text:
    Carol ROSS v. STATE of Arkansas; Mark Singson v. State of Arkansas; Gil Landers d/b/a Big Daddy’s Pawn Shop, Linda Stewart v. Ken Jameson; Quinton Lee Handy v. State of Arkansas; Deborah Rouse v. State of Arkansas; Alexander Davison v. State of Arkansas; Alexander Davison v. State of Arkansas
    CR 01-177; CR 01-268; 01-269; CR 00-1445; CR 01-336; CR 01-348; CR 01-342
    55 S.W.3d 770
    Supreme Court of Arkansas
    Opinion delivered October 4, 2001

      Jeff.Rosenzweig, for appellant Carol Ross.

      Julia B. Jackson, Public Defender Conflicts, for appellant Mark Singson.

      Josh E. McHughes, for appellant Gil Landers et al.

      William R. Simpson, Jr., Public Defender, by: Deborah Sailings, Deputy Public Defender, for appellants Quinton Lee Handy, Deborah Rouse, and Alexander Davison.
    No response.
   Per Curiam.

The facts of this matter, which concern the failure of Madeline McClure, an official court reporter, to timely file seven different transcripts with this court’s clerk, are set out in our per curiam opinion issued on May 17, 2001. Ross v. State, 344 Ark. 623, 42 S.W.3d 483 (2001). We stated in that opinion that Ms. McClure had failed to comply with the writs of certiorari granted and issued in the above-referenced matters. We ordered Ms. McClure to appear before this court on May 24, 2001, to show cause why she should not be held in contempt of court for her failure to comply in a timely manner with the commands of the writs issued in the above-styled actions.

At her appearance before this court on May 24, 2001, Ms. McClure pled not guilty to contempt, and we appointed the Hon. John Lineberger as master to conduct the hearing, make findings of fact, and file them with the court. See Ross v. State, 345 Ark. 181, 44 S.W.3d 336 (2001) (per curiam). On August 13, 2001, the master filed his report and findings of fact with this court’s clerk. The report reflects that a hearing was conducted on July 12, 2001, at which Ms. McClure appeared pro se.

According to the master’s report, Ms. McClure began her career as a general freelance court reporter in 1983. Eventually, she served as a substitute court reporter for various circuit and chancery courts in Pulaski County. No complaints were filed against Ms. McClure in her capacity as a freelance or substitute reporter. In December 1999, she became employed as the official court reporter for the Fifth Division Circuit Court, Sixth Judicial District, working first forjudge Morris Thompson and, then, for his successor, Judge Leon Johnson. Judge Willard Proctor, who succeeded Judge Johnson on January 1, 2001, did not retain her. Ms. McClure has been unemployed since January 1, 2001.

The master made extensive findings of fact regarding Ms. McClure’s performance in connection with the timely preparation and filing of transcripts for appeal in the above-styled actions. A summary of those findings is set out below:

Ross v. State (CR 01-177): The transcript of a one-and-one-half hour non-jury trial was due to be filed with this court’s clerk on February 10, 2001 (after trial court extensions for the full seven months from entry of judgment). No part of the transcript was ready at that time. On February 27, 2001, we granted a writ of certiorari to complete the record, returnable on March 1, 2001, followed by a final extension deadline of April 1, 2001. Ms. McClure knew the importance of meeting the March 1 deadline but did not start preparing the transcript before March 1. She only had a few pages prepared by the April 1 final deadline.

Simpson v. State (CR 01-268): The transcript of a two-and-one-half day criminal jury trial was due to be filed with this court’s clerk on March 6, 2001 (after trial court extensions for the full seven months from entry of judgment). Ms. McClure had started typing the transcript but did not have anything in print. On March 22, 2001, we granted a final extension of time to return the writ until April 21, 2001. As of the final deadline, Ms. McClure did not have anything in print.

Gil Landers d/b/a Big Daddy Pawn Shop v. Ken Jameson (01-269): The transcript of a civil non-jury case was due to be filed with this court’s clerk on March 16, 2001 (after trial court extensions for the full seven months from entry of judgment). When the transcript was not ready by the March deadline, we granted a final extension of time to return the writ until April 28, 2001. Ms. McClure did not have the transcript prepared by that final deadline. The 60-page transcript was eventually filed by Ms. McClure on June 12, 2001.

Quinton Handy v. State (CR 00-1445): The transcript of a full-day criminal jury trial was due to be filed with this court’s clerk on December 18, 2000 (after trial court extensions for the full seven months from entry of judgment). Once again, no transcript was ready by the December deadline. On January 11, 2001, we granted a writ of certiorari, returnable on February 10, 2001, followed by an extension to March 10, 2001, and a final extension deadline of April 28, 2001. Ms. McClure never prepared the transcript.

Rouse v. State (CR 01-336): The transcript of a criminal non-jury case, in which hearings were held on two different days, was due to be filed with this court’s clerk on March 21, 2001 (after trial court extensions for the full seven months from entry of judgment). Because the transcript was not ready by March 21, we granted a writ of certiorari on April 5, 2001, and fixed a final return date of May 5, 2001. Ms. McClure failed to comply with our directive. The 173-page transcript was eventually filed by Ms. McClure on June 21, 2001.

Davison v. State (CR 01-342 and CR 01-348): The transcripts of these criminal cases were due to be filed with this court’s clerk on March 22, 2001 (after trial court extensions for the full seven months from entry of judgment). When the transcripts were not ready by that deadline, we granted a writ of certiorari on April 5, 2001, and fixed a final return date of May 5, 2001. Once again, Ms. McClure failed to comply with our directives. The transcripts (86 pages and 22 pages, respectively) were eventually filed by Ms. McClure on July 2, 2001.

At the hearing conducted by the master, Ms. McClure testified that her problem with preparing all of the transcripts was twofold: “. . . all my equipment went down and my personnel went to nothing.” Apparently, her word processor failed in late December 2000, and she purchased new equipment in mid-January 2001. However, Ms. McClure claimed she did not know how to operate the new equipment and could not find anyone to give her lessons. Judge Proctor allowed her to use the court’s transcriber until the end of March 2001, at which point she and her typist shared a rented transcriber until she purchased a new one in May or June 2001. Ms. McClure also testified that her typist would not type jury proceedings.

The master concluded his report with the following pertinent findings:

Time was available for Ms. McClure to timely prepare the transcripts in question. There were no other distractions in her life; her judges authorized her to stay (or go) home and work on transcripts when trials or hearings were not in progress and she had few other transcripts to prepare.
While computers can be complicated machines, Ms. McClure appears to have the education, experience and ability to utilize the word processing features without a great deal of difficulty.
Ms. McClure was courteous, respectful and answered all questions asked at the hearing. . . . She acknowledges that she made substantial mistakes and is fully aware that her punishment may be severe.

The master also noted that Ms. McClure, “almost as an afterthought, . . . revealed that she had a bout with alcohol (vodka) which resulted in her being hospitalized at Bridgeway in Little Rock for seventeen days commencing in late April 2001.... Obviously this conduct is not an excuse, but may best explain her conduct.”

Based upon the foregoing, we hold Ms. McClure in contempt of this court for wilfully fading to comply in a timely manner with the commands of the writs issued in the above-styled actions. In holding Ms. McClure in contempt, we note that she may be punished by incarceration, imposition of fine, or both. Poyner v. Arkansas Contractors Lie. Bd., 336 Ark. 83, 985 S.W.2d 298 (1999). However, we take notice that the Board of Certified Court Reporter Examiners held a hearing on September 15, 2001, and considered a complaint filed against Ms. McClure by Josh E. McHughes, an attorney representing one of the appellants in Landers v. Jameson (01-269). The Board, after considering the affidavit of attorney McHughes, the sworn testimony of Ms. McClure and the above-referenced report and findings of fact filed by this court’s master, voted to revoke Ms. McClure’s certification as a certified court reporter.

In view of the action taken by the Board of Certified Court Reporter Examiners, as well as our master’s findings and other matters set out in the contempt proceeding, we fine Ms. McClure in the amount of $530.30, which reflects court reporter expenses incurred by this court. The clerk is also directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners.

