author: RAY THORNTON, Justice.

text:
    Dick BARCLAY, Director, Arkansas Department of Finance and Administration et al. v. Dan MELTON et al.

    99-376
    5 S.W.3d 457
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Malcolm P. Bobo; and Mark Pryor, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., for appellee.

      Oscar Stilley, for appellee.
   RAY THORNTON, Justice.

The Department of Finance and stice. through its director, Dick Barclay, brings this appeal from the order of the Pulaski County Chancery Court that Act 916 of 1995, which revamped the state’s school funding formula by imposing an income-tax surcharge of ten percent on the tax liability of every individual resident of each local school district not levying a base millage of at least twenty-five mills, violates the Arkansas Constitution. Because we have determined that the act in question is violative of Article 5, section 21, of the Arkansas Constitution, we affirm the decision below.

In November 1994, the Pulaski County Chancery Court declared the state’s school funding system was unconstitutional under Article 2, sections 2-3 and 18, and Article 14, section 1, of the Arkansas Constitution. The court stayed the effect of its decision for two years “to give the State of Arkansas time to enact and implement appropriate legislation in conformity with [its] opinion.” In its 1995 session, the Legislature passed and the Governor signed several acts, including Acts 916 and 917, which revamped the school funding formula in an effort to comply with the November 1994 order. Act 916 imposed an income-tax surcharge of ten percent on the tax liability of every individual resident of each local school district not levying the base millage, twenty-five mills, in 1996 and each year thereafter. Act 917 is not at issue in this appeal. Act 916 was repealed by Act 1040 of 1997, which limited the taxpayer surcharge to tax year 1996 only.

Appellees Dan Melton and Steve Cline filed a complaint alleging that Act 916 of 1995 violated the Arkansas Constitution in two ways: first, that it violated Article 14, section 3, by establishing a minimum tax millage rate for public schools. Our state constitution provides that the setting of property tax millage rates and school operational and maintenance expenses are to be the purviews of the local boards of education, to be voted on and approved by the electors of the district. Second, appellees contended that House Bill 1749, which came to be Act 916 of 1995, violated Article 5, section 21, because it originally provided for an income-tax credit, but was later amended so that it ultimately levied an income-tax surcharge, so changing the purpose of the bill that it violated our constitutional prohibition that no bill shall be so altered in its passage through either house as to change its original purpose.

On September 28, 1998, Chancellor Collins Kilgore issued an order finding that Act 916 of 1995 is unconstitutional to the extent that it purports to levy a ten percent income-tax surcharge on certain taxpayers. The chancellor found that Act 916 of 1995 violates Arkansas Constitution, Article 5, section 21, by stripping a bill providing for a tax credit of all substantive provisions and replacing said provisions with a tax increase. The chancellor also found that Act 916 violated Arkansas Constitution, Article 14, section 3, which prohibits the legislature from setting a minimum millage rate for public school purposes, either direcdy or indirecdy, but further found that appellees did not meet their burden of proof as to their allegations that Act 916 coerced the voters of school districts with less than twenty-five mills maintenance and operations for public schools such as to violate the right to a free election. This finding has not been challenged by appellees.

The trial court determined the amount at issue to be refunded from the collection of the ten percent surcharge imposed for 1996 taxes was $1,493,538. The imposition of this surcharge affected only residents of the following school districts: the Berryville and Green Forest Districts in Carroll County, the Westside Consolidated School District in Craighead County, the Hope School District in Hempstead County, the Huntsville School District in Madison County, the Waldron School District in Scott County, the Marshall School District in Searcy County, and the Newark School District in Independence County. The chancellor’s order further found that the ten percent income-tax surcharge was assessed and collected from the residents living in the affected school districts enumerated, save for those residing in the Newark School District.

Chancery court cases are tried de novo on the record on appeal. However, we will not reverse the findings of the chancellor unless clearly against the preponderance of the evidence. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986)(citing Ark. R. Civ. P. 52). After giving due deference to the superior position of the chancellor to determine the credibility of the witnesses and the weight to be given their testimony, we will only reverse the chancellor if we determine that his findings are clearly erroneous, i.e., when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Id. See also Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999). Because we determine that the chancellor did not commit reversible error in holding that Act 916 was unconstitutional because it violated the provisions of Article 5, section 21, which reads: “No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose,” we affirm the decision below on this ground. Having determined that Act 916 was unconstitutionally adopted, we need not consider whether it should be declared unconstitutional on other grounds.

House Bill 1739 was introduced during the 1995 regular session by Representative Tom Courtway. In its original form, it was entitled “An Act to Amend Arkansas Code 26-51-501 to Provide an Additional Dependent Tax Credit for Tax Year 1996; and For other Purposes.” The language of that Bill dealt only with modifications to the provision for tax credits for dependents under the currently existing statute. Two later versions of the bill, introduced on February 21, 1995, and March 1, 1995, continued the purpose of providing a tax credit. However, on March 27, 1995, an entirely new version of House Bill 1739 was introduced by Representatives Ed Thicksten and Robert Lee McGinnis. This version struck the original tide of the Bill and all of the provisions contained in it. The amended version was retitled “An Act to Levy an Individual Income Tax Surcharge for the Equalization of Public School Funding; and for other purposes,” and the amended bill contained no reference to any “tax credit” for dependents. The body of the new bill dealt entirely with a new purpose of enacting a ten percent income-tax surcharge for use in equalizing public school funding. In revisions dated March 28 and March 29, 1995, the ten percent tax surcharge remained the centerpiece of the legislation, and the altered bill was enacted as Act 916 of 1995.

The chancellor found that this bill was so altered from its original version as to be unconstitutional under Article 5, section 21. While we have not often been called upon to address this provision, the court has previously considered the argument and certain guidelines have been established for our review. In Loftin v. Watson, 32 Ark. 414 (1877), we held that with regard to two versions of a bill, both of which were to provide for the receipt of county warrants or county scrip to pay tax debts,

[t]he original purpose of the bill was preserved in the act, but the amendments made by the two houses limited the scope of the bill, by exceptions, and extended it so as to embrace city warrants, etc., with like exceptions . . . The bill, thus limited and extended by amendments of the two houses, in its scope and purpose, but embracing no new matter not germane to its original purpose, became a law . . .
To amend a bill for an act regulating attachments, for example, so as to change it into a road, revenue, game, school, or estray law, would be palpably in violation of the Constitution.

