conversation to her husband who was incredulous, but the next morning he asked his daughter about the appellant, and she repeated for him, according to his testimony, that she was afraid the dinosaurs were going to bite her “like Papaw George” did. The father asked where she had been bitten, and the daughter “bent over and pulled up her dress and leaned over and pointed at her behind,” according to his testimony.
On November 3, 1989, Mrs. Oliver made an appointment with a social worker for the Arkansas Department of Human Services, Evonne Fellers, to interview her daughter. Ms. Fellers used an anatomically correct doll and had the victim identify parts of the body. The victim played with the vaginal area of the doll and, in response to the social worker’s question about what the appellant had done, “stood up, pulled her pants down, bent over, raised her buttocks and pointed to her buttocks.” At that point Mrs. Oliver, who was in the room interjected that her daughter usually said that “Papaw George bites her on the tee tee.” During the interview the victim did not verbalize anything to the social worker.
The appellant was changed with first degree sexual abuse as a person over age eighteen who engaged in sexual contact with a person under age fourteen under Ark. Code Ann. § 5-14-108 (1987). Thereafter, the state filed a motion for a hearing to determine the trustworthiness of the victim’s statements to her mother, father, and the social worker under Ark. R. Evid. 803(25), and that hearing was held on September 4,1990. At the conclusion of the hearing, where the Olivers, the social worker and the victim testified, the court ruled that the victim’s state ments to Mr. and Mrs. Oliver were trustworthy based on the evidence presented by the state taken as a whole. Also, since the victim had testified and been cross-examined, the trial court found that the appellant was not denied his right to confront a witness against him.
The jury trial commenced on September 10, 1990, and lasted until September 12, 1990. At the trial the victim testified and was cross-examined, but she was largely unresponsive to defense counsel, and her testimony was confused and at times contradictory. At the conclusion of her testimony, the trial court ruled that the victim was incompetent to testify and instructed the jury to disregard her testimony. The victim’s hearsay testimony, as related by her parents, was deemed admissible. The trial court also permitted the state to introduce as part of its case the appellant’s prior conviction for first degree sexual abuse dated July 26, 1990. The prior acts which constituted that offense occurred between September 1987 and September 1989, presumably at the Georges’ home, although this is not clear from the record.
Confrontation Clause
For his first argument, the appellant contends that he was effectively denied his right to cross-examine the victim due to her confusing and contradictory responses and, at times, outright refusal to answer questions. This rendered the victim unavailable for cross-examination, according to the appellant. In addition, he argues that the victim’s statements to her parents were unreliable. When the right to confront witnesses under the Sixth Amendment is denied, so the argument goes, it is error for the trial court to admit hearsay statements into evidence under Ark. R. Evid. 803(25).
The U.S. Supreme Court has held that the Confrontation Clause in the Sixth Amendment assures the defendant the twin rights of a face-to-face confrontation with his accuser and the right to cross-examination. See Coy v. Iowa, 487 U.S. 1012 (1988). At the same time the right to confrontation is not absolute, and the Confrontation Clause “does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause.” Idaho v. Wright,_U.S_, 110 S. Ct. 3139, 3145 (1990).
In Wright the Court quoted from its prior holdings on the Confrontation Clause and concluded that the reliability of a hearsay statement could be met where the hearsay statement falls within a firmly rooted hearsay exception or where it is supported by particular guaranties of trustworthiness, which must be shown from the totality of the circumstances. See also Lee v. Illinois, 476 U.S. 530 (1986); Ohio v. Roberts, 448 U.S. 56 (1980). Factors to examine in determining trustworthiness, according to the Court in Wright and based on state and federal court decisions, are a) spontaneity and consistent repetition, b) mental state of the declarant, c) use of terminology unexpected of a child of similar age, and d) lack of motive to fabricate. The Wright Court rejected other corroborative evidence of guilt, such as medical evidence of abuse, as having no bearing on the actual trustworthiness of the declarant’s statement.
The facts in Wright were similar to the facts before us. There, the declarant involved was 2 '/2 years old at the time of the crimes charged, and the trial court found her unable to communicate to the jury, and thus unavailable. The trial court in the present case found the victim incompetent to testify, after her testimony to the jury which was contradictory, inconsistent, and at times non-responsive. Nevertheless, as the Court in Wright pointed out, a finding of inability to communicate did not render the victim’s prior statement per se unreliable or even presumptively unreliable. The Court was only willing to say that this might have some relevancy in determining trustworthiness.
The victim’s statements of child abuse in Wright had been made to a pediatrician. In determining the reliability of the victim’s statements, the trial court had looked not only at the circumstances of the statements, but also at corroborative evidence of the abuse itself such as medical evidence, the opportunity of the defendant to commit the offense, and the sister’s testimony that the abuse had transpired. Due to the trial court’s consideration of factors, unrelated to the circumstances of the victim’s statements, the Court excluded these statements as not firmly rooted in a hearsay exception and not possessing sufficient guaranties of trustworthiness under the Confrontation Clause.
In reviewing the factors set out in Idaho v. Wright for trustworthiness and applying them to the case before us, we look first at spontaneity and consistent repetition. The victim in the present case certainly satisfied the spontaneity criterion by blurting out her statement to her mother following a nightmare about dinosaurs. Moreover, she has consistently maintained that the appellant bit her in her genital area. This is confirmed by the statements she made to her mother and father, her demonstration of where she was bitten to her father and the social worker, and her statements and demonstrations at the pre-trial hearing and trial — though admittedly her testimony at times was contradictory. For example, she once told defense counsel that her statement about being bitten was “wrong.” Such contradictions, however, can easily be attributed to the impact of courtroom trauma on a 3 '/i year old. The austerity of the judge, the presence of the appellant, the tension of her parents, and the subtle antagonism of defense counsel all contributed to a very unsettling environment for the child. By and large, however, she adhered to her story of being bitten in the genital area by the appellant.
Moreover, while she was excited at the time she told her mother the story, there is nothing to suggest that she was deranged or had any motive to fabricate the story against the appellant, which are other Wright factors. Her story to her parents was unique and plausible and would not have been within the experience of a girl of such tender years. Mrs. Oliver confirmed that her daughter was unfamiliar with any kind of sexual experience which is certainly understandable at her age. Her demonstrations of where she was bitten added additional credence to her statements.
We hold, therefore, that though the victim was in effect unavailable to testify at trial due to the judge’s finding of lack of competency, sufficient guarantees of trustworthiness existed in this case under the Wright criteria to support the trial court’s finding that the parents’ testimony of the victim’s statements did not violate the appellant’s confrontation rights. We thus follow the Wright case in holding that the victim’s inability to testify effectively at trial did not presumptively invalidate the reliability of her statements to her parents. We further hold that the victim’s statements to her mother (but not her father), qualify as an excited utterance under Ark. R. Evid. 803(2), because they were made at an unusually late hour following a nightmare that clearly terrified the victim.
Rule 803(25)
The holding in Idaho v. Wright does call Rule of Evidence 803(25), which was passed by the General Assembly in 1985, into question. The Court in Wright held that corroborative evidence unrelated to the circumstances of the victim’s statements was irrelevant to a determination of the reliability of those statements. Yet, Rule 803(25) specifically contemplates the trial court’s use of such corroborative evidence in deciding trustworthiness. Ark. R. Evid. 803(25)(1). Moreover, Rule 803(25) does not include the specific factors deemed important for trustworthiness in Wright and used in the case before us: a) spontaneity and consistent repetition; b) mental state of the declarant; c) use of terminology unexpected of a child of similar age; and d) lack of motive to fabricate.
The reasoning behind the admission of hearsay statements of an unavailable victim is that the statements are so trustworthy, cross-examination of the victim would be of little help to the defense. Hence, the Confrontation Clause rights of the defendant are not violated. In the present case we have held that the trial court appropriately found that the victim’s statements to her parents were trustworthy, and we used the Wright factors to arrive at our conclusion. Though the trial judge clearly considered Rule 803(25), we do not find from our examination of the record that he used irrelevant corroborative evidence in reaching his decision. Nor was this specific point argued by the appellant at trial or on appeal, although the appellant did raise the issue of the constitutionality of Rule 803(25) generally. To the extent that the trial court did consider corroborative evidence (and, again, the record does not reflect that he did), we hold that it was harmless error.
Nevertheless, in light of the Wright case we no longer believe that Rule 803(25) passes constitutional muster. Under its terms a trial judge could rely heavily on corroborative evidence of the crime in admitting an unavailable victim’s hearsay statements as trustworthy and, in doing so, run afoul of the Confrontation Clause. As the U.S. Supreme Court stated in Wright, the factors to be considered must relate to the circumstances of the hearsay declaration itself and not to mere proof of the crime. Impermissible factors are, therefore, included in Rule 803(25) and relevant factors, as specified in Wright, are not. Rule 803(25) is constitutionally defective on its face, and we so hold.
Prior Conviction - Rule 404(b)
The appellant also contends that the introduction into evidence of his prior conviction for first degree sexual abuse was reversible error. The applicable rule reads in pertinent part:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident.
Ark. R. Evid. 404(b).
In a 1981 case where the crime charged was first degree sexual abuse, the defendant had tried unsuccessfully by pretrial motion to prevent the state from impeaching his credibility under Ark. R. Evid. 609(a) with a nolo contendere plea he had made to a rape involving a young boy. See Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). The trial court denied the motion, and the defendant did not take the stand. We held that the ruling was wrong on the basis that the prior conviction “would have been of scant probative value as compared to its significantly prejudicial effect on the jury.” 274 Ark. at 381; 625 S.W.2d at 472. We noted that the potential for prejudice was especially great in the sexual abuse context.
In 1987, however, we focused on Rule 404(b) and affirmed the admissibility of different deviate sexual acts perpetrated on the victim. See Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). In so holding we said that “we will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’” 293 Ark. at 71; 732 S.W.2d at 455; quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). We further held in Free that such evidence of similar acts assists in proving the depraved sexual instinct of the accused.
While there is the potential for prejudice resulting from the admission of similar crimes of sexual abuse, Rule 404(b) clearly establishes that such evidence of “other crimes, wrongs or acts” may be admissible to prove, not the bad character of the defendant, but his motive, plan, or intent. Here, the trial court admitted a sexual abuse conviction into evidence which had occurred less than two months before the trial that is the subject of this appeal. Neither the state’s exhibit of the conviction nor the testimony at trial provide more particulars relating to the earlier conviction. Yet the trial court found that the appellant’s conviction for a similar act was some evidence of intent and was admissible on that basis under the Rule.
The trial court did not abuse its discretion in so ruling. The prior conviction for first degree sexual abuse occurred within two months of the trial in this case. The prior offense also occurred within the same time frame as the offense here. Under such circumstances the prior conviction is probative of intent, motive, or plan. This is so even though the prior sexual abuse involved another person. See Baldridge v. State, 32 Ark. App. 160, 798 S.W.2d 127 (1990). (Prior sexual advances to a niece were probative of similar advances toward a nephew.)
We are, further, unable to draw a legitimate or reasonable distinction between introduction of a similar act to prove intent and introduction of a conviction for a similar act to prove intent. Rule 404(b), in referring to “crimes,” does not make that distinction, and we question whether the distinction is meaningful when the real issue is the probative value of proof of an element of the offense weighed against its prejudicial impact.
We have held that a prior conviction is inadmissible to prove general intent to commit a crime, because the prejudice far exceeds the probative value. See Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). We also have held that in special circumstances where specific intent is an element of the crime, evidence of that intent is admissible. Id. We concluded in Alford that “our cases very plainly support the common sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded.” 223 Ark. at 338; 266 S.W.2d at 808. In the case of child abuse such as we have here, a depraved sexual instinct was involved, and our prior cases have noted that similar unnatural sex acts may shed light on such an instinct. See, e.g., Young v. State, 296 Ark. 397, 757 S.W.2d 544 (1988).
We, therefore, affirm the admissibility of similar child abuse acts as probative of motive, plan or intent under Rule 404(b). The case of Jones v. State, as discussed above, is distinguishable on its facts. Nevertheless, to the extent Jones is inconsistent with our holding today, we overrule it.
Lastly, we note that the trial court gave a cautionary instruction relating to the prior conviction:
The Court would further instruct you that you may consider the testimony relating to the prior conviction of the defendant only for the purpose of determining the intent the defendant may have had pertaining to the charge alleged.
We have previously held that proof of other criminal activity which is independently relevant to the main issue and tends to prove some material point rather than merely that the defendant is a criminal may be admissible with the proper cautionary instruction. See Young v. State, 296 Ark. 394, 757 S.W.2d 932 (1988). This concept has been applied to show other sexual acts between the victim and accused. Id. We see no reason why it should not apply in the case before us.
Directed Verdict
The appellant moved for a directed verdict on three grounds: 1) the criminal information was vague and erroneous in stating that the event occurred “on or about November 2, 1989”; 2) the appellant’s age was not proven which was an essential element of the crime charged; and 3) the victim’s incompetency at trial rendered her hearsay statements to her mother presumptively inadmissible.
We have held that in an information reciting that a sexual abuse act occurred “on or about April 27,1985,” the state need not specify a date beyond this unless the time was somehow material to the allegation. See Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987). We did not think that more specificity was required in that case, and that conclusion governs us in the case before us. The trial court was correct in denying a directed verdict on this point.
On the second point the state failed to prove before it rested that the appellant was above age eighteen as the first degree sexual abuse statute requires. The appellant was actually 69 years old at time of trial, and the trial court permitted the state to reopen its case to prove that the appellant was over 18, after the appellant’s motion for directed verdict but before the appellant had put on his case. Such matters are discretionary with the trial court, and we will not reverse absent abuse of discretion. See Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983). (The recalling of a jury for additional evidence was discretionary with the trial court.) We find no prejudice on this point.
The third argument dealing with the competency of the victim to testify and the trustworthiness of her declarations has already been discussed. See Idaho v. Wright, 110 S. Ct. 3139 (1990).
Affirmed.
Holt, C.J., Dudley and Newbern, JJ., dissent. | [
113,
-50,
-52,
108,
10,
115,
-70,
56,
119,
-61,
-73,
-45,
-21,
106,
12,
105,
-45,
47,
84,
97,
-47,
-73,
19,
-128,
-16,
-5,
-8,
-47,
-77,
78,
-84,
-44,
76,
112,
-54,
-47,
-26,
-38,
-23,
86,
-114,
1,
-71,
-28,
113,
-122,
34,
63,
92,
15,
53,
63,
-9,
46,
20,
-21,
8,
46,
75,
61,
84,
51,
-85,
5,
-17,
22,
-93,
-90,
-102,
-123,
120,
44,
-104,
-77,
0,
-24,
115,
-80,
-126,
124,
71,
-7,
12,
96,
-26,
39,
41,
-25,
-23,
-119,
71,
-9,
-67,
-89,
-110,
72,
2,
103,
-65,
-65,
112,
84,
13,
122,
-9,
-59,
38,
100,
66,
-113,
-108,
-125,
-115,
-87,
-36,
0,
-29,
61,
32,
49,
-33,
-96,
124,
87,
122,
-105,
-114,
-16
] |
Per Curiam.
Appellant, Bobby Johnson, by his attorney, has filed for a rule on the clerk.
His attorney, James P. Massie, admits that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion.dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-76,
-32,
-24,
-68,
10,
32,
2,
58,
75,
-23,
-93,
19,
-89,
-118,
28,
121,
-13,
111,
85,
115,
-55,
-109,
119,
-63,
-74,
-13,
-29,
85,
55,
111,
-12,
127,
76,
48,
-118,
-43,
70,
-54,
-115,
84,
-122,
5,
57,
-12,
-15,
0,
52,
57,
-112,
15,
49,
126,
-29,
58,
31,
69,
-23,
40,
-53,
-101,
-48,
-15,
-101,
-123,
125,
20,
-79,
-58,
-98,
-123,
-8,
106,
-116,
48,
34,
-8,
48,
-90,
6,
52,
45,
121,
40,
70,
98,
16,
-47,
-17,
-96,
-120,
15,
58,
29,
-90,
-101,
73,
-23,
-85,
22,
-65,
37,
48,
39,
124,
99,
-35,
27,
36,
-103,
-49,
-16,
-77,
31,
112,
-116,
10,
-22,
1,
16,
49,
-49,
-26,
92,
71,
51,
-45,
-98,
-92
] |
David Newbern, Justice.
The appellant, Curtis Bernard Easter, was convicted of first degree murder and sentenced to forty years imprisonment in connection with the shooting death of Darin Waymack. On appeal, Easter contends the Trial Court erred by (1) failing to grant a directed verdict because there was no evidence he had the purposeful mental state necessary for the offense, (2) admitting evidence of a conversation between Easter and his roommate, Buddy Arnold, about Easter “pulling his own weight around the house,” (3) instructing the jury that Easter’s prior convictions could be considered for impeachment purposes although not introduced to impeach a witness, and (4) not instructing the jury on the lesser included offense of manslaughter.
We affirm the conviction. (1) There was evidence from which the jury could infer Easter had the purposeful mental state necessary for first degree murder. (2) The Trial Court did not abuse its discretion in admitting evidence of a conversation between Easter and his housemate because the evidence was probative of Easter’s motive for committing the crime. (3) Easter was not prejudiced by the instruction to the jury that his prior crimes could only be used for impeachment purposes. (4) As the jury found Easter guilty of first degree murder, not second degree murder, any error resulting from the failure to give a manslaughter instruction was cured.
Buddy Arnold and Easter lived together in a trailer outside Jacksonville. Arnold owned the trailer and Easter lived there as a tenant. About 7:30 p.m. one evening, Darin Waymack brought a half-gallon of whiskey and some marijuana cigarettes to the trailer. Chris, Kim, and Joe Wuneburger came to the trailer around midnight, and Dwain Foreman, Waymack’s half-brother, arrived shortly thereafter. Everyone except Joe Wuneburger was either drinking alcoholic beverages or smoking marijuana that night. Easter testified that he, Waymack and Arnold also took LSD. Arnold denied taking LSD, and the autopsy revealed no evidence of LSD in Waymack’s system. Arnold testified Easter was not acting normally and was staying to himself. Kim Wuneburger stated something was wrong with Easter that night.
Easter disappeared from the trailer for a time, and Arnold found him on his hands and knees, apparently ill. Arnold asked him what was wrong, and Easter said he didn’t feel good and wanted a gun. Easter then came back inside the trailer, but left again. Arnold followed Easter and again asked him what was wrong. Easter said “Can’t you see what’s going on?” and “Man, could you just get me a gun?”
Easter was later found sitting in Waymack’s car, and Waymack told Easter to get out. Easter got out of the car, walked up the front steps of the trailer, went inside, and pulled a loaded 12-gauge shotgun from beneath a couch. Easter cocked the gun twice, walked outside, and shot Waymack twice in the head and once in the shoulder in the presence of four witnesses. Joe Wuneburger testified that when Easter was entering the trailer to get the gun, he was in a “mad rage” and said “Darin is a . . . narc.” Kim Wuneburger stated Easter looked “furious.”
To provide a possible motive for the crime, the prosecutor elicited testimony from Arnold that he and Easter had a conversation about Easter doing more work around the house. Arnold further testified he had allowed Waymack to store some furniture in the trailer. As a result of the drugs and alcohol, Easter might have killed Waymack because he believed Arnold was moving him out of the trailer and Waymack in. Ken Richardson, a drug abuse counselor for the State, testified Easter had an extensive drug abuse history. Easter admitted to Richardson he had a drug addiction.
Easter testified in his own defense and stated that, as a result of taking LSD, he didn’t remember shooting Waymack. He did remember feeling nervous and sick that night. Easter stated he and Waymack were friends and had never argued before. He also explained he told Arnold he wanted a gun because he felt nervous and did not want to go back inside with a gun in the trailer.
Dr. Henderson, who examined Easter at the county jail, diagnosed him as having a chronic substance abuse problem. It was his opinion that, at the time of the shooting, Easter had a diminished mental capacity caused by taking drugs. Dr. Henderson testified Easter was experiencing delusional thinking that Waymack had a gun and was threatening him.
The judge instructed the jury on murder in the first degree and murder in the second degree. He refused to instruct on the lesser included offense of manslaughter. The jury found Easter guilty of murder in the first degree.
1. Directed verdict
A person commits first degree murder if he purposely causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991). “Purposely” is defined by Ark. Code Ann. § 5-2-202(1) (1987) as follows: “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Easter contends the only evidence regarding his mental state at the time of the offense was that he was heavily drugged, experiencing delusions, and acting under a diminished mental capacity.
On appeal from a denial of a directed verdict, this Court views the evidence in the light most favorable to the appellee, in this case the State, and affirms if there is any substantial evidence to support the verdict. Evidence is substantial to support the verdict if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).
Intent is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987).
Kim and Joe Wuneburger testified that Curtis Easter shot Darin Waymack twice in the head and once in the shoulder with a shotgun. There was testimony that at the time of the killing, Easter was in a “mad rage” and “furious.” Easter had twice asked Arnold for a gun. The State’s Chief Medical Examiner testified Waymack was shot twice in the face and once in the right shoulder. Based on the type weapon used, the manner of its use, and the location of the wounds, the jury could reasonably have inferred Easter purposely killed Waymack.
Voluntary intoxication is not a defense. It is neither a statutory affirmative defense nor a common law defense negating intent in crimes requiring a purposeful mental state. Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).
2. The conversation evidence
On direct examination, the prosecutor asked Arnold whether he recalled a conversation in which he told Easter he should start “pulling his weight around the house.” Easter argues that this question was improper under A.R.E. 608(b), 404(b), and 403; however, the basis of the objection at trial was that the testimony was irrelevant.
The judge ruled the conversation between Arnold and Easter was relevant in showing a possible motive for the killing. We find no error. A ruling on the relevancy of evidence is discretionary, and we will not reverse absent an abuse of discretion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986). We find no abuse of discretion.
3. AMCI 203
Defense counsel asked Easter during direct examination about his previous convictions for two counts of delivery of marijuana and one count of theft by receiving. The Trial Court instructed the jury that “evidence that the defendant has previously been convicted of a crime may be considered by you for the purpose of judging the credibility of the defendant, but not as evidence of his guilt.” AMCI 203. Easter argues that because the evidence was not introduced to impeach a witness, the jury instruction was erroneous.
Easter cites no authority and makes no argument convincing us he has suffered prejudice as a result of the instruction. This Court does not reverse without a showing of unfair prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).
4. Manslaughter as a lesser included offense
In his last point, Easter contends that it was reversible error for the Trial Court to decline to instruct on the lesser included offense of manslaughter. The Trial Court instructed on first and second degree murder. When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987). This is commonly referred to as “the skip rule.”
Affirmed.
Brown, J., concurs. | [
113,
-22,
-19,
30,
43,
65,
106,
28,
-56,
-94,
101,
115,
35,
-37,
69,
113,
-69,
63,
85,
-23,
-59,
-77,
39,
-63,
-80,
-13,
75,
-42,
54,
-55,
-3,
-3,
8,
116,
-54,
117,
102,
88,
-25,
84,
-122,
22,
-104,
-14,
-118,
18,
32,
126,
-60,
15,
1,
-98,
-93,
10,
27,
75,
73,
40,
91,
45,
64,
56,
-99,
15,
-23,
3,
-125,
-90,
-99,
-125,
-8,
30,
-39,
49,
0,
-8,
115,
-106,
-110,
84,
73,
-119,
12,
38,
114,
-128,
77,
-51,
-24,
-127,
47,
47,
-99,
-81,
24,
121,
67,
12,
-105,
-43,
58,
124,
62,
120,
-27,
71,
89,
108,
-127,
-33,
-100,
-109,
-19,
48,
-42,
-14,
-29,
-123,
16,
101,
-51,
-94,
84,
101,
120,
-109,
-119,
-109
] |
David Newbern, Justice.
An undercover policewoman purchased crystal methamphetamine, a controlled substance, from Phillip Qualls at a residence occupied by Qualls. Officers who subsequently searched Qualls’s room found him in possession of $580, drug paraphernalia, more crystal methamphetamine, and a photograph of Qualls, on a bed in his room where the drugs were found, surrounded by stacks of money with a caption written on the back, “It’s mine, mine, all mine.” Qualls was convicted as an habitual offender of delivery of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia with intent to use, and manufacturing a controlled substance.
Qualls contends the photograph was erroneously admitted into evidence. We hold the Trial Court did not abuse its discretion in finding that it was relevant and that its probative value was not outweighed by its prejudicial effect. Qualls also makes alternative arguments that the trial court failed to rule on an issue as to his competency or failed to find his counsel ineffective at a hearing on his new trial motion conducted pursuant to Ark. R. Crim. P. 36.4 which has since been superseded by Rule 37.1. We hold there was no reason for the Trial Court to have ordered a competency examination and there is no evidence that Qualls’s counsel were ineffective. The judgment is affirmed.
1. The photograph
Qualls moved in limine to exclude the photograph. The motion was denied. The State contends the issue is not preserved for appeal because Qualls’s appendix does not contain a copy of the photograph. We find no need for a copy of the photograph because the testimony in the appendix adequately describes it. See Rules of the Arkansas Supreme Court and Court of Appeals 9(d).
While Qualls argues lack of a “foundation” for admission of the photograph, and the State says he is really arguing lack of “authentication.” Neither was specifically argued to the trial court. We consider the issues to be whether the photograph was relevant and whether the Trial Court erred in not finding that its prejudicial effect outweighed its probative value.
a. Relevancy
Qualls argued to the trial court that the photograph was irrelevant because it had nothing to do with the drug transaction with which he was charged. The State pointed out that Qualls was charged with possession of other quantities of the drug with intent to sell and that the picture was indicative that Qualls was selling it for money. Qualls countered that the money could have come from any source and not necessarily from drug sales.
The Trial Court’s ruling on relevancy is entitled to great deference and will be reversed only if the Court abused its discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977). According to Ark. R. Evid. 401, relevant evidence is 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. Walker v. State, supra.
