author: JIM GUNTER, Justice.

text:
    2009 Ark. 341
    Joshua Leallen LOFTON, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-693.
    Supreme Court of Arkansas.
    June 4, 2009.

      William 0. “Bill” James, Jr., Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: LeaAnn J. Irvin, Ass’t Att’y Gen., for ap-pellee.
   JIM GUNTER, Justice.

11 This appeal arises from the denial of Appellant Joshua Leallen Lofton’s motion to transfer his capital murder and aggravated robbery cases to juvenile court. We affirm the circuit court’s ruling.

On July 22, 2007, North Little Rock Police officers responded to a shooting in the Wal-Mart Supercenter parking lot on McCain Boulevard. When the officers arrived, they found Dean Warden with a gunshot wound to the neck. Warden was later pronounced dead at the scene. Officers viewed surveillance footage from Wal-Mart’s video surveillance system. The video revealed that a robbery had occurred moments prior to the shooting. Based on eyewitness testimony and the surveillance footage, the officers were able to Igdevelop a suspect vehicle, a Chrysler 800. Officers located the vehicle and its owner, Sharice Williams. The officers took Williams’s statement in which she admitted to being in the parking lot that day with then seventeen-year-old Appellant Joshua Lofton.

The officers located Appellant and read him his Miranda rights, which he waived by signing a Miranda rights waiver form. In his statement to police, Appellant said that on the day of the shooting, he and Markevius (Mark) Jackson were discussing “hitting a lick.” They decided to go to Wal-Mart and drove there with Sharice Williams. When they arrived, Appellant got out of the car, walked down an aisle of the parking lot and tried to steal a purse from a woman. The woman would not give him her purse, so he hit her in the head with a gun and ran back to the car. Appellant stated that there were people standing in front of the car and he yelled at them, “y’all are gonna have to move.” He stated that he did not want anyone to see the license plate of the car. Appellant stated that he tried to get the people to move away from the car by shooting his gun into the air. He remembered shooting the gun twice. Appellant said that it was not until later that he learned that one of the people in the crowd died from gunshot wounds.

Appellant got back into the car and he, Mark, and Sharice fled the scene. They drove around and unsuccessfully tried to buy gas with one of the robbery victim’s stolen credit cards. Appellant was eventually dropped off at a friend’s house and was picked up by his cousin and his brother. Their car was pulled over by police and Appellant was taken pinto custody.

On September 14, 2007, Appellant was charged in a criminal information with one count of capital murder in violation of Arkansas Code Annotated section 5-10-101 and one count of aggravated robbery in violation of Arkansas Code Annotated section 5-12-103. Appellant’s date of birth is October 2, 1989, and he was seventeen years old at the time of his arrest. On January 28, 2008, Appellant filed a motion to be transferred to juvenile court pursuant to Arkansas Code Annotated section 9-27-318, which was denied on March 4, 2008. On March 18, 2008, Appellant filed a timely notice of appeal. This case was assumed by our court on March 13, 2009, because it involves significant public interest.

For his sole point on appeal, Appellant asserts that the circuit court erred in denying his motion to transfer to the juvenile division of the circuit court and denying his request to extend juvenile jurisdiction. Appellant moved under Arkansas Code Annotated section 9-27-318(e) to transfer his case to the juvenile division, arguing that he does not have a significant juvenile criminal record and that rehabilitation programs available through the juvenile court are a more appropriate sentence. In deciding the motion, the circuit court is to consider the following factors:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
|4(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.

Ark.Code Ann. § 9-27-318(g) (Repl.2009). Section 9-27-318(e) permits any party to move to transfer, and an order on a motion to transfer may be appealed by any party. See R.M.W. v. State, 375 Ark. 1, 289 S.W.3d 46 (2008). The circuit court shall make written findings on all of the factors set forth in subsection (g). Upon a finding by clear and convincing evidence that a case should be transferred to another division of the circuit court, the circuit court may do so. See R.M.W., supra; Ark.Code Ann. § 9-27-318(h)(2). 15Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. R.M.W., supra. This court will not reverse the circuit court’s decision unless it was clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.

On appeal, Appellant disputes the circuit court’s findings on the factors enumerated in 9-27-318(g). We will analyze Appellant’s arguments as they pertain to specific statutory factors. The first factor concerns the seriousness of the alleged offense and whether the protection of society requires prosecution as an adult. In its findings, the circuit court stated that the offenses of capital murder and aggravated robbery are serious offenses and that the protection of society requires prosecution as an extended juvenile jurisdiction offender or in circuit court. Appellant, relying on Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997), contends that there was insufficient evidence presented to establish the seriousness of the offense; that the circuit court may not base its refusal to transfer to juvenile court solely upon the allegations contained in the information; and that there must be some evidence to substantiate the serious and violent nature of the charges contained in the | ^information.

We have held that a juvenile may be tried as an adult solely because of the serious and violent nature of the offense. See Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004). Here, there was evidence presented at the hearing to substantiate the serious and violent nature of the charges contained in the information. In his own taped statement, Appellant stated that “[w]hen I got to the lady in the aisle, I tried to take her purse but she wouldn’t let it go so I hit her with the gun and ran to the car.” Detective Gravette testified that Appellant’s story that he shot his gun in the air was inconsistent with the video-surveillance footage. The surveillance footage reveals that Appellant gets out of his car, walks down one aisle of the parking lot and then begins walking back up the next aisle. The robbery victim is walking toward Appellant. The video footage is consistent with Detective Gravette’s testimony and Appellant’s statement that he took the robbery victim’s purse and hit her in the head with the gun. Appellant then runs back up the aisle toward the car. It appears from the video footage that Appellant reaches his car and turns around with his hand and arm extended toward a group of people walking down the aisle. He appears to advance toward them and then retreat. At this time, the shooting victim falls to the ground. Because there was evidence presented at the hearing to substantiate the serious and violent nature of the charges contained in the information, we hold that the circuit court did not err in its finding regarding this factor.

|7The second factor concerns whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner. In its order, the circuit court found that the victim was shot and killed in a parking lot at a Wal-Mart store. “The victim was walking towards the store and appears to have been shot while the defendant was attempting to flee after he had taken the purse from another victim and had hit her in the head with a gun.” Appellant asserts that clear and convincing evidence does not exist to prove that the alleged offense was committed in such an aggressive, violent, premeditated, or willful manner such that the matter should be prosecuted in the criminal division of the circuit court. Based on Detective Gra-vette’s testimony, Appellant’s own statement, and the video footage discussed above, the circuit court did not err in its finding regarding this factor.

The fourth factor concerns the culpability of the juvenile, including the level of planning and participation in the alleged offense. The circuit court found that Appellant had acknowledged culpability and that there were two other people involved who had not been charged but who “may have known about and participated in the planning of the crime.” Appellant asserts that the participation of Mark and Sharice and “the obvious lack of planning” that took place prior to the alleged events weighs against Appellant’s culpability and level of planning. Appellant admitted in his statement that he and Mark planned to go out and “hit a lick” and that they decided to go to Wal-Mart. Based on his own statement, Appellant was the person who committed the robbery, hit the robbery victim in the head |8twice, and shot the gun while Mark and Sharice remained in the car. Even though there were two other people involved, his own statement along with the video footage establish his culpability.