Id. While we do not interpret the prohibition of Article 5, section 21, so narrowly as to unduly hamper the legislature in its lawmaking duties, it is clear that in such a case as we have here, where a bill that had as its sole purpose the creation of a tax credit for dependents, was amended by deleting the original purpose and substituting language assessing a tax surcharge against those residents of school districts with a millage rate below twenty-five mills, violates the constitutional prohibition against altering a bill so “as to change its original purpose.” Ark. Const, art. 5, § 21. We conclude that such a change in purpose is “palpably in violation of the Constitution.” Loftin, supra. Later interpretations of this constitutional provision have held that where the body of an act “embrace[s] new matter not germane to the original purpose of the act,” a bill may be unconstitutional. Hickey v. State, 114 Ark. 526, 170 S.W. 562 (1914). In Matthews v. Byrd, 187 Ark. 458, 60 S.W.2d 909 (1933), we wrote that “a legislative act will not be declared unconstitutional as violative of this section of the Constitution unless it obviously appears that the amendments adopted do change its original purpose.” Id.

While we adhere to the principle that this constitutional provision shall be given a practical and liberal construction to carry out its evident purpose, and all doubts should be reserved in favor of an act of the legislature, this provision in our constitution prevents amendments to a bill which would not be germane to the subject of the legislation expressed in the original tide of the Act which it purports to amend. Pope v. Oliver, 196 Ark. 394, 117 S.W.2d 1072 (1938). We cannot say that the decision of the trial court, that Act 916 as it was ultimately enacted was so different in purpose from the original version of House Bill 1739 as introduced, was clearly erroneous, and we affirm on this point.

Because we hold that Act 916 of 1995 violates Article 5, section 21, of the Arkansas Constitution, we decline to proceed further to consider appellant’s second claim of error. Where the chancellor’s order finding the legislation unconstitutional amounted to a finding that those income-tax surcharges assessed against taxpayers residing in the specifically identified school districts with a minimum millage rate below twenty-five mills were an illegal exaction, a common-law class action arises as a matter of law. Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998). The chancellor’s finding that the plaintiff class includes those Arkansas residents assessed the ten percent surcharge imposed under the act is affirmed, and we return this matter to the chancellor for notification to the class, pursuant to the guidelines of Carson, supra, where we endorsed of the use of the procedural elements of Ark. R. Civ. P. 23 in managing such a class. The trial court will now make a determination of the procedure for effectuating refunds, fixing attorney’s fees, and such other finalization of its current order as is necessary to resolve the remaining ministerial issues of the case.

Affirmed and remanded.

IMBER, J., not participating.


source: Caselaw Access Project

author: Ray THORNTON, Justice. ANNABELLE Clinton IMBER, Justice,

license: Public Domain

text:
    CAMDEN COMMUNITY DEVELOPMENT CORPORATION v. Mary Jo SUTTON, Velma McBeth Slaughter, and Josh Colvert, as Ouachita Board of Election Commission; and Mildred McKinney, Mary Bennett, and Deborah Porchia, as Individuals on Behalf of the Fairview Community Defense Committee
    99-258
    5 S.W.3d 439
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Harrell & Lindsey, P.A., by: Paul E. Lindsey, for appellant.

      Bowden, Kendel & Jones, PLLC, by: David O. Bowden; and Ivory Law Firm, by: George S. Ivory, Jr., for appellees.
   Ray THORNTON, Justice.

In 1998, appellant, Camden Community Development Corporation, sought permission to rezone its property from a zoning category of RS-2 (residential) to a zoning category of M-2 (manufacturing). The City of Camden Planning Commission (the Commission) recommended appellant’s proposal to the Board of Alderman of the City of Camden (the City Board). On September 8, 1998, the proposal faded to be adopted by the City Board.

After the City Board’s failure to approve the proposed rezoning, appellant circulated an initiated petition seeking to put the issue on the November ballot. Appellant’s petition for rezoning of its property was certified to be placed on the ballot for the November general election.

On October 12, 1998, appellees, Mildred McKinney, Mary Bennett, and Deborah Porchia, on behalf of the Fairview Community Defense Committee, filed suit in the Ouachita County Circuit Court against appellees, Mary Jo Sutton, Velma McBeth Slaughter, and Josh Colvert, as members of the Ouachita Board of Election Commission, seeking to remove the initiative from the ballot. On October 14, 1998, appellant filed a motion to intervene in the matter.

On October 27, 1998, a hearing on the matter was held. The trial court defined the issue in the case as “whether zoning and/or rezoning of property can be accomplished through an initiated act when there is in place a comprehensive planning and zoning code.” On November 30, 1998, the trial court found that “issues concerning whether to rezone are administrative decisions, not legislative, and thus are not subject to the initiative process.” The findings of the trial court were returned too close to the election to remove the measure from the ballot, and the voters rejected the measure. Because the issues raised are likely to recur, we accept the case and affirm the trial court.

Appellant contends that the trial court erred when it did not allow rezoning by initiative pursuant to the initiative and referendum powers granted to the people by Amendment 7 to the Constitution of Arkansas and raises three point on appeal.

We first consider the statutory provisions granting municipalities authority to adopt zoning plans, ordinances, and regulations. Specifically, Ark. Code Ann. § 14-56-422 (Repl. 1998) provides:

[A]ll plans, recommended ordinances, and regulations shall be adopted through the following procedure:
(1) (A) The planning commission shall hold a public hearing on the plans, ordinances, and regulations proposed under this subchapter.
(B) Notice of public hearing shall be published in a newspaper of general circulation in the city, at least one (1) time fifteen (15) days prior to the hearing.
(2) Following the public hearing, proposed plans may be adopted and proposed ordinances and regulations may be recommended as presented, or in modified form, by a majority vote of the entire commission.
(3) Following its adoption of plans and recommendation of ordinances and regulations, the commission shall certify adopted plans or recommended ordinances and regulations to the legislative body of the city for its adoption.
(4) The legislative body of the city may return the plans and recommended ordinances and regulations to the commission for further study or recertification or, by a majority vote of the entire membership, may, by ordinance or resolution, adopt the plans and recommended ordinances or regulations submitted by the commission. However, nothing in this subchapter shall be construed to limit the city council’s authority to recall the ordinances and resolutions by a vote of a majority of the council.
(5) Following adoption by the legislative body, the adopted plans, ordinances, and regulations shall be filed in the office of the city clerk. The city clerk shall file, with the county recorder of the counties in which territorial jurisdiction is being exercised such plans, ordinances, and regulations as pertain to the territory beyond the corporate limits.

Id. Additionally, Ark. Code Ann. § 14-56-423 (Repl. 1998) states:

After adoption of plans, ordinances, and regulations and proper filing in the offices of city clerk and county recorder, no alteration, amendmen t, extension, abridgement, or discontinuance of the plans, ordinances, or regulations may be made except in conformance with the procedure prescribed in 14-56-422, or by a majority vote of the city council.

Id. The provisions of Amendment 7 to the Arkansas Constitution reflect the principle that no local legislation may be enacted which contravene general laws.