There was no abuse of discretion. Qualls did not object to testimony that he was found to have $580 on his person when he was arrested. A picture of him with stacks of money in the room where he conducted at least one drug transaction is indicative that he was selling drugs there and that he intended to sell the quantity of drugs found by the police in that room.
b. Probative value versus prejudice
Arkansas Rule of Evidence 403 gives a court the authority to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” Undoubtedly the photograph was prejudicial, but the question is whether it could have been so unfairly prejudicial as to outweigh its probative value. Again, the decision was within the broad discretion of the Trial Court, Walker v. State, supra; Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), and we find no abuse.
We find nothing unfair about the possibility that a juror might conclude that a person pictured in a room on a bed in the midst of piles of cash might be conducting a business there generating large amounts of money as illicit businesses tend obviously to do because of the unwillingness of participants to be traced to the transactions through other means of financing them.
While the probative value of the photograph was not great, especially when compared with the other evidence against Qualls, we do find any unfair prejudice to overbalance it.
2. Competency
Neither Qualls nor his counsel raised an issue as to Qualls’s competency until, at a pretrial hearing, Qualls’s counsel announced to the Court that Qualls had complained about his representation, wanted a continuance, and “he would also like to address the Court and request a motion for a mental examination . . . .” The Court enquired of counsel whether there was any “reason or any justification or any indication” that a mental examination would be appropriate. Counsel replied in the negative.
Qualls then addressed the Court and spoke about how he and his counsel had argued about the need for a continuance and for getting his bond reduced. The matter of a mental examination was not mentioned further.
Qualls cites Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989), in support of his contention that it was improper for the court to decline to give a ruling on his competency. There was no call for a ruling. No motion was made, and no defense with respect to competency was raised.
3. Ineffective assistance of counsel
That leaves only the argument that the Court erred in overruling the motion for a new trial pursuant to now superseded Rule 36.4. The contention is that Quail’s counsel was ineffective due to his failure to move for a mental examination or to get a ruling if the colloquy in the pretrial hearing could have been considered a motion.
When the problem between Qualls and his counsel was revealed at the pretrial hearing, the Court appointed another lawyer as co-counsel to assist in Quail’s defense. Yet another lawyer was appointed to represent Qualls with respect to his motion for a new trial.
The motion for a new trial stated no facts showing or tending to show Qualls was entitled to a new trial. The motion was thus defective at the outset. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Nothing was mentioned about the failure to grant a mental examination. The subject came up at the post-trial hearing on the motion. Qualls testified he had told his original lawyer that if he were sent to prison he would kill himself “down there”. That was the only evidence even remotely suggestive that Qualls might not have been competent to stand trial or incapable of following the law at the time the offenses were committed.
We find no basis for holding that the new trial motion should have been granted due to ineffective assistance of counsel. Even if we were to hold that counsel’s performance was deficient in some way, we could find no basis for holding that Qualls was prejudiced. See Strickland v. Washington, 466 U.S. 668 (1984). Affirmed.
Hayes and Brown, JJ., concur.
Holt, C.J., dissents. | [
48,
-20,
-20,
60,
58,
65,
46,
-72,
67,
-29,
116,
113,
-83,
2,
-123,
49,
-95,
125,
116,
105,
-33,
-73,
99,
-53,
-58,
-41,
113,
-57,
-75,
75,
-20,
-36,
77,
48,
-21,
21,
70,
72,
-9,
88,
-126,
33,
-120,
-13,
120,
64,
36,
47,
-112,
15,
113,
-97,
-94,
-68,
18,
79,
77,
40,
75,
-75,
88,
-8,
-119,
85,
-5,
22,
-125,
20,
-111,
15,
-8,
42,
-104,
49,
1,
104,
115,
-90,
-122,
116,
79,
-103,
12,
98,
98,
-128,
29,
-27,
-84,
-116,
51,
-86,
-33,
-90,
16,
73,
75,
109,
-105,
-75,
108,
24,
12,
-8,
-29,
21,
87,
108,
5,
-57,
-74,
-111,
15,
40,
84,
123,
-21,
1,
84,
116,
-52,
-30,
84,
23,
89,
-101,
-114,
-41
] |
Per Curiam.
Petitioner, Robert Lee Fellows, by his attorney, John R. Hollis, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his failure to timely file the record in this court. See Ark. R. App. P. 5(a).
We find that such failure, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam opinion In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979); Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, supra. | [
52,
-22,
-4,
28,
10,
-32,
50,
46,
74,
-21,
121,
83,
-89,
-118,
16,
121,
67,
111,
85,
123,
-52,
-73,
119,
65,
38,
-13,
-29,
87,
117,
111,
-12,
-12,
76,
48,
-118,
-107,
70,
-56,
-115,
-40,
-122,
15,
25,
-27,
-15,
0,
56,
35,
-110,
15,
53,
118,
-30,
42,
28,
67,
-23,
108,
77,
-66,
80,
-79,
-102,
13,
127,
20,
-111,
-58,
-98,
-121,
-44,
62,
-100,
48,
18,
-24,
48,
-90,
-122,
84,
111,
57,
40,
102,
98,
35,
24,
-17,
-96,
-95,
4,
58,
29,
-90,
-37,
105,
107,
107,
-106,
-67,
57,
20,
39,
124,
-32,
-59,
85,
36,
-117,
-50,
-12,
-77,
-33,
112,
-116,
-85,
-22,
1,
16,
53,
-51,
-26,
-34,
71,
51,
-109,
-114,
-76
] |
Robert H. Dudley, Justice.
On May 2,1990, the appellee, Ranger Thomas Thornton, was involved in a car wreck which killed one person. That same day, he was charged by police citation in municipal court with the misdemeanors of speeding, reckless driving, drinking on the highway, running a red light, destruction of public and private property, and the class C felony of manslaughter. On May 16, 1990, he pleaded guilty to speeding, reckless driving, and drinking on the highway and pleaded not guilty to running a red light and destruction of public and private property. He was found guilty of those two additional misdemeanors. The State dismissed the felony manslaughter count filed in municipal court.
On November 20, 1990, about six (6) months after the municipal court proceedings, the State, by information filed in circuit court, charged the accused with the felony manslaughter. The information is cryptic; the charging part alleges only that the accused “on May 2, 1990, in Chicot County did unlawfully, recklessly cause the death of another person, to wit: Cheryl Kniss.” A bill of particulars was not provided. On December 10, 1990, twenty (20) days after the.manslaughter charge was filed, the appellee, Thornton, moved to dismiss the charge under the Double Jeopardy Clause of the Fifth Amendment. Two days later, on December 12, 1990, the trial court, without having a response from the State and without holding an evidentiary hearing, dismissed the charge. The State appeals pursuant to A.R.Cr.P. Rule 36.10. We reverse and remand.
I.
The accused seeks to bar the State from appealing on two (2) procedural grounds. First, he argues that the State did not object to the entry of the dismissal order, and, accordingly, we should not consider the dismissal. The requirement for a contemporaneous objection has long been our general rule, and remains so, but we also have long recognized that an exception to the rule exists when a litigant did not have the opportunity to object. Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988) ; Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). Here, the State did not have the opportunity to object and, as a result, the contemporaneous objection rule does not bar appeal of the dismissal.
Secondly, the accused contends that the State is asking for the reversal of a factual determination and cites us to our case law which provides that we will not accept an appeal from the State after a final dismissal for the purpose of determination of a question of fact. See State v. Dixon, 209 Ark. 155, 189 S.W.2d 787, (1945); State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989) . We have not changed our position; we still will not accept a State appeal of a final order solely to determine a question of fact. However, that rule is not applicable to this appeal. As can be seen from the remainder of this opinion, this appeal involves the uniform and correct administration of the criminal law, and we have traditionally accepted such appeals. See A.R.Cr.P. Rule 36.10 and citations thereunder.
II.
The case of Grady v. Corbin,_U.S_, 110 S. Ct. 2084 (1990) governs the case before us. There, Thomas Corbin, was involved in a car wreck which killed one person. After the wreck he was given uniform traffic tickets for driving while intoxicated and for failure to keep right of the median. Both tickets directed him to appear at a Town Justice Court. He appeared as directed and pleaded guilty. The presiding judge was informed neither of the fatality nor of a pending homicide investigation. The judge subsequently assessed the penalty. About two (2) months later, the grand jury indicted Corbin, charging him in county court with, among other things, negligent homicide, criminally negligent homicide, and reckless assault. The prosecution filed a bill of particulars stating that in order to prove the homicide and assault charges it would prove that the defendant (1) was operating his vehicle in an intoxicated condition, (2) failed to keep to the right of the median, and (3) was driving 45 to 50 miles per hour, which was too fast for the prevailing conditions. Corbin moved to dismiss because of double jeopardy. Ultimately, the case reached the Supreme Court of the United States which held the homicide and assault charges were barred by the Double Jeopardy Clause.
The Court formulated a two (2) part inquiry to determine whether double jeopardy bars a prosecution. First, the Blockburger test should be applied. If it reveals that the offenses have identical statutory elements or that one offense is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Id. at 2090. If the subsequent prosecution is not barred under the first inquiry, it should be subjected to the second inquiry, the “proof of the same conduct” analysis. The holding of the case concisely sets out this second inquiry as follows: “We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 2087.
III.
The key to the second inquiry is determining on what conduct the State will rely to prove the subsequent prosecution. In Grady the State had filed a bill of particulars which set out its anticipated proof. Because of that bill of particulars, the Court wrote:
By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted—driving while intoxicated and failing to keep right of the median—to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution, and the New York Court of Appeals properly granted respondent’s petition for a writ of prohibition. This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted (i.e., if the State relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence).
Id. at 2094. In the case before us there is no bill of particulars; instead, there is only the cryptic information which does not fully disclose the conduct on which the State will rely. The issue becomes: which party has the burden of proving the prior conduct the State will use?
In Grady, the majority answered the burden of proof issue for federal courts in footnote fourteen (14) of the opinion. There the Court provided a procedural mechanism for implementation of the test by relying on the procedure followed in previous double jeopardy cases and quoting a passage summarizing that procedure as follows: “ ‘[W]hen a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden shifts to the government to establish that there were in fact two separate offenses.’ ” Id. at 2094, n.14 (quoting United States v. Ragins, 840 F.2d 1184, 1192 (4th Cir. 1988)). The court in Ragins stated that this was the approach taken by all of the federal circuits. See also Note, The Burden of Proof in Double Jeopardy Claims, 82 Mich. L. Rev. 365 (1983).
The State argues in its brief that the burden should be on the defendant to demonstrate that the State will rely on conduct for which the defendant has already been convicted in proving the pending charge. The State cites one case so holding. See Commonwealth v. LaBelle, 397 Pa. Super. 179, 579 A.2d 1315 (1990). Other states have followed the Supreme Court’s direction and placed the burden on the state. See Scalf v. State, 573 So. 2d 202 (Fla. Dist. Ct. App. 1991).
It seems to us that the better procedure is to place the burden on the State since the State is in a better position, than is the defendant, to know what it is trying to prove and how it plans to do so. Accordingly, we adopt the standard recommended by the Supreme Court on the burden of proof.
The Supreme Court did not state that there must be a hearing on a pretrial double jeopardy issue. However, the very existence of the burden shifting procedure mandates that some response is necessary to a defendant’s motion to dismiss based on double jeopardy. No opportunity was given for such a response in this case. The trial court apparently assumed that the State would not be able to prove the elements of the crime of manslaughter without relying on the accused’s conduct for which he had previously been convicted—speeding, reckless driving, drinking on the highway, and running a red light. As a practical matter the trial court’s action ultimately may well prove to be the correct result, but the State should have been given an opportunity to demonstrate otherwise before the case was dismissed.
IV.
The error in prematurely dismissing the charge occurred before jeopardy attached. There never has been a determination that the State failed to prove the elements of the crime. Thus, the case may be remanded rather than dismissed. See Tibbs v. Florida, 457 U.S. 31 (1982).
Reversed and remanded for proceedings consistent with this opinion. | [
-16,
-22,
-108,
44,
43,
96,
26,
-68,
80,
-61,
-25,
115,
-81,
-63,
5,
49,
-21,
121,
85,
43,
-11,
-74,
23,
19,
-86,
-77,
97,
86,
55,
-55,
-4,
-12,
76,
-80,
-54,
-43,
39,
10,
-27,
88,
6,
0,
-103,
112,
107,
-110,
48,
122,
54,
15,
49,
-114,
-21,
47,
24,
-50,
105,
108,
73,
-68,
-55,
49,
-104,
7,
-1,
0,
-77,
-106,
-100,
-127,
112,
57,
-100,
49,
32,
-4,
51,
-90,
-126,
116,
105,
-101,
-116,
102,
115,
1,
29,
-51,
-84,
-88,
38,
62,
-99,
-89,
-104,
81,
75,
-120,
-105,
-99,
122,
54,
8,
-4,
-19,
5,
85,
108,
7,
-50,
-108,
-79,
-49,
20,
-122,
121,
-53,
39,
36,
117,
-50,
-26,
94,
69,
82,
-101,
-128,
-108
] |
Robert L. Brown, Justice.
The appellant, Marvin Nichols, was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver and was sentenced as an habitual offender to sixty years on the cocaine count and twenty years on the marijuana count, with the two sentences to run consecutively. He raises numerous issues on appeal.
The facts, though somewhat in dispute, are these. On March 3,1990, several police officers of the City of Pine Bluff executed a search warrant and made a surprise visit to the appellant’s residence. The time was described as sometime after 8:30 in the evening. According to a policeman involved in the search, Officer Alexander, the search warrant had been obtained as a result of a confidential informant’s purchase of a controlled substance from the appellant three days earlier. Officer Alexander testified that he entered the kitchen of the appellant’s residence and found the appellant and three more people sitting around a table where contraband — crack cocaine in a salt shaker, a large cocaine rock in a plastic container, and marijuana in plastic bags — was in plain view. Witnesses for the appellant disputed this testimony at trial. Other people were standing around the kitchen area, and one person was smoking a crack pipe. No cocaine or marijuana was found on the appellant’s person. He was arrested and charged with possession with intent to deliver the controlled substances that were on the table.
I.
SUFFICIENCY OF THE EVIDENCE
We first review the appellant’s challenge to the sufficiency of the evidence relating to his possession of controlled substances. Motions for a directed verdict on grounds of insufficient evidence were appropriately made by the appellant at the end of the state’s case and at the close of all the evidence. Thus, in conducting this review we must look to whether substantial evidence exists to support the verdict. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion and pass beyond mere suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Cerda v. State. When there is no evidence from which a jury could find the defendant guilty without resorting to speculation and conjecture, the judge should grant a directed verdict. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). In considering the appellant’s argument, this court may only consider the evidence that is favorable to the state and supports the appellant’s convictions. Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989).
The proven facts in this case are more than enough to qualify as substantial evidence. The premises involved here were described by the police officers as the appellant’s residence. According to Officer Alexander, the appellant was seated at the kitchen table at the time of the raid with the contraband in plain view on the table in front of him. Though this testimony was disputed by defense witnesses, the jury clearly chose to believe Officer Alexander. Since others joined the appellant around the table, we cannot conclude that the contraband was exclusively within his possession. But we have held that constructive possession exists where joint occupancy of the premises occurs and where there are additional factors linking the accused to the contraband. See Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990) . Those additional factors include a) whether the accused exercised care, control, and management over the contraband, and b) whether the accused knew the material was contraband. Id; see also Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991) . This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). We have little hesitancy in holding that substantial evidence of constructive possession exists where the abundant contraband lay in front of the appellant in plain view on the table in his house.
II.
MOTION TO STRIKE
The appellant next contends that it was highly prejudicial for the prosecutor to bring out in the testimony of Officer Alexander that the appellant had sold controlled substances three days before the raid on his house, when no charges had been brought against the appellant in connection with that sale. More specifically, the appellant argues that the trial judge erred in failing to strike this testimony and admonish the jury to disregard it. In resolving this issue the chronology of the appellant’s motion to strike is important. The motion was first made by counsel after Alexander described the drug sale. Yet, after initially moving to strike the drug-sale testimony, counsel told the judge that he would “wait” on his objection.
At the conclusion of officer Alexander’s direct testimony, counsel for the appellant approached the bench, and this colloquy ensued:
Defense Counsel: We would, at this time, move to strike testimony as being unduly inflammatory, and I can do that, and not relevant, and not raise the objection or whatever to the search warrant. I can do that at another time.
The Court: Okay.
Defense Counsel: I assume that the Court is going to deny —
The Court: I can’t until I hear the motion. Do you want to do it now, or I can reserve you the right to do it?
Defense Counsel: I’ll wait.
The Court: Okay.
It was not, however, until both the prosecutor and the defense had rested that counsel moved the trial judge to strike the drug sale testimony as prejudicial and to admonish the jury to disregard it. The prosecutor opposed the motion on grounds of waiver due to the delay in making it and, further, on the basis that the drug sale formed the underlying basis for the search warrant. The trial judge agreed that a waiver had occurred and denied the motion.
With this chronology before us, it is not necessary to reach the issue of any, prejudice that may have resulted from the drug sale testimony. Defense counsel simply waited too long to raise the issue. Our case law is clear that in order to preserve an issue for appeal, an objection to evidence must be made at the first opportunity to do so. See Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991); Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). Even if the objection and motion were deemed to have been made during Alexander’s testimony, they were clearly withdrawn. An objection and motion pertaining to the testimony of the state’s first witness are not timely made when they are renewed after numerous state and defense witnesses have testified and after both sides have rested. This issue was not preserved for appeal.
III.
SEARCH WARRANT
The appellant’s third issue relates to the second. He contends that the prosecutor brandished the search warrant around the courtroom, used it in testimony, and referred to the circumstances leading up to its issuance. The appellant further argues that the search warrant itself was not introduced into evidence, and its validity was not proven, all of which prejudiced the defense. The appellant, however, failed to make any objection concerning the search warrant’s validity at trial, and we have been consistent in holding that such a lapse forecloses our review of the matter on appeal. See Ferrell v. State, supra; Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967).
IV.
INSTRUCTION ON CONSTRUCTIVE POSSESSION
The appellant also argues that the instruction given to the jury on constructive possession did not correctly state the law. The record, however, does not reflect that the defense counsel objected to the instruction in controversy offered by the prosecutor. Failure to raise an objection to a specific instruction is fatal to an appellant’s right to have the issue reviewed on appeal. See Garrison v. State, 13 Ark. App. 245, 682 S.W.2d 772 (1985). Because no objection was made, this argument must fail.
V.
MODIFICATION OF SENTENCE
The appellant was sentenced as an habitual offender to sixty years for possession with intent to deliver cocaine. This crime is an unclassified felony, and the appellant contends, with the concurrence of the Attorney General, that the appropriate term of years for sentencing is not more than fifty years. See Ark. Code Ann. § 5-4-501 (a)(7) (1987). We have authority to modify sentences in excess of statutory limits. See Ark. Code Ann. § 16-91-113(c)(3); see also Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980). We, therefore, reduce the sentence for possession with intent to deliver cocaine from a term of sixty years to fifty years, the maximum term of years under § 5-4-501 (a)(7). In all other respects the sentence shall remain the same.
Along these same lines the appellant argues that because this is a circumstantial case, his sentence was excessive. The argument is without merit. As modified, the sentence is within the statutory limits. We do not review the severity of a sentence which is within the lawful maximum, except in capital cases. See Andrews v. State, 283 Ark. 297, 675 S.W.2d 636 (1984). The convictions and sentences are affirmed as modified. | [
49,
-18,
-27,
28,
58,
-32,
58,
-70,
67,
-93,
117,
83,
-83,
-62,
4,
107,
121,
127,
116,
-23,
-35,
-73,
39,
81,
-62,
-9,
122,
-43,
51,
75,
-20,
-36,
13,
52,
-126,
85,
102,
72,
-29,
88,
-50,
1,
-101,
110,
81,
18,
32,
35,
26,
31,
113,
31,
-29,
40,
25,
-49,
73,
44,
75,
60,
88,
-7,
24,
29,
-81,
22,
-95,
-28,
-103,
39,
-8,
31,
-36,
49,
1,
104,
115,
-90,
-126,
116,
85,
-101,
-124,
96,
-30,
1,
29,
-19,
44,
-120,
22,
47,
-99,
-90,
88,
73,
65,
105,
-76,
-65,
110,
18,
14,
-24,
123,
69,
29,
108,
-115,
-50,
-108,
-95,
9,
32,
-98,
-21,
-29,
37,
16,
116,
-49,
-30,
84,
86,
81,
-101,
-116,
-42
] |
Jack Holt, Jr., Chief Justice.
This case involves a negligence suit brought by the appellant, Jay Samples, arising from an automobile accident. Mr. Samples was a passenger in a Ryder truck driven by his wife, appellee Genell Samples, that was struck from behind by a truck driven by appellee Mark Summers during the course of his employment duties with appellee, D.L. Sitton Motor Lines.
On June 11, 1990, the trial court entered a judgment reflecting the jury’s verdict that none of the appellees were negligent and dismissed the case. Mr. Samples appeals and alleges 1) that the trial court committed reversible error when it improperly instructed the jury on the issue of “sudden emergency” where all of the evidence supported a finding of negligence on the part of one or all of the defendants, 2) that where a jury instruction is given that confuses or misleads a jury, the judgment must be reversed, and 3) that the jury’s verdict was not supported by substantial evidence because there was no evidence adduced at trial that the accident was unavoidable and all of the evidence clearly demonstrated negligence on the part of one or all of the defendants.
We are unable to consider Mr. Samples’s plea for reversal because of a total noncompliance with Ark. Sup. Ct. R. 9. Rule 9(d) requires, in part, that an appellant’s abstract should consist of an impartial condensation of only such material parts of the pleadings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision.
A key issue in the case below, and the principal point on this appeal, concerns a contested jury instruction on sudden emergency. Yet, that jury instruction, though referred to in argument, is not abstracted. The abstract is likewise flagrantly deficient with regard to Mr. Sample’s claim of insubstantial evidence in that he has not included a motion for directed verdict, a material part of the proceedings, with regard to this issue. See Willson Safety Prod. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990); Ark. R. Civ. P. 50(e).
Additionally, in Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990) (citing Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987)), we stated that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. With particular reference to the pleadings in this case, Mr. Samples has failed to abstract the appellees’ answer, the notice of appeal, and the judgment.
In sum, then, Mr. Samples’s entire abstract of a 619 page, four-volume record consists of his petition and snippets of testimony, which are totally inadequate for an understanding, much less for a resolution, of the issues presented. Logan County v. Tritt, supra. We also note that Mr. Samples was given a second opportunity to appropriately abstract the record on appeal, yet he has failed to conform his abstract to our rules.
Consequently, the judgment is affirmed.
Glaze, J., not participating. | [
-16,
-24,
-32,
-100,
41,
96,
56,
26,
-63,
-127,
50,
83,
-17,
-46,
12,
123,
-18,
61,
117,
43,
-11,
-77,
22,
-31,
-30,
-73,
81,
-58,
-80,
79,
36,
-2,
76,
112,
-54,
-59,
70,
74,
-57,
94,
-122,
-122,
41,
96,
89,
-110,
52,
54,
86,
15,
49,
-113,
-30,
42,
59,
-61,
109,
40,
-53,
52,
73,
-80,
-54,
7,
127,
0,
-77,
52,
-98,
7,
88,
30,
-116,
49,
9,
-4,
48,
-74,
-126,
-44,
41,
-101,
12,
98,
99,
1,
21,
-51,
-67,
-104,
46,
63,
31,
-90,
-102,
73,
73,
1,
-73,
-99,
121,
22,
-114,
-2,
-23,
13,
31,
108,
3,
-50,
-112,
-77,
13,
52,
-108,
11,
-5,
-121,
20,
113,
-56,
-23,
93,
5,
19,
-101,
-122,
-106
] |
Donald L. Corbin, Justice.
The state brings this interlocutory appeal from an order of the Johnson Circuit Court granting appellees’ pretrial motion to suppress evidence. Ark. R. Crim. P. 36.10. The sole issue presented in this appeal is whether the trial court erred in ruling the evidence seized be suppressed due to an invalid nighttime search warrant. We affirm.
In reviewing a trial court’s decision to grant a defendant’s motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s decision only if it is clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).
Our review of the evidence reveals that, on four different occasions during the month prior to the July 27, 1990 arrest of both appellees, Officer Hanes of the Fifth Judicial Drug Task Force purchased marijuana from appellee Jesse Martinez at the Martinez property, which consists of both the Martinez residence and a Martinez-owned business entitled Marty’s Gun Shop. On July 26,1990, Jesse Martinez contacted Officer Hanes regarding the purchase of a quarter pound of marijuana. At this point, Officer Hanes initiated steps to obtain a search warrant. He planned to execute the above-referenced purchase and then search the Martinez property. On July 27, 1990, Officer Hanes met with Chief Deputy Dorney of the Johnson County Sheriff’s Office and Judge Len Bradley to obtain the search warrant. Officer Hanes was sworn and signed the prepared affidavit. The search warrant was then issued at approximately 6:45 p.m. Because Ark. R. Crim. P. 13.1(b) requires the application for a search warrant be supported by one or more affidavits or recorded testimony, we do not consider any unrecorded oral testimony that may or may not have been given. Thus, we only consider the information contained in the affidavit.
The affidavit was dated July 27, 1990, and recited that arrangements had been made to purchase a controlled substance from Jesse Martinez on that day. The affidavit also stated that it was believed Martinez stored the controlled substance at his residence and that the proposed sale was expected to occur there.
The state argues the search warrant issued in this case contained the appropriate language that the warrant was to be executed “at any time of the day or night” and therefore, the trial court erred in granting the motion to suppress. With this argument we cannot agree.