The sixth factor concerns the sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult. Appellant asserts that the finding that he was sophisticated was not supported by convincing evidence, pointing to the testimony of his mother and forensic psychologist Dr. Ron Faupel. In its order, the circuit court acknowledged that Appellant has a “borderline intellectual function,” but found that he was mature for his age because he had been out the night before the incident, made decisions regarding whether he would take medication that was prescribed to him, and acknowledged extensive drug and alcohol use. The circuit court obviously afforded greater weight to Appellant’s own statement than to the testimony of Appellant’s mother and Dr. Faupel. Credibility of witnesses is an issue for the finder of fact. See R.M.W., supra. On appeal, we have no means to assess witness credibility and may not act as the finder of fact. Id.

The seventh factor concerns whether there are facilities or programs available to the judge of the juvenile division that are likely to rehabilitate the juvenile prior to the expiration of the juvenile division’s jurisdiction. The circuit court found that there were facilities and programs available to the court that would likely rehabilitate Appellant. | ^Appellant seems to assert that based on this finding, the circuit court erred in finding clear and convincing evidence to try Appellant as an adult. However, we have held that the circuit court is not required to give equal weight to each of the statutory factors. See Otis, supra. As such, it is clear that the weight to be afforded to each statutory factor is within the discretion of the trial court. Id. We cannot say that the circuit court’s order denying the motion to transfer was not supported by clear and convincing evidence solely because of its finding on this one factor.

Appellant also argues that the circuit court erred in denying his request to extend juvenile jurisdiction. Arkansas Code Annotated section 9 — 27—318(i) provides that, upon the finding by the criminal division of a circuit court that a juvenile should be transferred to the juvenile division, the criminal division may enter an order to transfer as an extended juvenile jurisdiction case. Here, the circuit court found that Appellant should not be transferred to the juvenile division. Therefore, extended juvenile jurisdiction is not applicable in this situation.

In sum, in light of the evidence presented at the hearing, Appellant has not met his burden of proving that the circuit court was clearly erroneous in denying the motion to transfer his case to juvenile court. We hold that there is clear and convincing evidence to support the circuit court’s ruling. Accordingly, we affirm.

Affirmed.

      . It appears that Appellant does not dispute the circuit court's findings on the third, fifth, eighth, ninth, and tenth factors.


source: Caselaw Access Project

author: PAUL E. DANIELSON, Justice. ANNABELLE CLINTON IMBER, Justice, JIM HANNAH, Chief Justice,

license: Public Domain

text:
    2009 Ark. 336
    Darius JACKSON, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-459.
    Supreme Court of Arkansas.
    June 4, 2009.
    Rehearing Denied Sept. 10, 2009.

      Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Deborah Nolan Gore, Ass’t Att’y Gen., for ap-pellee.
   PAUL E. DANIELSON, Justice.

| TAppellant Darius Jackson appeals the judgment and commitment order of the Pulaski County Circuit Court finding him guilty of capital murder and sentencing him to life imprisonment without the possibility of parole. On appeal, Jackson argues that: (1) the evidence was insufficient to support his conviction for capital murder; (2) the circuit court erred in failing to grant a continuance after an expert witness allegedly changed his testimony; and (3) the circuit court erred by allowing an interference with jury deliberations. We affirm Jackson’s conviction and sentence.

The record reveals the following facts. On April 14, 2006, Nikeya Miles, the then-two-year-old daughter of Shakenya Dooley, spent the night along with her mother at the |2home of Jackson, Ms. Dooley’s boyfriend, and Magnolia Littles, Jackson’s mother. Jackson’s then-one-year-old daughter, Princess, was also there. The next morning, Magnolia Littles left the house to go shopping while the others watched television in the living room at the front of the home. At some point, Jackson picked up both of the girls and walked toward the back of the house. When Jackson returned to the living room, Ms. Dooley noticed that Nikeya’s eyes were “bugged out” and that she was having trouble breathing. When Ms. Dooley asked Jackson what was wrong with Nike-ya, Jackson stated that nothing was wrong, she was just “faking.”

Ms. Dooley took Nikeya to the guest room to lay her down on the bed. She thought Nikeya might be hungry, so she went to the kitchen to fix some ramen noodles. She checked on her a few times, but when the noodles were ready, Nikeya was no longer in the guest bedroom. Ms. Dooley found Nikeya lying motionless on the couch in the living room with her eyes rolled back in her head and gasping for air. After unsuccessfully attempting to call her uncle, a doctor, and a nurse she worked with, Ms. Dooley called 911. However, she was instructed by the operator to give the phone to someone who could talk because she was hysterical and could not be understood.

Sergeant Chris Ameling with the Pulaski County Sheriffs Office was the first to respond. Jackson met him at the door. Ameling and the EMT team were escorted to the guest room. Ameling saw Nikeya lying on the middle of the bed, with her hands at her side |sand her eyes rolled back in her head. He could see that Nike-ya was having trouble breathing. While the EMT team was working on Nikeya, Ameling asked Jackson what happened. Ameling testified that Jackson told him that Nikeya had taken a nap, that they heard a scream, and that when they went to the bedroom to see what was wrong, they found her in her current condition. Before everyone left to accompany Nikeya to the hospital, Ameling asked both Jackson and Ms. Dooley for their identification. While Ms. Dooley cooperated, Jackson asked Ameling, “What do you need that for?”

Not long after arriving at Arkansas Children’s Hospital, family and law-enforcement officers were informed that Nikeya had died. James Barnes, an investigator with the Pulaski County Sheriffs Office, took Jackson back to the house after they left the hospital. He asked Jackson if he would give a statement, and Jackson agreed. Barnes drove Jackson to his office and took his statement that afternoon, April 15, 2006. In the statement given to Barnes, Jackson stated that he noticed that day that Nikeya’s “eyes got bucked” and that “her lip was ... so chapped” that he thought maybe she was dehydrated. He explained that she had been playing with her Easter basket and when he came back into the room he found her on the couch with her eyes rolled back in her head. At that point, Jackson stated, he grabbed Nikeya, yelled for her mother, tried to give her some water, and then laid her on the guest bed. Barnes testified that Jackson was nonchalant during the time he gave his statement.

14Between April 15, 2006, and April 19, 2006, Sergeant Mike Blain with the Pulaski County Sheriffs Office received the initial findings from Nikeya’s autopsy from the medical examiner’s office and began a criminal investigation based on the injuries Nikeya had sustained. As part of his criminal investigation, Blain interviewed Ms. Dooley, Ms. Littles, and Jackson. Blain testified that he had reviewed Jackson’s previous statement and then informed Jackson about the internal injuries to Nikeya found by the medical examiner. Blain testified that he then received a different statement from Jackson.