We must next determine whether the actions taken by the Commission and the City Board were legislative or administrative. This determination is important because an initiated action may be used only to address legislative actions. See Chastain v. City of Little Rock, 208 Ark. 142, 185 S.W.2d 95 (1945). In Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950), we outlined a test for determining the difference between legislative action and administrative action. We stated:

Both legislative and executive powers are possessed by municipal corporations. . . . The crucial test for determining what is legislative and what is administrative is whether the ordinance is one making a new law, or one executing a law already in existence. . . . Executive powers are often vested in the council or legislative body and exercised by motion, resolution or ordinance. Executive action evidenced by ordinance or resolution is not subject to the power of the referendum, which is restricted to legislative action as distinguished from mere administrative action. The form or name does not change the essential nature of the real step taken. The referendum ... is designed to be directed against “supposed evils of legislation alone”. “To allow it to be invoked to annul or delay executive conduct would destroy the efficiency necessary to the successful administration of the business affairs of a city.” 1 McQuiUin, Municipal Corporations (2d Ed., Rev., 1940) 1000.

Scroggins, supra.; see also City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978); Cochran v. Black, 240 Ark. 393, 400 S.W.2d 280 (1966). In Scroggins, we also noted that legislative bodies may delegate the power to make administrative rules, but under most circumstances may not delegate the right to enact legislation, nor can the city directors delegate or bargain away their legislative authority. Id.; see also Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984).

Applying these principles to our current case, we hold that the trial court’s findings were not erroneous. Specifically, we have determined that the facts of this case do not reflect the occurrence of any legislative action by the City Board. First, we note that the Commission, which receives its power from the City Board and functions solely as an administrative body without the power to pass legislation, was acting within its administrative authority when it recommended the rezoning proposal to the City Board. Next, we note that the City Board’s decision to not accept the Commission’s administrative proposal was only a rejection of proposed administrative action and did not constitute any legislative action or administrative action by the City Board. Accordingly, because legislative action was not taken by either the Commission or the City Board, then the rezoning issue is not subject to an initiated action by the people pursuant to Arkansas Constitutional Amendment 7.

We addressed a case similar to the one now on review in Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). In Wenderoth, a group of individuals appealed a rezoning enactment to the circuit court, arguing that the rezoning was contrary to the characteristics of the neighborhood and that such rezoning would be detrimental to their property. Id. The circuit court dismissed their appeal finding that the Arkansas statute allowing for a de novo review by the judiciary was unconstitutional pursuant to the language of Amendment 4 to the Arkansas Constitution. We agreed with the circuit court and affirmed. However, after deciding the issue involved in the case we went on to cite a case from Alabama and noted that:

the amendment to a comprehensive zoning ordinance or a rezoning of a certain area, as was done in the instant case, becomes a part of the existing comprehensive ordinance and, a fortiori, is a legislative act.

Wenderoth, supra., (citing Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (Ala. 1961)). We note that in Wenderoth, the city had adopted a proposed change in the comprehensive ordinance and that we addressed the constitutionality of a statute allowing a de novo review by the courts. We did not analyze the action of the city on the issue of whether it was administrative or legislative in nature. An analysis of whether an action is legislative or administrative is essential to a determination whether the powers of initiative and referendum can be exercised. If the action of the local instrumentality is administrative in nature, no right of initiative is available. If the action is legislative action, Amendment 7, subject to restrictions imposed by the constitution, general laws, and the amendment itself, would allow an initiative. Specifically, Amendment 7 declares that “no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.” Ark. Const, amend. 7. See also Czech, supra. In the present case, the City of Camden has followed the procedure outlined in Ark. Code Ann. § 14-56-422 and has set up a comprehensive city planning scheme. Pursuant to the language of Ark. Code Ann. § 14-56-423, if that scheme is to be amended the city is required to adhere to certain statutory requirements.

The powers of initiative and referendum reserved to the people by Amendment 7 do not extend to administrative actions. See Scroggins, supra. Spot zoning as approved by the Commission in this case is administrative in nature, and therefore may not be addressed by an initiated act. However, the restrictions imposed by Amendment 7 do not apply to the power of the city board to engage in the administrative action of spot zoning.

If the observations in obiter dicta in Wenderoth are inconsistent with this holding we clarify, modify, or overrule such statements to the extent that they may be in conflict with our holding in this opinion.

Before addressing the final point on appeal, we note that appellant argues that our holding in City of Russellville v. Banner Real Estate, 326 Ark. 673, 933 S.W.2d 803 (1996), is contrary to the trial court’s resolution of this case. The matter reviewed in Banner is inapposite to the matter under review in the present case. Specifically, we noted in Banner that “the issue is whether a city council may, upon oral motion, adopt a rezoning ordinance which differs from one proposed by the city’s planning commission.” Id. We held that:

Although it is obvious that a petition must be submitted in writing, we see no requirement that the ultimate rezoning ordinance adopted by the Council be made available prior to its adoption so long as the property in question and the proposed rezoning have been the subjects of notice to the property owners and the required public hearings.

Id. This holding allows a city council to act administratively without first having the planning commission review the proposal. This holding does not address the question of whether administrative decisions of a local nature may be resolved by an initiated petition pursuant to Amendment 7. Appellant’s reading of the Banner case and arguments derived therefrom are misplaced. The trial court did not commit error in finding that the holding in the Banner case is a “far cry” from holding that the “case authorized rezoning by initiated act pursuant to Amendment 7 of the Arkansas Constitution.”

In the last point on appeal, appellant contends that the trial court erred by not finding Camden’s comprehensive zoning plan unconstitutional. We are unable to address the merits of this point because appellants failed to obtain a final rrding on this matter. We have held that the burden of obtaining a riding is on the movant; objections and matters left unresolved are waived and may not be relied upon on appeal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); see also Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994). Moreover, we are unable to review this issue because the comprehensive Camden zoning plan which is being challenged is not abstracted for our review. We have held that:

Without the precise ordinance before us, it is impossible to determine its constitutionality.. . .We have been resolute and consistent in holding that all material information must be included in the abstract and that we will not be placed in the position of having seven justices scour the one record for the absent information.

City of Maumelle v. Maumelle Lodge, 335 Ark. 283, 983 S.W.2d 123 (1998). Because appellant faded to obtain a riding on the matter and because it faded to abstract the pertinent ordinances, we are unable to reach the merits of the last point on appeal.

We have concluded that the trial court did not commit reversible error, and affirm.

Affirmed.

IMBER and CORBIN, JJ., dissent.

ANNABELLE Clinton IMBER, Justice,

dissenting. We are ustice, rezoning is a legislative function that may be the subject of an initiative petition under Amendment 7 to the Arkansas Constitution. Our decision on that question does not depend upon a city councd’s action or inaction on a particular zoning ordinance. Rather, our decision is governed by whether the city councd has the legislative authority to enact rezoning ordinances. If that legislative authority has been delegated to a city council by the General Assembly, then rezoning may be the subject of an initiative petition under Amendment 7.