Contempt order issued.

       The transcript of the July 12, 2001, hearing was filed with this court’s clerk on July 26, 2001.

       The Ross v. State transcript was prepared by another court reporter, Ms. Kathryn Begley, and it was filed with this court’s clerk on July 23, 2001.

       The Simpson v. State transcript was prepared by another court reporter, Ms. Cheryl Nelson, and it was filed with this court’s clerk on August 13, 2001.

       The Handy v. State transcript was prepared by another court reporter, Ms. Cheryl Nelson, and it was filed with this'court’s clerk on August 3, 2001.


source: Caselaw Access Project

author: W.H. “Dub” Arnold, Chief Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    Shawn BARBEE v. STATE of Arkansas
    CR 01-515
    56 S.W.3d 370
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001
    [Petition for rehearing denied November 15, 2001.]

      Bridewell & Bridewell, by: Robert G. Bridewell, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Shawn Barbee, petitioned for review from an unpublished court of appeals decision affirming revocation of his parole and imposition of a six-year sentence of imprisonment. We granted the petition for review and now. reverse the court of appeals and the trial court.

On March 17, 1997, appellant pled guilty to three counts of negligent homicide and was sentenced to five years’ probation. One of the conditions of his probation was that his driver’s license was revoked for a period of three years. On January 10, 2000, the State filed a petition to revoke appellant’s probation, alleging that he had been driving during the period when his license was revoked. At the revocation hearing, appellant admitted that he had driven a vehicle, but he asserted that he had driven only after he was informed by the Chicot County Revenue Office that his driving record was clear and he was issued a valid driver’s license.

The facts upon which appellant’s probation was revoked are as follows. In December 1998, appellant went to the Chicot County Revenue Office to obtain an identification card in order to get his marriage license. The employee assisting him informed him that he had a “clean” driving record; therefore, he could only get a driver’s license, not an identification card. Because of the conditions of his probation, appellant asked the clerk to check his record again; she did so and informed him that his driving privileges were not suspended. The State of Arkansas then issued appellant a valid driver’s license. At the revocation hearing, the revenue office employee who issued appellant his driver’s license testified that the information in the computer could not be manipulated and that she had no choice but to issue a driver’s license to appellant because his license was not suspended.

On October 21, 1999, appellant was the driver of a car stopped by Lake Village Police Officer Jason Gregg, based on a report of a suspected drunken driver. Officer Gregg testified that he checked appellant’s license, determined that it was valid, found no alcoholic beverages in the vehicle, and allowed him to drive away. Nevertheless, the State filed its petition to revoke appellant’s probation based upon the fact that his driver’s license had been revoked.

The trial judge found that appellant had violated the terms of his probation, revoked the probation, and sentenced him to six years’ incarceration in the Arkansas Department of Correction. Appellant now appeals, arguing that the trial court was clearly erroneous in revoking his probation under Ark. Code Ann. § 5-4-309 (Supp. 1999), for driving a vehicle after the reinstatement of his driver’s license by the Arkansas Department of Finance and Administration.

I. Standard of Review'

When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001); Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). A trial court may revoke a defendant’s probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d). In probation-revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this Court will not reverse the trial court’s decision to revoke probation unless it is clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 631, 951 S.W.2d 559 (1997).

II. Miner v. State

In affirming the trial court, the Arkansas Court of Appeals cited Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000), and declined to reach appellant’s' argument because he did not request a directed verdict and dismissal until after he was sentenced. In Miner, supra, this Court applied the requirements of Ark. R. Crim. P. 33.1 (2000) to revocation hearings so that motions for directed verdict and to dismiss must be requested after presentation of all the evidence, just as in non-jury trials. Appellant asks that this Court reconsider its holding in Miner; or, in the alternative, modify Miner so that it does not affect cases decided before April 26, 2000, the date of the Miner decision.

Appellant points out that Miner, supra, was decided after his revocation hearing. Appellant reminds the Court that revocations are not like “trials” specified in Ark. R. Crim. P. 33.1, where the rules of evidence do apply and the burden of proof is beyond a reasonable doubt. Indeed, revocation hearings are informal hearings, where rules of evidence are not followed and the burden of proof is by a preponderance of the evidence.

The State maintains that Miner should apply and that appellant’s argument was not preserved for appeal. The State asserts that Miner did not create new law, but simply interpreted Rule 33.1(b). Rule 33.1 had been amended on April 8, 1999, to require a defendant to make timely motions for directed verdict and dismissal in non-jury trials, just as in jury trials — at the end of the evidence. This Court, in a 5-2 decision on April 26, 2000, in the Miner case, interpreted this amendment to apply to revocation hearings, as well. Appellant’s revocation hearing was held on January 31, 2000, indeed after the effective date of the amendment of Rule 33.1, but before this Court interpreted same to be applicable to revocation hearings. We now reconsider our holding in Miner and find appellant’s argument persuasive.

We hold that our decision in Miner, supra, was incorrect; as such, we hold that Ark. R. Crim. P. 33.1 and the requirements thereof, pertaining to motions for dismissal and directed verdicts, do not apply to revocation hearings. Consequently, we hold that appellant’s motion for directed verdict made after sentencing was proper and did preserve his argument for appeal.

III. Failure to Comply with Terms of Probation

Appellant asserts that the basis for revocation in this case was not his fault, that the evidence showed that he had been an exemplary probationer, and that the trial court noted that he was “tremendously rehabilitated.” Citing Ark. Code Ann. § 5-4-309(d), he argues that he did not inexcusably fail to comply with a condition of his probation. We agree.

The term “inexcusable” is defined as “incapable of being excused or justified — Syn. unpardonable, unforgivable, intolerable.” Random House Compact Unabridged Dictionary 977 (1996). Certainly, the facts of this case are unique, and the resulting six-year prison term is unduly harsh. Appellant was a model probationer whom the trial court admitted was “tremendously rehabilitated.” He was incorrectly given a driver’s license by the State, although he only attempted to obtain an identification card in order to get a marriage license. Appellant relied upon the revenue office clerk’s information that his driver’s license was not suspended; and, although he did drive during the period of his probation, he received no traffic citations and committed no further criminal activity. He complied with every other term of his probation. Surely, his reliance upon the State revenue office that he was allowed to have a driver’s license, after he asked the clerk to check again to be sure, would constitute forgivable, pardonable, excusable behavior for his failure to strictly comply with the terms of his probation. As such, given the unique facts of this case, we reverse and remand the case to the trial court, thereby reversing and remanding the court of appeals’ opinion.

Reversed and remanded.

■ Glaze, Brown, and Imber, JJ., dissent.

Robert L. Brown, Justice,

dissenting. The underlying crimes in this case were three counts of negligent homicide associated with driving while intoxicated. There were three deaths that resulted •— Barbee’s child, his girlfriend, and another friend. Barbee pled guilty to these counts and was sentenced to ninety days in jail, six months of in-house alcohol rehabilitation, sixty months of supervised probation, costs and fines, and a three-year revocation of his driver’s license. He began driving before the three-year revocation period had expired. Barbee argued at the revocation hearing before the circuit judge that his premature driving was “excusable.” The circuit judge disagreed and revoked his probation. I cannot say that the circuit judge was clearly erroneous in his finding, and for that reason I dissent.

The majority tries to justify its departure from the circuit judge’s finding by saying this is a unique case. This case, most assuredly, turns on its facts, but it hardly qualifies as unique. The majority then reverses the circuit judge without applying our standard of review. In order to reverse the circuit judge, we must hold that his finding was clearly erroneous. See Ark. R. Civ. P. 52(a). Our caselaw is legion in support of this principle. See, e.g., Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992) (stating that a trial court’s findings in a probation revocation hearing will be upheld unless clearly against the preponderance of the evidence). The majority cites the Lemons case but avoids discussion of this substantial hurdle.