In Jackson’s statement to Blain, he claimed that Nikeya and Princess were in his room playing while Ms. Dooley was on the phone. Jackson claimed that when he saw that Ms. Dooley got off of the phone, he picked up both girls to take them back in the room with Ms. Dooley. Jackson described carrying Princess on his left side, with her chest facing him, and carrying Nikeya in his right arm facing away from him. According to Jackson, as he was walking with the girls, he tripped over a basket of clothes and fell, dropping Princess and falling directly on top of Nikeya. Jackson stated that Nikeya simply turned and looked at him, so he picked the girls back up and took them to the living room. It was at that point, Jackson claimed, Nikeya’s eyes were “bucked” and Ms. Dooley grabbed her, eventually taking her to lay down in the guest bedroom and fixing her noodles.

Dr. Frank Peretti, a forensic pathologist and the medical director at the Arkansas State Crime Lab, determined that Nike-ya’s cause of death was from multiple blunt-force [ (¡injuries and ruled her death a homicide. Nikeya had multiple bruises on and under her scalp. Her chest was bruised and the autopsy revealed that her right lung was severely bruised and had been completely detached from her windpipe, causing her to bleed into her right chest cavity. The blood in her chest extended up into her neck via the right carotid sheath, the soft tissue surrounding her right carotid artery. In addition to Nike-ya’s head and chest injuries, there were also injuries throughout her abdomen. Nikeya suffered from a lacerated and extensively torn liver, a lacerated and bruised pancreas, and multiple contusions and hemorrhages throughout her abdomen.

In Dr. Peretti’s opinion, Nikeya died because she could not breathe and from the amount of internal bleeding. He also concluded that Nikeya had suffered some sort of compressional asphyxia because of how much force is required to detach a lung from the windpipe and blood vessels, as Nikeya’s was. Dr. Peretti stated that his conclusion was further supported by the fact that blood was found going into Nikeya’s neck from her chest through the right carotid sheath, as the blood would have been forced to travel up the sheath if pressure was applied to the abdomen in such a manner that it caused the organs to burst or rupture, as Nikeya’s did. Dr. Peretti explained that such injuries could have been the result of a very forcible squeeze or by a foot being forcibly applied to the abdomen. He did not believe the injuries could have been sustained by someone falling on top of Nikeya from behind because there were not more diffuse injuries. Had Nikeya fallen face down, Dr. |fiPeretti concluded, it would not explain the multiple injuries to the back of her head.

A jury convicted Jackson of capital murder for Nikeya’s death, and this appeal followed. Jackson first argues that there was not sufficient evidence to support the charge of capital murder. The State avers that substantial evidence supports the conviction.

Our standard of review for a sufficiency challenge is well settled. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We affirm a conviction if substantial evidence exists to support it. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. See id.

Furthermore, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. See id. Whether the evidence excludes every other hypothesis is left to the jury to decide. See id. The credibility of witnesses is an issue for the jury and not the court. See id. 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. See id.

A person commits capital murder if:

Under circumstances manifesting extreme indifference to the value of human life, the person knowingly causes the death of a person fourteen (14) years of |7age or younger at the time the murder was committed if the defendant was eighteen (18) years of age or older at the time the murder was committed.

Ark.Code Ann. § 5-10-101(a)(9)(A) (Repl. 2006).

For his sufficiency argument, Jackson first argues that Dr. Peretti’s testimony was not to a certain degree of medical certainty because he was inconsistent about when Nikeya had most likely sustained certain old internal injuries. However, this argument is more appropriately developed as Jackson’s second point on appeal. In viewing the evidence in the light most favorable to the State, the evidence regarding the possible time frame of old injuries sustained by Nikeya is irrelevant. Dr. Peretti testified that while there were some old injuries to Nikeya’s pancreas and liver, they were not related to what caused her death on April 15, 2006. Dr. Peretti testified as to all of the acute injuries suffered by Nikeya, such as the contusions found on the back of her head, her detached lung, her lacerated liver, and the massive bleeding throughout her abdomen, and concluded that those injuries would have occurred only minutes before her death.

It is undisputed that Jackson was the last person seen with Nikeya before Ms. Dooley noticed that her eyes were bugged out, which Dr. Peretti described as an effect of compressional asphyxia. An essential element the State had to prove was that Jackson acted “knowingly.” See id. A person acts knowingly with respect to:

(A) The person’s conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist; or
|8(B) A result of the person’s conduct when he or she is aware that it is practically certain that his or her conduct will cause the result;

Ark.Code Ann. § 5-2-202 (Repl.2006). This court has recognized that the requisite intent for capital murder can be inferred by the nature, extent, and location of the victim’s wounds. See Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). Given the evidence in this case, the jury could have concluded that Nikeya’s injuries were too severe to have been an accident.

As in many cases, much of the testimony was conflicting. Jackson’s defense at trial was that he had accidentally fallen over a clothes basket while carrying Nike-ya and landed on top of her. However, during Dr. Peretti’s testimony, he explained why he did not believe Nikeya’s injuries were consistent with that scenario. The weight of the evidence, even expert testimony, is within the province of the jury and of the jury alone. See Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). Jackson had told Sergeant Ameling that Nikeya woke up from a nap screaming and that they found her in the condition that she was in when Ameling arrived. Testimony revealed that Jackson did not give the explanation that he had tripped over a clothes basket and fallen on Nikeya until after Sergeant Blain informed him of the internal injuries suffered by Nikeya. While Jackson’s mother, Ms. Lit-tles, claimed that she had picked up the house and moved a clothes basket after Nikeya had been taken to the hospital, the law-enforcement officials did not observe, nor did any of the pictures taken in the home reveal, a clothes basket in any part of the hallway or |3bedroom, as described by Jackson. In addition, Investigator Barnes testified that Ms. Littles had told him that she had not moved anything. We have long held that issues of credibility are to be left to the jury and that 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. See Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580.

Finally, other relevant circumstantial evidence was presented to the jury that could have served as corroborating evidence of Jackson’s guilt. Ms. Dooley testified that she had left Nikeya in the sole care of Jackson while she was working late one night in the days prior to Nikeya’s death. When Ms. Dooley got back from work, Nikeya had a busted lip and a knot on her head. Ms. Dooley testified that Jackson’s explanation to her was that Nikeya fell off of a slide while playing. In the weeks after Nikeya’s death, Ms. Dooley still had contact with Jackson. Although he never mentioned the death of Nikeya, he did erase all of Nikeya’s pictures from Ms. Dooley’s cell phone. Ms. Dooley testified that when she broke off the relationship with Jackson in light of Nikeya’s death, he took her phone and deleted all the photos of Nikeya, while leaving her other photos in place.

After reviewing the evidence in the light most favorable to the State, we cannot say that the evidence was insufficient to support Jackson’s conviction and, therefore, we affirm it.

For his second point on appeal, Jackson argues that the circuit court erred by denying hnhis motion for continuance based on his contention that an expert witness, Dr. Peretti, had changed his medical opinion. The State avers that the circuit court did not abuse its discretion in denying Jackson’s motion and that no prejudice resulted from the denial.

A motion for continuance is left to the sound discretion of the circuit court, and its judgment will not be reversed on appeal in the absence of a clear abuse of that discretion. See Stenhouse v. State, 362 Ark. 480, 209 S.W.3d 352 (2005). The burden of establishing an abuse of the circuit court’s discretion falls squarely on the shoulders of the appellant. See id. An appellant must not only demonstrate that the circuit court abused its discretion by denying the motion for a continuance, but also must show prejudice that amounts to a denial of justice. See Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002).