The General Assembly has given to municipal corporations the power to enact zoning ordinances. Ark. Code Ann. §§ 14-56-402— 14-56-425 (Repl. 1998); City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996). Specifically, the procedures for adopting a comprehensive zoning plan are found in Ark. Code Ann. § 14-56-422. Subsequent changes to the zoning plan must be made in accordance with Ark. Code Ann. § 14-56-423, which provides:

After adoption of plans, ordinances, and regulations and after filing in the offices of city clerk and county recorder, no alteration, amendment, extension, abridgement, or discontinuance of the plans, ordinances, or regulations may be made except in conformance with the procedure prescribed in 14-56-422, or by a majority vote of the city council.

(Emphasis added.)

We have held that section 14-56-423 permits a change in the zoning plan, or rezoning, by “majority vote of the city council” without following the procedures requiring further planning commission review as prescribed in section 14-56-422. Russellville v. Banner Real Estate, 326 Ark. 673, 933 S.W.2d 803 (1996); see also Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983) (“The 1957 Act, before a later amendment, required a complete review by a planning commission before the legislative body of the city took action to alter boundaries. There were no exceptions. However, the enabling legislation was amended in 1959 to authorize an alternative procedure to amend boundaries simply “by a vote of the city council.”). Thus, it is clear that a city council has unrestricted legislative authority to rezone property.

Amendment 7 to the Arkansas Constitution reserves the people’s initiative and referendum powers to the local voters of each municipality and county “as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State.” In considering the mandates of Amendment 7, we have drawn a distinction between actions of a legislative nature, to which Amendment 7 applies, and actions of an administrative nature, to which it does not apply. See Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987); Cfiy of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978); Greenlee v. Munn, 262 Ark. 663, 559 S.W.2d 928 (1978). We have long held that Amendment 7 is to be liberally construed in order that its purposes may be effected. Gregg v. Hartwick, supra; Leigh & Thomas v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).

The test for determining the character of municipal actions is well-established. A power or authority to be exercised is legislative in nature if it prescribes a new policy or plan, whereas it is administrative in nature if it simply pursues a plan already adopted by the legislative body. Gregg v. Hartwick, supra; City of North Little Rock v. Gorman, supra; Greenlee v. Munn, supra; Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950). In that regard, we have consistently held that the enactment of zoning ordinances constitutes municipal legislation. City of Little Rock v. Pfiefer, 318 Ark. 679, 887 S.W.2d 296 (1994); Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991); Mings v. City of Fort Smith, 288 Ark. 42, 701 S.W.2d 705 (1986); McMinn v. City of Little Rock, 275 Ark. 458, 631 S.W.2d 288 (1982); Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). In Wenderoth, supra, we quoted with approval the following statement by the Alabama Supreme Court in Ball v. Jones, 130 So.2d 120 (Ala. 1961):

Also, a rezoning of a certain area, as was done in the instant case, becomes a part of the existing comprehensive ordinance, and, a fortiori, is a legislative act.

While Wenderoth, supra, dealt with the propriety of de novo review in zoning appeals, the holding in that case was dependent upon our unequivocal characterization of rezoning as a legislative act. Therefore, it is clear under our well-settled case law that the zoning or rezoning of property is a legislative act.

Based upon the General Assembly’s delegation of unrestricted legislative authority to city councils in rezoning matters, in that property may be rezoned “by a majority vote of the city council” without following the procedures set forth in Ark. Code Ann. § 14-56-422, and based upon our case law that unequivocally characterizes zoning and rezoning as legislative acts, I am compelled to conclude that rezoning may be the subject of an initiative process under Amendment 7. Indeed, this conclusion was foreshadowed over twenty-five years ago by Justice Conley Byrd’s dissenting opinion in Wenderoth, supra:

Of course in matters involving legislative functions of city councils there is a right of referendum. But a change in the designation for which property may be used from single family to commercial or industrial, in accordance with the criterion established by an existing zoning ordinance, is nothing more than an exercise of a conclusion upon the facts presented or known. However, by today’s decision, it is now a legislative matter, subject to the popular will of a city’s inhabitants either through their elected officials or by their own vote in an initiative and referendum or both.

For these reasons, I respectfully dissent.

CORBIN, J., joins in this dissent.

       Amendment 7 in relevant part states:
      The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Representatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill.

        Municipalities and Counties — The initiative and referendum powers of the people are hereby further reserved to the local voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.
      Municipalities may provide for the exercise of the initiative and referendum as to their legal legislation.
      Ark. Const, amend. 7.


author: RAY Thornton, Justice. TOM Glaze, Jucourt indicates

text:
    STATE of Arkansas v. Robert A. ROBBINS; Bobbye Jeanne Robbins, Next Friend and Intervenor
    CR 98-1394
    5 S.W.3d 51
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen. and Todd L. Newton, Asst. Att’y Gen., for appellant.
    No response from appellee.

      Jeff Rosenzweig, for Next Friend/Intervenor.
   RAY Thornton, Justice.

On June 17, 1998, Robert A. stice. to death for capital murder in Craighead County. On July 9, 1998, Robbins’s stand-by attorney filed a notice of appeal. Robbins waived his right to appeal and the trial court found that he had the capacity to knowingly and intelligently waive his right to appeal his death sentence. On review we determined that the trial court’s findings were not clearly erroneous and that because of Robbins’s waiver of appeal there was no merit in stand-by counsel’s request for reversal and a new sentencing phase of the trial.

On remand of the matter, Robbins waived his right to relief under the provisions of Rule 37 of the Arkansas Rules of Criminal Procedure, and the trial court found that he had the capacity to do so. No mental examination of Robbins was conducted at any time except that evaluation performed during the pretrial proceedings. Robbins was found competent to act as his own attorney during the trial and was determined to have the capacity to understand the difference between life and death and to knowingly and intelligendy waive his rights to challenge a death penalty. Fie resisted suggestions from the trial court that he needed an attorney and stated that he wanted the death penalty to be imposed. The partial record before us relates only to the issue of his capacity to waive appeal of his death sentence and his right to postconviction relief.

No record of the trial itself or of the sentencing phase has been prepared or presented to this court for review. We affirmed the trial court’s finding that Robbins had the capacity to waive his rights and he was scheduled for execution on April 12, 1999.