Then there is the issue of assessing witness credibility. The circuit judge did exactly that. Here is what the circuit judge said at the conclusion of the revocation hearing:

The COURT: You know, witnesses were sworn. I listened to the testimony. And based upon the testimony I reached a finding. And I’m not of the opinion that documentary evidence is required. So I’ll deny that motion.
The COURT: Well, you know, he certainly —
I know I take these matters serious. And you have credible witnesses on both sides. Who do you believe when they’re saying something differendy?
And I was convinced that Mr. Barbee was instructed when his driver’s license were, the effect of revoking, the effect of having a driver’s license revoked is that you should not drive. And I just, here again, I don’t want to go on hindsight —•
Defense Counsel: Your Honor —
THE COURT: — but I’m convinced that he had violated — I stand behind the findings that he had violated condition number nineteen.
The underlying charge here is the three lives that were taken. That weighed heavily upon my making this choice.

It is boilerplate law that this court defers to the trial court in matters of witness credibility. We never deviate from that principle. What follows is a sampling of cases where we recognized that doctrine in no uncertain terms: Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000) (this court will not second-guess credibility determinations); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000) (conflicts in testimony are for the trial court to resolve, as it is in a superior position to determine the credibility of witnesses); Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999) (credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and this court defers to the superior position of the trial judge in matters of credibility); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998) (credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and this court defers to the superior position of the trial judge in matters of credibility); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998) (credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and this court defers to the superior position of the trial judge in matters of credibility); Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997) (this court has repeatedly held that it will defer to the trial court’s finding of fact when the only determination is credibility of a witness); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997) (this court defers to the trial court’s superior position to evaluate the credibility of witnesses); Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996) (a trial judge is in the best position to determine the credibility of the witnesses at a Denno hearing, and his determination that appellant voluntarily confessed was not clearly erroneous); McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996) (conflicts in testimony are for the trial court to resolve, as it is in a superior position to determine the credibility of the witnesses); Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994) (credibility of witnesses who testify at a suppression hearing is for the trial judge to determine, and this court defers to the superior position of the trial court in matters of credibility).

Why a majority of this court has departed from this well-settled principle in this case is troublesome. But that is precisely what the majority has done. It has weighed the evidence, assessed witness credibility, and then adopted Barbee’s theory of this case. In doing so, the majority has implicitly concluded that the circuit judge clearly erred.

This case of negligent homicide was an extremely serious matter. Drinking was involved. Three people were killed. The judge heard all of the evidence on why Barbee began driving before his three-year probation expired. The judge apparently did not believe Barbee when he said he was misled by the Chicot County Revenue Office. Rather, the judge concluded that Barbee took advantage of a computer glitch and violated his probation.

I cannot say the circuit judge was clearly erroneous. For that reason I would affirm.

Glaze and Imber, JJ„ join.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    BOATMEN’S TRUST COMPANY of Arkansas, Guardian of the Estate of James D. Henderson, a Minor, and Yolanda Henderson v. HOUSING AUTHORITY of the CITY of NORTH LITTLE ROCK, et al.

    00-1120
    57 S.W.3d 132
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001
    [Petition for rehearing denied November 15, 2001.]

      Bridges, Young, Matthews & Drake, PLC, by: Terry F. Wynne, Stephen A. Matthews, and Cary E. Young; and Koonz, McKenney, Johnson, DePaolis & Lightfoot, by: William P. Lightfoot and Paulette E. Chapman, for appellant.

      Huckahay, Munson, Rowlett, & Tilley, P.A., by: Julia L. Busfield and Bruce Munson, for appellee Audubon Indemnity Company.

      Barber, McCaskill, Jones & Hale, P.A., by: Michael E. Hale and Christine A. Cryer; and Baldwin & Brown, P.C., by: Dennis W. Brown and Ellen R. Ivy, for appellee Rheem Manufacturing Company.

      Friday, Eldredge & Clark, by: James M. Simpson, for appellee NorAm Energy Corporation.

       Glaze, J., not participating.

   W.H. “Dub” Arnold, Chief Justice.

On May 4, 1990, 22-month-old James D. (J.D.) Henderson suffered severe scald burns while in the bathtub of the apartment in which he lived. J.D. suffered third-degree scald burns over 50 percent of his body, requiring ten months of hospitalization. While his medical bills total almost one million dollars already, J.D. continues to suffer pulmonary problems, mental retardation, subsequent scarring, and other disabilities caused by the burns.

J.D. had been placed in the bathtub by his mother, Yolanda Henderson, in, according to her, about one inch of tepid water. She maintains that she ran out of the bathroom to grab a towel for J.D.; and, while getting the towel, she heard J.D. scream. She states that she immediately ran to the bathroom where she found the tap water running full blast, lifted J.D. out of the tub, and immediately called 911.

Appellants sued the Housing Authority of the City of North Little Rock/Audubon Indemnity Company for failure to maintain and properly inspect the water heater in the Henderson apartment building and for failure to warn Ms. Henderson of the risks and dangers associated with the residential water heater. Appellants sued Rheem Manufacturing Company (Rheem) for distributing a defective residential water heater and for failing to warn of the dangers associated with the “liquid fire” coming out of J.D.’s faucet.

Appellants also sued NorAm, the provider of gas service to appellants’ residence because, appellants contend, in providing gas NorAm failed to warn its customers and intended users of the dangers created by scalding tap water. Finally, appellants sued Crane Company (Crane), the manufacturer of the hot water control handle in the appellants’ apartment, under theories of negligence, strict liability, and breach of warranties.

The trial court found that J.D.’s mother’s actions constituted an intervening cause which barred the minor’s claims against the landlord, the fixture manufacturer, the water heater manufacturer, and the utility. Appellants appealed to the Arkansas Court of Appeals who, by per curiam, ordered appellants to revise their brief and file a substitute brief due to flágrant deficiencies in their abstract. The per curiam issued by the court of appeals noted the particular deficiencies and gave specific guidance of how to cure those deficiencies. Appellants then filed a substituted brief, and the case was assigned to this Court. This appeal asserts that the trial court erred in granting summary judgment in favor of the appellees. We hold that appellants’ abstract continues to be flagrantly deficient and, therefore, affirm the case.

It is well established that the abstract is the record for purposes of appeal, and the burden is on the appealing party to provide both a sufficient record and abstract for appellate review. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). Our review on appeal is limited to the record as abstracted, and we will not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Luttrell v. City of Conway, 339 Ark. 408, 5 S.W.3d 464 (1999) . Rule 4-2(a)(6) of the Arkansas Supreme Court Rules requires that an abstract contain “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” A transcript of a hearing on a motion that is the subject of an appeal is a material part of the proceedings that must be abstracted. See Warnock, 336 Ark. 506, 988 S.W.2d 7. The purpose of an abstract is to give us an understanding of the issues on appeal. City of West Memphis, 332 Ark. 421, 965 S.W.2d 776. We may affirm for noncompliance with the rule where there is a flagrantly deficient abstract. Id. The inherent logic of this rule is that there are seven justices on our Court, but only one record. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). Mere references to the transcript scattered in the brief are insufficient. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).

It is clear from the abstract that appellants are not in compliance with the rule. First, appellants have simply photocopied exhibits that total over 250 pages and have attached them to the addendum, providing only a short description of the exhibits in the abstract. This Court has repeatedly held that where a matter can be reduced to words, it must be abstracted in words. In the Matter of the Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). A review of the materials in appellants’ addendum reveal that most of the documents, with the exception of a scald chart and a copy of an advertisement, are either articles or studies that can readily be reduced to words and properly abstracted. This Court has previously stricken an appellant’s exhibits where they could be abstracted in words but were not. See Mary Kay, Inc. v. Isbell, 336 Ark. 374, 986 S.W.2d 90 (1999).

One example of appellants’ shortcut approach to compliance, is their reliance on a ninety-two page article entitled “Scald Burn Prevention Strategy.” The abstract of this article consists of three lines. Another example is the abstract of the dwelling lease executed by Yolanda Henderson when she moved into Hemlock Court Apartments. Appellants chose to abstract only paragraph seven of the lease agreement but then failed to abstract all the relevant verbiage from that one paragraph.