It is well-settled that an affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). Ark. R. Crim. P. 13.2(c) provides that:
(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
The affidavit in this case does not set out facts showing reasonable cause for Judge Bradley to have found that any of the three circumstances quoted above existed. The affidavit merely provides that four previous sales of marijuana had been made by Jesse Martinez to Officer Hanes, that controlled substances were believed to be stored at the Martinez residence, and that another purchase was scheduled to occur at the residence that day. The affidavit is silent with respect to anything regarding reasonable cause to believe the marijuana would be destroyed or removed before the next morning. Thus, we hold it was error for the nighttime search warrant to have been issued.
Our holding is consistent with Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990), and State v. Broadway, supra. Both Hall and Broadway have facts similar to the facts in the present case. In Hall, supra, we held that an affidavit reciting simply that illegal drugs were at appellant’s residence and that a confidential informant had purchased marijuana there within the last seventy-two hours did not state facts sufficient to support the issuance of a nighttime search warrant. The Hall case is controlling of the present case in all respects.
Although we hold the issuance of this search warrant was in violation of Ark. R. Crim. P. 13.2(c), a motion to suppress will not be granted unless the violation is “substantial.” Ark. R. Crim. P. 16.2(e). “The nighttime intrusion into a private home is the violation of an important interest, and from the record before us there is nothing to indicate that the evidence would not still have been there the next morning.” Hall, 302 Ark. at 344, 789 S.W.2d at 458. Consistent with Hall, we hold the intrusion into appellees’ home, which began at approximately 9:00 p.m. and continued through 4:00 p.m. the next day, was a substantial violation of our rules.
The state urges us to apply the good faith exception to the warrant requirements which was first enunciated in United States v. Leon, 468 U.S. 897 (1984). We have stated that we would apply this exception to violations of our state laws given the appropriate case. Hall, supra. However, as was also determined in Hall, this is not the appropriate case. See Hall, supra, 302 Ark. at 344, 789 S.W.2d at 458-59. In the case at bar, Chief Deputy Dorney testified he was somewhat familiar with our rules of criminal procedure regarding nighttime searches. There can be no doubt then that he knew the search which began at approximately 9:00 p.m. was conducted in violation of our rules. The search violated our rules in that it was conducted, almost one hour after the 8:00 p.m. time constraint, pursuant to an affidavit that did not specify any of the three conditions for issuing a nighttime warrant. Because the executing officers did indeed have knowledge of our rules, we need not address the issue of whether the issuing judicial officer remained neutral and detached and refrained from acting as a rubberstamp for the law enforcement officers. Id. Thus, we decline to apply the good faith exception to this violation of our rules of criminal procedure.
In summary, it was error to issue the nighttime search warrant. The good faith exception is not applicable to this case. Based on our review of the evidence, we cannot say the trial judge’s decision to grant the motion to suppress was against the preponderance of the evidence. Hall, supra, is a case with strikingly similar facts to this case and we are bound by that decision. Accordingly, the trial court’s suppression order is affirmed.
Holt, C.J., and Hays, J., dissent. | [
49,
-17,
-19,
28,
10,
-32,
42,
62,
83,
-93,
-26,
83,
-17,
-46,
0,
49,
-1,
29,
116,
121,
-51,
-73,
99,
32,
114,
-13,
104,
-41,
61,
79,
-20,
84,
92,
48,
-126,
-43,
100,
72,
-81,
80,
-114,
33,
-101,
64,
80,
-64,
52,
-85,
58,
15,
49,
22,
-29,
46,
25,
-53,
73,
44,
-53,
29,
88,
-7,
-72,
93,
-115,
22,
-95,
36,
-103,
5,
-8,
127,
-40,
49,
0,
104,
115,
-78,
-110,
116,
82,
25,
12,
100,
98,
3,
-99,
-17,
-68,
-120,
30,
43,
29,
38,
-40,
73,
73,
-23,
-106,
-99,
124,
16,
46,
-6,
99,
69,
29,
108,
-126,
-34,
-108,
-109,
31,
32,
-114,
67,
-21,
35,
112,
97,
-59,
-30,
92,
87,
49,
-101,
-50,
-43
] |
Donald L. Corbin, Justice.
Appellant, Charles E. Bradford, was convicted of first degree murder by a Crittenden County Circuit Court jury and sentenced to life imprisonment. On appeal, he challenges the admission of three statements and some photographs. We affirm his conviction.
The evidence in this case reveals that Yvonne Parker was murdered on November 17, 1989. On November 22, 1989, appellant went to the West Memphis Police Department and, after being informed of and waiving his Miranda rights, gave a statement regarding Yvonne Parker’s murder. Appellant denied any involvement in the murder, but admitted that he went to Parker’s trailer on November 17th and found her dead. He told the officers that he panicked and ran from the trailer, taking a bloody towel with him. Toward the end of the statement, Detective James Sudbury told appellant he thought appellant had killed Parker. At that point, appellant told Detective Sudbury he did not want to say any more until he could obtain an attorney. The statement was concluded and appellant was arrested and held pursuant to an outstanding warrant on a drug charge.
On either November 24th or 25th, appellant told a jailer that he wanted to speak to the detectives. The jailer, Rodney Ivy, could not contact the detectives for a few days because of the Thanksgiving holiday. A bond hearing was held on November 27, 1989, and appellant’s father asked the judge for some time to obtain an attorney to represent appellant. The judge granted this request. On November 29th, after being informed that appellant wished to speak with a detective, Detective Sudbury went to see appellant at the jail and asked if he still wanted to speak to a detective. Appellant indicated that he did. Detective Sudbury informed appellant of his rights in the presence of Lieutenant Tony Miller and Detective McCraken. Appellant then signed a waiver of rights form. Following the waiver of his rights, appellant discussed the case with Lieutenant Miller and Detec tive McCraken. At the end of the discussion, appellant agreed to take a polygraph examination.
A polygraph examination was set up with the Arkansas State Police in Jonesboro and appellant was transported to Jonesboro that afternoon, November 29, 1989. State Police Investigator Charles Beal informed appellant of his rights. Appellant signed a waiver of rights form and gave a statement, telling Investigator Beal that he had also taken Yvonne Parker’s purse when he left the trailer that night. Investigator Beal testified that after the examination was concluded, he read appellant his rights again and appellant then gave a statement admitting that he killed Yvonne Parker.
On November 30, 1989, appellant called Linda McCoy, Yvonne Parker’s sister, from the West Memphis jail and told her that he had killed her sister. Appellant and McCoy lived together for thirteen years and had three children. Appellant’s father was apparently unable to obtain an attorney for him, and counsel was appointed to represent him on December 1,1989. Appellant was charged with first degree murder on January 12, 1990.
Appellant filed a motion to suppress the November 22,1989 statement, the statement following the polygraph examination on November 29,1989, and his statement to Linda McCoy. After a hearing on the motion to suppress, the trial court ruled that all three statements were admissible into evidence.
Appellant first contends the trial court erred by admitting the November 22, 1989 statement to the West Memphis Police Department. Appellant argues this statement should' have been suppressed because he was arrested on November 23, 1989, and ' an attorney was not appointed to represent him until December 1, 1989. He contends this delay, from the time of his arrest until the time counsel was appointed to represent him, violated his constitutional right to counsel; thus, the statement made to the West Memphis police on November 22, 1989, should be suppressed. Appellee responds with the argument that appellant waived his right to counsel prior to giving the November 22,1989 statement.
The burden is on the state to establish that appellant waived his rights and all doubts must be resolved in favor of the individual rights and constitutional safeguards. Sutton v. State, 262 Ark. 492, 559 S.W.2d 16 (1977). The inquiry into the validity of appellant’s waiver of his Miranda rights, specifically his right to counsel, has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 (1987); Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989). The waiver must be voluntary and it must be made knowingly and intelligently. Colorado, supra; Burin, supra.
The requirement that a waiver of Miranda rights be voluntary is concerned with coercive police activity. Burin, supra. As appellant never alleged any coercive activity by the police in connection with this statement, we need only consider whether appellant waived his right to counsel knowingly and intelligently prior to giving the statement. Factors bearing on this determination include appellant’s age, experience, education, background, and the length of detention. Burin, supra. Appellant was thirty-three years old and had a twelfth-grade education at the time he gave the statement in question. He had been arrested previously for a drug offense. The statement’began at 11:21 p.m. on November 22, 1989, and was concluded at 12:03 a.m. on November 23, 1989. As stated previously in this opinion, appellant signed a waiver of rights form prior to giving the statement. When he exercised his right to counsel during the statement, the statement was quickly concluded.
Counsel had not been appointed for appellant because he indicated he was trying to obtain his own counsel. On November 22,1989, appellant told the West Memphis police officers that he did not want to talk any more until he got himself an attorney. Similarly, at appellant’s bond hearing on November 27,1989, his father asked the judge for some time to obtain an attorney to represent appellant. At no time did appellant indicate that he wanted appointed counsel. Appellant’s father was apparently unable to obtain counsel for him, thus counsel was appointed to represent him on December 1, 1989. We conclude the statement was not taken in violation of appellant’s right to counsel, and the trial court correctly denied the motion to suppress it.
For his second argument on appeal, appellant contends the trial court erred in admitting the statement he made on November 29,1989, to Investigator Beal after taking the polygraph test. Investigator Beal testified that at 5:18 p.m. on November 29, 1989, he advised appellant of his rights. Investigator Beal testified that appellant indicated to him verbally that he understood those rights and that he signed the rights form. Beal testified further that no force, promises, threats, or coercion were used to get appellant’s signature on the form. After waiving his rights and before taking the polygraph examination, appellant made a brief statement, admitting that he had taken Yvonne Parker’s purse from the trailer on the night of the murder.
Investigator Beal then conducted a polygraph examination on appellant. Following the examination, appellant made another statement to investigator Beal admitting that he killed Yvonne Parker. Investigator Beal testified at trial that he read appellant his rights before appellant gave this incriminating statement. Investigator Beal then wrote the statement down in appellant’s exact words and went over each word with him. He testified that he observed appellant sign each page of the statement and again at the end of the statement.
Appellant contends that because the results of his polygraph examination were inadmissible, this incriminating statement was also inadmissible as it resulted from his polygraph examination. We have specifically held that incriminating statements and admissions made freely and voluntarily after or as a result of a polygraph examination are admissible into evidence, if they are not otherwise involuntary. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979). Appellant does not allege the statement was involuntary in any manner.
The state submits that the statement appellant made following his polygraph examination was admissible under Gardner. Although appellant had invoked his right to counsel a few days prior to taking the polygraph examination, he reinitiated contact with the police on November 29,1989. He then waived his rights knowingly, intelligently, and voluntarily prior to making this statement after the polygraph examination. Accordingly, the trial court correctly allowed the statement to be introduced into evidence.
As his third argument, appellant contends the trial court erred in allowing the victim’s sister to testify that appellant called her from the West Memphis jail on November 30, 1989, and admitted that he had killed her sister. Appellant sought to have this statement suppressed on the basis that he was in custody at the time this call was made and that he was without the benefit of counsel.
We find no merit in this argument. The requirements of Miranda v. Arizona, 384 U.S. 436 (1966), do not come into play unless a defendant is subjected to custodial interrogation or the functional equivalent thereof. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Appellant made this statement to a third party. We cannot say this phone call was the functional equivalent of custodial interrogation. The trial court did not err in denying the motion to suppress the statement made to the victim’s sister.
For his final argument, appellant contends the trial court erred in admitting photographs of the victim’s body into evidence. He argues the photograph depicting the victim’s neck bent backward to demonstrate her cut throat and the photograph demonstrating eight stab wounds into the heart area had a prejudicial effect that outweighs the probative value of the photographs.
Both the state and the defense rely on the rule announced in Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 449 (1986) where this court stated:
The fact that photographs are inflammatory is not alone sufficient reason to exclude them. [Citations omitted.] Inflammatory pictures are “admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony.” [Citation omitted.]
The two photographs may have enabled the medical examiner to better describe the wounds that contributed to the victim’s death and demonstrate to the jury the nature and extent of the wounds she suffered, as well as the savagery of the attack on her. We stated in Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990), that pictures may also be useful to the jury by showing the nature and extent of wounds and savagery of the attack on the victim.
The admissibility of photographs is in the sound discretion of the trial judge, whose decision will not be set aside absent an abuse of that discretion. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). We do not find the trial court abused its discretion in admitting the photographs into evidence.
As required by Ark. Sup. Ct. R. 11 (f), the objections decided adversely to appellant have been abstracted; we have reviewed these objections and find that none of them merits reversal.
Affirmed. | [
48,
-18,
-11,
29,
41,
32,
58,
48,
-14,
-77,
-28,
115,
-91,
-48,
5,
107,
99,
125,
117,
121,
-74,
-73,
55,
96,
-22,
-13,
19,
86,
-77,
64,
-68,
-73,
76,
112,
-54,
13,
-58,
72,
-25,
88,
-118,
-109,
-71,
-32,
80,
18,
40,
127,
0,
15,
-95,
-98,
-94,
43,
20,
-54,
-55,
62,
75,
-90,
90,
59,
-117,
-97,
-49,
54,
-77,
-122,
-66,
-127,
-8,
61,
-40,
49,
0,
-24,
115,
54,
-126,
-28,
108,
-119,
12,
38,
99,
36,
-99,
-83,
-84,
-119,
39,
62,
-99,
-89,
-72,
97,
65,
68,
-65,
-99,
126,
20,
9,
-24,
100,
-115,
120,
108,
38,
-50,
-106,
-79,
11,
60,
-106,
58,
-21,
7,
98,
112,
-51,
-22,
77,
23,
49,
-37,
-46,
-14
] |
Per Curiam.
The appellant is appealing the denial by the trial court of a petition for post-conviction relief filed pursuant to Criminal Procedure Rule 37. The appellant’s brief filed by the attorney appointed to represent the appellant is flagrantly deficient in that there is no abstract of the information, judgment and commitment order, the Rule 37 petition, or the court’s order denying the Rule 37 petition. Counsel now seeks permission to supplement the abstract. The state argues that it would be unfair to permit the appellant to remedy the deficiencies with a supplemental abstract after the state’s brief has already been filed.
Although the appeal is from an order denying post-conviction relief and the right to effective assistance of counsel under the sixth amendment does not extend to collateral attacks on a judgment, we will not penalize the appellant by dismissing the appeal because his attorney prepared a deficient brief. If appellant had been proceeding pro se and had submitted a deficient abstract, we would not hesitate to affirm pursuant to our Rule 9 since a litigant who elects to proceed pro se is required to conform to the rules of procedure. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). Where the error was made by appointed counsel, however, we will permit the abstract to be supplemented.
A copy of this opinion shall be forwarded to the Committee on Professional Conduct.
Motion granted.
Dudley and Brown, JJ., concur.
Glaze, J., dissents. | [
49,
-22,
117,
-99,
-117,
32,
58,
28,
97,
-31,
127,
83,
-81,
-34,
-116,
123,
-57,
57,
116,
123,
-33,
-77,
126,
65,
118,
-77,
-80,
-41,
-75,
111,
-28,
-8,
76,
-76,
-54,
-43,
102,
-54,
-63,
-46,
-50,
5,
-103,
109,
105,
-31,
52,
115,
82,
15,
49,
-34,
-29,
46,
26,
-63,
-120,
108,
73,
53,
-64,
-104,
-102,
-115,
-23,
22,
-93,
-76,
-72,
-122,
88,
46,
12,
57,
1,
-24,
112,
-74,
2,
20,
107,
57,
-128,
98,
98,
0,
56,
-17,
-119,
-96,
6,
62,
-99,
-90,
-39,
9,
-53,
41,
-74,
-67,
37,
52,
7,
110,
-1,
29,
57,
108,
8,
-50,
-12,
-79,
-65,
120,
28,
-61,
-26,
-109,
16,
116,
-59,
-27,
88,
83,
19,
-39,
-50,
-108
] |
Robert H. Dudley, Justice.
The appellant raped the prosecutrix in Hot Spring County, and then, only a short distance away and a short time later, raped her in Garland County. He was charged by separate informations with the crime of rape in each county. On his motion both offenses were joined, as part of a single scheme or plan, in Hot Spring County. He was tried there and found guilty of both charges. He appeals and argues five (5) points for reversal. None of them has merit, and we affirm both judgments of conviction.
The prosecutrix, a fourteen-year-old girl, was at the Pizza Hut Restaurant in the City of Hot Springs at about 11 p.m. and sought a ride home. The appellant responded that he would drive her home. Two (2) other men were with him. The four (4) of them got in appellant’s car, and appellant drove toward Malvern. Along the way, he turned his car into a cemetery which is located in Hot Spring County. The two (2) other men got out of the car. Appellant remained in the car with the prosecutrix and twice forced her to have sexual intercourse with him. The prosecutrix and both of the other men were eyewitnesses and testified to the above facts.
The four (4) of them left the cemetery in appellant’s car, and appellant drove back to the City of Hot Springs and let the two (2) men out. He then drove the victim to a location near Carpenter Dam in Garland County and again raped her. The prosecutrix testified to this crime. Appellant’s car ran out of gasoline and, when he went to get more gasoline, the prosecutrix got away and went to a friend’s home. The friend’s mother described the prosecutrix as upset and reporting that she had been raped. She was taken to the hospital. She had abrasions on her back and buttocks and had a tear in the external area of her vagina. The examining physician concluded there had been trauma to the area. After hearing ail of the testimony, the jury found appellant guilty of both charges.
Appellant argues that there was insufficient evidence to convict him. We affirm a conviction if substantial evidence exists to support it. Evidence is substantial if the jury reaches its conclusion without having to resort to speculation or conjecture. The testimony of a rape victim satisfies the substantial evidence requirement in a rape case. The testimony of the victim alone was sufficient to support the verdict.
However, in this case, unlike most rape cases, there were two (2) eyewitnesses to one of the crimes. The testimony of the examining physician provided further proof of rape. Appellant questions the testimony of some of these witnesses by pointing out alleged discrepancies in their testimony. However, the credibility of witnesses and any discrepancy in testimony are for the jury to resolve. Wilkins v. State, 292 Ark. 596, 600, 731 S.W.2d 775, 778 (1987).
Appellant next argues that the trial court erred by not granting a mistrial after an allegedly prejudicial statement was made by the prosecutor on voir dire. The statement and the discussion which ensued between the prosecutor, defense counsel, and the trial judge were as follows:
THE DEPUTY PROSECUTOR: The charge against [the appellant] is a Class Y Felony that carries from 10 to 40 years or life. He’s charged with two counts of that. Is there anyone here, that if they found that he committed these acts, that could not sentence him to a long term in the penitentiary? If you can’t do that, even though the law requires it based on the facts, is there anyone here that can’t—
THE DEFENSE ATTORNEY: Objection, Your Honor, may we approach the bench.
BY THE COURT: Sure.
THE DEFENSE ATTORNEY: Your Honor, I move for a mistrial. Mr Scrimshire [the deputy prosecutor] has inappropriately stated the law, that it requires a long sentence, and that is incorrect. The sentence is 10 to 40 to life, not a “long sentence.”
BY THE COURT: [Directed to Mr. Scrimshire:] You may ask them if they will consider the full range of sentences, but don’t try to commit them to a particular length of sentence.
BY PROSECUTOR: Sure.
BY THE COURT: [Directed to Mr. Becker:] Your motion for a mistrial is denied.
Appellant argues that he was prejudiced by the prosecutor’s use of the phrase “long sentence” since it suggested to the jury that it was not possible to impose a minimum sentence. We have previously addressed prosecutorial inquiry on voir dire into jurors’ feelings about the penalties applicable to the particular crime or crimes. In Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), we held that it was prejudicial error for the prosecutor to repeatedly ask jurors if they would impose the maximum penalty upon a finding of guilt. We expressed concern that the jury may have felt obligated in advance of hearing the evidence to impose the maximum penalty upon finding the defendant guilty. Id. at 690-91, 606 S.W.2d at 565. In Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982), we revisited the issue presented in Haynes. There, we held the prosecutorial conduct was distinguishable from that in Haynes because the prosecutor, after stating the minimum and maximum penalties, merely asked the prospective jurors whether they would consider the maximum sentence. Id. at 115, 640 S.W.2d at 95. We wrote, “Unlike the situation in Haynes, no juror was in this case asked to commit to a possible penalty or to express an opinion on whether such a penalty would be suitable.” Id. We found such an inquiry to be proper on voir dire. Id.
The prosecutor’s statement in this case is similar to that in Stephens. Here, the prosecutor gave the minimum and maximum sentences for the crime committed and then asked the potential jurors whether any of them could not sentence appellant to a “long term in the penitentiary.” The prosecutor was essentially asking the jurors whether they could impose the maximum sentence. In Stephens we sanctioned such questioning. Thus, appellant’s second argument is without merit.
Appellant further contends that the trial court erred by not allowing the attorneys to strike members of the jury panel in chambers. Voir dire of jury panels is provided for by Ark. Code Ann. §§ 16-33-101 and 16-33-301 to-308 and by A.R.Cr.P. Rule 32.2. Sections 16-33-303 to -308 give the number of peremptory and “for cause” challenges each party shall have and the manner in which they are to be exercised. Nothing is mentioned in any of these Code sections nor in Rule 32.2 concerning exercising one’s challenges in chambers as distinguished from open court. The customary procedure has been to strike jurors in open court.
An analogous request for a particular voir dire procedure is the request for a sequestered voir dire. In Heffernan v. State, 278 Ark. 325, 327, 645 S.W.2d 666, 667 (1983), we said that sequestration of a jury for purposes of voir dire is within the discretion of the trial court. In Heffernan, a death penalty case, we found no abuse of that discretion by the trial court’s refusal to allow sequestered voir dire. Id. The trial court did permit individual voir dire in Heffernan to alleviate the defendant’s concern that the jurors would not be as candid in the presence of one another. Id.
We have discussed the issue of conducting voir dire in chambers. In Commercial Printing Co. v. Lee, 262 Ark. 87, 93, 553 S.W.2d 270, 273 (1977), we held that a court order which excluded the public from voir dire was invalid. We based our decision on the fact that voir dire is an essential part of the trial and that the defendant is guaranteed a right to a public trial. “[T]here is nothing in our constitution or the federal constitution which guarantees a private trial.” Id. at 94, 553 S.W.2d at 273. In Commercial Printing Co. it was the defendant who requested that voir dire be held in chambers. In Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984), it was at the State’s request that voir dire was conducted in chambers, and it was the defendant who asserted his right to public voir dire. See also, Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990).
In sum, sequestration of the jury for voir dire purposes and the conducting of voir dire in general is within the broad discretion of the trial judge. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). The appellant has not shown that the trial court abused that broad discretion by refusing to allow him to strike members of the jury panel in chambers.
Appellant’s next argument is an evidentiary one. He argues that the trial court erred by admitting testimony of two (2) lay witnesses because “their statements were a conclusion by each witness which could not be supported by personal knowledge.” The alleged conclusory testimony of one of the male witnesses was as follows: “—and [the victim] was like sitting against Joe, away from [appellant], whenever all this was going on. She was like scared of [appellant], and he was like insisting—.” Appellant also objected to the following testimony of the other male witness: “Well, they really didn’t stay down there that long. I mean, you know, he really—when he was up by the car is when it really all was going on. You know, she was just trying to get away from him, and she went down—.”
Rule 701 of the Arkansas Rules of Evidence governs opinion testimony of lay witnesses. It provides:
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 witnesses; and (2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
A.R.E. Rule 701.
The Rule today is not a rule against conclusions, but it is a rule conditionally favoring them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 572, 798 S.W.2d 674, 675 (1990). It provides that a lay witness may give an opinion with two (2) limitations. Limitation (1) is the requirement of firsthand knowledge or observation. Limitation (2) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not an opinion or conclusion. For example, if a witness is asked, “What kind of day was it?” he might respond, “Beautiful.” It would be an admissible opinion. He would not have to state it was a clear skied, sunny, 72 degree spring day with a slight breeze. The witness can respond in everyday language which includes his conclusion about the type of day. However, if attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the Rule. See Advisory Committee’s Notes to Federal Rule 701.
In sum, opinion testimony by lay witnesses is allowed in observation of everyday occurrences, or matters within the common experience of most persons. Statements by eyewitnesses that the victim was “scared” and “trying to get away” easily fit within the limitations imposed on lay witness opinion. The trial court did not abuse its discretion in allowing the testimony.
Appellant’s final argument is that the trial court erred in overruling his objection to the introduction of a photo lineup into evidence. The basis of his objection was that the evidence was cumulative because it was presented after four (4) witnesses had testified and identified the appellant. We have said, “The mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion.” Beed v. State, 271 Ark. 526, 542, 609 S.W.2d 898, 909 (1980).
Affirmed. | [
112,
-18,
9,
-66,
11,
96,
-86,
52,
-96,
-93,
117,
-13,
-83,
-53,
8,
115,
-118,
-1,
85,
105,
-107,
-73,
-121,
97,
-78,
-13,
105,
-43,
-74,
-49,
-26,
-12,
77,
-16,
-54,
-35,
34,
-54,
-43,
94,
-114,
-114,
-71,
-12,
64,
-110,
36,
127,
64,
11,
37,
-113,
-30,
40,
28,
-57,
41,
44,
-53,
-67,
64,
49,
28,
-121,
-97,
4,
-93,
-92,
-66,
-127,
-8,
44,
-40,
57,
0,
-8,
123,
-106,
2,
-44,
77,
-117,
-116,
32,
99,
3,
53,
-63,
-24,
-119,
47,
127,
-100,
-89,
24,
8,
75,
77,
-73,
-103,
118,
84,
14,
114,
-1,
-115,
93,
108,
43,
-49,
-108,
-95,
-51,
32,
-62,
120,
-29,
49,
17,
117,
-49,
-14,
84,
69,
24,
-37,
10,
-77
] |
PER CURIAM.
The motion for belated appeal is granted.