On March 17, 1999, Ms. Bobbye Jeanne Robbins, Robbins’s mother, filed a “petition of next friend to recall mandates, for stay of execution, and for reexamination of legal and factual issues.” We granted the request for a stay of execution, recalled our mandate, and ordered the following issues briefed:

1. Does Ms. Robbins have standing to intervene as a next friend for her son, and, if so, is it appropriate for us to consider her arguments at this time?
2. Should the entire record of the trial in which Mr. Robbins was found guilty and sentenced to death be reviewed to determine whether Mr. Robbins was competent to waive his right to appeal and his postconviction remedies under Rule 37?
3. Should this court overrule Franz v. State, 296 Ark. 181," 754 S.W2d 839 (1988), and its progeny, and impose mandatory review for trial error in all death-penalty cases regardless of whether the defendant desires such a review?
4. If this court imposes mandatory review of the trial errors in this case, should we then appoint an attorney ad litem for Mr. Robbins to ensure that the record is properly examined and all issues are briefed?

State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999). On October 21, 1999, these issues were briefed and orally argued. We have reconsidered the Arkansas statutes and our court rules and conclude that we must review the record of the trial in order to meet the requirements estabbshed by statutes and by our court rules.

Arkansas Code Annotated section 16-91-113 (a) (1987) states:

(a) The Supreme Court need only review those matters briefed and argued by the appellant, except that, where either a sentence for life imprisonment or death has been imposed, the Supreme Court shall review all errors prejudicial to the rights of the appellant.

Id. (emphasis added). Moreover Arkansas Supreme Court Rule 4-3 (h) provides:

When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. Sec. 16-91-113 (a). To make that review possible, the appellant must abstract all rulings adverse to him or her made by the trial court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.

Id. (emphasis added).

To clearly address the issues before us, it is necessary to review some of our previous caselaw. In an effort to clarify the effect of the statute and our court rules upon the question of mandatory appeal of death sentences, we addressed the question of waiver of the right to appeal a death sentence in the case of Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). In Franz, where a prison chaplain sought to appear and petition as next of friend in a death-sentence case, we established that a person sentenced to death could choose not to appeal that decision, provided that the defendant had the capacity to understand the difference between life and death and to knowingly and voluntarily waive his right to appeal. Id. The standing of Rev. Franz to raise the issue was less tenable than the standing of Robbins’s mother in the present case. In Franz, we quoted with approval the following language from Davis v. Austin, 492 F.Supp. 273 (N.D. Ga. 1980):

The court must start with the proposition that members of the public in general do not have a right to intercede as “next friend” in an action such as this because they are morally or philosophically opposed to the death penalty. On the other end of the scale, close relatives, such as a parent, spouse, or sibling, who maintain a close personal relationship with the aggrieved, would be appropriate persons to maintain a “next friend” action.

Id. In Franz, we recognized that notwithstanding our conclusion that Rev. Franz lacked standing, we should address the issue presented. We stated:

However, as has often been noted, “the penalty of death is different in kind from any other punishment imposed under our system of criminal justice.” Gregg v. Georgia, 428 U.S. 153, 188 (1976). Because of the punishment’s uniqueness and irreversibility, we choose to state clearly the law in Arkansas regarding the waiver of appeal in death cases.

Franz, supra.

As we did in Franz, we choose to review and state clearly the law in Arkansas regarding what responsibilities we have under the statutes of Arkansas and our own court rules to conduct our own review of the record in a case in which a sentence of death is imposed. In the limited circumstances of this case, involving a death sentence from which Robbins has waived his right to appeal, we accept his mother’s petition for the limited purpose of further clarifying our duties and responsibilities.

In Franz,' we held that a person sentenced to death could choose not to appeal that decision, provided the defendant had the capacity to understand the difference between life and death and to knowingly and voluntarily waive his right to appeal. That remains the law. However, that does not resolve the issue before us. Both statutes and our own rules have imposed upon this court the responsibility to review the record'for all errors prejudicial to the rights of the appellant. Our rules also impose upon the Attorney General the responsibility of certifying that all objections have been abstracted and the duty to brief “any other points that appear to involve prejudicial errors.” See Sup. Ct. R. 4-3 (h).

Whether Robbins may voluntarily waive his right to appeal was decided in Franz. Whether Robbins or any other person sentenced to death should have the power and authority to suspend the Arkansas statutes and our own court rules imposing duties and responsibilities upon the court itself is a different matter, and one we now address.

Recognizing that there must be adequate power in the judiciary to check the arbitrary and capricious imposition of a death sentence, we held in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), that those safeguards existed in Arkansas and stated:

The Arkansas judiciary is vested with broad powers to check the arbitrary, capricious, wanton or freakish imposition of the death sentence by a jury. Those powers exist at both trial and appellate levels.
* * *
In capital offenses, for many years all errors of the lower court prejudicial to the rights of appellant have been required to be heard and considered by this court and, if we found any prejudicial error by the trial court, this court was required to reverse and remand the cause for a new trial, or, in the discretion of this court, modify the judgment.
. . . Appellate review of cases in which the death penalty has been imposed has always been more comprehensive than in other cases. For, e.g., error in failure to properly instruct the jury with reference to punishments that it might impose has been held to be reversible, even though defendant did not request such an instruction.

Id. (citations omitted). We further held:

These sentencing and review procedures certainly leave no substantial risk that the death sentence will be imposed randomly, arbitrarily, capriciously, wantonly or freakishly, and tend to promote evenhanded, rational and consistent imposition of the death penalty.

Id.

The rationale of Collins was that no death-sentence case would fail to be reviewed as required by statutes and our court rules. Justice George Rose Smith, writing for the minority, pointed out that:

An effort is then made to show that our present laws in fact assure an appellate review in every case. As the majority observe, however, the review depends upon the trial judge and defense counsel’s performance of duties imposed upon them by law or by professional obligation.

Id. More recently in Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998), we held that:

When this Court reviews a death sentence, it must review the record in accordance with Ark. Code Ann. § 16-91-113(a) (1987) and Ark. Sup. Ct. R. 4-3 (h) for all errors raised in the trial court that are prejudicial to the appellant regardless of whether the errors are raised on appeal. This review includes considering whether the evidence presented was sufficient to allow the jury to consider a statutory aggravating circumstance.

Id. (citations omitted).

After reviewing our previous caselaw and the pertinent statutes, we conclude that we have an affirmative duty to review the record in all death-penalty cases for prejudicial error. We note that this holding does not modify the holding of Franz that a person sentenced to death may waive his personal right to appeal. An automatic review by this court of the record in death-penalty cases based upon statutes, prior caselaw, and grounded upon the unique severity of a sentence of death does not interfere with a competent defendant’s right to waive his right to appeal. Our holding in the present case is that we are required to review the record in all death-penalty cases for egregious and prejudicial errors.

Undertaking an automatic review of the entire record will be useful when we are evaluating whether Robbins’s waiver of his right to appeal was proper under Franz. In addition, our review of the entire record will enable us to determine if: (1) any prejudicial errors have occurred; (2) whether plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) have occurred; and (3) whether other fundamental safeguards were followed. We continue to recognize our holding in Franz that a defendant may waive his personal right to an appeal and we do not disturb the rationale therein expressed that our responsibility to review sentences of life imprisonment depends upon a record being brought forward on appeal. However, we hereby clarify our responsibilities and affirmative duty to automatically review the record in death-sentence cases for errors such as those previously outlined, and we modify and overrule Franz to the extent that it conflicts with this decision.