More troubling than appellants’ abbreviated abstracting of these exhibits is the fact that several times appellants make a statement in their argument, cite to one of these exhibits, and then fail to even abstract that portion of the exhibit upon which they rely. If only three lines of an article are relevant to appellants’ argument on appeal, the trial court was given the entire article. This Court has no way of knowing if the trial court limited its review to the small, three-line excerpts now abstracted by appellants.

Compounding the problem is the fact that other abstract deficiencies exist, as well. Appellants make no reference in their argument to any pages in the abstract; rather, they simply cite to pages in the transcript and, even then, appellants fail to provide pinpoint citations to the record, instead simply noting where such material begins and ends. We have held that an appellant violates the requirements of Rule 4-2(a)(6) where the brief contains only transcript citations and fails to refer the Court to the appropriate pages in the abstract. City of West Memphis, 332 Ark. 421, 965 S.W.2d 776; Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997); and Boren v. Worthen Nat’l Bank, 324 Ark. 416, 921 S.W.2d 934 (1996).

In addition to the deficiencies noted above, the materials that actually were abstracted by appellants were frequently not abstracted in compliance with our rules. For example, there are numerous interrogatories and requests for admission found in the abstract, but they are condensed to a paragraph form and contain only the answers. Such matters are properly abstracted by setting out the question, to be immediately followed by the response. Moreover, the abstract is intended to be an impartial condensation of relevant materials contained in the record. Blunt, 342 Ark. 662, 30 S.W.3d 737 (2001). Here, appellants have consistently failed to abstract relevant materials that happen to be damaging to their case. A prime example of this is their failure to abstract that portion of Yolanda Henderson’s deposition where she makes several critical admissions. This information was only provided in supplemental abstracts filed by appellees. A comparison of the abstract of the motion hearing with the actual transcript of that hearing also reveals that appellants deleted portions of the arguments made by counsel, particularly those arguments where counsel notified the court of reliance on specific cases. Appellants likewise failed to abstract the entire ruling made by the trial court from the bench.

In short, it is clear that appellants’ abstract is flagrantly deficient. It is impossible for u? to be certain that we have the benefit of the same materials relied upon by the trial court in granting summary judgment before us now, in attempting to review the propriety of such a ruling. As such, we affirm the case based upon the deficiency of the abstract.

Affirmed.

GLAZE, J., not participating.

       Appellees had filed a motion to strike appellants’ substituted brief and dismiss the appeal, based upon appellants’ failure to abide by the per curiam issued by the court of appeals ordering appellants to cure certain deficiencies in their abstract. Based upon our holding affirming the case for deficient abstract, appellees’ motion to strike is moot.


author: Tom Glaze, Justice.

text:
    Gary B. MARTIN v. STATE of Arkansas
    CR 00-1382
    57 S.W.3d 136
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001
    [Petition for rehearing denied November 15, 2001.]

      Ellen Lester Reif, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Gary Martin was convicted of first-degree murder and sentenced to life in prison for the 1998 killing of Kimberly Burris. Martin raises two points on appeal; neither has merit, and we affirm his conviction.

For his first point on appeal, Martin argues that the trial court erred in denying his motion for directed verdict. Particularly, Martin contends that there was insufficient evidence to corroborate the statement of an accomplice, Yolonda Day, who gave several statements to authorities in Arkansas and in St. Louis, Missouri, that she had witnessed the murder. We treat motions for directed verdict as challenges to the sufficiency of the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) (citing Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999)). When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in a light most favorable to the State. Id.

Kimberly Burris disappeared from North Little Rock around July 20, 1998. Her remains were discovered in a freezer in an abandoned house in Lonoke County on November 15, 1998. Gary Martin was arrested and charged with Burris’s murder on March 18, 1999, after police received information linking him with Burris’s disappearance. The bases of the charges against Martin included statements given by a woman named Yolonda Day. Lonoke County authorities learned that Day was in the St. Louis, Missouri area, and contacted the police in St. Louis, who, in turn, picked up Day on April 26, 1999, and questioned her about Burris’s murder. That same day, St. Louis Detective Robert Jordan videotaped his interview with Day. Day stated that she did not remember the exact day of the events, but said that she and Gary Martin and two other men — Elton Simms and Lester Perry — were driving in North Little Rock when they picked up Burris on Main Street. Martin said that they needed to take a ride, so they drove to an abandoned house in Lonoke. While in the living room of the house, the group was smoking crack cocaine, when Martin told Burris that he needed to talk to her; the two left the room and went back to a bedroom. About fifteen or twenty minutes later, Day said she heard a scream. She, along with Simms and Perry, went to see what had happened, and they discovered Burris lying in a pool of blood and Martin standing over her with a knife in his hand. Day related that Martin then took some duct tape and rope, put the tape on Burris’s mouth, and “hog-tied her and . . . stuffed her in the freezer.”

In her interview, Day described the route by which the group drove to the Lonoke house, and provided other details of the killing, such as the type and size of the freezer into which Burris’s body had been placed. Day also stated that the men had been saying that they were “going to rough her up or something,” although she did not know that they meant to kill her. When asked why Martin would want to “get” Burris, Day said that it was because Burris had given Martin AIDS.

On April 28, 1999, Arkansas State Police Investigator Scott Pillow drove to St. Louis to pick up Day and bring her back to Arkansas. After booking her into the Lonoke County jail, Pillow informed Day of her Miranda rights and began an interview with her, which he audiotaped. During the interview, Day repeated that she joined Martin, Simms, and Perry, and then the group picked up Burris on Main Street in North Little Rock. Day said that Burris was wearing a striped shirt and a pair of shorts at the time. (This fact was later confirmed by Dr. Charles Kokes, the medical examiner, who testified that Burris’s remains were clothed in a striped shirt and shorts.) Day essentially repeated to Pillow the same information she had given to Detective Jordan in St. Louis, including the directions to the house, where the murder took place, Martin’s taking Burris aside to talk to her, and the fact that Martin hogtied Burris with duct tape after placing tape over her mouth and then placed her body in a freezer.

On appeal, Martin argues that the State failed to corroborate Day’s statements, asserting that once her statement is excluded, there was insufficient evidence to connect him with the murder. His argument is meritless. Ark. Code Ann. § 16-89-111(e)(1) (1987) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.” Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Id. It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994). The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. McGehee, 338 Ark. at 159; Marta, 336 Ark. at 73.

Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Marta, 336 Ark. at 73 (citing Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996)). Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990).

After excluding Day’s statements, the evidence introduced at trial showed the following. Burris and Martin had been dating for several months before she disappeared. Burris was a prostitute who traded sex for drugs, and sometime in 1996, she contracted HIV. On July 3, 1998, a “sincerely upset” and “very emotional” Martin informed his parole officer, William Lambert, that he had found out that his girlfriend had given him the AIDS virus.

Late in July of 1998, Gloria Green, who lived in North Litde Rock, saw Burris and Martin walking past her house. While she saw the two of them walk past her house nearly every day, on this day, Martin “snatched on” Burris and pulled her into an alley. When the two came out of the alley, Martin forced the screaming Burris into an older model car and drove down Eighteenth Street in North Little Rock. That was the last time Green saw Burris.

Also in late July 1998, Harold Tunious, the manager of a convenience store at Eighteenth and Main, in North Little Rock, saw Burris in his store the day before she was reported missing. The next day, Tunious said that Martin came into the store and asked if anyone had seen Burris; Martin also made a statement to the effect that he felt something bad had happened to her, and that she was missing. Tunious thought it strange at the time for Martin to think anything bad had happened, because it was not uncommon for Burris not to show up for a while. A few months later, Martin came back to Tunious’s store and removed a missing-person flier he had put up, saying that Burris had been found. Tunious also said that Martin had told him a story about seeing Burris forced into a vehicle, and that he thought she might be dead. Clara Govig, a friend of Burris’s, testified that before Burris disappeared, Martin wore his hair in long braids, but after her disappearance, he cut his hair short and moved out of his residence. Martin’s brother, Miles Hunter, also testified that Martin told him Burris was missing on the day after she disappeared, and Hunter further confirmed that two days after Burris’s disappearance, Martin moved out of the house where he had lived with Burris.