Dudley, Glaze, and Corbin, JJ., dissent. | [
-76,
96,
-3,
30,
14,
98,
16,
62,
68,
41,
103,
83,
39,
-78,
20,
123,
-77,
47,
55,
123,
-19,
-73,
23,
-63,
-98,
-13,
-61,
85,
-15,
108,
-17,
58,
72,
116,
-70,
-107,
70,
-56,
73,
16,
-114,
21,
-71,
109,
-23,
-76,
-68,
99,
80,
31,
-111,
-34,
-29,
44,
25,
67,
-24,
44,
91,
-75,
80,
-71,
-103,
13,
-3,
20,
0,
22,
-97,
-90,
-8,
111,
-100,
-111,
1,
-20,
112,
-28,
-122,
84,
107,
-101,
4,
70,
100,
1,
104,
-1,
-104,
-88,
118,
30,
-115,
-90,
-45,
25,
-55,
-31,
-74,
-67,
52,
20,
47,
126,
-18,
-123,
95,
44,
-113,
-49,
-100,
-93,
19,
121,
-114,
2,
-22,
23,
18,
52,
-59,
104,
92,
-57,
19,
-89,
-114,
-106
] |
Steele Hays, Justice.
By this appeal we must decide which of two conflicting claims to security interests in the inventory of a supermarket is subordinate under Article 9 of the Uniform Commercial Code.
Appellants Billy J. Wawak and Earlene Wawak began operating the Oak Grove Supermarket in 1978. The Wawaks acquired their stock from appellee Affiliated Food Stores, Inc., which secured its account with them by a security agreement and U.C.C. financing statement covering the inventory of the supermarket.
In 1986 the Wawaks made arrangements to sell the supermarket to Robert S. Davis, operating under the names Bob’s Thriftway and Bob’s Supermarket of Arkansas. Davis and the Wawaks signed an agreement under which Davis began operating the supermarket on January 28,1986, while the documents of sale were being prepared.
Davis made immediate arrangements with Affiliated Food Stores to purchase inventory for the Oak Grove supermarket and executed a security agreement and financing statement with Affiliated covering the inventory of the supermarket. The financing statement and security agreement were properly recorded on February 6, 1986.
In April Davis and the Wawaks completed their transaction and Davis executed a security agreement and financing statement covering the inventory to secure the indebtedness due the Wawaks. These instruments were properly recorded on April 8, 1986.
After some eighteen months Davis declared bankruptcy and on January 15, 1988, the Wawaks took possession of the supermarket and inventory from the trustee in bankruptcy. The Wawaks sought a declaratory judgment that their security interest was prior and superior to the security interest of Affiliated Food Stores, Inc. The circuit court ruled that the security interest of Affiliated Food Stores, Inc., was prior to that of the Wawaks and they have appealed. Since we agree with the trial court that the security interest of Affiliated was prior to that of Wawak, we affirm the judgment.
Appellants maintain that under Ark. Code Ann. §4-9-203(1) (1987) a security interest does not attach until the debtor has “rights in the collateral”. They contend that Davis had no rights in the inventory of the supermarket, the collateral, until April 7,1987, when the sale was completed. Prior to April 7, they submit that Davis was merely a “manager” or “bailee,” citing several authorities interpreting “rights in the collateral” under § 4-9-203: Uniform Commercial Code, 3d Ed., § 22-6 (1988); B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code § 2.4 (1980); D. Baker, A Lawyer’s Guide to Secured Transactions §2.4 at 85 (1983).
But those treatises are largely general, and relate to different situations, situations in which goods are owned by third parties, with mere possession by a debtor proving insufficient to establish rights in the collateral. In contrast, it can hardly be disputed that Davis had more than naked possession. He was effectively the buyer in possession of a going concern, fully empowered to convey title to the collateral to purchasers in the ordinary course of business. Ark. Code Ann. § 4-9-307 (1987). The profits, as well as the losses, were his from and after January 28, when he took possession and began operating the supermarket. Moreover, the final sale documents reflect that the sale to Davis became “effective as of January 27, 1986.” The fact that the sale was still in process on February 7,1986, does not mean he was without rights in the collateral within the context of § 4-9-203.
While the code does not define “rights in the collateral,” and this court has not had occasion to construe the term, other states have done so, compatibly with the result we reach. See e.g., First Security Bank of Idaho, N.A. v. Woolf, 111 Idaho 680, 726 P2d 792 (1986):
Possession of the collateral, accompanied by a contingent right of ownership, has been held sufficient for a security interest to attach. Amfax Mortgage Corp. v. Arizona Mall of Tempe, 618 P2d 240 (Ariz. App. 1980). An interest greater than naked possession has been deemed a sufficient right in the collateral to satisfy the requirements of statutes similar to I.C. Sec. 28-9-203 (l)(c). See Morton Booth Co. v. Tiara Furniture, Inc., 564 P2d 210 (Okla. 1977); Evans Products Co. v. Jorgensen, 421 P2d 978 [3 UCC Rep. Serv. 1099] (Or. 1966).
Appellants urge that in Exchange Bank and Trust Co. v. Glenn’s Marine, Inc., 265 Ark. 508, 579 S.W.2d 358 (1979), we recognized that possession alone, without ownership, was not a sufficient interest to allow a secured party of the debtor to attach the collateral in question, stressing that we looked to the actual agreement between the third party and the debtor to determine who had title to the collateral. But that case has only a passing likeness to the case at bar. There the issue was narrowed to the limited question of when title passes in a sale on approval, and we were not considering the question of a debtor’s rights in collateral being sufficient to sustain a security agreement under § 4-9-203.
Another factor militates for affirmance. Ark. Code Ann. § 4-9-303(1) (1987) provides that when all the applicable steps to perfect a security interest are taken before the interest attaches, it is perfected at the time it attaches. T. Quinn, Uniform Code Commentary and Law Digest, § 9-303 [B] (1978) has this comment;
Perfection [the completion of all security agreement steps, plus filing] under §4-9-303 does not require a particular sequence of events. Thus, a security interest was perfected even though the financing statement was filed prior to the time the security interest attached. In re Rivet, 299 F. Supp. 374 (E.D. Mich. 1969).
Here, even if we could agree that Davis’s rights in the collateral did not mature until April 7 when the sale was concluded, the Wawaks’ security interest was not perfected until April 8 when their documents were filed, whereas under § 4-9-303(2) the security interest of Affiliated Food was perfected on April 7 at the instant Davis’s rights in the collateral attached.
Finally, appellants propose in the alternative that these competing interests be prorated according to the equities. But appellants have cited no authority, nor have we found any, that considers such a remedy when, as here, the collateral is inventory. For a discussion of the limited situations where such a remedy might be applicable, see B. Clark, The Law of Secured Transactions § 3.09[5] (1988).
Affirmed. | [
-80,
108,
121,
29,
26,
-32,
58,
-70,
90,
-93,
39,
-45,
-19,
-58,
20,
121,
-25,
125,
80,
120,
-105,
-77,
99,
-53,
86,
-13,
-109,
-59,
-78,
-5,
-11,
118,
-52,
32,
-54,
87,
66,
-62,
-51,
-100,
-118,
5,
122,
97,
-3,
64,
52,
-70,
20,
79,
49,
-107,
-13,
52,
-108,
-49,
105,
40,
73,
45,
-47,
-8,
-86,
79,
127,
23,
-109,
36,
-66,
39,
-56,
14,
-104,
-80,
33,
-23,
114,
38,
-58,
116,
11,
-101,
33,
98,
98,
2,
1,
-17,
-36,
-87,
46,
-6,
-113,
-122,
-48,
88,
1,
32,
-66,
28,
126,
16,
4,
-4,
-18,
92,
27,
108,
5,
-50,
-12,
-109,
77,
112,
-100,
11,
-17,
23,
-80,
81,
-49,
-90,
93,
71,
63,
-109,
-50,
-42
] |
Robert L. Brown, Justice.
The appellant, Larry Van Pelt, was convicted of capital murder and sentenced to life without parole for the shooting death of a store clerk, Bernice Henyard, in Parkin, Arkansas. The appellant raises five arguments on appeal. The arguments have no merit, and we affirm the conviction.
On October 24, 1989, between 11:00 p.m. and 11:30 p.m., Henyard was working at P.J.’s Country Store in Parkin. Her fiance, Anthony Dinwiddie, was in the store eating chicken at a booth and visiting with her. While there, Dinwiddie noticed a man in a white cowboy hat walking down the sidewalk toward the store. The man pushed his hat down over his head as he passed the store window. He then stopped and returned to his car. Dinwiddie’s next recollection was of the man in the store talking to the victim. Dinwiddie heard the sound of money in the cash register, and then Henyard screamed his name. The man pointed a gun at Dinwiddie and said, “Get your ass up here.” Dinwiddie went to the counter and was within six to eight feet of the man, who said to Henyard, “Give me all your money, bitch.” She handed him a stack of bills. The gunman pointed the gun at her head and shot her in the right eye, killing her instantly. Dinwiddie immediately raced to the door, and the gunman fired a shot at him which missed but shattered the glass in the door. Dinwiddie ran across the parking lot, turned, and saw the man get into his white car. Because of the lighting Dinwiddie was able to get part of the license number. He gave chase in his car, encountered a police officer, told him the story, and the officer continued pursuit. The license number and car description were dispatched over police radio, and a man in a white Lincoln was stopped and arrested within the hour. The arresting deputies seized a white cowboy hat, a baseball cap containing money, and a .22 automatic pistol from the suspect’s car. Dinwiddie, meanwhile, had returned to P.J.’s Country Store, and then went to his uncle’s house, his own home, and finally to the Parkin police station.
While at the station Dinwiddie heard a report from the radio dispatcher that a suspect had been arrested. When the sheriff and car with the suspect arrived, Dinwiddie looked out the window and saw the handcuffed man. At that point he said, “Yeah, that’s the son-of-a-bitch that did it.” When the suspect was escorted into the room where Dinwiddie was sitting, Dinwiddie struck him in the face with his fist. Dinwiddie was shown no photographs, and no line-up was conducted.
At the trial, which took place from July 30 through August 2, 1990, Dinwiddie identified the appellant in court as the gunman. The shell casings found at the country store were also identified by expert testimony as having been fired from the pistol found in the appellant’s car.
For reversal of his conviction the appellant first argues that the death penalty as set out at Ark. Code Ann. § 5-10-101 (Supp. 1991) constitutes cruel and unusual punishment under the Eighth Amendment. We dismiss this argument. Case authority is clear that the appellant, having received a sentence of life without parole, has no standing to challenge the constitutionality of the death penalty. See Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).
The appellant next asserts that the trial court erred in denying his motion to prohibit the prosecutor from qualifying the jury for consideration of the death penalty, which denied him an impartial jury under the Sixth Amendment. This argument has been raised many times and has also been decisively disposed of by both the United States Supreme Court and this court. See Lockhart v. McCree, 476 U.S. 162 (1986); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). The appellant gives us no compelling reason to reexamine the issue.
For his third argument the appellant contends that the capital murder statute overlaps impermissibily with our first-degree murder statute. See Ark. Code Ann. §§ 5-10-102(aX2) and 5-10-101 (a)(4) (Supp. 1991). This overlapping occurs, according to the appellant, with the degree of purposeful action required in the two statutes. Capital murder requires “the premeditated and deliberated purpose of causing the death of another person” while first-degree murder mandates “the purpose of causing the death of another person.” We have held repeatedly that while the two statutes may appear to overlap on the degree of required intent, this does not render them unconstitutional due to vagueness or arbitrariness. See Smith v. State, No. CR 91-71 (September 23, 1991); Weaver v. State, supra; Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). As we said in Hill, our case law regards first-degree murder as a lesser included offense subsumed in the capital murder offense. The appearance of overlap raised by the appellant does not deny the appellant his right to due process, and we affirm yet again the constitutionality of both sections of our Criminal Code.
The appellant’s principal argument centers on the trial court’s decision to allow Dinwiddie’s in-court identification, irrespective of his prior encounter with the appellant at the police station. The appellant’s theory is that the “show-up” procedure with the deputies’ escorting only the appellant into the police station was unduly suggestive and tainted any further identification by Dinwiddie. We disagree. We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). In determining whether an in-court identification is admissible, we first look at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988); Bowden v. State, supra. It is the appellant’s burden to show that the pre-trial identification procedure was suspect. Shuffield v. State, 23 Ark. App. 167, 745 S.W.2d 630 (1988).
In the case before us, although Dinwiddie was present at the time of the appellant’s arrival in custody, there is no evidence suggesting that the police brought the appellant to the station to facilitate an identification by Dinwiddie. Dinwiddie made his initial identification spontaneously and before the appellant was brought inside the building. Moreover, he could not have known for certain that the person who was getting out of the sheriffs car was indeed the suspect in that crime.
We have previously recognized that witness identification of a suspect at a police station, when the police have not orchestrated a pre-trial identification, does not invalidate a subsequent in-court identification. Murphy v. State, 269 Ark. 181, 599 S.W.2d 138 (1980); Pollard v. State, 258 Ark. 512, 527 S.W.2d 627 (1975); see also Coleman v. Alabama, 399 U.S. 1 (1970), which involved a spontaneous identification of a suspect as he stepped onto the stage in the line-up room. In Murphy, the witness saw a suspect get out of a police vehicle at the station after having seen the man outside her bedroom window a short time before. In Pollard, a witness who was waiting for a line-up identified the suspect as he walked with other line-up participants from the jail-cell area. We upheld the identifications in both cases.
Even had the pre-trial identification been impermissibly suggestive, the taint of an improper “show-up” was removed by the clear and convincing evidence that the in-court identification was based upon Dinwiddie’s independent observations of the suspect. See Bowden v. State, supra. Reliability is the linchpin in determining the admissibility of identification testimony, and in determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pre-trial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pre-trial identification procedure. Id.
Here, Dinwiddie was at the store when the person he identified as the appellant entered, ordered him to approach, took money from the victim, and shot her. For approximately thirty seconds the appellant had his gun trained on both Dinwiddie and the victim, and Dinwiddie stood within six to eight feet of him. He could see the uncovered face of the appellant clearly and later described him as a white male about forty years of age, clean-shaven with two-tone blond hair, who was wearing a light shirt, dark pants, and a white cowboy hat. This description fit the appellant at the time of his arrest. Dinwiddie never identified another person as the culprit, and his identification of the appellant after arrest was certain and unwavering. Furthermore, the time between the murder and the identification was relatively brief. The murder occurred at about 11:30 p.m., the arrest was effected between 11:30 and 12:00 midnight, and the identification at the station followed soon thereafter.
It is for the trial court to determine whether there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and it is then for the jury to decide what weight should be given to the identification testimony. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Under the facts of this case, the in-court identification was reliable, and we affirm the trial court’s ruling.
For his last point the appellant argues that a substantial break in the chain of custody of the two spent shell casings occurred which warranted suppression of those casings. Evidencing this break, according to the appellant, was a lack of testimony at trial by the person who physically received the items from the investigator and by the person who took them to the firearms expert.
The record does not support the appellant’s assertions. The Crime Lab investigator testified that he received the box of physical evidence, which included the casings, from the police officer who retrieved the evidence at the crime scene. The investigator further testified that, though he did not place his initials on the box, he had it exclusively in his custody until he delivered it to the State Crime Lab where it was placed in the evidence vault. He stated that standard procedure was for the Chief Morgue Technician to transfer the evidence to the Central Receiving Area. From there it would be taken to the Firearms Section. He further testified that though he did not put his initials on the evidence box, the box presented to him at trial appeared “similar” or “identical” to that received from the Parkin police. Nothing in the record before us indicates that this routine procedure was disrupted.
We have held that it is necessary for the prosecutor to demonstrate that the evidence has not been altered in any significant manner before it reached the Crime Lab expert. See Holbird v. State, 301 Ark. 382, 784 S.W.2d 171 (1990). It is not necessary, however, that every possibility of tampering be eliminated; it is only necessary that the trial court, in its discretion, be satisfied that the evidence presented is genuine and has not, in reasonable probability, been subjected to tampering. Id; Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979). It is not required, moreover, that every moment, from the time the evidence came into the possession of a law enforcement officer until it is introduced at trial, be accounted for by every person who could have conceivably come in contact with the evidence during that period. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990).
We acknowledge that there were gaps in the testimony concerning the movement of the box with the casings from the time it left the custody of the Crime Lab investigator to the time the casings came into the custody of the firearms expert. These relatively minor discrepancies, though, are committed to the trial court’s discretion for weighing. The court found that the gaps were not substantial enough to warrant suppression. We agree and will not reverse the trial court’s ruling absent some evidence of tampering, which the appellant did not produce. On this point we note that though the Crime Lab investigator did not put his initials on the sealed evidence box containing the casings, he was sufficiently certain that box presented to him at trial which contained the casings was the same box he placed in the evidence vault.
An examination of the record has been made in accordance with Ark. Sup. Ct. R. 11 (f) and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
Affirmed. | [
112,
-20,
-48,
30,
25,
-32,
58,
-70,
82,
-93,
-28,
-13,
-89,
-21,
69,
105,
-77,
125,
85,
105,
-124,
-73,
47,
32,
-78,
-77,
-111,
-57,
-78,
-23,
-68,
-33,
75,
112,
14,
65,
102,
2,
-31,
92,
-120,
0,
-87,
114,
78,
64,
32,
58,
68,
7,
49,
-68,
-93,
42,
86,
-50,
105,
44,
75,
-81,
80,
-69,
107,
-113,
-3,
22,
-125,
38,
-70,
-122,
-8,
12,
-99,
57,
0,
-88,
115,
-124,
-62,
116,
109,
-103,
36,
98,
98,
36,
12,
-51,
-96,
-119,
46,
127,
-123,
-113,
-104,
80,
65,
45,
31,
-97,
107,
-75,
14,
-12,
-13,
95,
88,
108,
-115,
94,
-76,
-79,
-19,
56,
86,
-6,
-23,
37,
48,
117,
-49,
-22,
93,
69,
124,
-109,
-117,
-48
] |
Robert L. Brown, Justice.
The appellant Vincent Hopes was convicted of burglary and theft of property and sentenced as an habitual offender to thirty years for burglary and twenty years for theft of property, with the two sentences to run consecutively. He raises two points on appeal. First, he argues that the trial court erred in refusing to give an accomplice instruction relating to the principal witness against him. Secondly, he contends that the whereabouts of that same witness at the time of the offenses was proven by inadmissible hearsay testimony. Neither argument has merit, and we affirm the judgment of the trial court.
The facts are these. On the night of February 21, 1990, a Little Rock business named Yam’s was broken into, and a Little Rock patrolman responded to the alarm at about 10:10 p.m. The patrolman approached the store through a back alley, and, though it was raining, he spied a figure standing by the open trunk of his car. When that person saw the approaching police car, he fled on foot. The patrolman next saw a figure on the roof of the business. No one, however, was arrested at the scene. On entering the business, backup officers found a television set on the walkway.
The patrolman requested a license check on the car, and, upon searching the vehicle, he found a black bag that contained three flashlights, among other items. It developed that the car was owned by Edna Russ. Russ at the time was employed at Parkway Health Center and apparently was working the 3:00 p.m.-to-11:00 p.m. shift the night of the Yam’s break-in. She had loaned her car to the appellant earlier that day. At 10:30 that night she reported to the police that her car was stolen. She made a second report at 1:15 a.m. early the next morning.
Later that day Russ was taken to the police station as a suspect in connection with the Yam’s burglary and theft and was read her Miranda rights. She admitted at that time that the appellant had called her at about 10:15 or 10:30 and told her to tell the police that her car was missing. It was following that conversation that she called the police. She further admitted that she had lied to the police about her car and that she had known there was a “problem” when the appellant called the night before. She denied knowing anything about the Yam’s break-in. She admitted that two of the flashlights found in the car were hers.
The police released Russ, and later that day the appellant took her to get her car, which had been impounded. On the way, the appellant confessed to her that he had committed the burglary and theft with another man. That afternoon, at her urging, he turned himself into the police.
I. ACCOMPLICE
At the trial on September 24,1990, the appellant moved for a directed verdict on the basis that Russ was an accomplice, and there was no corroborating evidence to support her testimony. The trial court denied the motion. The appellant then requested two instructions: one, that Russ was an accomplice as a matter of law, and two, that the issue of whether Russ was an accomplice was for the jury to decide. The trial court refused to give either instruction. It is the failure to give the second instruction that the appellant contends was error.
The accomplice statute provides that a person is an accomplice if “with the purpose of promoting or facilitating an offense” that person encourages and aids in planning or committing the offense. Ark. Code Ann. § 5-2-403 (1987). The appellant argues that this issue should have been submitted to the jury for determination. He points to the fact that the prosecutor referred in his opening statement to the question of whether Russ was an accomplice; to the use of her car and flashlights in perpetrating the crimes; to the fact that a second unidentified person who may have been Russ was at the crime scene; and to her statement that she would do anything to keep from getting in trouble.
The defendant in a criminal case bears the burden of proving that a witness is an accomplice. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). A witness’s status as an accomplice is a mixed question of law and fact and must be submitted to the jury if there is any evidence to support a jury’s finding that the witness was an accomplice. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Where the evidence does not support an accomplice instruction, it should be refused. Powell v. State, 231 Ark. 737, 332 S.W.2d 483 (1960). In the Earl case the witness alleged to be an accomplice had been jointly charged with the crime, and the charge against that witness was pending at the time of trial. There was also evidence tending to connect the witness with the commission of the crime. We held that, under those facts, it was error not to instruct the jury on the law of accomplice status and the need for corroborating evidence, should the jury find the witness was an accomplice.
Here, Russ testified that she was at work during the time of the break-in, and there was no testimony contradicting this. She also emphatically denied that she knew anything about the burglary and theft before the fact. Though she lied to the police initially, she later admitted this, and the trial court found her testimony to be credible. Under present law, a person who was formerly an accessory after the fact is now guilty of a separate crime — hindering apprehension and prosecution. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). The misinformation she conveyed to the police falls more readily into the category of hindering an investigation than evidence that she committed the crimes herself. Whether to give an accomplice instruction lies within the discretion of the trial court. We hold that there was no abuse of discretion under these facts.
II. HEARSAY
The appellant raises as his second point the admissibility of hearsay testimony into evidence to prove that Russ was at work at the time of the Yam’s break-in. The relevant colloquy took place during the prosecutor’s direct examination of the investigating detective:
Detective: And that she was reporting it at 10:30. I also told her that I had checked with her employer.
Defense: Objection, your honor. Hearsay.
The Court: Sustained.
Prosecutor: Okay.
Prosecutor: You told her that you were suspicious, you weren’t buying her story?
Detective: Correct.
Prosecutor: Okay. As part of your investigation, were you able to confirm whether or not she was at work?
Detective: Yes, she was.
Prosecutor: Okay. Were you able to confirm what time she got to work?
Defense: Your Honor, I’m going to object to that as hearsay again.
Prosecutor: I’m asking whether or not his investigation confirmed, not who said, how said or what.
The Court: How’s he going to get the information?
Prosecutor: It’s just part of his investigation.
The Court: Well, it’s probably objectionable but let’s go ahead. Everybody knows she was out there. Go ahead.
Prosecutor: Okay.
Prosecutor: Were you able to confirm that she was at work?
Detective: Yes.
Prosecutor: Okay. And what shift did she work?
Detective: The three to eleven shift.
Defense: Your Honor, I’m going to continue my objection to this.
The Court: If you won’t ask any questions about it, I’ll sustain it. But, if you’re going to get up and ask questions about it like you already have, well, then what difference does it make? Go on.
We do not agree with the Attorney General that the appellant failed to raise his objection at the first opportunity to do so. Rather, the. trial court erred in admitting this testimony into evidence. Nonetheless, the fact that Russ was at work during the time of the offenses was already before the jury through the testimony of Russ herself. There was nothing presented by the appellant to contest this. We have held that where the same evidence was introduced by another witness without objection, it was properly before the jury for consideration, and subsequent hearsay testimony by the police constituted harmless error. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). That is what occurred in the case before us. We hold that the detective’s testimony was harmless error.
Affirmed. | [
16,
-20,
-7,
60,
24,
97,
58,
-70,
114,
-113,
100,
-78,
-91,
-63,
20,
41,
-70,
-3,
116,
97,
-44,
-74,
7,
113,
-30,
-5,
123,
-60,
-72,
75,
-12,
-36,
28,
112,
-118,
-39,
102,
88,
-25,
88,
-114,
3,
-101,
98,
80,
80,
32,
42,
68,
15,
-11,
-100,
-29,
46,
16,
78,
105,
40,
75,
-67,
112,
-7,
11,
-115,
-49,
4,
-125,
38,
-71,
39,
-8,
13,
-100,
56,
0,
120,
115,
-74,
-126,
116,
79,
-103,
-116,
98,
98,
0,
45,
97,
-24,
-127,
38,
123,
-113,
-90,
88,
104,
73,
101,
-97,
-99,
107,
5,
2,
-8,
-11,
85,
95,
100,
47,
-50,
116,
-111,
9,
48,
22,
-72,
-21,
33,
114,
113,
-49,
-30,
93,
70,
115,
-101,
-114,
-15
] |
Tom Glaze, Justice.
This multi-faceted litigation revolves around the February 28, 1986, asset sale of a Mercedes-Benz dealership in Fayetteville, Arkansas by Fisher to Hill. Hill took possession, continued the business without interruption, and was granted a Mercedes-Benz franchise. In October 1989, Hill defaulted on his monthly payments, shut down the operation, and removed the inventory and most of the supplies and equipment. On October 31, 1989, Fisher filed a complaint in Washington County Chancery Court (Case No. E-89-1524), and obtained a restraining order in an attempt to maintain the status quo. By amended pleadings he sought a money judgment on the balance due and rescission of the sale agreement with substitutionary restitution where appropriate. Hill, in a counterclaim, asked for rescission and damages.