Having determined that our duty to review death sentences is independent of and complimentary to the issue of whether an appeal can be waived, we next address the means by which the record is to be prepared and brought to us for review. For this issue we look to Justice Hays’s dissent in Franz, where he articulated his appreciation for the distinction we now draw between the rights of a defendant to waive his personal right to appeal, and our duty to review the record. Justice Hays stated:'

I do not question the right of a competent defendant to refrain from participating in an appeal, or to deny others the right to act in his behalf. But that right does not empower a defendant to by-pass appellate review any more than he could by-pass a trial or, if a plea of guilty is entered, a hearing on the guilty plea. These steps are basic, and where the sentence is death, appellate review is equally basic. By rejecting the opportunity to adopt a rule of mandatory review the majority has put Arkansas at odds with all but one of the thirty-seven states which have the death penalty, not an enviable position, and not one likely to endure.

Franz, supra. Justice Hays also suggested an approach that this court now adopts by which we may fulfill our obligations. He suggested that:

. . . notwithstanding a waiver of appeal by the defendant, this court, on information from either the Attorney General or the trial court, that a death sentence has been imposed, would issue a writ of certiorari for the record and appoint counsel to argue any errors prejudicial to the defendant. The unique severity of the death sentence and the public interest in its imposition demand nothing less.

Id. Accordingly, we hold that it will henceforth be the practice of this court to issue a writ of certiorari for the record in all cases in which the death penalty has been imposed and the defendant has waived his right to appeal. We will then conduct a review of the record for prejudicial errors.

Based on our holding in this case, it is necessary for us to clarify our prior court procedures as they relate to review of death-penalty cases and to distinguish such cases from cases in which the defendant has received a sentence of life imprisonment. We now recognize that there is a distinction to be found in our Sup. Ct. R. 4-3 (h) in our review of cases in which the death penalty has been imposed and cases in which a defendant has received a sentence of life imprisonment. When the defendant has received a sentence to life imprisonment it will continue to be his responsibility to bring forward an appeal. If such a defendant chooses to bring his case to us for review we will conduct a proper 4-3 (h) review. By contrast, we now recognize that we are required to perform an automatic review of the record in all cases in which the death penalty has been imposed and we will review the record not only as provided in our rule 4-3 (h), but also for egregious errors such as those that fall within our exception to the plain-error rule as articulated in Wicks, supra. Jurisprudence has long respected the great difference between the imposition of the death penalty and a life sentence in prison, and this court noted the “unique severity” of the death penalty in Franz. See Franz, supra. Moreover, Rules 24.4 and 31.4 of the Arkansas Rules of Criminal Procedure recognize the fundamentally different treatment which is applicable to cases in which the death penalty is sought. The rules provides in pertinent part:

(e) that if he pleads guilty or nolo contendere he waives his right to a trial by jury and the right to be confronted with the witnesses against him, except in capital cases where the death penalty is sought.

Ark. R. Crim. P. 24.4 (emphasis added). Additionally, Rule 31.4 states:

No defendant charged with a capital felony may waive either trial by jury on the issue of guilt or the right to have sentence determined by a jury unless:
(b) the prosecuting attorney, with the permission of the court, has waived the death penalty.

Ark. R. Crim. P. 31.4.Thus, because we acknowledge that the death penalty carries with it a unique and irreversible punishment with consequences far removed from the imposition of life imprisonment, we hold that our decision to automatically review the record only applies to cases in which the death penalty has been imposed.

This type of automatic review is currently in place in other jurisdictions. See U.S. Dept, of Justice, Bureau of Justice Statistics, Bull., Capital Punishment, 1997 (Dec. 1997). In State v. Brewer, 170 Ariz. 486, 826 P.2d 783, cert, denied, 506 U.S. 872 (1992), the Arizona Supreme Court explained:

Appellate review of sentencing is . . even more necessary in the context of a capital case. The penalty of death differs from all other forms of criminal punishment in terms of severity and irrevocability, and may not be exacted in the absence of certain constitutional safeguards. . . .The automatic appeal mechanism guarantees this court both the opportunity and thé vehicle to assess the legality of the sentence in each capital case. . . The severity of the death penalty requires that we undertake an extensive, independent review of each death sentence handed down. . .

Id. (citations omitted, quotation marks omitted).

We conclude that an automatic review is necessary when a death sentence is imposed. Here we have no record before us reflecting whether a jury lawfully imposed the sentence of death upon Robbins and we remand this case for preparation of the record. We further issue a writ of certiorari for the record after it is completed so that we may conduct our review. We appoint Ms. Robbins’s counsel to assist in our review by arguing to us any prejudicial errors.

Writ of certiorari issued.

Glaze, Corbin, and Smith, JJ., dissent.

TOM Glaze, Jucourt indicates

dissenting. I must dissent. The majority court indicates Robert A. Robbins’s mother, Bobbye Jeanne Robbins, has no standing to intervene as next friend, and on this point the majority court is correct because the appellant has been found competent to represent himself and to waive his right to appeal. See Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). Accordingly, Mrs. Robbins is not a party to this litigation and clearly has no standing to appeal and raise any issues or arguments on appellant’s behalf. Even so, the majority, without any citation of authority, allows Mrs. Robbins to argue (1) whether Mr. Robbins was competent to waive his right to appeal and postconviction remedies, (2) whether the Franz decision should be overruled, (3) whether a mandatory review in death-penalty cases should be imposed, and (4) whether Mr. Robbins should be appointed an attorney ad litem. Because Mrs. Robbins’s petition must be dismissed, leaving no one to argue the foregoing issues, the majority court is clearly wrong in its considering and deciding these issues.

If this court wishes to require mandatory review in death-penalty cases, it should do so by promulgating a court rule, which it has authority to do. Instead, the majority court is reviewing the issues in this case by eviscerating its appellate rules and well-established precedent. The majority opinion seems to suggest that the Franz decision permits this court to consider any issues it chooses to reach in a death-penalty case. Not so.

In Franz, the Rev. Louis J. Franz petitioned this court to proceed on behalf of Ronald Gene Simmons and asked the court to stay Simmons’s execution and to make appeals mandatory in death cases. Simmons made an appearance and filed a response, stating among other things that he sought no relief except to be left alone to waive his right of appeal. See Gilmore v. Utah, 429 U.S. 1012 (1976). Simmons further answered, stating that he had been declared competent and that he had made an informed choice of death over life. Citing Collins v. State, 261 Ark. 195, 211m 548 S.W.2d 106, 115 cert, denied, 434 U.S. 878 (1977), he claimed no mandatory appeals were required under the Eighth and Fourteenth Amendments. We affirmed the Collins holding in Franz. Franz, 296 Ark. at 188, 754 S.W.2d at 842.