Lalla Lindsey, Burris’s grandmother, testified that Martin called her on July 21, 1998, the day after Burris disappeared, saying that Burris was missing and that he thought she might be dead. Martin told Lindsey that Burris had gone out about one o’clock in the morning and “gotten in a car,” but that he had not seen her since. Lindsey stated that Martin called her “quite a bit,” and that he told Lindsey several stories about where Burris might be. On one occasion he told Lindsey he had seen Burris walking with a Mexican man in Levy; another time, he stated that while he was looking for Burris in Levy, he walked past an abandoned house that had a bad smell coming from it. Later, he suggested Burris might be in Lonoke, visiting her mother.

Dr. Charles Kokes, the associate medical examiner, testified that Burris died of suffocation due to an external obstruction of the airway. She had been “hog-tied,” with her hands and feet bound behind her back by duct tape and a telephone wire. Kokes described that a gag of duct tape was wrapped around the front of Burris’s face, covering her eyes, nose, and mouth, and extending down over the top of her neck, and that her body had then been put into a chest-type freezer. Dr. Kokes said that Burris’s right elbow had been broken, and he opined that she had suffocated because of the gag over her face; he stated, however, that due to the state of decomposition, he could not rule out the possibility that some other form of trauma had contributed to her death. A chair that was also recovered from the crime scene was found to have hairs on it; later examination by the Arkansas State Crime Lab showed that those hairs were microscopically similar to Yolonda Day’s hair.

The foregoing evidence clearly established Burris’s murder and tended to connect Martin to its commission. He gave inconsistent stories about Burris’s disappearance, and made conflicting suggestions about her whereabouts. Moreover, he both moved and changed his appearance within a few days of her disappearance. The jury is not required to lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Further, this court has held that false and improbable statements may be considered as evidence of guilt. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Gloria Green’s testimony linked Martin with Burris’s disappearance, and the jury could also have considered Martin’s inconsistent and conflicting statements and behavior as evidence of guilt. Viewing the evidence in the light most favorable to the State, as we are required to do, see Branscum, supra, we conclude that the evidence was sufficient to corroborate Day’s statement and to support the jury’s finding of guilt.

For his second point, Martin argues that the trial court erred in admitting the audiotaped and videotaped statements Yolonda Day gave to police. The court admitted the statements under the residual hearsay exception, Ark. R. Evid. 803(24). Martin contends this decision was error because the statements did not possess the requisite circumstantial guarantees of trustworthiness required by the rule. Martin also asserts that the trial court erred because the use of this evidence violated his due process and confrontation clause rights.

Prior to trial, the State moved to introduce Day’s two statements under Ark. R. Evid. 803(24). That rule provides that certain statements are not excluded by the hearsay rule as follows:

(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

At a pretrial hearing on the admissibility of Day’s statements, the trial court noted that it had seen the videotape, and found that the statement had the requisite circumstantial guarantees of trustworthiness. The court also pointed out that Martin’s confrontation clause arguments were obviated because Day was available for cross-examination. The court then questioned Day about her statements; Day asserted that her intent was to claim that she had lied when she gave those statements. Ultimately, the court ruled that the statements would be admissible under Rule 803(24). At trial, defense counsel extensively cross-examined Day about her statements; Day continued to maintain that she lied to the police, although she conceded that she was never threatened by officers, and simply made up the statements because she was tired and did not think the police would believe her.

The residual hearsay exception was intended to be used very rarely, and only in exceptional circumstances. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992). If a statement is to be admitted under the exception, it must have circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions. Id.; Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). In determining that trustworthiness, the trial court must, under the language of the rule, determine that (1) the statement is offered as evidence of a material fact, (2) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts, and (3) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. Blaylock, 291 Ark. at 350.

A trial court has substantial latitude under Rule 803(24) to admit evidence which it feels meets the spirit of the rule. Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985). Further, this court has repeatedly recognized that matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court. See, e.g., Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). We will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000); Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997)).

Here, after reviewing the videotaped statement, the trial court found that Day’s statements had circumstantial guarantees of trustworthiness, and further found the factors in Rule 803(24) to be in place. First, the statements were offered as evidence of the material fact that Martin killed Burris, as well as the manner in which he committed the murder. Second, the trial court found that the statements were more probative on the point for which they were offered than any other evidence the proponent could procure through reasonable efforts. While the State was able to offer the testimony of numerous witnesses who described seeing Martin with Burris, and spoke of Martin’s unusual behavior following her disappearance, Day was the only witness who set out the details and the actual circumstances of the murder. These details — such as the detailed directions to the abandoned house, the fact that Burris’s face and mouth had been duct-taped, and the fact that her arms and legs were hogtied — were highly indicative of the truthfulness of Day’s statements, and thus rendered the statement more probative of the fact that Martin killed Burris than any other evidence which the State was able to introduce. Finally, the trial court found that the purpose of the rules of evidence and the interests of justice would be served by the introduction of the statements.

Rule 102 of the Arkansas Rules of Evidence provides that the purpose of the rules is to “secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.” By permitting the State to introduce this testimony, the trial court found that the statement was necessary to the administration of justice, in that Day was an eyewitness to the murder. Day had also asserted to the court that she would continue to maintain that her earlier statements were lies, and the court’s ruling was thus an appropriate means to ascertain the truth. Further, the court conducted an extensive hearing on the admissibility of this evidence, and noted that Martin had the opportunity to cross-examine Day during the hearing, and would have another chance to do so during the trial. Thus, the trial court’s ruling on this issue cannot be said to have been an abuse of discretion.

Martin also argues that his confrontation clause rights were violated by the introduction of these statements, citing White v. Illinois, 502 U.S. 346 (1992), and Lilly v. Virginia, 527 U.S. 116 (1999), in support of this argument. The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, mandates that a declarant’s out-of-court statement, when repeated by someone other than the declarant and offered to prove the truth of the matter asserted, may be admitted into evidence only if it bears “adequate indicia of reliability.” Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992). To fall within the admissible category, the evidence must show that the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, although courts have recognized that there is no “mechanical test for determining ‘particularized guarantees of trustworthiness’ under the Clause.” Vann, 309 Ark. at 307 (quoting Idaho v. Wright, 497 U.S. 805 (1990)).

Here, the statements given by Day were consistent, uncoerced, and contained details that would not have been known by a person who was not present at the scene. These factors, considered by the trial court as indicative of the reliability of Day’s statement, rendered the statements reliable. Further, Martin had ample opportunity to cross-examine Day about her statements, and he did so both at the pretrial hearings and at the trial itself. Accordingly, we hold that the trial court’s decision to admit Day’s statements under the residual hearsay exception was not error.

The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed.

       Day’s presence at the house where the murder was committed was corroborated by criminalist Chantelle Bequette’s testimony that a hair matching Day’s was recovered from a chair seized from the crime scene.

       While Lilly does speak strongly of the inherent unreliability of statements against penal interest, made by a declarant against a defendant, that holding was premised on a situation in which the defendant was unable to cross-examine the declarant. That is not the situation here.


author: Annabelle Clinton Imber, Justice.

text:
    Bill MADDOX, Bill Grace, Jerry Frisby, Melba Riggs, and Charles Beasley for Themselves and All Others Similarly Situated v. CITY of FORT SMITH
    01-117
    56 S.W.3d 375
    Supreme Court of Arkansas
    Opinion delivered October 11, 2001

      The Evans Law Firm, P.A., by: Marshall Dale Evans and Charles N. Williams; Llirsch Law Firm, PA., by: E. Kent Hirsch; and Hodson, Wood & Snively, by: Mike Hodson, for appellants.

      Daily & Woods, P.L.L.C., by: Jerry L. Canfield, for appellee.
   Annabelle Clinton Imber, Justice.