A short time later, Fisher filed a second complaint in Washington County Chancery Court (Case No. E-89-1592) against, among others, Mercedes-Benz North America, Inc. (MBNA) to enjoin the transfer, sale or award of the Mercedes-Benz franchise, and also for specific performance of an alleged MBNA contractual obligation to now award the franchise to Fisher. The actions were consolidated for trial, and after trial on the merits, all claims, third party claims and counterclaims were dismissed. Both Fisher and Hill have appealed. The decisions of the trial court in denying rescission (E-89-1524), performance (E-89-1592), and other related claims are affirmed.
Fisher first chooses to argue that the chancellor erred in concluding MBNA was not legally obligated to re-issue its Fayetteville franchise to Fisher. The evidence, we believe, supports the chancellor’s legal and factual conclusions on this point.
For many years prior to February 28,1986, Fisher operated an automobile dealership at 2396 North College Avenue in Fayetteville. During the previous thirteen years, he held a Mercedes-Benz franchise with his then current franchise being for the two-year period from January 1, 1986, to December 31, 1987. On February 28, 1986, Fisher and Hill executed an offer and acceptance contract for the sale of the assets of the dealership for a total of $2,500,000.00. Payment, financed by Fisher, was to be in monthly installments of principal and interest over a period of twenty-five years. It was agreed that until Hill’s performance was complete, Hill would not sell, without Fisher’s written consent, described tracts of land, the dealership or the Mercedes-Benz franchise. Further, should Hill ever elect to transfer, relinquish, abandon or sell any interest in the franchise or either tract of land, Fisher would have the right of first refusal. Fisher consented to the transfer of the Mercedes-Benz franchise to Hill and their sale contract was subject to Mercedes-Benz approving the franchise transfer to Hill. Fisher agreed not to compete for five years within 100 miles. The parties placed the contract documents in escrow with Mcllroy Bank & Trust Company, which was also to handle some disbursements.
Before the execution of the February 28, 1986 Fisher-Hill agreement, Fisher had notified MBNA of his plans to sell to Hill, had submitted the proposed sale agreement, and had stated that if Hill ever defaulted, Fisher wanted to get back the Mercedes-Benz franchise. Mercedes-Benz zone representatives, admittedly without authority to bind Mercedes-Benz to any franchise commitments, told Fisher that in the event of such a default, they saw no reason why Mercedes-Benz would not again award the franchise to Fisher, provided he still qualified.
Significantly, the record reflects that everyone involved knew and understood that MBNA had the exclusive right to select dealers, including successors, and that only the president or vice president of MBNA, headquartered in Montvale, New Jersey, had authority to act with respect to franchises. It was also recognized that MBNA would not discuss granting a franchise to an applicant unless and until the current dealer had approved such a discussion. Accordingly, MBNA would not proceed to process an application until the current dealer had authorized its consideration or MBNA had canceled that dealership. In practice, MBNA did not proceed until there was submitted to it a proposed sale agreement between the terminating dealer and the proposed new dealer.
Hill’s default problems included owing MBNA $31,751.18 and owing Mercedes-Benz Credit Corporation approximately $568,000.00 incident to his having sold automobiles “out of trust.” That is, he sold mortgaged automobiles and retained the proceeds.
When Gerald Jones of Jones Olds-GMC-Buick, Inc. (Jones) observed Hill’s Mercedes-Benz operation going out of business, he became interested in acquiring the Mercedes-Benz franchise in Fayetteville. Hill and Jones entered into an arrangement whereby Jones would pay to MBNA and Mercedes-Benz Credit Corporation a total of $301,000.00, provided that Jones was awarded the Mercedes-Benz franchise and provided further that MBNA and Mercedes-Benz Credit Corporation released Hill “of all debts that Hill owes to either.” Thus, by Jones disbursing $301,000.00 to MBNA and Mercedes-Benz Credit Corporation, Jones would acquire a Mercedes-Benz franchise, and Hill would be released from debts totaling approximately $600,000.00.
From the foregoing, the chancellor determined that MBNA had not contractually obligated itself to deal with Fisher in the matter of the Mercedes-Benz franchise or to issue a franchise to Fisher. Further, the zone or regional officials of MBNA had no authority to bind the company to award a franchise, and Fisher had actual knowledge of such lack of authority.
In sum, the trial judge found that the Fisher-Hill agreement simply did not bind MBNA to any obligation. These findings cut across any suggestion made by Fisher that MBNA could be bound by zone officer representatives in Houston. They negate, as well, Fisher’s claim that MBNA had in some way ratified statements attributed to their representatives that might otherwise have been reasonably relied on by Fisher, leading him to believe MBNA would reassign him the Fayetteville franchise after Hill defaulted. Furthermore, these facts in no way justify Fisher’s argument that a contract obligation should be imposed on MBNA so as to prevent an unjust enrichment.
Each of the chancellor’s determinations was a permissible one and not clearly against the preponderance of the evidence. Accordingly, they cannot be set aside as clearly erroneous under Rule 52 of the Arkansas Rules of Civil Procedure.
Fisher also argues estoppel. While Fisher had high hopes and reasonable expectations that he would be re-awarded a Mercedes-Benz franchise, he, at all times, knew the relevant facts, was not ignorant of the true facts, and knew that he could not rely on his hope and expectations for favorable action. See Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980).
We mention, too, Fisher’s argument that MBNA violated the Arkansas Franchise Act (Act) and, therefore, it would be fundamentally unfair for MBNA to refuse to renew, reassign or transfer the Fayetteville Mercedes-Benz franchise to Fisher. Under that Act, a franchisee is defined as a “person to whom a franchise is offered or granted.” Ark. Code Ann. § 4-72-202(4). As already mentioned, the chancellor determined, permissably we have held, that MBNA had not contractually obligated itself to deal with Fisher in the matter of the franchise or to issue a franchise to Fisher. While the Act provides certain rights and imposes certain obligations between franchisors and franchisees, Fisher was not a franchisee after he sold his business to Hill. The Act simply is not applicable to the circumstances described in this case.
In sum, we hold the evidence supports the chancellor’s decision that no express or implied contract existed and therefore no judgment against MBNA for specific performance could be granted. Thus, the decision in case E-89-1592 is affirmed.
In case E-89-1524, the balance admittedly owed by Hill to Fisher was in excess of $2,331,000.00 at the time of default. Fisher sought a money judgment on the contract balance due, less the value of assets returned, along with a declaration that the February 28, 1986, contract be rescinded and that the court determine the amount of substitutionary restitution. The chancellor was of the opinion that Fisher had not met the burden of proof so as to entitle him to restitution, and concluded that the circumstances had been so altered by part execution that the parties could not even be closely restored to status quo so that it was impossible to grant rescission. We agree.
Fisher cites the case of Economy Swimming Pool Company v. Freeling, 236 Ark. 888, 370 S.W.2d 438 (1963), for the rule that where there is a material breach of contract, substantial nonperformance, and substantial failure of consideration, the injured party is entitled to rescind the contract and recover money paid thereunder. Fisher asserts that since $2,331,000.00 remained due on the $2,500,000.00 purchase price, Hill’s failure to pay constituted substantial nonperformance of the parties’ February 28, 1986 agreement. Furthermore, Fisher claims he and Hill can be restored to their original positions because Fisher has offered to excuse Hill’s entire debt in exchange for Hill’s return of the automobile dealership and two tracts of land to Fisher.
Hill’s testimony, on the other hand, reflected that he had substantially performed under the parties’ agreement. For example, he testified he was paying ten percent interest on this debt and had paid monthly payments of $24,100.00 for three and one-half years, totaling over $1,000,000.00. And, as has already been discussed, the Mercedes-Benz dealership franchise could not be restored to Fisher.
Even Fisher, in his argument, concedes the difficulty in trying to achieve a correct valuation of assets and application of credits and set-offs in any attempt to put the parties back to their original positions. The chancellor, on these facts, simply found such a goal to be unachieveable, and in our review of the record, we are unable to say his findings are against the preponderance of the evidence. Economy Swimming Pool Company, 236 Ark. 888, 370 S.W.2d 438.
Fisher attempts to avoid the chancellor’s findings on the foregoing rescission issue by arguing the single exception to the “status quo” rule, viz., parties can still rescind a contract if they mutually consent to do so. See Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980). In other words, parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights and the substitution of new obligations is a sufficient consideration. Afflick v. Lambert, 187 Ark. 416, 60 S.W.2d 176 (1933); see also Haering Oil Co. v. Beasley, 221 Ark. 607, 254 S.W.2d 951 (1924) (where Haering and Beasley mutually agreed to terms to end their original contract before its termination date).
In the present case, Fisher and Hill never entered into an agreement to modify or rescind their original contract — either before or after the contract was performed. At one juncture, both parties had sought the rescission remedy, but never came close to arriving at an agreement to resolve their differences. Certainly, Hill never agreed that Fisher was entitled to rescission as was alleged and argued below, and argues now on appeal that the chancellor was correct in denying Fisher’s claim for rescission. Suffice it to say, the rules set out above in Herrick and Afflick are intended to cover those situations where the parties mutually agree to rescind their original agreement — a situation that never occurred between Fisher and Hill.
Fisher also relies on the case of Stanford v. Smith, 163 Ark. 583, 260 S.W. 435 (1924), when generally arguing that the chancellor was not precluded from awarding the remedy of rescission. In that case, Stanford had filed suit to rescind an exchange of property for fraud. Fisher offers no fraud argument on appeal, nor did the chancellor find any fraud on either the part of Hill or Fisher. Another important distinction is that the court in Stanford was able to adjust the inequities so as to award the remedy that Stanford (the injured party) sought and to place Smith, the wrongdoer, in status quo. Again, as discussed previously, the chancellor here simply found it impossible to restore the parties to status quo.
Finally, we turn to Hill’s argument that the chancellor erred in finding Hill had failed to meet his burden of proof on his counterclaims for tort of interference, breach of contract and fraud. None of Hill’s claims have merit.
First, we have reviewed the record, and cannot find where Hill had the chancellor consider and rule on the tort of interference issue. While such a claim appears to have little merit for other reasons, we simply do not address it because it is an issue raised for the first time on appeal.
Next, Hill contends Fisher breached the parties’ February 28, 1986 dealership sale contract which included the property upon which Fisher’s business was situated. Apparently, Fisher and Hill signed their February 28, 1986 contract, agreeing the deeds conveying the business property would be placed in escrow. On the same day, Fisher’s two sons executed deeds to the property in Fisher’s name and these deeds were then held by Fisher’s attorney and not filed for record until Hill later breached the parties’ contract and vacated the business premises. Hill claims Fisher placed deeds in escrow which never conveyed title to the land and, by doing so, breached the parties’ contract, resulting in damages to Hill. We disagree.
The record reflects the parties’ sale agreement provided the deeds to the property would not be transferred until the contract was paid in full, and Hill knew the title to the subject property would remain in Fisher’s name, pending completion of the contract. Hill’s assertions that Fisher’s action concerning the deeds was a material breach of the parties’ contract or that such action constituted fraud is not supported by our reading of the record. Thus, we agree with the chancellor’s dismissal of Hill’s counterclaim and third party complaints.
For the reasons presented above, we affirm the trial court in each of its decisions.
Special Justice Robert S. Lindsey dissents in part. Newbern, J., not participating.
When referring to Fisher, we generally mean J. D. Fisher, but at times may include John L. Fisher, James A. Fisher, and Fisher Buick, Inc., d/b/a Fisher Motor Cars, Inc. Hill generally refers to Kelly W. Hill, but may include Thelma C. Hill, his wife, Hill Investment Co., Hill Motor Cars, Inc., and Hill Motor Cars II, Inc. | [
48,
-19,
104,
108,
8,
-32,
50,
30,
121,
-29,
37,
-45,
-89,
-26,
21,
105,
-14,
93,
116,
106,
-41,
-77,
7,
0,
-46,
-110,
-39,
-35,
-80,
75,
100,
-65,
76,
32,
-54,
-51,
-90,
-126,
-59,
92,
18,
32,
27,
100,
-39,
17,
116,
-86,
20,
15,
81,
-116,
-93,
46,
56,
78,
105,
40,
-11,
-85,
-48,
-75,
73,
15,
127,
86,
-80,
36,
-104,
35,
-8,
14,
-110,
48,
48,
-24,
115,
-90,
6,
116,
41,
-115,
40,
32,
119,
3,
17,
-57,
-8,
-72,
38,
-21,
29,
-122,
-16,
88,
11,
65,
-65,
-98,
122,
3,
5,
-36,
126,
21,
20,
108,
10,
-18,
86,
-93,
12,
-25,
94,
9,
-17,
7,
-80,
113,
-51,
-42,
93,
7,
62,
-125,
86,
-43
] |
Jack Holt, Jr., Chief Justice.
This case involves a dispute over a lease agreement. We granted certiorari to review the Arkansas Court of Appeals’ decision, as the issues involve matters of legal principles of major importance and significant public interest. See Weingarten/Arkansas, Inc. v. ABC Interstate Theatres, Inc., 31 Ark. App. 109, 789 S.W.2d 1 (1990).
On June 10, 1975, appellant Weingarten/Arkansas, Inc. (Weingarten), as owner of the Markham Plaza Shopping Center in Little Rock, leased 12,000 square feet of space in that center to appellee ABC Interstate Theatres, Inc. (ABC). The lease was for a term of 25 years, with an annual rent of $54,000, payable in monthly installments of $4,500. In addition, ABC agreed to pay an additional rent equal to 10 % of the gross receipts for each year in which receipts exceeded $540,000.
ABC subsequently assigned the lease to appellee Southern Theatres, Inc. (Plitt) in 1978, who, in turn, assigned the lease to appellee Warco, Inc. (Warco), in 1981. It is undisputed that in assigning the lease, both ABC and Plitt agreed to remain responsible under its terms.
Warco defaulted on the lease in July, 1986, when it ceased making payments. In March, 1987, Weingarten filed suit against the appellees in the Pulaski County Circuit Court alleging joint and several liability for Warco’s default.
In its second amended complaint, Weingarten sought possession of the premises without terminating the lease agreement in accordance with section 18.03(b) of its lease agreement. The complaint declared that Weingarten “must obtain immediate possession of the premises, in order to mitigate damages by cleaning and generally making such repairs and improvements as are necessary and to show the premises to prospective tenants.” It prayed for a writ of possession and “for all unpaid back rent and rent which continues to accrue.”
Warco filed an answer to the second amended complaint on April 22,1987, stating that it had quit possession of the premises, and praying that the complaint against it be dismissed.
The trial court granted a writ of possession to Weingarten on May 5,1987. Thereafter, Weingarten conducted a market survey to determine the best rental value for the space and began negotiations with a number of prospective tenants. Weingarten eventually arranged to lease the premises to two retail stores, one of which was to occupy 8,000 square feet and the other to occupy the remaining 4,000 square feet. The leases were of shorter duration and higher rent per square foot.
Thereafter, ABC and Plitt amended their answer to Weingarten’s first and second amended complaints by affirmatively alleging that Weingarten failed to mitigate damages for the period of August 1, 1986 through February, 1988. In addition, they filed a counterclaim for declaratory judgment, requesting the trial court to construe the lease and subsequent assignments as having been “constructively terminated” by Weingarten as to any future liability of ABC and Plitt for the remainder of the lease term. Specifically, ABC and Plitt alleged that Weingarten failed to mitigate its damages by refusing to accept another theatre business for the same rent and, furthermore, that its conduct in completely changing the premises to accomodate retail stores, rather than another theatre enterprise, constructively terminated the lease. Alternatively, they requested a credit for any rents from new lessees, over and above the amount of base rent in the original lease, for the remainder of the term.
A trial was conducted before the circuit judge sitting as jury. The parties stipulated as to the provisions in the lease, Warco’s default and abandonment of the building, and the appellees’ joint and several liability.
The trial court found that Warco had made its last payment on July 26, 1986, and that charges were due and payable under the terms of the lease from July 1, 1986, through May 5, 1987 (the date Weingarten was granted a writ of possession). The amount owed consisted of rent and general property taxes and totalled $56,878.24. The trial court further found that Weingarten had adequate opportunities, since May 5,1987, to rent the premises to a Texas based cinema corporation, upon the same terms and conditions set forth in the lease, but refused to do so. It recited the following conclusions of law: 1) Arkansas law imposes a duty on the landlord to mitigate its damages and such duty arose when Weingarten was awarded a writ of possession; 2) Weingarten failed to mitigate is damages when it refused to rent the premises to the Texas theatre corporation and thus all damages ceased accuring as of May 5,1987; 3) Weingarten was entitled to damages from the appellees, jointly and severally, in the amount of $56,878.24; and 4) Weingarten’s remodeling and reletting of the premises did not amount to an acceptance of Warco’s surrender of the property; however, the appellees were entitled to a credit against any future liability to the extent of any payments made by present and future tenants. The counterclaim for declaratory relief was otherwise dismissed with prejudice.
On appeal to the Arkansas Court of Appeals, Weingarten raised five points of error, all challenging its duty to mitigate. It claimed damages of $107,367.24, allegedly sustained from July, 1986 through February, 1988. The appellees cross-appealed, claiming that the trial court erred in finding that Weingarten’s actions did not amount to an acceptance of surrender of the lease.
The court of appeals declined to address Weingarten’s arguments, as it agreed with the appellees that Weingarten’s conduct, in refusing to relet the premises to an interested theatre chain and in completely altering the nature of the premises, was so inconsistent with its claim to be acting for the benefit of the appellees, that it amounted to an acceptance of surrender of the lease agreement. Thus, the appellate court affirmed the trial court’s judgment holding the appellees liable for lease rentals due before May 5, 1987, but reversed that portion of the judgment holding the appellees liable for any obligation on the lease after that date.
Weingarten’s petition to the court of appeals for rehearing was denied. On review, we disagree with the decisions of both the court of appeals ?.nd the circuit court and, accordingly, reverse and remand to .he circuit court.
Included in Weingarten’s petition for review is the question upon which our decision hinges: Can the parties to a lease agreement provide that a landlord’s reentry and reletting of the premises will not constitute an acceptance of surrender and, further, that the landlord has no duty to mitigate upon the tenant’s default? We hold that they can, if expressly stated in their contract.
The traditional view, under common law, gives a landlord three options when a lessee abandons the premises: 1) he may refuse to accept abandonment; let the premises lie idle, and sue the tenants as the rent matures; 2) accept the keys as a surrender of possession, thereby terminating the lease and reenter on his own account; or 3) reenter and relet for the tenant’s account and hold the tenant liable for any difference in the agreed rent and that of the new tenant. See Grayson v. Mixon, 176 Ark. 1123, 5 S.W.2d 312 (1928); R. Cunningham, W. Stoebuck and D. Whitman, The Law of Property, § 6.80, 403 (1984).
Weingarten asserts that in order to avoid any disagreement as to its remedies under these general principles, the parties negotiated a lease agreement containing the following pertinent provisions:
18.03 This Lease and the term and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, the Landlord may, at its option, in addition to all other rights and remedies given hereunder or by law or equity, do any one or more of the following:
(a) Terminate this Lease, in which event, Tenant shall immediately surrender possession of the premises to Landlord;
(b) Enter upon and take possession of the leased premises and expel or remove Tenant and any other company therefrom, with or without having terminated the Lease;
provided, however,that Landlord shall not expel or remove Tenant from the leased premises or take possession thereof except pursuant to a judgment entered or writ issued in an appropriate legal proceeding.
18.04 Exercise by Landlord of any one or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the premises by Tenant, whether by agreement or by operation of law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant.
* * * *
18.06 In the event that Landlord elects to repossess the premises without terminating the Lease, then Tenant shall be liable for and shall pay to Landlord ... all rent and other indebtedness accrued to the date of such repossession, plus rent and other indebtedness hereunder required to be paid by Tenant to Landlord during the remainder of the lease term until the date of expiration of the term as stated in Article I diminished by any net sums thereafter received by Landlord through reletting the leased premises during said period (after deducting expenses incurred by Landlord as provided in Section 18.07 hereof). In no event shall Tenant be entitled to any excess of any rent (or rent plus other sums) obtained by re-letting over and above the rent herein reserved. Actions to collect amounts due by Tenant as provided in this Section 18.06 may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until expiration of the lease term.
18.07 In case of an Event of Default, Tenant shall also be liable for and shall pay to Landlord . . . broker’s fees incurred by Landlord in connection with re-letting the whole or any part of the premises; the costs of removing and storing Tenant’s or other occupant’s property; the costs of repairing, altering, remodeling or otherwise putting the leased premises into condition acceptable to a new tenant or tenants, and all reasonable expenses incurred by Landlord in enforcing Landlord’s remedies, including reasonable attorney’s fees. . .
18.08 In the event of termination or repossession of the premises for an Event of Default, Landlord shall not have any obligation to re-let or attempt to re-let the premises, or any portion thereof, or to collect rental after re-letting; and in the event of re-letting Landlord may re-let the whole or any portion of the premises for any period, to any tenant, and for any use and purpose. [Emphasis added.]
Here, Weingarten elected to proceed with remedies under its contract, pursuant to sections 18.03(b) and 18.06, and resume possession of the premises without accepting surrender of the lease agreement. Such a “surrender clause” is well recognized in the law. Normally, if the landlord reenters and resumes the use and enjoyment of the premises for his own account, he terminates the lease, as a matter of law, insofar as his right to recover subsequently accruing rent is concerned. 49 Am. Jur. 2d, Landlord and Tenant §620, 592 (1970). See also Hayes v. Goldman, 71 Ark. 251, 72 S.W. 563 (1903). This rule will not hold true where the lease, via a “Surrender Clause,” expressly allows a resumption of possession without surrender. See Id.; 52 C.J.S. Landlord and Tenant § 493, 433 (1963).
In his treatise, Friedman on Leases, Vol. 2 § 16.302 (3d ed. 1990), Milton Friedman cautions, however, that in order for a “surrender clause” to be upheld, it must expressly define the parameters under which a landlord may reenter and assume possession and still hold the tenant liable. Such a clause should, for example, “permit the landlord to make a change in the character of the premises, structurally or otherwise.” Section 18.07 of the lease meets this requirement by holding the tenant liable for “the costs of repairing, altering, remodeling, or otherwise putting the leased premises into conditions acceptable to a new tenant or tenants. . .” Section 18.08 further allows Weingarten to “re-let the whole or any portion of the premises for any period, to any tenant, and for any use and purpose.” As stated by the Indiana Court of Appeals: “As long as the landlord does no more than exercise the rights accorded to it under the lease, the lessor’s conduct will not result in a surrender of the lease by operation of law.” Grueninger Travel Serv. of Fort Wayne, Ind., Inc. v. Lake County Trust Co., 413 N.E.2d 1034 (1980). The lease provisions here were, admittedly, quite comprehensive. As a result, however, we do not find that Weingarten, in remodeling the premises and reletting to two retail businesses, acted outside its rights provided by the lease agreement.
We remand the case to the Pulaski County Circuit Court for a determination of damages not inconsistent with this opinion.
Corbin and Brown, JJ., not participating. | [
112,
-22,
-51,
108,
-120,
-32,
16,
-102,
107,
67,
55,
83,
-83,
-32,
29,
121,
-29,
127,
81,
109,
-121,
-77,
64,
96,
-46,
-13,
-45,
85,
-80,
-17,
-12,
86,
76,
33,
-62,
-107,
-62,
-18,
-51,
92,
26,
1,
27,
108,
-19,
64,
48,
57,
18,
11,
113,
-123,
-13,
45,
25,
-61,
109,
58,
93,
-91,
80,
-8,
-30,
13,
95,
23,
-127,
36,
-72,
7,
72,
76,
-128,
116,
13,
-24,
115,
-74,
-58,
116,
5,
-97,
12,
32,
99,
98,
9,
-17,
-12,
-87,
46,
-21,
-113,
-90,
-126,
88,
43,
5,
-74,
-108,
120,
18,
5,
-4,
-17,
-123,
81,
108,
-121,
-50,
-43,
-31,
15,
-23,
-108,
3,
-3,
7,
48,
112,
-49,
-121,
93,
87,
91,
-37,
-98,
-43
] |
Robert L. Brown, Justice.
Appellant Robert L. Barker appeals an order of the chancery court finding a valid conveyance* of certain land by him and his former wife, Helen Barker, to their sons, Robert A. Barker, II and Daniel Thomas Barker, and to their wives by means of a 1982 warranty deed.
The facts leading up to the execution of the deed and the aftermath are widely disputed. According to the sons, Robert and Daniel, they were called to their parents’ home with their wives on the night of September 1, 1982, and presented with a warranty deed executed by Barker and his wife deeding them four lots in the city of Crossett, with the parents retaining a life estate in all four lots. One of the lots described in the warranty deed had previously been sold to Daniel in 1979. Another lot was the parent’s homestead. At the meeting, according to the sons’ testimony, the original deed was passed around the table and shown to them, and each son paid consideration of $1.00 for the deed. At the conclusion of the meeting, Barker and his wife retained possession of the deed.
The catalyst for the meeting and the grant, according to Robert, was an investigation by a government agency into the fact that Barker was drawing two disability checks from the Civil Service and the Marine Corps. According to Robert, Barker was concerned that he might have to pay some of the disability money back to the government, and because of that he decided to deed his real property to his sons. Barker denied that the disability checks prompted the execution of the deed and further denied that the September 1,1982 meeting with his sons even took place. He testified, rather, that the deed was made because Helen Barker was in poor health, and they both wanted to avoid losing the land to the state if he or his wife had to enter a nursing home.
Within one or two days after the meeting, Robert and Daniel testified, each received a photostatic copy of the warranty deed from their parents—Daniel got his from his mother and Robert got his from his father. Barker denies that he gave either son a copy of the deed. According to both sons, their mother urged them to record their copies of the deed. The original deed stayed in the possession of Barker and his wife, and they placed it in their safe. It was not recorded. Three years later, in 1985, one of the lots described in the deed was sold by Barker and his wife to third parties, apparently with the knowledge of Robert and Daniel. From 1982 forward Barker paid real estate taxes on the property, continued to reside on one of the lots, and received rental income from the lease of two of the lots.