Our criminal rules provide that a court shall grant a continuance “only upon a showing of good cause and only for so long as necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.” Ark. R.Crim. P. 27.3 (2007).

In the instant case, Jackson filed his motion to continue on October 8, 2007, the day before his trial was scheduled, alleging that Dr. Peretti had changed his medical opinion from concluding that certain old internal injuries found during Nikeya’s autopsy were at least seven to ten days old to indicating that they may have occurred within three days of her death. Jackson argued that this change in opinion did not occur until Friday, October, | u5, 2007, and was not disclosed to him until Monday, October 8, 2007, which did not give him sufficient time to make beneficial use of the evidence. The circuit court held a pretrial hearing on the motion and determined that the motion would be denied, but that if Dr. Peretti had truly changed his opinion, then the evidence regarding the timing of the old injuries would not be allowed.

The record reveals that in Dr. Peretti’s original report, he found two distinct sets of injuries to Nikeya. He had discovered a pattern of injury to Nikeya’s pancreas and liver that were days old, but were beginning the process of healing. Additionally, Dr. Peretti discovered all the acute injuries that actually caused Nike-ya’s death, which, Dr. Peretti opined, she sustained minutes before her death. At the time of his report, Dr. Peretti concluded that the old injuries most likely occurred seven to ten days before her death. At a pretrial meeting, Dr. Peretti was asked if those old injuries could have happened as early as three days before her death rather than seven to ten. He answered that it was possible, but continued in court to state that based upon his experience, he believed it was seven to ten days prior.

The testimony of Dr. Peretti that Jackson specifically cites as being inconsistent was elicited during voir dire of Dr. Peretti, outside the presence of the jury, and, therefore, was not part of the evidence considered by the jury in determining Jackson’s guilt. Additionally, Jackson’s counsel was the party responsible for eliciting the testimony regarding the timing |12of the old injuries that was presented in front of the jury. In that testimony, Dr. Peretti admitted that since the time of his first report he had been asked if the old injuries could have been as recent as two or three days prior to Nikeya’s death and that he had stated it was possible. However, Dr. Peretti maintained in front of the jury that, while everyone heals differently and he could not say for certain, based on his opinion and experience those injuries had occurred seven to ten days prior to Nikeya’s death. Dr. Peretti explained that he knew the importance of his report and that when he originally gave the opinion, he meant it to be interpreted that the old injuries occurred a minimum of seven to ten days prior to Nikeya’s death.

Based on the above, we cannot say that the circuit court abused its discretion by not finding good cause to grant the motion for continuance. Additionally, Jackson did not establish that prejudice amounting to a denial of justice had occurred by the circuit court’s denial. Dr. Peretti never claimed that his true opinion had changed and that he now believed the old injuries actually occurred only two or three days prior to Nikeya’s death. Dr. Peretti maintained that his opinion based on his experience was that the old injuries were seven to ten days old. Because there was not an abuse of discretion and Jackson did not demonstrate that he was prejudiced by the denial of his motion, we affirm the circuit court’s denial of his motion.

For his final argument, Jackson contends that the circuit court violated Arkansas 11sCode Annotated § 16-89-125 (Repl.2005) by allowing the court reporter into the jury room. The State avers that the circuit court did not violate section 16-89-125 because there was no danger that the jury received any evidence that had not been previously admitted in trial and, therefore, there were no “further steps” taken with respect to the evidence.

During jury deliberations in the instant case, the jury requested to hear the two audio-taped statements of Jackson and to hear a replay of some of the testimony from trial. The circuit court allowed Jackson’s recorded statements to go back with the jury. Further, over Jackson’s objection, the circuit court allowed the court reporter to replay the taped testimony of Dr. Peretti for the jury. It was necessary to have the court reporter present because the recording of Dr. Peretti’s testimony was accomplished by a “WAV” file on the court reporter’s computer. The jury was brought into the courtroom and instructed that they were not to speak or otherwise communicate during the replaying of the testimony, other than the jury foreman who was permitted to tell the court reporter when to adjust the volume or to stop, rewind, or play the testimony. The court reporter was sworn and the courtroom was cleared of everyone except the court reporter and the jurors. The court reporter played the testimony of Dr. Peretti for the jury and, after the testimony was replayed, the jurors returned to the jury room.

_LyArkansas Code Annotated § 16-89-125(e) provides:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence or if they have a desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the counsel of the parties.

This court has held that the purpose of section 16-89-125(e) is to protect against any further steps being taken with respect to evidence unless done in open court with counsel present. See Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006).

Jackson specifically states that he is not alleging that the information should not have been offered to the jury during their deliberations as it had all been admitted into evidence at trial. However, Jackson contends that because the evidence was reviewed by the jury in the presence of the court reporter, there was a possibility of tainting or prejudice and there was not strict compliance with section 16-89-125(e).

The facts of this case are similar to those presented to this court in Anderson, supra. In Anderson, the deliberating jury was allowed to replay an out-of-court statement that had been admitted into evidence and made an exhibit during the trial. This court held that the replaying of evidence that had previously been admitted during trial was not a critical stage in criminal proceedings and that nothing indicated that the appellant had suffered any prejudice by the replaying of the tapes. See Anderson, supra; see also Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993) (where this court held the circuit court did err in allowing the | ^deliberating jury to play a videotape that contained information which was neither admitted into evidence nor played at trial because the record was silent as to what actually happened during the playback). While Jackson cites this court to United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), to support his contention that the presence of the court reporter in itself was error, his reliance is misplaced as the Court did not find actual prejudice when alternate jurors were present during jury deliberations because there was no specific showing that there was any participation by those alternate jurors in the form of body language or otherwise.

In the instant case, there is no dispute that the information played back to the jury had already been admitted into evidence. The court reporter was simply present to operate the equipment needed to replay the information. Jackson failed to demonstrate prejudice by the replaying of evidence previously admitted into evidence during trial or by the mere presence of the court reporter. Therefore, we affirm on this point as well.

For all of the above reasons, we affirm Jackson’s conviction and sentence. Pursuant to Arkansas Supreme Court Rule 4-3(i) (2009), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to the appellant, and no prejudicial error has been found.

Affirmed.

CORBIN and IMBER, JJ., concurring.

HANNAH, C.J., dissenting.

ANNABELLE CLINTON IMBER, Justice,

concurring.

11(J agree with the majority that this case must be affirmed in accordance with the precedent set forth in Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006). However, I write separately to address the troubling practice of permitting the court reporter to re-present evidence for the jury while neither the court, the defendant, nor the parties’ counsel are present in the courtroom.