This is an illegal-exaction case brought pursuant to Article 16, §§ 11 and 13, of the Arkansas Constitution. The appellants, Bill Maddox, Bill Grace, Jerry Frisby, Melba Riggs, and Charles Beasley, on behalf of themselves and the citizens, residents, taxpayers, and utility ratepayers of the City of Fort Smith, appeal the summary-judgment order of the Sebastian County Chancery Court dismissing their illegal-exaction and unlawful-transfer claims against the appellee, the City of Fort Smith. The appellants claim that the City has been illegally spending its share of revenues collected under a countywide sales and use tax since 1999 when the City’s Board of Directors authorized the use of those tax revenues in a manner inconsistent with a resolution passed by the Board in 1994. Furthermore, the appellants allege that two transfers made from the City’s water and sewer operating fond to the City’s general fund and one transfer made from the City’s sanitation operating fund to the City’s general fund were unlawful.

We affirm the trial court’s grant of summary judgment as to the appellants’ first claim because the Board’s 1994 resolution does not bind the City in appropriating its share of the countywide sales and use tax revenues; rather, the City’s use of those tax revenues is governed by the Sebastian County ordinance that levied the sales and use tax for “general, municipal and county purposes.” With regard to the appellants’ second claim, we also affirm the trial court’s ruling that any challenge to the 1994 transfer of funds is barred by the statute of limitations. However, based upon the evidence submitted to the trial court, we conclude that genuine issues of material fact exist concerning whether the 1996 transfer of funds from the City’s water and sewer operating fund complied with the provisions of Ark. Code Ann. § 14-234-214(e) (Repl. 1998). Moreover, with respect to the legality of the 1996 transfer of funds from the sanitation operating fund to the City’s general fund, we cannot say that it is clear from the record or the law cited by the parties that the City is entitled to judgment as a matter of law. Accordingly, we reverse the trial court’s grant of summary judgment as to the appellants’ claims arising out of the 1996 transfers of funds and remand to the trial court for further proceedings.

I. Standard of Review

Summary judgment-should be granted only when it is clear that there is no issue of fact to be litigated, and the moving party is entitled to judgment as a matter of law. Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, responses to requests for admission, and affidavits show that there is no genuine question of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Loewer v. Cla-Cliff Nursing and Rehab. Ctr., 344 Ark. 258, 39 S.W.3d 771 (2001). The burden of proving that there is no genuine issue of material fact is upon the moving party. Id. On appellate review, we must determine if summary judgment was proper based on whether the evidence presented by the moving party left a material question of fact unanswered. Id. This court views the proof in a light most favorable to the party resisting the motion, resolving any doubts and inferences against the moving party, to determine whether the evidence presented left a material question of fact unanswered. Rankin v. City of Fort Smith, supra.

II. Illegal Exaction

On April 19, 1994, the Quorum Court of Sebastian County approved Ordinance No. 94-10, which called for a special election on the question of a levy of a one percent (1%) sales and use tax for Sebastian County and authorized collection of the tax should it be approved by the Sebastian County electorate. The ordinance, which was published in a local newspaper on April 23, 1994, stated that the tax proceeds would be used for “general, municipal and county purposes.” The ballot title itself did not reflect any particular purpose for the tax. On the same day that the Sebastian County Court approved Ordinance No. 94-10, the Board of Directors of the City of Fort Smith adopted Resolution R-67-94, endorsing the passage of the one percent sales and use tax and stating that “if the citizens approve the countywide sales tax . . ., the Board of Directors commit to earmark the following percentages of the City’s share of the countywide sales tax as follows. ...” The resolution contained a specific list, by percentage, of uses the Board committed to make of the tax revenues: 33% to fire and police services; 33% for waste-water improvements; 10% to subsidize the cost of a new landfill in the sanitation program; 6% to improve library programs; 4% for senior citizen and park programs; 3% for capital improvements in the downtown and riverfront areas; 3% to public transportation services; and 8% to replace revenues lost due to the repeal of the City’s privilege license requirements. The resolution also promised that, if the countywide sales tax was approved, the Board would extend the one-cent city street, bridge, and drainage sales tax for another ten years; repeal the City’s privilege license requirements and refund the 1994 privilege license fees; and forego a sanitation rate increase scheduled for July 1, 1994. The tax was approved by a majority of the county electorate on June 21, 1994.

From the day collection of the one-percent sales tax first began until December 7, 1999, the City expended its portion of the county sales tax revenues consistently with the commitments made in the 1994 resolution. On December 7, 1999, the Board passed Ordinance No. 76-99, approving the City’s year 2000 operating budget. In that budget, the City’s share of county sales tax revenues that had been allocated in previous years to the water and sewer operating fund and to the sanitation operating fund, in accordance with the 1994 resolution, were reallocated to other municipal uses. The budget indicated that rate charges for water, sewer, and solid waste services would provide the necessary funding for those operations in the future.

In their first point on appeal, the appellants argue that the City violated Article 16, § 11, of the Arkansas Constitution when it stopped honoring the spending commitments made by the Board in Resolution R-67-94. Specifically, they claim that the City was bound by the 1994 resolution in its use of the tax revenues and that when the voters of the City of Fort Smith voted in favor of the countywide sales and use tax, they were entitled to rely on the Board’s commitments in the 1994 resolution. The Arkansas Constitution, at Article 16, § 11, provides: “No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.” The intent of this language is for the object of tax revenues to be stated so that the revenues cannot be shifted to a use other than that authorized. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997). Thus, both the county ordinance and the city resolution at issue here must be construed in light of the language in this constitutional provision.

We have recently addressed illegal-exaction claims under Article 16, § 11, of the Arkansas Constitution. See Maas v. City of Mountain Home, 338 Ark 202, 992 S.W.2d 105 (1999); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998); Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574 (1997). In Oldner, neither the county ordinance levying the sales tax nor the ballot title referenced a purpose for which the tax proceeds were to be used. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574. We held in that case that, “[w]hen a tax is enacted by the General Assembly or approved by a vote of the people without the statement of a purpose, the resulting revenues may be used for general purposes.” Id. at 305, 943 S.W.2d at 579. This case differs from Oldner in that the levying ordinance did specify that the funds collected by the tax would be for “general, municipal and county purposes,” although the ballot tide did not reflect any particular purpose for the tax.

The Daniel case presented a reverse image of the fact pattern in Oldner: five specific purposes for the use of tax revenues from a county sales tax were stated in the county ordinance levying the tax and on the ballot. Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226. This court held that any use of the sales tax revenues for purposes other than those provided in the levying ordinance and on the ballot constituted an illegal exaction in violation of Article 16, § 11, of the Arkansas Constitution. Id. We also recognized in that case that the voters were entitled to rely upon the information provided to them in the levying ordinance and on the ballot when casting their votes. Id.

In Maas, the city ordinance levying a one-percent sales tax listed specific restrictions on the use of the tax proceeds, but the ballot contained no specific uses for funds collected by the tax. Maas v. City of Mountain Home, 338 Ark. 202, 992 S.W.2d 105. This court held that, where the city ordinance contained specific, exclusive purposes for the tax and where the ordinance was published in its entirety so as to inform the electorate of its provisions, voters were entitled to rely on the language of the levying ordinance, and the absence of the purposes from the actual face of the ballot did not transform the tax into a general-purpose sales tax. Id. Accordingly, we concluded that an illegal exaction had occurred where the city used tax revenues for purposes other than those specifically listed in the levying ordinance. Id.

Here, we are asked to decide whether the designation in a city resolution of specific purposes for the City’s portion of a countywide sales and use tax is sufficient under Article 16, § 11, of the Arkansas Constitution to determine the purpose of the tax and prohibit contrary uses. The appellants contend that Resolution R-67-94 qualifies as a “law imposing a tax” under Article 16, § 11, such that the City’s portion of the tax revenues can only be spent for the specific purposes listed in that resolution. According to the appellants, when the City stopped using its portion of the revenues for those specific purposes, an illegal exaction occurred. Though the appellants acknowledge that the county ordinance stated the tax revenues were to be used for “general, municipal and county purposes,” they argue that the city resolution should control the City’s use of its portion of the county tax revenues.