Here, unlike in Franz, the defendant (Robert A. Robbins) has made no appearance and has offered no arguments. Instead, Mr. Robbins obviously relies on the record which reflects he has given a knowing, intelligent, and voluntary waiver of his right to a direct appeal and appointment of postconviction counsel. The language in our statute and court rules only contemplates a review when death-penalty defendants choose to exercise their right to appeal. See Ark. Code Ann. § 16-91-113(a); Ark. R. App. P.—Crim. 14 (1999); Ark. Sup. Ct. R. 4-3 (h) (1999). As the Attorney General makes clear, Mr. Robbins’s access to court has in no way been impeded, but he has initiated no appeal. In fact, this court has previously reviewed this matter and assured itself that the proof demonstrated Mr. Robbins knowingly and intelligently waived his right to appeal. See State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998).

In conclusion, this proceeding, as the majority court conducts it, is a curious one, indeed, since Mr. Robbins has not appeared or responded in it and Mrs. Robbins’s request to intervene has been properly rejected. No one is left in this case to seek the relief the majority so readily grants. The majority unhesitatingly proceeds to consider and decide issues no one has the standing to raise. This simply is not sound jurisprudence. Again, if the majority feels stróngly that appellate reviews should be mandated in death-penalty cases, it should do so by rule, not by adopting such a procedure or rule in a proceeding that rightfully should be dismissed. Today’s opinion is purely advisory and conflicts with this court’s Franz decision. At this time, for the reasons given above, I believe Franz is controlling and that the court should dismiss Mrs. Robbins’s petition and this proceeding.

Corbin and Smith, JJ., join this dissent.

       See, also State v. Robbins, 336 Ark. 377, 985 S.W.2d 296; State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) for other decisions in this matter.

       Citing Ark. Stat. Ann. 43-2723 (Repl. 1964). This statute has been expanded to include a life sentence and we have construed it to mean that this mandated review required an examination of the trial record, even though the objectionable action which might be reversible error was not argued on appeal in any way. Rorie v. State, 215 Ark. 282, 220 S.W.2d 421 (1949); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959); Young v. State, 230 Ark. 737, 324 S.W.2d 524 (1959).

       This bulletin notes that as of 1997 of the thirty-eight states with capital punishment thirty-six provided for review of the death sentence regardless of the defendant’s wishes. The two states without automatic review included Arkansas and South Carolina.


author: LAVENSKI R. Smith, Justice.

text:
    John Mark McDOLE v. STATE of Arkansas
    CR 99-332
    6 S.W.3d 74
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Christopher Carter, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   LAVENSKI R. Smith, Justice.

John Mark McDole (“McDole”) appeals ce. conviction for first-degree murder and sentence of life in prison from the Baxter County Circuit Court. McDole raises four points for reversal on appeal. First, he challenges the sufficiency of the evidence to proof he committed first-degree murder. Second, he contends that Arkansas Code Annotated Section 16-44-201 violates a defendant’s Sixth and Fourteenth Amendment right to counsel. Third, McDole argues that the trial court erred in not releasing him prior to trial after he had been incarcerated for nine months. Finally, McDole asserts that the trial court erred by admitting evidence of a potentially incriminating statement made five months prior to the murder. After a thorough review of the record, we find no error and affirm. Our jurisdiction is pursuant to Sup. Ct. R. l-2(a)(2) in that McDole received a sentence of life imprisonment.

Facts

The relevant facts began with the Baxter County Sheriff’s office investigation of a report of a burning truck on August 22, 1997. Their investigation identified the registered owner of the truck to be Alma Teagarten (“Alma”). Upon questioning, Alma informed them that she had given her former daughter-in-law, Kelly Keehn Teagarten (“Kelly”), permission to drive the truck. Further investigation revealed that Willis Teagarten (“Willis”), Kelly’s ex-husband and son of Alma, filed a missing person report on Kelly on the evening of August 22, 1997. On August 23, 1997, Mountain Home Police responded to a call at a local motel where the clerk reported that a guest wished to speak with police. Upon arrival, Appellant McDole stated to the officer that he had a “hit list,” and he exclaimed that he needed to warn others on the list because some had already been killed. The officer noticed Kelly’s name on the list, and the list indicated that she had already “been erased.” McDole sought police aid to warn other people. Later, McDole told police his brother Paul had made up the list and hired a hit man to carry out the killings. McDole then fled from the motel in an automobile but other officers directed him off the road into the parking lot of a nearby restaurant. Appellant left his vehicle and began shouting about someone across the street having a gun. Appellant then yelled at people nearby that the police intended to kill him. Police arrested McDole for disorderly conduct and placed him in jail.

On Sunday, August 24, 1997, Baxter County deputies discovered the body of Kelly Keehn Teagarten at the Shipp’s Ferry landing in Baxter County near the White River. Her body had two gunshot wounds, a contact shot to the back of the head and a shot into the left side of the back. Medical testimony indicated Kelly Keehn Teagarten was murdered on August 21 or 22, 1997.

II.

Sufficiency of the Evidence

Appellant alleges the trial court convicted him based upon evidence insufficient to establish first-degree murder. At trial, appellant moved for a directed verdict at the close of the State’s case and argued that the circumstantial evidence introduced by the State was not sufficient to overcome every other reasonable hypothesis consistent with innocence. Appellant offered no witnesses and rested immediately after the State rested its case. Appellant moved for a directed verdict. He contended lack of proof of intent; that no murder weapon has been identified; that there was no confession; that no evidence placed him at the murder scene; and that the evidence showed co-defendant Dickerson was the more likely murderer. We hold that the trial court did not err in denying McDole’s directed-verdict motion.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). We consider sufficiency of the evidence before addressing other alleged trial errors. The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support the verdict. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Only evidence supporting the verdict will be considered. It is important to note that we make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, Ark. 161, 871 S.W.2d 562 (1994).

Appellant argues that the State only showed that he had made numerous statements accusing the victim of giving his friend AIDS, that he called her a snitch, and that her name was a on a “hit list” in his possession, which appellant claimed actually belonged to his brother. However, evidence adduced at trial established sufficient evidence, albeit circumstantial, to support McDole’s conviction.