In interpreting Arkansas Code Annotated section 16-89-125(e) (Repl.2005), we have stated that its purpose is to protect against misinformation communicated to the jury. Anderson, 367 Ark. at 540, 242 S.W.3d at 232-33 (citing Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994)). In situations such as this one, where the jury is brought into the courtroom for communication with court personnel outside of the presence of the court, the parties, and their counsel, the danger of communicating misinformation is particularly high — not because the court reporter will necessarily misrepresent the evidence, but because the usual safeguards inherent in courtroom settings are absent. Had there been some allegation of misconduct in this case, either on the part of the court reporter or the jurors, Jackson and his counsel would not have the benefit of a record to show prejudicial error. In essence, the jury could have continued its deliberations in the presence of the court reporter, or even allowed the court reporter to participate in its deliberations, and neither Jackson nor the court would have known.

Moreover, a court reporter who is representing evidence for the jury may be unable 117to simultaneously create a record of the re-presentation. We have stated that the State cannot meet its burden of rebutting the presumption of prejudice when there is no record of what occurred during the re-presentation of the evidence. Davlin v. State, 313 Ark. 218, 221-22, 853 S.W.2d 882, 884-85 (1993). I agree with the majority that the instant case differs from the fact situation presented in Dav-lin, wherein there was no assurance that the replaying of a videotape of the victim’s statement omitted portions that were not admitted into evidence at trial. Id. Here, there is no dispute that the evidence represented for the jurors had already been admitted and viewed by them. However, the manner in which the evidence was represented makes review of the re-presentation difficult, if not impossible.

Because the evidence re-presented for the jury in the present case had been admitted at trial, I cannot say that there was reversible error under this court’s decision in Anderson v. State, supra. Nonetheless, the better practice would have been for the circuit court to require the presence of Jackson and counsel for both sides, and the court itself, during the representation of the testimony. Such a scenario would have resulted in far less risk of reversible error and far greater confidence in the outcome of the trial. For these reasons, I concur.

CORBIN, J., joins this concurrence.

JIM HANNAH, Chief Justice,

dissenting.

Iisl respectfully dissent. This case should be reversed and remanded because the circuit court erred in ordering the court reporter to play the reporter’s backup audio tape of the testimony of Dr. Peretti for the jury when the circuit judge, the defendant, and the parties’ counsel were not present in the courtroom. Contrary to the suggestions of the majority and the concurrence, this case is distinguishable from Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006); the Anderson case does not require that the instant case be affirmed.

In Anderson, we held that the circuit court did not err, in violation of section 16-89-125(e), when it allowed the jury during deliberations to receive and replay a tape recording of Anderson’s statement that had been played at trial and received into evidence. Presumed prejudice was overcome in that case because “the jury received an admitted exhibit where there was no danger of additional evidence being introduced by giving the exhibit to the jury during deliberations.” Anderson, 367 Ark. at 541, 242 S.W.3d at 233. See also Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006) (stating that, pursuant to section 16-89-125(e), the circuit court did not err in making available to the jury during deliberations taped statements that had already been played for the jury during trial and admitted into evidence). Here, the back-up audio tape was not played to the jury at trial, was never 119admitted into evidence, and was not made part of the record, making it impossible for this court to review.

What further distinguishes the instant case from Anderson is that, in Anderson, no outside party joined the jury during deliberations. The court reporter’s presence, outside the presence of the circuit court, the defendant, and the parties’ counsel, is prejudicial on its face. Section 16-89-125(e) sets forth the procedure by which a circuit court must proceed when the jury has a disagreement or desires to be informed on a point of law. It specifically requires that the jury be conducted into court, and at that time, the information required must be given in the presence of, or after notice to, counsel. That is the sole procedure to be followed. The statute in no way authorizes what took place in this case, and what distinguishes this case from Anderson, is that the court reporter was left alone with the jury to play a back-up audio tape of testimony admitted at trial. Noncompliance with section 16-89-125(e) gives rise to a presumption of prejudice, which the State has the burden of overcoming, and the State has in no way done so in the instant case. Because the procedure used in this case clearly violates the statutorily mandated procedure and because Jackson’s due-process rights under the United States Constitution and Arkansas Constitution were violated, this case should be reversed and remanded.

      . Although Jackson's brief cites to Ark.Code Ann. § 15-89-125, it appears to be a typographical error as the relevant statute is section 16-89-125.

      . I remain convinced that the majority opinion in Anderson failed to abide by our prior holding in Davlin v. State, supra, requiring the State to rebut the presumption of prejudice resulting from noncompliance with section 16-89-125(e). See Anderson v. State, supra (Imber, J., dissenting).

      . There was no objection made that the back up audio tape was not evidence pursuant to Arkansas Code Annotated § 16-89-125(e).


author: RITA W. GRUBER, Judge.

text:
    2009 Ark. App. 412
    SEALING DEVICES, INC., Appellant, v. James McKINNEY and Industrial Fluid Solutions, Inc., Appellees.
    No. CA 08-1264.
    Court of Appeals of Arkansas.
    May 20, 2009.

      Newell & Hargraves, by: Burt Newell, Hot Springs, for appellant.
    Byrd Law Firm, P.A., by: John R. Byrd, Jr., Hamburg, for appellee.
   RITA W. GRUBER, Judge.

| T Sealing Devices, Inc., brings this appeal from a jury verdict in its favor against appellee James McKinney. The jury awarded damages in the sum of $8,044.31. Sealing Devices, Inc. (SDI), asserts two points on appeal: first, it contends that the trial court erred in denying its motion for new trial on the basis of the inadequacy of damages awarded. Second, it contends that the trial court erred in refusing its proffered instruction on loss of profits. We find that the trial court did not abuse its discretion either in denying SDI’s motion for new trial or in refusing its proffered instruction. Therefore, we affirm the trial court’s judgment.

SDI is a distributer of industrial products to paper companies and chemical companies. From 1997 until he resigned in January 2004, James McKinney worked as a |2salesman for SDI, managing accounts for over twenty of SDI’s customers, including Georgia Pacific, from whom SDI received a large volume of sales. In December 2003, Mr. McKinney formed an Arkansas corporation, Industrial Fluid Solutions, Inc. On January 7, 2004, Georgia Pacific terminated its contract with SDI and began purchasing products from Mr. McKinney through Industrial Fluid Solutions, Inc.

On August 12, 2004, SDI filed a complaint against James McKinney, Industrial Fluid Solutions, Inc., and Georgia Pacific, alleging breach of contract on the part of Georgia Pacific, breach of fiduciary duty by Mr. McKinney, and conspiracy to interfere with a business relationship by all three defendants. SDI settled with Georgia Pacific before trial. After a two-day trial, the jury returned a verdict in favor of SDI, finding that Mr. McKinney breached his fiduciary duty, and awarded damages of $8,044.31. SDI filed a timely motion'for new trial pursuant to Rule 59(a)(5) of the Arkansas Rules of Civil Procedure, alleging that the damages awarded were inadequate. The motion was deemed denied by the trial court’s failure to act within thirty days. See Ark. R. Civ. P. 59(b). SDI filed this appeal.

I.

SDI’s first point on appeal is that the jury erred in calculating SDI’s damages. SDI argued in its motion for new trial that the proper amount the jury should have awarded to SDI was $452,000, or $113,587 for each of the years since Mr. McKinney left SDI. SDI essentially contends on appeal that the jury was required to accept its evidence of lost ^profits, which excluded its “normal operating overhead” and was based on the gross profits earned by SDI during Mr. McKinney’s tenure rather than on the net income earned during that same period.