Helen Barker died on November 13, 1988. In March or April 1989, Barker met with his sons and their wives at a restaurant and informed them that he might remarry. Angered by this news, Robert and Daniel recorded one of the copies of the warranty deed in the Ashley County Circuit Clerk’s office on May 12, 1989. Thereafter, Barker did remarry. The original deed remains in Barker’s possession and was never recorded.
On July 12, 1990, Barker filed suit against his sons, their wives, and the circuit clerk (collectively, the appellees) to cancel and expunge the recorded deed on grounds that it was a copy without original signatures and further to void the 1982 conveyance for failure to deliver. The chancellor found that the warranty deed was delivered and was a valid conveyance of real property, but that the deed, as a photocopy, should not have been recorded and must be expunged. In his incorporated findings, the chancellor further agreed with the sons that Barker and his wife intended to deliver the property to them in order to remove it from the possibility of loss to the federal government. The chancellor, however, refused to void the conveyance, and Barker has appealed on that issue.
Barker’s sole argument is that no delivery of the original deed to the sons transpired and, accordingly, no conveyance of title occurred. In advancing this argument, Barker contends that there was no intent to deliver as evidenced by the fact that one lot included in the 1982 grant was conveyed to a third party in 1985, without objection from the sons. As additional evidence of no intent, Barker points to the prior grant of another lot to his son Daniel in 1979. Finally, he argues that he and his former wife continued to reside on one of the remaining lots and to pay the real estate taxes on that property.
We begin by acknowledging that a delivered deed passes title as between the parties even though it has not been recorded. See Ferguson v. Haynes, 224 Ark. 342, 273 S.W.2d 23 (1954). Ordinarily, for there to be a delivery of a deed we have said that the grantor must intend to pass title immediately, and the grantor must lose dominion and control over the deed. See e.g., Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990); Broomfield v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967); Smith v. Van Dusen, 235 Ark. 79, 357 S.W.2d 22 (1962). In the Broomfield and Smith decisions, we further held that the intention to convey title must be manifested by what is said and done by the grantor and grantee. This statement partially echoes past authority where we stated that the question of delivery of a deed is one of intention of the grantor, as manifested by his acts or words or both. See Cribbs v. Walker, 74 Ark. 104 (1905), citing 9 Am. & Eng. Enc. Law p. 154.
Where the deed includes the reservation of a life estate in the grantor, however, the requirements of delivery are different. See Grimmett v. Estate of Beasley, 29 Ark. App. 88, 777 S.W.2d 588 (1989); Cribbs v. Walker. In Cribbs we reversed the chancellor’s decision and held that when a husband deeded property to his wife and showed her the deed, but reserved a life estate in himself and kept the deed in his personal safe, there was an effective delivery. To the same effect, the Arkansas Court of Appeals reversed the chancellor in Grimmett v. Estate of Beasley on similar facts and held that when the grantor reserved a life estate, delivery of a deed to the grantor’s brother (the grantee) occurred when she showed the instrument to her brother, even though she kept the deed in her possession, used the property, and paid real estate taxes on the property. Also, in Grimmett the grantee had copies of the deed in his possession with the original signature of the grantor. Again, as was the case in Cribbs v. Walker, the distinguishing factor in the Grimmett case was the reservation of a life estate in the grantor. Since actual possession of the property by the grantee would not occur until the grantor’s death, physical control of the deed by the grantee was not required in either case.
We hold that the distinction made in Cribbs and Beasley is a legitimate one and that when a life estate is retained by the grantor under the deed and the grantee is shown the original deed by the grantor, possession of the original deed instrument need not be transferred to the grantee in order to effect a delivery.
Moreover, the chancellor in the case before us made precise findings of fact, among which was the critical finding that in 1982 Barker intended to convey the remainder interest in his property to his sons, while reserving a life estate in himself and his wife. A second critical finding was that Barker delivered the deed to his sons at his home on September 1, 1982, when he passed the original deed around the table and showed it to them. The chancellor further gave credence to the testimony of the sons that the reason for the conveyance was Barker’s fear of losing the property to the federal government. Lastly, the chancellor, by not referencing the transaction in his findings, apparently discounted the effect of Barker’s 1985 transfer of one of the lots to a third party. In addition, though the chancellor did not make a specific finding on this point, we do note that the sons had a photostatic copy of the deed in their possession which they used for recordation in 1989. They testified that the copy came from their parents and that their mother urged them to record their copies.
In sum, the chancellor heard testimony from multiple witnesses and had full opportunity to observe the witnesses and evaluate their credibility. He found that the evidence preponderated in favor of the appellees. We are unable, under these circumstances, to say that the chancellor’s findings were clearly erroneous. See Ark. R. Civ. P. 52(a).
We, therefore, affirm. | [
112,
108,
-35,
62,
26,
-32,
58,
-86,
105,
-84,
-89,
95,
-25,
-54,
5,
43,
-44,
109,
85,
123,
-41,
-78,
7,
-109,
112,
-13,
89,
68,
-15,
-55,
-26,
-41,
8,
32,
-118,
85,
70,
0,
-17,
80,
-122,
7,
9,
101,
-39,
22,
52,
-93,
84,
-115,
49,
-114,
-77,
46,
29,
66,
72,
46,
91,
41,
89,
-7,
-81,
5,
123,
3,
-127,
39,
-104,
3,
-24,
14,
-112,
57,
-128,
-24,
83,
-74,
-122,
102,
3,
25,
-120,
36,
98,
2,
69,
-27,
-16,
-104,
15,
-14,
7,
-90,
-14,
120,
65,
106,
-66,
-33,
116,
4,
108,
-12,
-25,
-124,
92,
100,
54,
-113,
-108,
-125,
-115,
124,
-114,
0,
-10,
-79,
-92,
113,
-51,
-94,
92,
103,
53,
27,
12,
-77
] |
Donald Corbin, Justice.
Appellant, Andrew Ellis, was convicted by a Jefferson County Circuit Court jury of three counts of delivery of cocaine and one count of misdemeanor possession of marijuana. He received a cumulative sentence of thirty-five years in the Arkansas Department of Correction. On appeal he challenges evidence used against him at trial because the officers were not properly certified law enforcement officers. He also challenges the trial court’s refusal to instruct the jury on accomplice liability arising out of an undercover police officer’s purchase of cocaine from appellant. We affirm.
On the night of February 11,1989, Officer Danna Powell of the Pine Bluff Police Department stopped appellant for a misdemeanor traffic offense. After noticing a bulge in appellant’s pocket, Officer Joseph Dorman conducted a pat-down search of appellant. During the pat-down search, appellant fled and Officer Dorman observed appellant tossing a white pill bottle into a small garden. Following his arrest by Officer Dorman and Sergeant Larry McGee, the bottle was recovered and determined to have contained cocaine.
While appellant was incarcerated, the state filed two informations against him, the first concerning the above-referenced incident and charging him with possession of cocaine, and the second charging him with three separate counts of delivery of cocaine. The second set of charges was the result of a pending investigation by State Police Investigator Bobby Nicks. Appellant was later charged with misdemeanor possession of marijuana resulting from an unrelated traffic stop for DWI.
The state and appellant made an agreement whereby the state woúld not charge appellant as an habitual criminal if appellant would waive his right to severance of the charges. Appellant was tried by a jury and found not guilty of the possession of cocaine charge arising out of the February 11,1989 traffic violation. However, he was convicted of the three counts of delivery of cocaine and the misdemeanor possession of marijuana.
As his first assignment of error, appellant alleges the trial court erred in failing to grant his motion to dismiss the criminal charges and suppress evidence. Appellant’s motion to dismiss was premised on the fact that, at the time of his arrest for the February 11, 1989 traffic offense, none of the police officers who arrested him met the minimum employment standards established by the Commission on Law Enforcement Standards and Training. Although appellant was found not guilty on the possession of cocaine charge resulting from the February 11, 1989 incident, he argues that having to defend this charge increased his evidentiary burden and that any evidence resulting from this arrest should have been suppressed.
We find this argument to be meritless. On appeal, appellant must demonstrate prejudice, not just allege it. Johnson v. State, 303 Ark. 313, 796 S.W.2d 342 (1990). Appellant was found not guilty on the single charge of possession of cocaine. He has not demonstrated any prejudice resulting from the not guilty verdict.
Appellant’s contention that the retroactive application of 1989 Ark. Acts 44 is prohibited by the ex post facto clauses of our federal and state constitutions has already been addressed. We call attention to a case dealing with this precise issue, Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991). This recent ruling stands for the proposition that in cases tried after November 8, 1989, the effective date of 1989 Ark. Acts 44, the amended version of Ark. Code Ann. § 12-9-108(a) (Supp. 1989) applies such that actions taken by non-certified officers are not held invalid merely because of a failure to meet the standards of the Arkansas Law Enforcement Commission. See Harbour, 305 Ark. at 317, 807 S.W.2d at 663. Although appellant was arrested on February 11, 1989, and his motion to dismiss was denied on August 17, 1989, the trial was held on October 16, 1990, and judgment was entered on October 22, 1990. The case was thus pending when 1989 Ark. Acts 44 was enacted and the trial court’s application of the Act was not an application of an ex post facto law. Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991); Harbour, supra; Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991); Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991).
As for the suppression component of appellant’s argument, we call attention to Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991), State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991), and Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), where we held the exclusionary rule inapplicable to cases involving uncertified law enforcement officers because an officer’s failure to meet minimum employment qualifications is not the police misconduct the Fourth Amendment was intended to prohibit.
As his second assignment of error, appellant contends the trial court erred in refusing to instruct the jury on accomplice liability. Appellant proffered a complicity instruction based primarily on the theory that Investigator Nicks was appellant’s accomplice because he purchased cocaine from appellant on three different occasions. He contends these purchases made Investigator Nicks an accomplice of appellant, and thus required corroboration of appellant’s guilt by other evidence independent of Investigator Nicks’ testimony.
We have consistently held that a buyer of illicit drugs is not an accomplice of the seller. Williams v. State, 290 Ark. 449, 720 S.W.2d 305 (1986); Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Accordingly, we find no error in the trial court’s refusal to instruct the jury that Officer Nicks was appellant’s accomplice.
Affirmed. | [
48,
-18,
-8,
92,
24,
97,
56,
-76,
83,
-89,
-20,
115,
-83,
67,
21,
49,
-29,
127,
116,
105,
-43,
-89,
103,
96,
-78,
-9,
89,
-57,
-77,
79,
-20,
-44,
77,
52,
-49,
-43,
102,
72,
-31,
88,
-54,
5,
-101,
98,
114,
3,
32,
50,
18,
15,
97,
-113,
-30,
43,
25,
-49,
77,
60,
75,
-83,
88,
-24,
24,
13,
-81,
20,
-77,
36,
-101,
5,
-8,
126,
-36,
49,
17,
120,
115,
-90,
-110,
-12,
109,
-101,
12,
32,
98,
0,
25,
-19,
-68,
-120,
54,
-66,
-99,
-90,
-40,
105,
73,
77,
-73,
-107,
111,
16,
-114,
-6,
113,
93,
93,
108,
33,
-50,
-76,
-111,
77,
40,
-124,
83,
-53,
37,
16,
117,
-52,
-26,
84,
85,
112,
-101,
-53,
-42
] |
Jack Holt, Jr., Chief Justice.
The issue in this case is whether the appellees, Oaklawn Jockey Club, Inc. (Oaklawn) and American Totalisator Co., Inc. (Amtote), owed any duty to the appellant, Paul Register, the breach of which would give rise to a tort action for negligent conduct on their part.
On February 10, 1989, Mr. Register attempted to place a Classix wager, where the bettor correctly selects the winning horse in six consecutive races, at Oaklawn Park in Hot Springs. When Mr. Register attempted to place his bet, the Amtote machine failed to issue a ticket conforming to his designated selections. Upon inquiry, Mr. Register was erroneously advised by Oaklawn’s ticketing clerk that one of the horses he had selected had been withdrawn from its race. Mr. Register subsequently chose another horse and made his bet. At the conclusion of the six races, Mr. Register had correctly selected five winning horses. Apparently, though, the horse that Mr. Register had been told had been withdrawn had not been “scratched” and was in fact the winner of its race. Had Mr. Register’s original wager been accepted, he would have been the holder of a winning ticket to a major share in the Classix.
The “Major Share” of the Classix pool (75% of the net amount in the pool) that day was $56,165.40, which was paid to the holder of one winning ticket issued for that wager. Mr. Register filed suit to recover one-half of that amount, $28,082.70. The trial court granted the appellees’ motion for summary judgment, and Mr. Register appeals and alleges that the trial court erred in granting the summary judgment on the following bases: 1) Oaklawn and Amtote owed him a duty to use ordinary care, 2) Oaklawn and Amtote owed him a contractual duty on theories of implied contract, quasi-contract, and third party beneficiary, and 3) his cause of action is not barred by the Arkansas State Racing Commission Rules.
We find that the appellees owed a duty to Mr. Register, and it was error for the trial court to grant summary judgment in light of the alleged negligence of Oaklawn and Amtote by Mr. Register. Accordingly, the judgment is reversed and remanded.
In Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990), we noted that Ark. R. Civ. P. 56 provides that summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. On appeal, in determining whether there is an issue of fact, the proof is viewed most favorably to the party resisting the motion, with all doubts and inferences resolved against the moving party. The burden of proving that there is no genuine issue of material fact rests with the party moving for summary judgment.
In order to make a prima facie case of negligence, a plaintiff must show that he sustained damages, that the defendant was negligent, and that such negligence was the proximate cause of the damages. To prove negligence, a party must show that the defendant has failed to use the care that a reasonably careful person would use under circumstances similar to those shown by the evidence in the case. Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). Further, a party may establish negligence by direct or circumstantial evidence, but he cannot rely upon inferences based on conjecture or speculation. Earnest v. Joe Works Chevrolet, Inc., supra, (citing Glidewell Adm. v. Arkhola Sand and Gravel Co., 212 Ark. 838, 208 S.W.2d 4 (1948)).
Mr. Register contends in his first point of error that Oaklawn and Amtote owed him a duty to use ordinary care in responding to his specific requests for a wager. The existence of a duty depends upon whether a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other. W. Keeton, Prosser and Keeton on Torts 235 (5th ed. 1983). Under our well-established principles of common law duty and the facts before us, we find that a duty existed between the appellees and Mr. Register. Whether this duty was breached in this case is a genuine issue of material fact that would preclude the granting of summary judgment.
Oaklawn and Amtote’s reliance on cases decided in other jurisdictions is misplaced in that those cases generally had statutes or rules and regulations limiting tort liability or dealt with the contractual theory of liability. See Bourgeois v. Fairground Corp., 480 So. 2d 408 (La. App. 1985); Seder v. Arlington Park Race Track Corp., 481 N.E.2d 9 (Ill. App. 1985); Valois v. Gulf Stream Racing Ass’n, 412 So.2d 959 (Fla. App. 1982); Hochberg v. New York City Off-Track Betting Corp., 343 N.Y.S.2d 651 (1973), aff'd 352 N.Y.S.2d 423 (1974); Holberg v. Westchester Racing Ass’n, 53 N.Y.S.2d 490 (1945). In Arkansas, there is no statute, rule, or regulation that limits or restricts civil liability for negligence under these circumstances. Cf. Ark. Code Ann. § 23-110-406 (1987) (contractual liability limitation.)
821 S.W.2d 475
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 23, 1991
In addressing Mr. Register’s second point of error, that Oaklawn and Amtote owed him a contractual duty on theories of implied contract, quasi-contract, and third party beneficiary, we note that horse racing in our state is authorized and regulated pursuant to the Arkansas Horse Racing Law (Law), codified at Ark. Code Ann. §§ 23-110-101 to -415 (1987 and Supp. 1989). The Law specifically provides that the only legislatively authorized way for a patron at a race track to recover money based upon the outcome of a horse race is through pari-mutuel or certificate system of wagering. Section 23-110-102. Any wagering contract on horse races outside of the scope of the Law is therefore invalid and illegal. Section 23-110-405(d)(2).
In fact, the Law prescribes that money in the betting pool “shall be paid over to bettors holding winning pari-mutuel tickets . . . .” Section 23-110-406(a). In Holberg v. Westchester Racing Ass’n, supra, the court reasoned that “ [t] here can be no valid pari-mutuel bet or wager independent of a pari-mutuel ticket. The ticket not only is essential but is the contract itself.” We find this rationale persuasive.
Consequently, as Mr. Register makes no claim to having a winning ticket representing entitlement to a major share in the Classix pool, there can be no recovery sounding in contract.
Finally, Mr. Register argues that his cause of action is not barred by the Arkansas State Racing Commission Rules. However, these rules have not been included in the abstract, and we are unable to address the issue. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985).
Reversed and remanded.
Carl A. Crow, Jr., for appellant.
Janis Whitt and James Simpson, for appellee. | [
50,
-26,
-112,
44,
88,
-32,
56,
-102,
75,
-61,
39,
19,
-51,
-29,
-112,
49,
-25,
111,
84,
107,
86,
-93,
7,
34,
-29,
-45,
-55,
5,
54,
107,
-20,
-44,
72,
48,
-118,
87,
-58,
-54,
-63,
26,
-122,
32,
11,
97,
-7,
67,
58,
-2,
22,
75,
33,
-118,
-61,
46,
57,
75,
109,
60,
121,
58,
-63,
-47,
-5,
5,
125,
20,
-79,
36,
-65,
1,
72,
8,
-124,
49,
-112,
-8,
115,
54,
-126,
68,
105,
57,
73,
98,
99,
-95,
1,
-81,
-72,
-112,
47,
-1,
31,
-90,
-110,
120,
35,
11,
-106,
-97,
114,
26,
-122,
-2,
-7,
85,
28,
36,
19,
-114,
-42,
-93,
-18,
102,
20,
14,
-49,
115,
20,
117,
-50,
-10,
93,
71,
54,
-101,
-66,
-42
] |
Jack Holt, Jr., Chief Justice.
The appellant, Kenneth Ray Clements, brings this interlocutory appeal alleging that the trial .court’s removal of his appointed attorney, Richard Atkinson, violated his sixth and fourteenth amendment rights to counsel under the United States Constitution and his right to counsel under Art. 2, Section 10 of the Arkansas Constitution. The State agreed with Clements and has waived its right to file a brief in response. We also agree, and reverse and remand.
This case involves the retrial of Clements for capital murder in the shooting death of police officer Ray Noblett. See Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). On April 23, 1991, Messrs. Richard Atkinson and Kenneth Suggs were appointed by Judge Floyd Lofton to defend Clements at his second trial. Judge Lofton was assigned to the case following the recusal of the Faulkner County judges. A trial date was scheduled for June 24, 1991.
At a pretrial hearing on June 17, Atkinson moved for a continuance of the June 24 trial date, citing the voluminous nature of the discovery, the time needed to review the transcript and documents from the previous trial, and the fact that a new theory of defense was being developed. Judge Lofton found both Messrs. Atkinson and Suggs negligent, held them in contempt of court, fined them $1,000 each, and removed them from the case. Judge Lofton appointed attorneys, Messrs. Ray Hartenstein and Blake Hendrix, as replacements. [Mr. Atkinson has filed a separate appeal with this court, challenging the contempt citation, Case No. 91-191, filed July 10, 1991.]
Clements now appeals, requesting the reinstatement of Mr. Atkinson. Clements stated that he was not pleased with Mr. Suggs’ representation, and the record reflects Mr. Suggs did not object to his discharge from the case.
In order to provide a full understanding of what occurred at the pretrial conference, we find it necessary to set out the entire record colloquy pertaining to Mr. Atkinson’s motion for continuance.
MR. ATKINSON: Your Honor, at this time I’d like to make an oral motion for a continuance —
THE COURT: We’ve already ruled on that.
MR. ATKINSON: — in this case. Your Honor, I’d like to make a record.
THE COURT: Your man says he’s ready to go. Says he’s satisfied with you.
THE DEFENDANT: I said I was satisfied with the attorneys. I never said anything about satisfied with the trial, your Honor.
THE COURT: Well, we haven’t even started the trial yet.
THE DEFENDANT: I know it. But you said I said I was satisfied with it.
THE COURT: Well, you told me you were satisfied with it.
THE DEFENDANT: With the attorneys.
THE COURT: Well, we’ll — we’ll —
THE DEFENDANT: I haven’t said anything about trial.
MR. ATKINSON: Your Honor, in all fairness, I think you were asking Mr. Clements to make conclusions that an attorney would have to make as far as readiness for trial.
THE COURT: Well —
MR. ATKINSON: I don’t think that he has the expertise to make those determinations. And from discussions prior to and up until this morning, it is Mr. Clements’ desire that this case be continued based upon —
THE COURT: Well, he hasn’t —
MR. ATKINSON: — his consultation with his counsel.
THE COURT: But he hasn’t told me why. He wants some things done but he doesn’t know what they are. And, Mr. Atkinson, are you telling me that you’ve been negligent?
MR. ATKINSON: No, your Honor, I am not.
THE COURT: Well —
MR. ATKINSON: I am telling you that sixty days has not been sufficient time to prepare for this case.
THE COURT: Why isn’t it?
MR. ATKINSON: Because the case is too complex. The discovery is too much. There are piles and piles of papers that need to be gone through. I was not privy to this trial the first time it was tried. I have a transcript of that trial —
THE COURT: Have you read it?
MR. ATKINSON: — which I have read.
THE COURT: Well.
MR. ATKINSON: I have read that transcript.
THE COURT: Well, that’s —
MR. ATKINSON: In all fairness to Mr. Suggs, Mr. Suggs has not read that transcript. It’s been in my possession. But Mr. Suggs has not read that transcript. Your Honor, the discovery has not been completely digested by Defense in order to completely develop the defense that’s been offered. This defense was not offered at the first trial.
THE COURT: Which is amusing to me. But go ahead.
MR. ATKINSON: I do not know why the defense was not offered at the first trial. I can’t answer for that. I was not defense counsel —
THE COURT: Well, you know, we don’t know that it will be offered at the next one either. We may find another one.
MR. ATKINSON: That’s very correct, your Honor. But there is no way that defense can be readied and properly presented fairly for this man on the twenty-fourth.
THE COURT: If that is so, Mr. Atkinson, then the Court will have no choice but to find you negligent and in contempt, and so with Mr. Suggs, because you represented to this Court that you could and would get ready. I sent notices out to you. You both concurred in this trial date. And all I hear you saying is that, “We’ve sat on our fanny and not done anything about this and we want a continuance.” But you can’t tell me what it is you want to do. And you have no assurance — I have no assurance that if I give you another thirty days you’ll do any more than you have in the last sixty.
MR. ATKINSON: I’ll tell you exactly what we want to do, your Honor. I have spent hours upon hours and almost bankrupted my law practice in trying to prepare for this case by the twenty-fourth. I have come to the conclusion within the last five or six days that it’s humanly impossible to be prepared to give this man a fair defense on the twenty-fourth of this month.
THE COURT: Why?
MR. ATKINSON: Because I have not been able to go through the discovery, much of it, more than one time. I have not had the time to do it. I have read the transcript. I have gone through the discovery as it has come in. Discovery was available but not produced to the Defense by the prosecution, much of it —
THE COURT: See, he’s not —
MR. ATKINSON: — until the last week.
THE COURT: He’s not dissatisfied with you. He thinks you’re doing a wonderful job. And you haven’t done a damn thing apparently. He’s just unhappy with Kenny.
MR. ATKINSON: Your Honor, the discovery has not been fully disseminated. The witnesses have not been — have not had opportunity to develop who all of the witnesses will be or to interview the witnesses that will be called. And this defense needs more time to be developed.
THE COURT: If I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case and you will not try it at all. I’ll get somebody else to do it. That means you don’t take care of your practice apparently.
MR. ATKINSON: I understand, your Honor. But this man deserves a fair trial.
THE COURT: Well, why haven’t you been busy about it, Mr. Atkinson?
MR. ATKINSON: I have been very busy, your Honor.
THE COURT: Not very busy. If you can’t read a transcript and get prepared in sixty days, then you’ve got no business practicing this kind of law.
MR. ATKINSON: With all due respect, your Honor, we’re not trying the last trial. We’re trying a new trial —
THE COURT: I know.
MR. ATKINSON: — and we’re not trying that transcript again.
THE COURT: That’s why it’s not important for you to have read it. If there’s not anything in there, what difference does it make if you haven’t read it but one time?
MR. ATKINSON: I have read the transcript.
THE COURT: One time. And there’s nothing in there. You’re trying a new case. So. You should have found that out early on.
MR. ATKINSON: I never represented to the Court that there was nothing in the transcript. There’s very valuable information in the transcript.
THE COURT: You just told me you’re not trying that other case, you’re trying a new case.
MR. ATKINSON: That’s absolutely correct.
THE COURT: Mr. Hartenstein?
MR. HARTENSTEIN: Yes, your. Honor.
THE COURT: Can you represent this man?
MR. HARTENSTEIN: No way I can represent him by Monday.
THE COURT: I’m not asking about Monday.
MR. HARTENSTEIN: If the Court sees to —• wants to appoint me, I will accept the appointment.
THE COURT: But, now, when will you try it?
MR. HARTENSTEIN: All I have seen of this case thus far is a sixteen volume transcript and several huge boxes of paper.
THE COURT: Well, you can rest assured that’s not going to help you because they’re read it and they don’t know what they’s talking about —
MR. HARTENSTEIN: I may differ.
THE COURT: — and they’re not trying that other case. Huh?
MR. HARTENSTEIN: I may differ with them.
THE COURT: Well, I’m sure you will.
MR. HARTENSTEIN: I don’t want to —
THE COURT: Mr. Foster, I don’t really see much sense in pursuing this when we’ve got two lawyers admitting negligence on their part and dereliction of duty. I don’t see any sense in pursuing this. Do you?
MR. FOSTER: Pursuing the?
THE COURT: Trial.