In Oldner, we held that, for purposes of construing Article 16, § 11, the “law imposing a tax” means the levying ordinance, rather than the enabling legislation. Oldner v. Villines, 328 Ark. 296, 943 S.W.2d 574. The appellants propose an expanded meaning for that phrase in Article 16, § 11, so that “the complete spectrum of relevant official information”- would have to be considered in determining the stated purpose for tax revenues. Such a proposal goes far beyond and, in fact, ignores the plain language in the constitution that refers only to the “law imposing a tax” and nothing more. This court has stated that, when the language of the Constitution is plain and unambiguous, each word must be given its plain, obvious, and common meaning. Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226. “Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.” Id. at 499, 966 S.W.2d at 231 (quoting Foster v. Jefferson County Quorum Court, 321 Ark. 105, 108, 901 S.W.2d 809, 810 (1995)).

It is patently clear, based upon the plain language in Article 16, § 11, of the Arkansas Constitution and our recent case law interpreting that provision, that Sebastian County Ordinance No. 94-10 was the levying ordinance, or the “law imposing a [countywide sales] tax.” Likewise, there is no doubt that a city resolution cannot be a levying ordinance for a countywide sales tax. In other words, Resolution R-67-94 was not the “law imposing a [countywide sales] tax.” And, even if Resolution R-67-94 were deemed substantively equivalent to an ordinance, it still would not be the ordinance or law imposing the tax. In short, the appellants have failed to cite any authority for the proposition that a city resolution can contravene or supersede the purposes stated in a county ordinance levying a countywide sales tax.

For the above-stated reasons, we hold that Resolution R-67-94 was not the “law imposing a tax” under Article 16, § 11, of the Arkansas Constitution, and, thus, the City is not bound by that resolution in appropriating its share of the countywide sales and use tax revenues. “It is only when a diversion of tax revenues occurs from a specific purpose that has been authorized to an unauthorized purpose that an illegal exaction occurs.” Oldner, supra at 305, 943 S.W.2d at 579. According to Sebastian County Ordinance No. 94-10, the tax proceeds were to be used for “general, municipal and county purposes.” Because no funds were used for any purpose other than that authorized in the county levying ordinance, no illegal exaction occurred. We affirm the trial court on this point, as there is no genuine issue of material fact and the City is entitled to prevail as a matter of law.

III. Transfers of Funds from Utility and Sanitation Accounts

The appellants also allege that three transfers of funds to the City’s general fund were unlawful. The first challenged transfer occurred on September 6, 1994, when the City transferred $500,000 from the “unobligated balance” of the water and sewer operating fund to the general fund. The ordinance indicated that the money was appropriated as a “temporary loan” for funding fire equipment purchases. No date was set for repayment of the loan. In 1999, through its adoption of a year 2000 budget, the City relinquished the loan as a debt of the general fund. The ordinance granting relinquishment stated that the cost of the 1994 appropriation would be charged to “the surplus waterworks revenues of the Water and Sewer Operating Fund.”

The trial court ruled that the appellants’ challenge to this transfer was barred by the statute of limitations. It found that, because the statute commenced running from the date the funds were transferred in 1994, the applicable three-year limitations period had expired. The appellants, on the other hand, contend that the cause of action did not expire until the loan was canceled on December 7, 1999. Thus, they assert that the cause of action was not time barred.

We have previously held that the statute of limitations begins to run on a debt at its maturity. Smith v. Milam, 195 Ark. 157, 110 S.W.2d 1062 (1937). Here, the $500,000 loan stated no date for maturity. Where no time is set for the payment of a debt, the debt is in law payable on demand. Jonesboro Investment Corp. v. Cherry, 239 Ark. 1035, 396 S.W.2d 284 (1965). A debt payable on demand is due immediately, so that an action can be brought at any time, without any other demand than the suit, and the statute of limitations begins to run at once. Sturdivant v. McCorley, 83 Ark. 278, 103 S.W. 732 (1907). We therefore conclude that the temporary loan made to the general fund in 1994 was due on demand, the statute of limitations on that debt began to run immediately, and the collection of the debt was barred by the three-year statute of limitations in September 1997, well before this lawsuit was filed. Accordingly, we affirm the trial court’s ruling that the challenge to this transfer was barred by the statute of limitations.

The statute of limitations would not, however, bar the appellants’ challenge to the two fund transfers made in 1996. Both those transfers were accomplished by an ordinance that reflected the monies were available from each fund’s county sales-tax allocation. On April 16, 1996, a $2,000,000 loan was made to the general fund from the water and sewer operating fund to be used in the funding of a police facility. That loan was to be repaid in equal installments of $333,333 over a six-year period. Installment payments were made on the loan in 1997 and 1998, but no further payments were made. The year 2000 budget approved by the Board indicated that the remaining debt was “formally rescinded.” A $2,000,000 loan was also made to the general fund from the sanitation operating fund to be used in funding the police facility. As with the loan from the water and sewer operating fund, the general fund was to repay the sanitation operating fund in equal installments of $333,333 over a six-year period. Installment payments were made in 1997 and 1998, but no payments were made after that date. The year 2000 budget approved by the Board also indicated that this debt was “formally rescinded.”

As to these transfers of funds in 1996, the appellants make several arguments. First, they allege there were no “surplus funds” as defined in Ark. Code Ann. § 14-234-214(e)(1) (Repl. 1998). Second, they contend that excessive fees constitute unlawful taxes. Third, they argue that, even if a surplus existed, it was not disbursed properly under the statutory scheme set out in Ark. Code Ann. § 14-234-214(e). Next, they assert that the controlling statutes, Ark. Code Ann. §§ 14-234-214, 14-235-221, and 14-235-223 (Repl. 1998) are unconstitutional. Finally, they suggest that the transfers were illegal because (a) the water and sewer operating fund and the sanitation fund are special purpose funds that cannot be used for any purpose other than water, sewer and sanitation, respectively; and (b) Resolution R-67-94 restricts the use of those funds.

As to the first argument, the record reflects the following evidence regarding whether the transferred funds were unencumbered, or surplus. An affidavit by Kara Bushkuhl, Finance Director of the City of Fort Smith, states that the $500,000 appropriation authorized in 1994 “was charged to surplus waterworks revenues of the Water and Sewer Operating Fund as defined and authorized by Ark. Code Ann. § 14-234-214(e)(3)(D).” Ms. Bushkuhl also states in the affidavit that the 1996 appropriations of $2,000,000 from the water and sewer operating fund and $2,000,000 from the sanitation operating fund were of “unencumbered surplus funds.” However, Ms. Bushkuhl does not indicate that she used any statutory provision to determine whether a surplus existed in 1996. The statutory provision cited in her affidavit in connection with the 1994 appropriation, section 14-234-214(e)(3)(D), only indicates that a surplus can be used for other municipal purposes; whereas, the definition of “surplus funds” is set forth in Ark. Code Ann. § 14-234-214(e)(1): those funds “in excess of the operating authority’s estimated cost of maintaining and operating the plant during the remainder of the fiscal year then-current and the cost of maintaining and operating the plant during the fiscal year next ensuing.” This statutory definition of “surplus funds” is not referenced anywhere in Ms. Bushkuhl’s affidavit. Furthermore, the water and sewer operating fund reported a deficiency of $1,078,459 in fiscal year 1996 and $1,491,915 in fiscal year 1997. The sanitation operating fund also reported deficiencies of $617,188 in fiscal year 1996 and $359,306 in fiscal year 1997. Based upon this record, we conclude that a question of fact remains regarding whether “surplus funds,” as defined in Ark. Code Ann. § 14-234-214(e)(1), existed in the City’s utility and sanitation accounts prior to the 1996 transfers. We therefore reverse the trial court’s grant of summary judgment on this point.

Next, the appellants point out that section 14-234-214(e) only applies to waterworks systems and does not authorize the transfer from the sanitation operating fund. While we might agree that this particular section does not apply to sanitation funds, such a conclusion does not necessarily mean that the transfer from the sanitation operating fund was unlawful. The appellants have cited no statutory authority or case law indicating that the transfer from the sanitation fund is prohibited. We have stated that summary judgment is inappropriate where, although there may not be facts in dispute, the facts could result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 332 Ark. 189, 192-193, 961 S.W.2d 712, 722 (1998) (supplemental opinion denying rehearing). Though no facts appear to be disputed as to the transfer of funds from the sanitation operating fund to the general fund, the facts before us do raise a question as to whether the City is entided to judgment as a matter of law.