Under Rule 59(a)(5), the inadequacy of the recovery is a ground for a new trial even in the absence of other error. See Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983). In such a case, where the primary issue on appeal is the alleged inadequacy of the jury’s award, we will sustain the trial court’s denial of a motion for new trial absent a clear and manifest abuse of discretion. Luedemann v. Wade, 323 Ark. 161, 166, 913 S.W.2d 773, 776 (1996). An important consideration is whether a fair-minded jury might reasonably have fixed the award at the challenged amount. Warner, 281 Ark. at 120, 661 S.W.2d at 399.

SDI bases its argument on its contention that its damages of lost profits were governed by the supreme court’s holding in Interstate Oil & Supply Co. v. Troutman Oil Co., 334 Ark. 1, 972 S.W.2d 941 (1998). SDI asserts that, pursuant to Troutman, the jury was required to consider SDI’s evidence of gross profits, which excluded certain deductions claimed by SDI to have constituted “normal operating overhead,” and that it was error for the jury to have considered evidence of taxable income set forth on its corporate tax returns.

Troutman was a breach-of-contract case in which the losing party, found to have breached the contract, appealed and contended that the trial court should have excluded |/Troutman’s evidence of lost profits because Troutman failed to include the cost of overhead in its calculation. The supreme court held that it could not say that the trial court erred in admitting Troutman’s evidence relating to lost profits, reasoning that the overhead was described in undisputed testimony as fixed costs. The court provided the following rationale for the rule that overhead expenses “need not” be deducted from gross income to arrive at the net profit properly recoverable: “overhead continues whether or not the contract in question has been breached.” Id. at 7, 972 S.W.2d at 944 (emphasis added). The court also noted that all variable expenses should be deducted when arriving at lost profits. Id.

First, SDI’s reliance upon Troutman in this case is misplaced. Troutman was a breach-of-contract case between two parties in which the contract required specific sales to be made for a specific duration. In this case, SDI sued and obtained a judgment for breach of fiduciary duty by Mr. McKinney. Mr. McKinney breached no contract obligating him to provide profits from particular customers for a particular duration. Indeed, while not abstracted, the testimony of Ms. Blakely indicates that SDI did not even have an employment contract with Mr. McKinney and that SDI’s contract with Georgia Pacific was terminable at the will of either party at any time for any reason. Thus, not only is this case not a case for loss of profits based on a breach of contract, as was the case in Troutman, but SDI did not have a contract of any specific duration with either Mr. McKinney or Georgia |fiPacifíc.

Moreover, the supreme court in Trout-man did not require overhead expenses to be excluded from all lost-profit calculations. The court merely held that it was not error for the trial court to allow Trout-man to introduce evidence of lost profits that excluded its fixed costs. The trial court in this case allowed SDI to admit evidence of its gross profits, that is, profits excluding deductions it claimed constituted its business overhead. Through its accountant, SDI introduced Exhibit 18, which was a spreadsheet of gross profits attributable to Mr. McKinney less Mr. McKinney’s salary and other expenses designated by SDI as attributable to Mr. McKinney. SDI also introduced its corporate income tax returns for the years 1995 through 2003. SDI’s accountant explained the difference between the amount designated “total income” and the amount designated “taxable income” on the returns. She testified that certain business expenses — such as wages, taxes and licenses, mileage, postage, repair and maintenance, supplies, compensation of officers, travel, and various other expenses — were deducted from total income to arrive at taxable income. The only tax return included in SDI’s addendum is the 2003 return in which total income equaled $358,760 and taxable income equaled $9,721. SDI argued in its closing argument to the jury that its loss of profits should be calculated on the basis of its total income and not its taxable income.

Conversely, Mr. McKinney’s counsel argued at closing that SDI had already made a | f,tremendous amount of money from Mr. McKinney’s employment. He argued that it was “phenomenal” that SDI paid taxes on only $9,000 in 2003 and that SDI was now asking for damages to be based on its gross income rather than on its taxable income. Mr. McKinney contended that SDI did not deserve any damages at all.

We hold that the trial court’s denial of a new trial on the basis of inadequate damages was not a clear and manifest abuse of discretion. SDI was allowed to present its evidence of loss of profits and to argue this evidence to the jury.

Perhaps the jury was not persuaded by SDI’s argument that all of the deductions from total income on the tax returns introduced by SDI were fixed, rather than variable, expenses. A review of the record suggests that the officers’ compensation alone varied from $85,748 in 2000 to $161,162 in 2003. This information was introduced by SDI. Or, perhaps the jury determined that Mr. McKinney’s breach of fiduciary duty did not warrant the amount of lost profits argued by SDI where the testimony of SDI’s owner suggested that SDI’s relationships with both Mr. McKinney and Georgia Pacific were terminable at any time by any party for any reason. In any case, a jury has the right to believe or disbelieve all or any part of the testimony at trial, even when the testimony is uncontradicted, and is in a superior position to judge the credibility of the witnesses. Whitney v. Holland Retirement Center, Inc., 323 Ark. 16, 912 S.W.2d 427 (1996). Furthermore, we do not know the exact manner in which the jury arrived at $8,044.31 in lost profits and we will not speculate on |7how it reached this verdict. The trial court did not abuse its discretion in denying SDI’s motion for new trial.

II.

SDI’s second point on appeal is that the trial court erred in refusing to give the following instruction it proffered on lost profits:

If you have decided in favor of Plaintiff, Sealing Devices, Inc., on its claim for damages against either James McKinney or Industrial Fluid Solutions, Inc., then you need to know the definition of the term “loss of profits.”
Loss of profits in this case would be, for Sealing Devices, Inc., its gross revenues less its cost of goods sold the specific salary expense it paid to James McKinney to produce the gross profits less his efforts contributed to the business.
You should not reduce profits by deducting fixed overhead expenses because those expenses are present and continue whether or not there has been any loss of gross receipts.

The court rejected SDI’s instruction in favor of the relevant model instruction on measure of damages, AMI 2201, which states as follows:

If you decide for SEALING DEVICES, INC. on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them the following element of damage sustained which you find were proximately caused by the fault of JAMES MCKINNEY and INDUSTRIAL FLUID SOLUTIONS, INC.:
The value of any profits lost [inserted from AMI 2206]
Whether this element of damage has been proved by the evidence is for you to determine.

| sUnder Arkansas law, a party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction. Barnes v. Everett, 351 Ark. 479, 492, 95 S.W.3d 740, 748 (2003). We will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id. Even where a proffered instruction accurately reflects the case law, however, failure to give the instruction is not error when an AMI instruction covering the same subject matter is on point, due to our longstanding preference in favor of AMI instructions over non-AMI instructions. See Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 178, 806 S.W.2d 373, 376 (1991).