MR. FOSTER: Your Honor, it’s — It’s our — We do resist the motion for a continuance, your Honor.
THE COURT: I understand. But, you know, if you’ve got two lawyers who admit their negligence and haven’t prepared this case and can’t represent this man, we’re just kidding ourselves. It’s going to be expensive for both of them. But, Ray, I tell you what I’ll do. I’ll recess this case until you can go back to your office and get your calendar back over here. And, if you will accept it, do you want some help?
MR. HARTENSTEIN: Certainly.
THE COURT: Who?
MR. HARTENSTEIN: Can I think about that while I
THE COURT: Sure. What time is it? Can you be back by noon?
MR. HARTENSTEIN: Yes, sir.
THE COURT: Let’s recess until 11:45. Gentlemen, you all stay in the courtroom. And, Mr. Clements, let me ask you this. Are you satisfied with Mr. Hartenstein?
THE DEFENDANT: Yes, sir.
THE COURT: There ain’t going to be no more, “I’m not satisfied.”
THE DEFENDANT: No, sir.
THE COURT: And your defense is, “I didn’t do it; somebody else did.”
THE DEFENDANT: Yes, sir.
THE COURT: All right. We’re in recess until 11:45..
(THEREUPON, court was in recess for approximately thirty minutes; then the following proceedings occurred:)
THE COURT: All right. Mr. Atkinson, the motion before the Court is for a continuance. I’ve asked Mr. Hartenstein if he can accept an appointment. Mr. Hartenstein, can you?
MR. HARTENSTEIN: Yes, your Honor.
THE COURT: And you want Mr. Blake Hendrix to help you?
MR. HARTENSTEIN: Yes, your Honor.
THE COURT: You’re relieved, Mr. Atkinson. Do you want to be relieved?
MR. ATKINSON: No, your Honor.
THE COURT: Do you want to be relieved?
MR. SUGGS: Yes, I do.
THE COURT: Ken Suggs and Richard Atkinson relieved, held to be negligent and failing to prepare case and get ready for trial, and held in contempt of Court and assessed a fine of a thousand dollars each to be paid within ten days unless a Notice of Intent to Appeal is filed. Ray Hartenstein and Blake Hendrix are appointed. Mr. Clements, have you got any problem with what I’m doing?
THE DEFENDANT: No, sir. I was just hoping that Mr. Atkinson can stay.
THE COURT: Well, I wish you’d make up your mind. You weren’t happy with him. Now, you’re unhappy [sic] with him.
THE DEFENDANT: I told you earlier I was happy with him.
THE COURT: Well, he hasn’t done anything for you.
THE DEFENDANT: Well, I see that he has, your Honor.
THE COURT: Well, are you ready to go to trial with him Monday?
THE DEFENDANT: That’s up to the attorneys.
THE COURT: Now, wait a minute. Now wait a minute. I’m talking to you. If you’re happy with him, I’ll let him stay on the case and we’ll go to trial Monday.
(THEREUPON, Counsel for the Defense conferred privately with the Defendant; then the following proceedings occurred:)
THE DEFENDANT: No, sir.
THE COURT: No, sir, what?
THE DEFENDANT: I’m not happy with him.
THE COURT: Well, he just told you that.
THE DEFENDANT: Fm not ready to go to trial.
THE COURT: I know. You’re not ever going to get ready to go to trial. But that may not be an election that you have. Are you happy with Mr. Atkinson and you want to go to trial Monday?
THE DEFENDANT: No, sir, I don’t.
THE COURT: All right. When’s the trial date, Mr. Prosecutor?
MR. FOSTER: Your Honor, I believe that September 23rd the courtroom would be available in Conway.
THE COURT: September 23rd?
MR. FOSTER: I believe that’s correct, your Honor.
THE COURT: At nine a.m.
MR. FOSTER: Yes, sir.
THE COURT: Ray and Mr. Prosecutor, after you all have had some time, let me know when you want a hearing, an omnibus hearing, and get with Terry and Fll set it any time you all want it. Fm at your mercy. And Fll stay as late as you need. And I want this man represented and I don’t want to hear him complaining and fussing anymore, although Fm not really upset with him. If I had two lawyers that hadn’t done anything about it, I’d be upset, too. And they’re relieved and have no more responsibility in it. And Fll expect a check from them. You all let me know what you want to do.
MR. FOSTER: We’ll do so, your Honor.
THE COURT: All right. Thank you, sir. Court’s adjourned.
A defendant’s right to counsel of choice is grounded in the sixth amendment to the United States Constitution, and is also granted by Art. 2 Section 10 of the Arkansas Constitution. Applying this principal to court-appointed, as well as privately retained, attorneys we have held, however, that the. right to counsel of one’s choosing is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989). An example of such purposeful frustration occurs when a defendant requests new counsel merely in order to obtain a continuance of trial. See Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991). Certainly this was not the situation here, and, in fact, both Clements and Mr. Atkinson clearly expressed their desire for Mr. Atkinson to remain on the case. Clements only relinquished that request when the trial court literally forced him to choose between accepting new counsel, to whom he was opposed, in order to obtain the continuance, or retaining Mr. Atkinson, as he wished and immediately proceeding to trial unprepared.
This case thus presents the unique situation where a trial court removes an attorney from the case against the wishes of both the defendant and the attorney. Some courts have found this to be a violation of the accused’s sixth amendment right to counsel, and we find their logic compelling.
In Harling v. United States, 387 A.2d 1101 (1978), the trial court removed the defendant’s appointed attorney, over the protestations of both client and attorney, because the attorney stated that he could not be an effective advocate without access to the names of certain eyewitnesses. The trial court abruptly cut him off and construed the attorney’s statement as an attempt at making a record for ineffectiveness of counsel when, in reality, the attorney was simply trying to convince the court to grant his motion for discovery.
In reversing, the District of Columbia Court of Appeals recognized that an indigent does not have an unqualified right to counsel of his choice, and that substitution of counsel rests within the discretion of the trial court. The court concluded, however, that:
‘[0]nce counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial.’ The right to assistance of chosen counsel is not absolute, however. A trial judge may ‘in the interest of justice’ substitute one counsel for another. Gross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court’s removal of an attorney, even over the defendant’s objection.
Harling, 387 A.2d at 1105 (citations omitted). The appellate court found that there was no justifiable basis for the trial court’s removal of the appointed attorney:
Counsel’s efforts were within the bounds of reasonable advocacy. His conduct appears neither contemptuous, insolent, nor unprofessional. The court’s response to counsel’s persistence was both intemperate and unwise: Mere disagreement as to the conduct of the defense certainly is not sufficient to permit the removal of any attorney.
Id. Likewise, we find no support in the record for the trial court’s discharge of Mr. Atkinson.
Mr. Atkinson was appointed to the case only two months prior to the trial date. The case has a complex history, involving two other alleged accomplices. See Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990); McMillen v. State, 302 Ark. 601, 792 S.W.2d 315 (1990). Mr. Atkinson was not only attempting to read and digest what must have constituted reams of documentation compiled during the first trial, but was conducting his own investigation as he is required to do. See David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). The record reflects that he and Mr. Suggs had already filed numerous motions before they were released from their representation of Clements. Even assuming Mr. Atkinson to have been negligent, as the trial court charged, there was certainly no evidence of gross malfeasance, physical incapacity, or belligerent conduct, such as would justify his removal.
We have held that once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Certainly, the same consideration should apply to a trial court’s removal of appointed counsel. We find the holding of the Supreme Court of California particularly instructive:
[W]e must consider whether a court-appointed counsel may be dismissed, over the defendant’s objection, in circumstances in which a retained counsel could not be removed.
A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary; it involves not only just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. It follows that once counsel is appointed to represent an indigent defendant the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.
Smith v. Superior Court of Los Angeles, 68 Cal. Rptr. 1, 440 P.2d 65 (1968). Accord, McKinnon v. State, 526 P.2d 18 (Alaska 1974); People v. Davis, 114 Ill. App. 3d 537, 449 N.E.2d 237 (1983); Matter of Welfare of M.R.S., 400 N.W.2d 147 (Minn. Ct. App. 1987.). Recognizing that each case must be examined on its own set of facts, we hold that where, as here, a trial court terminates the representation of an attorney, either private or appointed, over the defendant’s objection and under circumstances which do not justify the lawyer’s removal and which are not necessary for the efficient administration of justice, a violation of the accused’s right to particular counsel occurs.
Here, the trial court did not simply grant or deny Mr. Atkinson’s motion for continuance as it should have, rather it placed Clements in a catch-22 position that compelled him to accept new, unrequested counsel in order to gain a continuance or proceed immediately to trial against the advice of his previously assigned attorney, with whom he had developed a working relationship. In essence, the trial court attempted to barter with Clements for a continuance. This action on the part of the trial court is arbitrary and unacceptable. Granted, the public has an interest in the prompt disposition of justice, Leggins v. State, supra, however, it must be served in an even-handed manner. . .fair to the state, yet fair to the defendant. Under the circumstances of this case, Clements is entitled to retain Mr. Atkinson as his counsel.
This case is reversed and remanded with instructions to the trial court to proceed consistent with this opinion. | [
-112,
-22,
-28,
31,
40,
65,
58,
-100,
82,
35,
103,
83,
-83,
79,
21,
121,
115,
77,
85,
105,
-57,
-73,
119,
104,
42,
-13,
-39,
-41,
-2,
111,
-19,
-2,
12,
64,
-54,
69,
70,
72,
-57,
28,
-114,
0,
41,
124,
82,
5,
48,
56,
18,
7,
49,
30,
-13,
42,
54,
-29,
72,
40,
91,
-116,
18,
51,
8,
-113,
-2,
4,
-77,
39,
-102,
-123,
88,
46,
-104,
49,
0,
-24,
115,
-90,
2,
100,
79,
-103,
12,
98,
103,
33,
80,
-93,
-88,
-87,
54,
-86,
-83,
-89,
-104,
41,
107,
77,
-74,
-99,
98,
20,
14,
-4,
-31,
77,
85,
44,
6,
-50,
-44,
-77,
-58,
40,
-110,
66,
-21,
1,
84,
117,
-115,
-17,
93,
71,
49,
-1,
-42,
-76
] |
Robert L. Brown, Justice.
The four appellees, James H. Graham, Joseph E. Barsocchi, Margaret D. Barsocchi, and Harry H. Kerr, III, filed a second amended complaint against appellant Security Benefit Life Insurance Company, alleging that they were owners of a single premium deferred annuity (SPDA) and held their certificates of insurance under a Group SPDA Master Policy originally issued by The First Pyramid Life Insurance Company of America. Their complaint, which was filed on February 6, 1990, alleged breach of contract and sought terminal payments owed them under the policy. The appellees further prayed for class certification and a determination of the liability of Security Benefit to all class members.
A motion for class certification was then filed by the appellees followed by a hearing on that motion. Subsequent to that hearing, but before the trial court’s decision, fifteen to seventeen additional SPDA certificate holders filed affidavits for participation in the class. The trial court issued findings supporting class certification and followed the findings with an order on June 22, 1990, certifying the case as a class action. The trial court’s order defined the class as all present owners of individual certificates issued by First Pyramid under the Group SPDA Master Policy. The order estimated the number of certificate holders as 600 with residences in thirty-nine states.
Security Benefit lodged this interlocutory appeal, contesting the trial court’s decision under Ark. R. Civ. P. 23 on grounds that the proposed class was not sufficiently numerous, that common questions of law or fact did not predominate, and that other methods existed for a fair and efficient adjudication of this dispute.
We affirm the trial court’s decision and hold that the case was properly certified as a class action.
The Group SPDA Master Policy, which covers the appellees as certificate holders, was originally issued by First Pyramid, an Arkansas-based insurer, on June 1,1982. As of June 1,1986, that contract was assumed by Security Benefit, which is based in Kansas, under a reinsurance assumption agreement. The agreement was approved by the Arkansas Insurance Commission. The annuitants were sent an assumption certificate, which included notice of the assumption by Security Benefit.
Less than a year later, on March 31,1987, the Group SPDA Master Policy and all associated liability was assumed by Life Assurance Company of Pennsylvania (LACOP). Notice of this transfer and the release of Security Benefit was not sent to the annuitants, according to the appellees. The appellees further contend that no regulatory approval for this transfer was obtained and that Security Benefit continued to service the contracts of certificate holders after March 31, 1987.
On June 14, 1988, still another assumption of the Master Policy and annuity contracts was made — this time, by Diamond Benefits Life Insurance Company. Diamond Benefits, at that point, was a domestic carrier in Arizona. The annuitants were notified of the transfer by letter and assumption certificate which included the fact that LACOP had previously assumed the contracts and would no longer be obligated under them. The appellees contend, however, that the annuitants were never specifically advised that Security Benefit would no longer be obligated to perform under the contracts. Since this assumption by Diamond Benefits, the Arizona insurance commissioner has determined that Diamond Benefits is insolvent, and on December 19, 1988, he put the company into receivership.
While our cases interpreting Ark. R. Civ. P. 23 were somewhat inconsistent prior to 1988, we took pains to clarify our interpretation in a case handed down that year. See International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). In Hudson we observed that, though our Rule 23 differed from Federal Rule 23 in text, the spirit of the federal rule existed in our Rule 23. We, therefore, rejected our traditional circumspection toward class actions in Hudson.
We also affirmed in Hudson, as well as in later cases, the broad discretion given to the trial court in matters relating to class actions. See Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991); First Nat’l Bank of Fort Smith v. Mercantile Bank of Jonesboro, 304 Ark. 196, 801 S.W.2d 38 (1990). Our Reporter’s Note 2 to Rule 23 recognizes the broad discretion in the trial court to protect the rights of class members, and we expanded the scope of that authority in Hudson to embrace also the court’s decision of whether a class should be certified.
Thus, in deciding the case before us, we must view it in terms of these twin precepts: our policy change in that we no longer espouse our former circumspection toward class actions, and the broad discretion we have conferred upon the trial court in deciding the class certification issue.
Here, the trial court found that a class existed and that a class action was superior to other available methods for a fair and efficient adjudication of the controversy. At the time of the court’s decision the pertinent part of Rule 23 read:
(a) Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Security Benefit first argues that the parties are not sufficiently numerous to satisfy the requirement of Rule 23(a). We disagree. Security Benefit, itself, admits to 600 certificate holders residing in thirty-nine states. An official with the Arkansas Insurance Department testified at hearing on the day the court’s class certification order was issued that the Department had received a letter listing 122 Arkansas certificate holders, all of whom may be potential class members. According to the affidavit of a court-appointed supervisor for the insolvent Diamond Benefits in Arizona, Security Benefit submitted to him a list of 1,419 annuitants in January 1989. Fifteen to seventeen certificate holders in addition to the appellees exhibited a desire to participate in the class action prior to the trial court’s decision. There are clearly numerous potential class members in this matter, and it would be impractical to bring them all before the trial court within a reasonable time. The trial court was correct in finding that the numerosity criterion had been met.
We are next confronted with Rule 23(b) and the issue of whether questions of law or fact common to the class members predominate over individual questions. We hold that the trial court was correct in finding that they do. Common questions of fact certainly predominate for the class. For example, it must be determined for all class members whether they were notified by mass mailing of the assumption of Security Benefit’s obligation by LACOP or Diamond Benefits; whether regulatory approval was obtained for the assumptions of this obligation; and whether Security Benefit continued to “service” the class members after LACOP assumed the contract. In addition, Security Benefit itself raises the defense against class members that a novation occurred by the later assumptions which relieved Security Benefit of all liability. Linder such circumstances we cannot say that the trial court abused its broad discretion in its finding.
Security Benefit’s main argument appears to center on the fact that the law of thirty-nine states relative to novation would have to be explored and that this would splinter the class action into individual lawsuits. Accordingly, so the argument goes, this would not result in a fair and efficient adjudication of the matter. We have previously held, however, that even if this were to occur with regard to individual claims, “efficiency would still have been achieved by resolving those common questions which predominate over individual questions.” Lemarco, 305 Ark. at 4, 804 S.W.2d at 726. Stated another way, resolution of the common questions of law or fact would enhance efficiency for all parties, even if individual claims still remained to be adjudicated.
The mere fact that choice of law may be involved in the case of some claimants living in different states is not sufficient in and of itself to warrant a denial of class certification. C.f., Sun Oil Co. v. Wortman, 486 U.S. 717 (1988). And though we are not convinced at this stage that reference to the laws of thirty-nine states will be necessary, should it be required, this does not seem a particularly daunting or unmanageable task for the parties or for the trial court.
Because Arkansas is the home state for First Pyramid and because Arkansas law is the law to be applied under the Master Policy, it is the logical situs for this action. Actions in thirty-nine states, even with considerable joinder, would be inefficient, duplicative, and a drain on judicial resources. Denial of class action status could well reduce the number of claims brought in this matter, but that result is hardly in the interest of substantial justice.
We conclude that a class action which would resolve several common questions would not only be efficient but fair to both parties. Security • Benefit, for instance, would only be required to mount its novation defense in one court as opposed to numerous forums, a factor that we have considered in previous cases. See Lemarco, Inc. v. Wood; International Union of Elec., Radio & Mach. Workers v. Hudson. Class members, on the other hand, would not be required to file complaints in myriad courts in a matter involving insurance companies which at one time were located in four different states.
The trial court correctly found that the Rule 23 factors had all been met, and we affirm.
Glaze, J., not participating.
Paragraph (a) of Rule 23 has since been amended, effective February 1,1991, and now corresponds to Federal Rule 23. | [
48,
109,
-43,
125,
8,
-30,
56,
-98,
123,
-124,
39,
81,
-7,
-57,
20,
107,
-41,
37,
65,
104,
-105,
-94,
71,
8,
-46,
-14,
-7,
-59,
-112,
95,
-26,
-2,
72,
96,
-126,
85,
-30,
-126,
-49,
24,
-50,
10,
-101,
-27,
-71,
80,
48,
-9,
16,
75,
113,
-98,
-15,
52,
25,
75,
8,
46,
-39,
-84,
-64,
-72,
-85,
-123,
-21,
6,
59,
-124,
-70,
-57,
-6,
14,
28,
-79,
16,
-88,
19,
38,
-58,
100,
59,
25,
-127,
34,
102,
-95,
16,
-91,
-36,
-104,
63,
-41,
-113,
6,
-106,
120,
34,
6,
-65,
-99,
110,
5,
-122,
124,
-6,
-100,
31,
-83,
7,
-50,
-41,
-77,
-19,
-30,
-100,
-117,
-17,
-61,
-78,
116,
-53,
-80,
93,
103,
119,
-46,
71,
-66
] |
Tom Glaze, Justice.
This tax case addresses for the first time the effect of the “unitary business principle” on Arkansas’s Uniform Division of Income for Tax Purposes Act (UDITPA), Ark. Code Ann. §§ 26-51-701 —to— 723 (1987, Supp. 1989). This Act governs how Arkansas imposes its respective corporate and franchise taxes on the earnings of corporations that have multistate and multinational entities. UDITPA is designed to fairly apportion among the states in which a corporation conducts its multistate business a fair amount of value or business income earned by the corporations’ activities in each state. Generally, under UDITPA, net taxable “business income” of a corporate taxpayer involved in a multistate business is apportioned upon a well-recognized three factor formula of tangible property, sales, and payroll.
Appellee, Illinois Tool Works (ITW), is a multistate and multinational corporation having a worldwide business in the manufacturing of tools, fasteners, packaging products and the leasing of machinery. ITW has operating divisions in seventeen places in the United States and conducts business in several foreign countries. One of ITW’s manufacturing plants is located in Pine Bluff, Arkansas. Its corporate headquarters or “commercial domicile” is in Chicago, Illinois.
ITW determined that, for UDITPA purposes, certain capital gains income it had earned in 1981 through 1983 from six different capital assets was “nonbusiness income;” thus it excluded this income when calculating its allocation of taxes to this state. Instead, ITW allocated the income from the sale of these capital assets to its “commercial domicile,” in Chicago and the income was taxed under the Illinois corporate income tax laws. ITW’s six capital assets were stock in two Japanese manufactur ing companies, NISCO and NIFCO; stock in Computer Products, Inc.; undeveloped real property located near ITW’s headquarters in Chicago; U.S. Treasury Notes and foreign currency transactions.
The appellant, Arkansas Department of Finance and Administration, disagreed with ITW’s classification of this income, asserting that the income constituted “business income” for purposes of Arkansas’s UDITPA. Accordingly, appellant assessed ITW additional taxes of approximately $45,164 for the years 1981-1983. After losing an appeal in an administrative hearing, ITW paid the additional taxes under protest and appealed to the chancery court.
The chancery court, relying on five United States Supreme Court cases decided in the 1980’s, held that the “unitary business principle” must be utilized in determining whether or not intangible income of multistate or multinational corporate taxpayer is to be classified as “business income” or “nonbusiness income” for UDITPA purposes. In applying the principle in this case, the chancellor further concluded that ITW’s aforementioned income from the sale of its six capital assets was not taxable by the state because the income was in no way connected with ITW’s Arkansas business activities. The appellant appeals from the lower court’s holding, arguing that the chancellor misapplied the law and made erroneous findings of fact. We find no error and therefore affirm.
Under the UDITPA, “business income” is defined as follows:
Income arising from transactions and activity in the regular course of the taxpayer’s trade or business includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.
Ark. Code Ann. § 26-51-701 (a) (Supp. 1989). As we noted previously, all “business income” is apportioned to this state using an established formula. Ark. Code Ann. § 26-51-709 (1987). Also, under the Act, “nonbusiness income” is defined as all income other than “business income,” § 26-51-701 (e), and is allocated specifically to the state having the most logical nexus with the asset producing the “nonbusiness income” (usually its “commercial domicile”) rather than being apportioned among the states where the corporation conducts its business.
In the mid-1970’s, the Revenue Division of the Arkansas Department of Finance and Administration adopted certain corporate income tax regulations to implement the provisions of Arkansas’s UDITPA. Arkansas is a member of the Multistate Tax Compact and the regulations it (and other states) adopted were suggested by the Multistate Tax Commission (MTC). These regulations were generally referred to as “full apportionment” regulations because they broadly construed the concept of “business income” and very narrowly construed the concept of “nonbusiness income” for UDITPA purposes.
In Qualls v. Montgomery Ward & Company, 266 Ark. 207, 585 S.W.2d 18 (1979), this court adopted the “full apportionment” rationale. In Qualls, Montgomery Ward received interest from loans made to subsidiary and related corporations none of which were located or did business in Arkansas. Because there was no activity in Arkansas in relation to the loans, Montgomery Ward contended that the interest was “nonbusiness income” taxable in its “commercial domicile” in Illinois. This court disagreed and held that Montgomery Ward’s interest income was “business income,” not “nonbusiness income,” based upon the fact that the interest income was commingled with the company’s other general funds to be used for general corporate purposes, which included its business activities in Arkansas.
After the Qualls decision, the U.S. Supreme Court changed the “full apportionment” rationale by adding the following two requirements under the Due Process Clause of the fourteenth amendment: 1) a minimal connection or nexus between the interstate activities and the taxing state; and 2) a rational relationship between the income attributed to the state and the intrastate values of the enterprise. Mobile Oil Corp. v. Commissioner of Taxes, 445 U.S. 425 (1980). The first nexus requirement is met if the corporation avails itself of the substantial privilege of carrying on business within the state. The Supreme Court labeled the second due process requirement, the “unitary business principle,” and explained the application as follows:
(T)he linchpin of apportionability in the field of state income taxation is the unitary business principle. In accord with this principle, what appellant (taxpayer) must show, in order to establish that its dividend income is not subject to an apportioned tax in Vermont, is that the income was earned in the course of activities unrelated to the sale of petroleum products in that state.
The cases following Mobil all cited the above language and utilized the “unitary business principle” analysis. Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207 (1980); ASARCO, Inc. v. Idaho State Tax Comm’n, 458 U.S. 307 (1982); F.W. Woolworth Co. v. Taxation & Revenue Dept., 458 U.S. 354 (1982); Container Corp. v. Franchise Tax Board, 463 U.S. 159 (1983). Under the “unitary business” rationale, as expressed in these decisions, the general test for determining whether a diversified group of businesses had a “unitary business” relationship was to determine whether the income that the state was attempting to tax resulted from functional integration, centralization of management, and economies of scale utilized by the corporate group.
In response to the Supreme Court cases cited above, the Arkansas Revenue Department adopted Regulation 1984-2, which recognized the Supreme Court’s due process limitation but applied the “unitary business principle” only to dividend income. In this appeal, the appellant relies on this regulation to argue that since ITW’s capital gains were not derived from dividend income, the income is still taxable. We do not agree with the appellant’s reading of these Supreme Court cases as limiting the “unitary business principle” analysis only to dividend income.
In ASARCO, the Supreme Court addressed Idaho’s argument that dividend income received by ASARCO should be considered a part of a “unitary business” if the intangible property is acquired, managed or disposed of for purposes relating or contributing to the taxpayers’ business. The Court rejected Idaho’s “full apportionment” argument and held that the dividend income of ASARCO was not taxable by Idaho. In so holding, the Court stated the following:
This definition of unitary business would destroy the concept. The business of a corporation requires that it earn money to continue operations and to provide a return on its invested capital. Consequently, all of its operations, including any investment made, in some sense can be said to be “for purposes related to or contributing to the [corporation’s] business.” When pressed to its logical limit, this conception of “unitary business” limitation becomes no limitation at all.
Although the main dispute in ASARCO concerned dividend income, Idaho also attempted to tax certain ASARCO interest and capital gains from stock sales. However, Idaho and ASARCO had agreed that interest and capital gains derived from these sales should be treated in the same manner as the dividend income. The Supreme Court concurred with the parties’ agreement, stating that “One must look principally at the underlying activity, not at the form of investment to determine the propriety of apportionability.” The Supreme Court then proceeded to hold that Idaho’s attempt to tax this other income also violated the due process clauses.