Ms. Bushkuhl stated, in her affidavit, that it is a generally accepted accounting practice, where permitted by law, for municipalities to supplement utility fund income by sales tax revenues and then utilize surplus revenues of the utility fund for other municipal purposes. Both parties appear to assume that the City’s sanitation fund is a utility fund such that it would be governed by the general accounting principles that Ms. Bushkuhl described as being applicable to utilities. Such an assumption, however, may not be warranted under Arkansas law. The City refers us to case law standing for the proposition that surplus utility fund revenues may be used for other municipal purposes. See Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963); City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946); Johnson v. Dermott, 189 Ark. 830, 75 S.W.2d 243 (1934). Flowever, none of those cases involve a sanitation fund. Thus, we are unable to conclude that the City is entitled to judgment as a matter of law with respect to the legality of the 1996 transfer of funds from the sanitation operating fund to the City’s general fund. Accordingly, we reverse the trial court’s grant of summary judgment on this point as well.

For their second argument, the appellants contend that excessive fees constitute unlawful taxes. They point to the City Finance Director’s statements that water rates had to be increased to meet operational needs, and assert there can be no surplus funds where revenues must be increased to meet the necessary expenses of operation. The argument then shifts to an assertion that, if a surplus existed in the utility funds, the revenue generating the surplus is a tax. The appellants point to cases where we have held that a fee must be fair and reasonable and bear a reasonable relationship to the benefit conferred by the services in order not to be denominated a tax. See Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Barnhart v. City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995). After citing these cases, the appellants jump to the conclusion that a fee is unreasonable, and therefore a tax, if it exceeds the costs of providing such services. They cite no authority for such a proposition, and this court has never made such a holding. When an appellant neither cites authority nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

We turn now to the appellants’ third argument. They suggest that, if there was a surplus of funds, it was transferred unlawfully because the City did not disburse the surplus funds in accordance with the progressive order set out in Ark. Code Ann. § 14-234-214(e):

(1) If any surplus is accumulated, in the operation and maintenance fund of the waterworks system which shall be in excess of the operating authority’s estimated cost of maintaining and operating the plant during the remainder of the fiscal year then-current and the cost of maintaining and operating the plant during the fiscal year next ensuing, the excess may be by the operating authority transferred to either the depreciation account or to the bond and interest redemption account, as the operating authority may designate.
(2) If any surplus is accumulated in the depreciation account over and above that which the operating authority shall find may be necessary for probable replacements needed during the then fiscal year, and the next ensuing fiscal year, the excess may be transferred to the bond and interest redemption account.
(3) If a surplus shall exist in the bond and interest redemption account, it may be applied by the operating authority, in its discretion, subject to any limitations in the ordinance authorizing the issuance of the bonds, or in the trust indenture:
(A) To the payment of bonds that may later be issued for additional betterments and improvements;
(B) To the purchase or retirement, insofar as possible, of outstanding unmatured bonds payable from the bond and interest redemption account, at no more than the fair market value thereof;
(C) To the payment of any outstanding, unmatured bonds, payable from the bond and interest redemption account that may be subject to call for redemption before maturity;
or
(D) To any other municipal purpose.

Ark. Code Ann. § 14-234-214(e) (Repl. 1998). (Emphasis added.)

According to the appellants, this statute mandates that surplus funds, as defined in section 14-234-214(e)(1), be applied in a particular progressive order. Under section 14-234-214(e)(1), surplus funds may be first applied either to the depreciation account or to the bond and interest redemption account. Next, pursuant to section 14-234-214(e)(2), if any surplus is accumulated in the depreciation account, the excess may be applied to the bond and interest redemption account. A plain reading of the statute supports the appellants’ statutory interpretation up to this point. The appellants then proceed to assert that, under section 14-234-214(e)(3), a surplus in the bond and interest redemption account must be applied as follows: first to the payment of bonds that may later issue for improvements; then to the purchase or retirement of outstanding unmatured bonds; then to the payment of any outstanding, unmatured bonds that may be subject to call for redemption before maturity; and then to any other municipal purpose. We disagree.

A plain reading of Ark. Code Ann. § 14-234-214(e)(3) indicates that any surplus remaining in the bond and interest redemption account may be applied, in the discretion of the operating authority and subject to ordinance and trust limitations, to any one of the four listed uses in section 14-234-214(e)(3). The statute follows a progressive order from section 14-234-214(e)(1) through section 14-234-214(e)(3), but once a surplus is found to exist in the bond and interest redemption account, the operating authority then has discretion to apply the surplus to any one of the four options listed in that section. The disjunctive “or” indicates clearly that any of the four options may be chosen in the discretion of the operating authority. Thus, if a surplus exists in the bond and interest redemption account, the operating authority may apply the surplus to “any other municipal purpose.” Once again, based on the record in this case, we hold that genuine issues of material fact exist as to whether the City complied with the provisions of Ark. Code Ann. § 14-234- 214(e) when it transferred the alleged surplus funds to the general fund in 1996. For the reasons already stated, we reverse the grant of summary judgment as to the appellants’ claims arising out of the 1996 transfers of funds.

In arguing that the statutory scheme was not followed, the appellants further contend that the provisions of Ark. Code Ann. §§ 14-235-221 and 14-235-223 (Repl. 1998) were not followed. This argument was not addressed by the trial court. Accordingly, we do not reach the merits of the argument on appeal. It is well-settled that failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue on appeal. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). It is incumbent upon the appealing party to obtain a ruling on an issue to preserve it for review. Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000).

The fourth argument raised by the appellants is that the City’s compliance with sections 14-234-214, 14-235-221, and 14-235- 223 is irrelevant because those statutes are unconstitutional. They acknowledge, however, that the trial court did not rule on the constitutionality of the statutes. Without a ruling from the trial court on this issue, we cannot reach the merits of the argument on appeal. See Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476.

In their final argument, the appellants suggest that the fund transfers were illegal because the water and sewer operating fund and the sanitation operating fund are special purpose funds that cannot be used for any purpose other than water, sewer and sanitation, respectively. They contend that “forgiveness of the . . . loans [made by those funds] to the general fund is a diversion of the revenue collected for one purpose to another resulting in a violation of Ark. Const, art. XVI, § 11.” However, the appellants cite no legal authority in support of this argument. We have stated on occasions too numerous to count that we will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Ouachita Trek Development Company v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000); Matthews v. Jefferson Hospital Ass’n, 341 Ark. 5, 14 S.W.3d 482 (2000). To the extent that the appellants rely upon Resolution R-67-94, the argument merely restates the first point on appeal. As explained under Part II of this opinion, Resolution R-67-94 is not the law imposing the tax. Thus, the use of funds in contravention of the purposes set out in that resolution is not an illegal exaction.

Affirmed in part; reversed and remanded in part.

       In their reply brief, appellants also assert that the City made a commitment to its citizens through Resolution R-67-94 and that the City should be estopped from abandoning that commitment. We will not address this issue, as it was raised before us for the first time in the appellants’ reply brief. We do not consider arguments raised for the first time in a reply brief because the appellee is not given a chance to rebut the argument. Schueck Steel, Inc. v. McCarthy Bros., 289 Ark. 436, 711 S.W.2d 820 (1986).

       Sebastian County Ordinance No. 94-10 was published in its entirety on April 23, 1994.

       Resolution R-67-94 was not published in its entirety following its adoption by the Board on April 19, 1994.

       Resolution R-67-94 was an electioneering effort by the Board in advance of the vote by the county electorate on the proposed countywide sales tax. If the City’s voters disagree with the Board’s subsequent allocation of tax revenues in 1999, political consequences will surely follow.

       On appeal, the appellants do not contest the application of Ark. Code Ann. § 14-234-214(e) to the City’s sewer fund. It is undisputed that the City has operated its water and sewer systems as a consolidated utility system for a number of years. The Arkansas General Assembly has recognized the practice of consolidating water and sewer systems in Ark. Code Ann. §§ 14-237-101 — 14-237-113 (Repl. 1998).