We note first that SDI’s proffered instruction, without punctuation to indicate precisely the calculation SDI desired the jury to perform, is somewhat confusing. However, even assuming it correctly reflects the calculation of loss of profits approved in Troutman, we explained above that Troutman was a breach-of-contract case, not a case regarding the breach of a fiduciary duty. Further, Troutman did not hold that overhead expenses are never to be deducted from gross profits in order to arrive at loss of profits; rather, the supreme court held that it was not error for the trial court to allow evidence of lost profits in which certain fixed expenses were not deducted from gross profits. We do not find that Troutman mandated SDI’s proffered instruction in this case. Finally, there was an AMI instruction covering the subject, which the trial court gave. Therefore, we hold that the trial court did 19not abuse its discretion in refusing to give SDI’s proffered instruction on loss of profits.

Affirmed.

GLADWIN and GLOVER, JJ., agree.


author: LAMBERT, Senior Judge.

text:
    George MILLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-001443-MR.
    Court of Appeals of Kentucky.
    Feb. 12, 2010.
    Discretionary Review Denied by Supreme Court Oct. 13, 2010.
    Thomas M. Ransdell, Frankfort, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Michael L. Harned, Assistant Attorney General, Frankfort, KY, for appellee.
    Before NICKELL and VANMETER, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Senior Judge.

This appeal follows Appellant’s conditional guilty plea to possession of a controlled substance in the first degree and to being a persistent felony offender in the second degree. Prior to his plea of guilty, Appellant reserved the right to appeal from the trial court’s denial of his motion to suppress evidence.

Appellant and his cousin, Timothy Miller, were involved in a minor automobile accident on New Circle Road in Lexington. The accident occurred in the vicinity of a traffic signal with Appellant, the driver, striking the rear of another vehicle. Following the accident, Appellant and his cousin and the other driver exited their vehicles, and it was determined that no one was injured. While the parties conferred, Lexington Fayette Urban County Government police officer Noel arrived on the scene.

What transpired after the police officer’s arrival is somewhat in dispute. At the suppression hearing, both Appellant and Officer Noel testified. Officer Noel testified that in the vicinity of Appellant’s vehicle, which had one of its doors open, he smelled the odor of marijuana. He also stated that Appellant’s cousin, Timothy, became emotional and said he thought there was an outstanding warrant for him. In response to questioning by Noel, both subjects stated that they had smoked marijuana earlier in the day, a statement Appellant denied in his suppression hearing testimony. Officer Noel then placed Appellant and his cousin in handcuffs and directed them to sit on the curb. Soon another police officer, Sergeant Bacon, arrived.

Appellant’s version of the events concerns actions taken by Officer Noel which led to discovery of crack cocaine on Appellant’s person. According to Appellant, Officer Noel stopped searching the vehicle and started tugging on Appellant’s pants. Appellant disputed any need for the officer to touch his pants since he was seated and his pants did not need adjustment. The officer’s version is that Appellant asked permission to stand up and to pull up Appellant’s pants, and that this resulted in discovery of a plastic baggie hanging out of the corner of the pocket of Appellant’s sweatpants. The officer suspected that the baggie contained crack cocaine. Appellant was arrested and given Miranda warnings. The search of Appellant’s vehicle yielded a minor quantity of marijuana seeds and stems.

The trial court conducted a suppression hearing. In its oral findings, the trial court disclosed its view of the evidence. The court did not believe that Officer Noel would interrupt a vehicle search where the odor of marijuana was present without some prompting from Appellant. The court expressed uncertainty whether Appellant asked for permission to pull up his own pants or whether Appellant asked Officer Noel to do it for him but concluded in any event that Officer Noel’s actions were prompted in some manner by Appellant. The trial court further found that Officer Noel’s initial approach to the accident scene was valid; that his search of the vehicle based on the odor of marijuana was valid; and that his placing Appellant and his cousin in handcuffs was proper for officer safety. The court concluded as follows:

The only question here is what, is what prompted officer Mil — officer Noel to go back to Mr. Miller. And again, the court doesn’t believe it’s reasonable that he just did that on his own in the middle of a search of a vehicle. So, something Mr. Miller did or said prompted him to do that, and it was his testimony that it was the question about pulling up the pants. Whether he asked to do it himself or asked officer Noel to do it himself, to do it for him. I think is irrelevant. Something the defendant did prompted Officer Noel to go back there, and it was that piece of evidence that, in the course of pulling up the pants that Officer Noel found the, the crack cocaine. So based on all of that, and the totality of the circumstances, the court’s going to overrule this motion to suppress.

It is a familiar rule that on a motion to suppress evidence, the trial court’s findings of fact are reviewed under a deferential standard. Kentucky Rules of Criminal Procedure (RCr) 9.78 provides that “If supported by substantial evidence, the factual findings of the trial court shall be conclusive.” It is equally well settled, however, that upon appellate review, the trial court’s conclusions of law are subject to a de novo standard of review. Welch v. Commonwealth, 149 S.W.3d 407 (Ky.2004); Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App.2002). With respect to the trial court’s fact-finding as outlined above, we will not linger. The court heard the testimony of Appellant and of Officer Noel. Either party would have been at liberty to call other possible witnesses. The parties’ differing versions of the events centered around the adjustment of Appellant’s pants. The trial court believed that Appellant did or said something to prompt Officer Noel to pull up Appellant’s pants and thus reveal the crack cocaine. As this factual determination is supported by substantial evidence, it is conclusive.

Appellant argues that by virtue of being handcuffed prior to discovery of the crack cocaine, he was unlawfully and without justification arrested or seized within the meaning of the Fourth Amendment. For this proposition, he cites various decisions including Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), and the redoubtable Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant relies on the Terry test that a seizure occurs when “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Appellant makes his case as follows:

In a humiliating spectacle, he was forced to sit on the curb on a busy portion of New Circle Road with his hands cuffed behind his back. He was not even able to stand up and pull up his own pants; he apparently had to ask Officer Noel for permission to do that. This was the type of intrusion into personal liberty that would “swallow” the Fourth Amendment if it could be accomplished with anything less than probable cause.

As we understand Appellant’s argument, he was unlawfully arrested or seized by means of the handcuffs and the seizure required him to seek Officer Noel’s assistance in adjusting his pants, resulting in discovery of the crack cocaine. Appellant acknowledges, however, that the police are permitted to temporarily detain a suspect based on reasonable suspicion but reminds us that the seizure cannot continue for an excessive period of time or resemble a traditional arrest without probable cause.

Officer Noel’s justification for handcuffing Appellant was as follows:

At that point, I’d been by myself, we were on a heavily traveled road, based on the emotion of the one subject, possible marijuana in the vehicle, I didn’t want to be sticking my head in a vehicle with two subjects out there on New Circle Road by myself.