Clearly from reading ASARCO, the Supreme court did not intend for the “unitary business principle” to apply to dividend income only. Accordingly, we hold that the chancellor here was correct in applying the “unitary business principle” analysis to the facts of this case. In sum, we believe the appellant’s reading of the Supreme Court cases is much too narrow, and those cases in no way can be construed to uphold the constitutionality of appellant’s Regulation 1984-2.
We note the appellant’s suggestion that the Supreme Court backed off of its ASARCO holding in its most recent case, Container Corp. v. Franchise Tax Board, 463 U.S. 159 (1983). In Container, the Court stated that there was a requirement that the out-of-state activities of the purported “unitary business” be related in some concrete way to the in-state activities. The Court explained that the functional meaning of this requirement is that there be some sharing or exchange of value not capable of precise identification or measurement — beyond the mere flow of funds arising out of a passive investment or a distinct business operation — which renders formula apportionment a reasonable method of taxation.
Again, we disagree with the appellant’s reading of this Supreme Court case. We do not see how the “flow of value” analysis in Container benefits the appellant’s case here. It appears to be just a rewording of principles set out in the earlier cases. Further, we do not read the Container case as limiting the Court’s holding in AS ARCO. To the contrary, AS ARCO is cited with approval throughout the Container case.
In sum, we agree with the chancellor that, in complying with the holdings in the foregoing Supreme Court cases, he was obliged to utilize the “unitary business principle” in this case. Those holdings also require us to overrule the case of Qualls v. Montgomery Ward, 266 Ark. 207, 585 SW.2d 18 (1979), and to declare appellant’s Regulation 1984-2 to be unconstitutional. As a side comment, we note that Arkansas is not the first state to have to reevaluate its taxation of multistate corporations after the above Supreme Court cases were decided. See, e.g., James v. Intern. Tel. & Tel. Corp, 654 S.W.2d 865 (Mo. banc 1983); American Homes Products Corp. v. Limbach, 49 Ohio St. 3d 158, 551 N.E.2d 201 (1990); Corning Glass Works v. Va. Dept. of Tax, 402 S.E.2d 35 (Va. 1991). Now that we have affirmed the chancellor’s application of the law in this case, we must address the appellant’s challenge that the chancellor’s findings of fact in regard to ITW’s capital assets are clearly erroneous.
First, in applying the “unitary business principle,” the chancellor found that ITW’s capital gains income from the sale of its stock interest in NISCO, NIFCO, and CPI was “nonbusiness income” for Arkansas UDITPA purposes. We agree. At no time did ITW hold the majority of the stock in these companies, and while ITW had two or three directors on the companies’ boards, there is no showing that ITW had a controlling interest or part. The potential to operate a company as part of a “unitary business” is not dispositive, when in fact there is a discrete business enterprise. F.W. Woolworth Co. v. Taxation & Revenue Dept., 458 U.S. 354 (1982). There were no common employees or officers, and ITW did not provide any administrative services to the companies. While NISCO and NIFCO did utilize some of ITW’s patented technology, they paid a royalty to ITW for the use of that technology and that royalty income was taxed by ITW as “business income.” In sum, the record shows that these companies were operated as discrete and separate businesses and not as a part of a “unitary business.”
Further, the record also clearly supports the chancellor’s finding that ITW’s capital gains from the redemption of U.S. Treasury Notes, foreign currency transactions, and the installment sale of undeveloped land located in Chicago were not an integral part of ITW’s regular manufacturing and leasing businesses carried on at the Pine Bluff plant. Instead, we agree with the chancellor’s classification of these assets as normal or passive investments of ITW. As pointed out so clearly in AS ARCO, the business of a corporation requires that it earn money to continue its operations and to provide a return on its invested capital but the use of this money for the business does not fit the “unitary business principle” test.
For the foregoing reasons, we affirm the chancellor’s findings of fact and conclusions of law in applying the “unitary business principle” to the facts of this case. In conclusion, we briefly mention ITW’s argument that the chancellor erred in denying its request for attorneys’ fees. We simply are unable to reach this issue because ITW failed to file a notice of a cross appeal as required under ARAP Rule 3(d). See Independence Fed’l S&L Ass’n v. Davis, 278 Ark. 387, 646 S.W.2d 336 (1983).
Affirmed.
Hays, J., dissents.
We note that there were originally seven capital assets in dispute, but the appellant conceded that income from the sale of preferred stock was “nonbusiness income” under UDITPA. | [
48,
-2,
-12,
124,
8,
-64,
50,
-102,
88,
-35,
-91,
115,
-19,
-81,
21,
121,
99,
-67,
112,
105,
-42,
-93,
2,
107,
-60,
-77,
-71,
92,
-99,
111,
-19,
-106,
76,
49,
-54,
-43,
102,
-58,
-29,
-100,
122,
36,
-117,
110,
121,
68,
54,
-21,
8,
43,
115,
-115,
-67,
60,
26,
-53,
72,
46,
-55,
-122,
113,
-69,
-86,
-33,
127,
19,
-95,
4,
26,
12,
-8,
15,
-116,
57,
8,
-120,
51,
-74,
82,
116,
49,
-39,
14,
40,
99,
19,
9,
-81,
-8,
8,
38,
-9,
-99,
-91,
-110,
57,
11,
15,
-115,
-100,
126,
16,
14,
126,
-70,
5,
27,
109,
-107,
-114,
-42,
-93,
37,
100,
5,
3,
-17,
-125,
16,
96,
-34,
-30,
-35,
7,
58,
27,
-41,
-39
] |
Steele Hays, Justice.
Appellant Alvin Bernal Jackson was charged with the capital felony murder of Charles Colclasure during an aggravated robbery which occurred on July 30, 1989. Additional counts of the information alleged burglary and theft of property committed on the same date. Other counts included two attempted capital murders on August 2,1989. The trial court granted a motion to sever the July 30 offenses from the August 2 offenses. Jackson was tried and convicted of capital felony murder, burglary, and theft of property and sentenced to life without parole. Sentences on the lesser offenses were enhanced by reason of three prior felony convictions.
Alvin Jackson appeals from the judgment, asserting that the trial court erred in denying his motion to suppress statements he gave to the police while in custody and used against him in the trial. Finding no error, we affirm the judgment of conviction.
This case involves a series of incidents in an area of Little Rock known as the “East End.” The incidents occurred between July 29 and August 2 of 1989. Subsequently they were found to be interrelated. On July 29 there was a disturbance at National ByProducts involving two black males using a .25 calibre pistol. On July 30, a Sunday, Mr. Charles Colclasure went to his office at International Business Forms (IBF) at 1600 East 26th Street in Little Rock but never returned home. On July 31 his wife reported his disappearance to the Little Rock police. Later that day Mr. Colclasure’s body was found in the Arkansas River some two or three miles from IBF. He had been shot numerous times with rat shot, but the cause of death was determined later to be a traumatic injury. On August 1 Colclasure’s 1985 gray Buick Riveria was found in the 500 block of Bender Street in the East End.
In the early morning of August 2 a guard at Little Rock Crate & Basket Company in the East End discovered two black males inside a security fence engaged in an attempted burglary. Shots were exchanged as the two men fled. One of the men was firing rat shot.
At 1:17 p.m. on August 2 the police responded to a disturbance call from Carlon Marshall at 809 Carson in the East End. He stated that his uncle, Alvin Jackson, and brother, Charles Jackson, had been chasing him with a weapon. He explained that he had been riding with them in a grey Buick automobile which had been impounded the previous day. He told the police that Alvin and Charles Jackson had killed the man who owned the car. Marshall gave the police a description of Alvin and Charles Jackson and both were apprehended in the area within the hour. As Alvin Jackson was being apprehended the police were informed by radio of seven outstanding warrants against him—one for failure to appear, one for fleeing from arrest and five for traffic offenses.
During the afternoon Alvin and Charles Jackson were interrogated separately. Alvin Jackson gave a statement denying any involvement in the murder of Charles Colclasure but admitting that he had driven the Buick, which he said had been given to him by an acquaintance named Eric. During the course of the interrogation the police obtained a television set from Alvin Jackson’s residence which belonged to IBF. In the late afternoon or early evening Alvin Jackson admitted having robbed and killed Charles Colclasure. He confessed soon thereafter to the episode at the Little Rock Crate & Basket Company.
Appellant’s theory of error is threefold: One, his statements were the proximate result of an illegal arrest, there being no probable cause to charge him; two, his statements came after he had invoked his right to remain silent; and, three, he did not knowingly and intelligently waive his Fifth Amendment rights against self-incrimination. We can find no merit in the arguments.
Probable cause for appellant’s arrest can be grounded on one or all of three factors. Car Ion Marshall reported to the police that Alvin Jackson had accosted him with a weapon, a direct accusation of a crime by the purported victim. W. LaFave, Search and Seizure § 3.4 (1987); J. Hall, Search and Seizure § 5.31 at 224 (Supp. 1988). Marshall also reported to the police that appellant and Charles Jackson had murdered Charles Colclasure, whom the police by then knew to have been the victim of a homicide. Lastly, the police learned in timely fashion that appellant was named in seven warrants of arrest, the validity of which is not challenged. Viewed separately or collectively, the police had ample reason to take Alvin Jackson into custody based on information they had no reason to question. Woodall v. State, 260 Ark. 786, 543 S.W.2d 957 (1976).
Turning to the allegation that the statements were obtained after appellant asserted his right to remain silent, Jackson points out that the first statement he gave the police admitted only that he and Charles had been in the Colclasure automobile. As the statement was being concluded by the interrogating officer he asked Jackson, “Okay. Is there anything else you want to say?” Jackson said, “No, sir.”
Appellant insists that by his response to the final question he made it clear that he was involving his right to remain silent, that under the rationale of Miranda v. Arizona, 384 U.S. 436 (1966), he was entitled to have that right scrupulously honored. He urges that when an accused in custody indicates in any manner that he does not wish to submit to further interroga tion, the police may not continue to question. But here it is entirely clear, as the trial court found, that rather than invoking his right to remain silent, the appellant was merely declaring that there was nothing he wished to add to his statement. Similar contentions have been considered by other courts and found wanting: State v. Lawson, 144 Ariz. 547, 698 P.2d 1266 (1985); Commonwealth v. Messere, 14 Mass. App. 1, 436 N.E.2d 414 (1982).
Finally, appellant maintains that from a totality of the circumstances it is evident he did not knowingly and intelligently waive his Fifth Amendment rights against self-incrimination. He cites the testimony of Dr. Glenn White, a clinical psychologist, who administered tests to the appellant to gauge his intelligence, that he determined Jackson’s IQ to be borderline, or possibly mildly retarded. He testified that Jackson’s school records and 1986 IQ test of 74 more nearly reflected Jackson’s true intelligence, which he estimated to be between 74 and 81.
We have reviewed the testimony elicited at the omnibus hearing independently of the trial court’s findings and do not find ourselves at odds with the trial court. See Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977). There is the testimony of the appellant that an officer shoved him against the police car when he was being arrested and his assertion that he was promised a measure of leniency if he would confess, but we cannot say those claims are persuasive against the proof to the contrary. There were issues of credibility and the trial court’s findings are largely determinative. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).
Under Ark. Code Ann. § 16-91-113 (1987), as put into effect by our Rule 11(f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review. | [
112,
-17,
-8,
124,
58,
65,
56,
-70,
83,
-125,
-28,
83,
-91,
79,
85,
105,
73,
93,
117,
121,
-76,
-73,
13,
97,
-46,
-77,
49,
-44,
-80,
-1,
44,
-9,
76,
96,
-50,
-51,
98,
76,
-29,
92,
14,
1,
-101,
100,
83,
64,
52,
46,
90,
15,
101,
-100,
-29,
35,
18,
-81,
105,
40,
-55,
-83,
80,
122,
-118,
7,
-49,
21,
-125,
-92,
-104,
12,
112,
28,
-36,
49,
0,
40,
115,
-90,
-122,
-44,
109,
27,
44,
38,
98,
0,
-39,
-17,
-96,
-119,
7,
-66,
-107,
-89,
-104,
105,
9,
13,
-106,
-97,
111,
68,
46,
-4,
-9,
-60,
89,
108,
-91,
-34,
-12,
-95,
41,
40,
-108,
42,
-53,
-25,
112,
96,
-51,
-30,
78,
85,
81,
-101,
-121,
-47
] |
Tom Glaze, Justice.
This is an interlocutory appeal from the trial court’s denial of the appellants’ motion to transfer their case to juvenile court. The state charged the appellants with aggravated assault arising out of a shooting that occurred while the appellants were in a crowd of people at Riverfest. At the time of the incident, appellant Bradley was seventeen years old and appellants Clayton and Williams were sixteen years old. During the hearing on the motion to transfer, the appellants presented no evidence and the state relied solely on the information charging the appellants. On appeal, the appellants contend that the trial court erred in denying their motion to transfer when the state offered no evidence other than the charge. We find no merit in the appellants’ argument, and therefore affirm.
In making his decision on whether to transfer a case to juvenile court, the trial judge is required to consider the following factors;
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Ark. Code Ann. § 9-27-318(e) (Supp. 1991). The trial judge need not give equal weight to each factor and proof on all factors need not be against the defendants. Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986). Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect. Ark. Code Ann. § 9-27-318(f).
In Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), we held that the party moving for transfer to juvenile court has the burden of proof to show that he or she meets the criteria of the statute to warrant transfer. If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court. A trial judge may consider the criminal information as evidence. Walker v. State, 304 Ark. 402-A, 805 S.W.2d 80 (1991) (supplemental opinion denying rehearing). However, the state’s mere filing of the information will not qualify as sufficient evidence in every case. Id.
Here, as stated earlier, the appellants presented no evidence, mistakenly believing that the state had the burden of proof. The state relied on the information, which provided the following:
The said defendant(s), in Pulaski County, on or about May 25, 1990, unlawfully, feloniously, under circumstances manifesting extreme indifference to the value of human life, did purposely engage in conduct that created a substantial danger of death or serious physical injury of several unarmed victims, and did have in his possession the following deadly weapon, a revolver, against the peace and dignity of the State of Arkansas.
Also, the trial judge was informed of the ages of the appellants and that appellant Williams had a previous juvenile record. In denying the appellants’ motion to transfer, the trial judge relied on the seriousness of the alleged offense — the appellants were sixteen and seventeen years old, possessed a gun, and shot it into a crowd of people.
Appellants here simply failed to meet their burden. Thus, based upon the record before us, we cannot say that the trial court’s finding by clear and convincing evidence that the appellants should be tried as adults under § 9-27-318 is clearly against the preponderance of the evidence. Walker, 304 Ark. 402-A, 805 S.W.2d 80 (supplemental opinion denying rehearing).
At this point, we take the opportunity to clarify our standard of review in these cases. In our original opinion in Walker, we inappropriately applied an abuse of discretion standard, and we repeated that measure of review in Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). However, we then subsequently and correctly applied the clearly erroneous standard in our supplemental opinion in Walker, but failed to mention that correction in Pennington. We do so now. Accordingly, the original opinion in Walker and the Pennington opinion are modified to the extent those opinions fail to recite the clearly erroneous standard.
For the reasons stated above, we affirm. | [
81,
-22,
-27,
60,
74,
99,
60,
-66,
1,
-13,
103,
83,
39,
78,
17,
107,
103,
95,
84,
121,
86,
-65,
87,
73,
120,
-13,
89,
-41,
59,
-19,
100,
-123,
78,
80,
-54,
-43,
98,
-54,
-25,
90,
14,
8,
-70,
72,
-64,
-125,
52,
110,
26,
6,
53,
-82,
-14,
105,
28,
-61,
-56,
108,
73,
-67,
82,
27,
-118,
79,
-1,
54,
-93,
52,
-101,
0,
-46,
40,
-112,
53,
9,
-24,
115,
-90,
-128,
116,
107,
-103,
-120,
96,
103,
0,
29,
-58,
-71,
-127,
110,
54,
-71,
-26,
-40,
65,
67,
9,
-105,
-35,
114,
48,
-82,
-6,
99,
12,
80,
108,
-128,
-49,
-36,
-79,
-83,
36,
74,
-109,
-61,
5,
20,
53,
-50,
70,
92,
84,
48,
-37,
-114,
-42
] |
Jack Holt, Jr., Chief Justice.
In the second trial of this case, the appellant, Jack Laymon, was convicted of rape and sentenced to forty years imprisonment. On appeal, Laymon raises four arguments for reversal: 1) the trial court erred in allowing the prosecutor to refer to a witness’s prior inconsistent statements given at the first trial; 2) the trial court erred in refusing to allow the defense to call a rebuttal witness furnished to the defense the morning of trial; 3) it was error to permit the State’s witness to testify concerning her prior sexual relations with the appellant; and 4) the weight and sufficiency of the evidence did not support the verdict. None of the arguments have merit and we affirm.
SUFFICIENCY OF THE EVIDENCE
Since Laymon’s final allegation of error requires us to examine the evidence in this case, we consider it first. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).
The appellant was charged by information alleging that, over a period of several years, he engaged in sexual intercourse or deviate sexual activity with a person less than fourteen years of age. The victim, who was Laymon’s stepdaughter, testified that she had been sexually molested by Laymon from the time she was ten years old. She testified that Laymon placed his penis between her legs and “move[d] it around” on an average of two to three times a week, from 1986 to 1989. In addition, the victim testified that Laymon had anal intercourse with her “three, maybe four times” and forced her to perform oral sex “two, maybe three times.” She reported instances of digital penetration and attempted vaginal intercourse. The victim stated that the abuse usually occurred at home while her mother and brother were sent on various errands.
The victim stated that she was initially afraid to report the molestation because of Laymon’s physical abuse of her family. Eventually, however, she reported the abuse to her mother and to a teacher at school, which prompted an investigation by social services.
Shortly thereafter, the family left Laymon and went to stay with the victim’s sister in Iowa. The victim testified that her mother later moved the family back to Arkansas and reconciled with Laymon. The victim recanted her story upon returning to Arkansas and testified that she did so because Laymon threatened to kill her and to have her placed in foster care.
Annette Sachoff, a supervisor with the Department of Human Services who first interviewed the victim, testified that the victim reported instances of anal, oral, and vaginal sexual abuse. Ms. Sachoff testified that the victim’s later retraction of her allegations against Laymon was not surprising and that it was not unusual for children to change their stories. Ms. Sachoff found the victim’s story to be credible.
Further testimony from the victim revealed that Laymon’s molestations continued upon her return to Arkansas, and she again reported it to school authorities, who contacted SCAN (Suspected Child Abuse and Neglect). SCAN director, Betty Simmons, testified that the victim related incidents, or attempted incidents, of oral, anal, and vaginal intercourse and that she had threatened suicide because of the abuse. The victim never recanted anything she told Ms. Simmons.
Dr. Roger Bost examined the child after her molestation was first reported and found a scratch between her anus and vagina and a general tenderness of the rectum. Dr. Michael Hendren examined the victim following the second report of abuse and discovered a one-half-inch tear of the external genitalia. Both physicians testified that, although not conclusive, their medical findings were consistent with the sexual abuse described to them by the victim.
Lastly, the victim testified that on one occasion, Laymon forced her to engage in anal intercourse after the victim’s mother walked in and discovered the girl with her pants down. Laymon told his wife that he had been “checking her for pinworms.” The victim’s mother testified that, while she did not believe Laymon had molested her daughter, Laymon had made the above statement to her under the circumstances described by the victim.
Laymon argues that the evidence is insufficient to support a conviction for rape because the only direct testimony of rape came from the victim herself. We have often said that a rape victim’s testimony need not be corroborated to support a convic tion. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Although not necessary, at least one incident of anal intercourse was partially corroborated by the mother’s testimony.
On review, it is only necessary to ascertain that evidence which is most favorable to the appellee, and if there is substantial evidence to support the verdict, the finding must be affirmed. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Substantial evidence must be forceful enough to compel a conclusion, without suspicion or conjecture. Id. We find that the victim’s testimony, together with that of the social workers and examining physicians, overwhelmingly supported the verdict.
ADMISSIBILITY OF THE WITNESS’S PRIOR INCONSISTENT STATEMENTS
We next address Laymon’s argument that the trial court erred in allowing the State to refer to prior inconsistent statements given at the first trial.
The State called Laymon’s niece, Connie Dew, who apparently contradicted her testimony given at the first trial. The State attempted to impeach Ms. Dew, pursuant to A.R.E. Rule 607, by asking the following questions:
Q. All right. I’ve got another question for you. Do you remember testifying under oath previously that you saw Jack Laymon force her to have oral sex?
Defense counsel moved for a mistrial on the basis that the prosecutor had “referred to previous testimony in a previous case.” The trial court ruled that reference to prior testimony was permissible as long as no mention was made of a previous trial. We agree. Prior inconsistent statements are properly admissible for impeachment purposes, and Laymon suffered no prejudice since no reference was made to the trial itself.
Laymon’s further assertion that the prior statements were not relevant was not argued below, and we will not consider arguments made for the first time on appeal. Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991).
TRIAL COURT’S REFUSAL TO PERMIT TESTIMONY
Laymon next contends that the trial court erred in refusing to allow the defense to call a rebuttal witness whose name had been provided by Laymon the morning of trial.
Presumably, testimony of the witness, Perry Bennett, would have rebutted the victim’s testimony on direct examination by the State that she had been raped by Laymon on a camping trip. The State objected to the proposed testimony since the witness’s name had not been previously disclosed. The following dialogue ensued:
BY MR. DAVIS: Your Honor, Mr. Laymon supplied me the name of this witness this morning. I wasn’t aware of it before this morning. It goes to the credibility of the witness . . .in regards to rebutting what she said about a camping trip. If I had had any previous notice of it, I would have provided him to the prosecution; but I didn’t know it until I walked in the Courthouse this morning.
BY MR. BYNUM: Well, that may be, Judge, but we are entitled to know the names of his witnesses.
BY THE COURT: Well, I don’t know that that’s proper rebuttal.
BY MR. DAVIS: She made a comment, Your Honor, in her direct, that she was on a camping trip where Jack got her drunk and she woke up with just her panties and tee-shirt on, which is a specific act that my client is accused of committing, and this witness will refute that by stating, that this is like it’s a proffer, if the court grants his motion, that Jack did not get the children drunk; that she went to bed by herself and they stayed up by the fire most of the evening together, and that’s what I was informed of this morning.
The trial court noted that the witness had been present outside the courtroom that morning, long before the victim had ever testified, and ruled that since the defense knew Bennett was a potential witness, his name should have been previously furnished to the State. We affirm the trial court’s decision, but for different reasons. See Gillie v. State, supra.
The victim had testified that “during deer season one year,” Laymon took her and her older brother camping and got both children drunk. When she awoke in the morning, she was dressed only in her tee-shirt and underwear and was bleeding near her rectum. In his proffer of Bennett’s testimony, defense counsel offered nothing to indicate that the “camping trip” about which Bennett would testify was the same outing described by the victim. She testified that the incident simply occurred “during deer season one year” and that only she, Laymon, and her older brother were present. Under the facts before us, it is unclear whether the victim and the potential witness were referring to the same occasion and thus whether Bennett’s testimony would have been relevant. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990); A.R.E. Rule 103(a)(2).
Moreover, even if we characterize the proposed witness’s testimony as appropriate rebuttal evidence, Laymon has not demonstrated that he was prejudiced by the exclusion of Bennett’s testimony since the incident in question was only one of several incidents indicating anal intercourse. In addition, the victim’s testimony reflects incidents of oral and vaginal intercourse over a span of several years. Any one of these incidents would have supported a conviction for rape. We will not reverse an alleged error that is unaccompanied by a showing of prejudice. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990).
TESTIMONY RELATING TO PRIOR SEXUAL CONDUCT
Finally, Laymon contends that the trial court erred in permitting testimony concerning prior sexual conduct between him and Connie Dew, a witness on behalf of the state.
Laymon first argues that evidence of a defendant’s prior sexual conduct with a person other than the prosecutrix is not admissible under the Rape Shield Law, Ark. Code Ann. § 16-42-101 (1987). Notwithstanding the fact that Laymon misinterprets the application of this law, this argument was never raised at trial and we will not consider it. See Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).
Laymon’s objection at trial, when the State asked Ms. Dew whether she had previously given statements concerning whether she and Laymon had ever engaged in sexual intercourse, was that his past sexual history with the witness was irrelevant. This objection was untimely. Examination of the record reflects that the State had been pursuing a line of questioning designed to impeach Ms. Dew’s credibility with prior inconsistent statements and had already asked, and received answers to, questions regarding her sexual relations with Laymon. Ms. Dew had admitted to having given prior statements revealing that she and Laymon had engaged in oral intercourse and had previously been asked the exact question at issue, concerning sexual intercourse, without objection. Failure to object at the first opportunity waives any right to raise the point on appeal. Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991).
Affirmed. | [
48,
-22,
-27,
63,
8,
65,
106,
60,
35,
-125,
-9,
115,
47,
-42,
12,
127,
42,
111,
-44,
97,
-33,
-89,
23,
-31,
-14,
-5,
121,
-43,
-79,
79,
44,
-36,
76,
112,
-110,
-15,
34,
-54,
-41,
80,
-118,
-105,
-71,
102,
90,
-106,
36,
47,
82,
15,
53,
-98,
-1,
42,
-108,
-49,
105,
44,
83,
60,
76,
17,
-102,
7,
-35,
4,
-77,
38,
-66,
6,
-8,
44,
-44,
-79,
0,
122,
-6,
-106,
-126,
-27,
77,
-119,
-116,
-32,
98,
35,
-115,
-57,
-87,
-119,
127,
127,
-67,
-90,
-104,
96,
67,
101,
-65,
-15,
-64,
84,
8,
122,
-9,
77,
116,
100,
9,
-113,
-108,
-71,
-123,
37,
20,
59,
-13,
63,
20,
117,
-51,
-32,
92,
87,
122,
-37,
-114,
-73
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.