Contrary to Appellant’s contention, we do not believe this justification is “specious.” This Court’s decision in Poe v. Commonwealth, 201 S.W.3d 37 (Ky.App.2006), is instructive although the factual circumstances are notably different. After being called to a residence in response to a domestic violence event, the officers handcuffed and placed the uncooperative defendant in a police cruiser. The defendant was intoxicated, belligerent and threatening. On appeal, the defendant claimed that the officers employed more force than was reasonably necessary to investigate the incident, thus changing the detention of Poe from an investigatory stop to an arrest. For its analysis of the case, the Poe court first determined that the police were on the premises for a legitimate purpose. The Court next determined that upon arrival, the officers had a duty to use all reasonable means to prevent other domestic violence and that they had a duty to remain as long as they suspected further danger to the physical safety of persons present. Summarizing its view, the court said:

It is important that a police officer be able to contain potentially dangerous situations in a short period of time, using the least intrusive means to verify or to dispel their suspicions. At the point when Poe was handcuffed and placed in the police cruiser, the officers had been unable to get the whole story as to the events that led up to their visit to the Poes’ residence that evening. The restraint used by the officers was no more than that necessary to protect the safety of Poe, others, and themselves, while attempting to obtain the necessary information.

Id. at 42 (citation omitted).

To be sure, there are differences between the Poe case and the case at bar. However, in this case, there is a suggestion that Appellant’s cousin was agitated, but otherwise there was no particular evidence of unruly behavior. On the other hand, this encounter was between a single police officer and two citizens on a busy highway where there had been a traffic accident, where the presence of marijuana was suspected, and where a vehicle search was intended. This circumstance was sufficient to authorize reasonable means to prevent flight, assault, injury or other untoward conduct. The Supreme Court of Kentucky has recently recognized that cases involving illegal drugs bring “into play the indisputable nexus between drugs and guns” and “creates a reasonable suspicion of danger to the officer.” Owens v. Commonwealth, 291 S.W.3d 704, 710 (Ky.2009) (internal quotation marks omitted). Terry v. Ohio recognized that police officers are not required to take unnecessary risks in the performance of their duties. The Poe court concluded that

Pursuant to United States v. Hensley [469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) ], a police officer may conduct an investigatory stop if he has a particularized and objective basis for suspecting the particular individual being stopped is, or is about to be, engaged in criminal activity or is wanted for past criminal conduct. In considering whether a reasonable suspicion exists, the totality of the circumstances must be taken into account.

Poe, 201 S.W.3d at 43 (citations omitted).

In our view, the “totality of the circumstances,” based on the facts found by the trial court at the suppression hearing, was sufficient to justify handcuffing Appellant and his cousin. We note from Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th Cir.1999), that the United States Court of Appeals for the Sixth Circuit has held “[n]or does the use of handcuffs exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution.” Under the circumstances that prevailed on the side of New Circle Road, the manner of detention, although undoubtedly intrusive, was not unreasonable and did not constitute a seizure or arrest under the Fourth Amendment.

For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR.


author: THOMPSON, Judge:

text:
    Eileen MOSLEY, Appellant, v. David MOSLEY, Appellee.
    No. 2009-CA-000177-MR.
    Court of Appeals of Kentucky.
    Sept. 10, 2010.
    Patsy Decker, Somerset, KY, for appellant.
    Heidi Schultz Powers, Somerset, KY, for appellee.
    Before TAYLOR, Chief Judge; MOORE and THOMPSON, Judges.
   OPINION

THOMPSON, Judge:

This is an action for dissolution of marriage. The single issue presented is whether the circuit court abused its discretion when it denied the appellant’s motion to amend her response to the petition for dissolution of marriage to include a request for maintenance. We conclude that the motion was improperly denied and reverse and remand the case for further proceedings regarding the issue of maintenance.

After eleven years of marriage, Eileen and David Mosley separated in 2003. On July 5, 2007, David filed a petition for dissolution of marriage and, on January 8, 2008, Eileen filed her response. Premised on her assumption that the financial circumstances of the parties did not warrant maintenance, Eileen did not request maintenance.

David’s deposition was taken in May 2008. He testified that his mother died in September 2007, and that he was the sole heir to her estate. The estate had not been settled. Although he indicated that he had inherited personal and real property, he did not testify as to the value. Eileen only became aware that the amount of the inheritance was $645,000 when David filed his brief in the circuit court and attached a petition for probate of the will as an exhibit. After learning that her portion of David’s military retirement pension would be only $174 per month and that she would be without health care coverage following the dissolution of marriage, Eileen filed a motion to amend her response to include a request for maintenance because David’s assets were significantly greater than she had believed.

David opposed the motion on the basis that the amendment would cause undue delay in granting the final divorce decree and undue prejudice. Following a hearing, the circuit court denied the motion. Our resolution of the issues necessitates a review of our civil rules of procedure.

The amendment of pleadings in civil cases, including an action for dissolution of marriage, is governed by CR 15.01. We emphasize that although it is often recited that the granting of relief is within the trial court’s discretion, the rule states that leave to amend “shall be freely given when justice so requires.” CR 15.01. Thus, the discretion afforded the trial court cannot be exercised so as to deprive litigants of a just result.

To further the purpose of providing a just result to our litigants, Kentucky has adopted the view that the rule should be liberally construed. In Stout v. City of Martin, 395 S.W.2d 591 (Ky.1965), the Court summarized the prevailing view when considering a motion to amend a pleading when it stated:

Under liberal modern practice a change in the theory on which relief is demanded is not an obstacle to amendment, nor is the assertion of a new claim that could have been joined in the first instance with the claim stated in the complaint, per CR 18.01. See Clay, Kentucky Practice, CR 15.01, Note 4; Dombrovskis v. Murff 24 F.R.D. 302 (S.D.N.Y.1959). ‘If no problem of relation back is involved, the question for the court is not whether a new and independent claim or ‘cause of action’ is pleaded by amendment but whether the just and expeditious disposition of the controversy between the parties will be advanced by permitting the amendment.’ Barron & Holtzoff, Federal Practice and Procedure, § 448 (Vol. 1A, p. 753). Nevertheless, by the express terms of the rule permission to amend is mandatory only if ‘justice so requires.’
‘The more common reasons for denying leave to amend are that the amendment will result in undue prejudice to the other party, is unduly delayed, is not offered in good faith, or that the party has had sufficient opportunity to state a claim and has failed.’ 3 Moore’s Federal Practice, R15 (Par. 15.08, pp. 897-900).

Id. at 592-593.

Subsequently, in Shah v. American Synthetic Rubber Corporation, 655 S.W.2d 489 (Ky.1983), the Supreme Court held that the trial court erred when it refused to permit amendment of the complaint. It stated: “There is no suggestion that the filing of this pleading could prejudice respondents nor is there any indication that the filing of the amended complaint would work an injustice.” Id. at 493. We are compelled to reach the same conclusion.

Eileen did not become aware of David’s inheritance until he filed his circuit court brief. Although his inheritance is not marital property subject to division, it is relevant to David’s ability to pay maintenance while meeting his own needs. KRS 403.200(2)(f); Roberts v. Roberts, 744 S.W.2d 433, 436 (Ky.App.1988). Moreover, we cannot see how the additional time it will take to resolve the maintenance issue could prejudice David. The issue is straight forward and will require minimal additional evidence. If Eileen is entitled to maintenance, the injustice to her by denying her motion to amend her response is far greater than that to David by permitting the amendment.

Based on the foregoing, the order of the Pulaski Circuit Court is reversed and the case is remanded for entry of an order permitting Eileen to amend her response to include a request for maintenance.

ALL CONCUR.