Robert Smith testified that although he knew McDole, he had not seen him for a long time prior to August 21, 1997. Smith testified that he went to McDole’s residence in the evening on that date to retrieve a borrowed motorcycle. He also testified that McDole attended a party Smith hosted on August 21. Smith recalled appellant borrowed a .22 caliber pistol from him that night. McDole told Smith he needed the pistol to protect him from Mexicans who had shot at him in Mountain View. McDole reappeared at his house about two hours later, showed the pistol, and stated, “You’ve got to get rid of it. It’s been used.” Appellant then stated two or three times that his co-defendant, Donnie Dickerson, had “shot the bitch.” About twenty minutes later, Donnie Dickerson appeared at Smith’s residence and stated, “Mark shot the bitch.” When leaving, appellant asked Robert Smith for some gas saying, “I’ve got a truck I’ve got to burn.” The truck Kelly was driving was found burned on August 21, 1997. When Robert Smith saw the appellant the next day, McDole told him, “You better say that they (McDole and Dickerson) were there all night....”

Robert Smith’s cousin Bryan testified that he heard appellant tell Robert, “Donnie shot the bitch.” He then testified appellant went to the sink and washed his hands and arms and then poured whiskey over them. Bryan Smith also overheard appellant talking to Robert about gasoline and torching a truck.

Angela Parnell testified that appellant told her prior to the murder that he wanted to kill Kelly because she had “narked” on him and had given AIDS to Dickerson. Larry Foster testified five months prior to the murder that appellant told him all snitches ought to be shot in the head, and he knew a place, a big deep ditch, that would be a perfect place to put a body. The place matched where police found the victim’s body.

Finally, Lisa Flixon, McDole’s fiancee in August 1997, testified appellant complained to her prior to the murder that Kelly was a snitch. Shortly after the murder she testified that she saw both appellant and Donnie Dickerson, and that they acted depressed. She also testified that appellant cleaned his truck, which was out of character. It was the first time she had ever seen him do it. When they were driving that same day, she overheard appellant tell Dickerson, “Well, at least you don’t have to worry about being bothered by her anymore.” She also testified that on the evening of August 22, 1997, while at appellant’s residence, appellant stated, “We’re too close. It’s making Donnie nervous. It’s making me nervous.” While there, she recalls McDole’s stating, “Donnie couldn’t go through with it and so he had to finish it for him.” Hixson also recalled McDole making the comment that “he’d had to put a bullet through her head.” Finally, according to Hixson appellant asked her, “If I was to kill somebody, would you still love me?”

. Tammy Malone, who managed the motel in which McDole was registered on August 22, 1997, stated that McDole checked in around 1:00 a.m. that morning. She explained how she observed him come to the front desk at 8:00 a.m. behaving nervously and speaking incoherently. He declared to her that he feared for his life because of murders in Little Rock which he somehow related to a note he carried. McDole asked her if she knew an honest cop, and she immediately contacted the police.

Willis Teegarten, Kelly’s ex-husband, testified his former wife told him she believed appellant and Donnie Dickerson were upset with her because they believed she had snitched on a friend for writing hot checks.

Lisa Sakevich, on behalf of the state crime lab, testified that she found gunpowder residue on clothing articles belonging to McDole which were found in his truck. She also found a trace of gunpowder on the truck seat cover and gasoline residue on some other of McDole’s property found in the truck.

We believe the court properly submitted the above evidence to the jury. When viewed in a light most favorable to the State, the evidence could be properly connected and did not leave the jury to speculation or conjecture. When circumstantial evidence rises above suspicion and is properly connected, and when, viewing that evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conclusions, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. The jury certainly should test the reasonableness of any other hypothesis. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). In the instant case, substantial evidence supported the jury’s verdict.

II. Constitutionality of Ark. Code Ann. § 16-44-201

Appellant asserts that he was denied equal protection of the law and his right to competent counsel because Arkansas does not provide for compulsory depositions in criminal cases as in civil cases. More succinctly stated, appellant believes his inability to obtain pretrial discovery by way of deposition fundamentally hampered his ability to prepare a defense and deprives him of a fair trial. Appellant contends that certain witnesses refused to speak with defense counsel. Appellant thus challenges the constitutionality of Ark. Code Ann. § 16-44-201 (a) (Repl. 1994) (Authorization for deposition generally Manner of. The statute in question provides:

(a) The court or judge in vacation, or a justice of the Supreme Court, may authorize either party to take the deposition of a material witness where there are reasonable grounds to apprehend that, before trial, the witness will die, will become mentally incapable of giving testimony or physically incapable of attending the trial, or will become a nonresident of the state. The materiality of the testimony and the reason for taking the deposition shall be shown by affidavit.
(b) The court or judge shall, by written order, prescribe the manner of taking the deposition whether by interrogatories or upon notice to the parties.
(c) Upon the death of the witness, or upon his becoming mentally incapable of testifying or a nonresident of the state and absent therefrom so that he could not be summoned, the deposition taken in pursuance of such order may be read as evidence, provided that the grounds of nonresidence and absence from the state shall not be sufficient unless the party wishing to use the deposition makes an affidavit that he has tried in good faith to procure the attendance of such witness and been unable to do so.

Our State’s statutes are presumed constitutional, and the burden of proving otherwise is placed on the party challenging the legislative enactment. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). We resolve all doubts in favor of a statute’s constitutionality. Golden v. Westark Community College, 333 Ark. 41, 47, 969 S.W.2d 154 (1998).

In Arkansas, “the right to take depositions rests upon statutory authority and in no case can the right be exercised unless the authority therefor exists.” Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980), citiag Missouri & North Arkansas Railroad Company v. Daniels, 98 Ark. 352, 136 S.W. 651 (1911). The subject statute provides that a defendant may receive authorization to take a deposition under the stated circumstances, but does not allow a criminal defendant to simply set up depositions at will and compel attendance as in a civil case. Apparently, this has always been the law in Arkansas. In 1837, our statutes provided when in criminal proceedings the defendant had a witness who was out of the State, or within the State but who was sick, infirm or about to leave the State, the defendant “may apply to the court... for a commission to examine such witness.” Ark. Rev. Stats, of 1837, Chapter XLV, §§ 118-119. See also, Giboney v. Rogers, Judge, 32 Ark. 462 (1877); McDonald v. State, 155 Ark. 142, 244 S.W. 20 (1922); Jones v. State, 205 Ark. 806, 171 S.W. 2d 298 (1943); Bailey v. State, 227 Ark. 889, 302 S.W. 2d 796 (1957).

Appellant seeks a ruling that depositions in criminal actions may be taken as a matter of right upon notice, as in a civil action under the Rules of .Civil Procedure. He asserts that the federal constitution’s equal protection clause and the right to competent counsel require this result. We disagree. Neither the federal constitution nor the Arkansas Constitution require the result appellant seeks.

Under Article 2, section 10, of the Arkansas Constitution, a criminal defendant is entitled to “compulsory process for obtaining witnesses in his favor....” In discussing this provision we stated:

These constitutional provisions are but a declaration of the common law rule and the constitutional guaranty is confined to those who are witnesses against the accused. State v. Lonergan, 201 Or. 163, 269 P.2d 491 (1954). They do not require that every witness who has knowledge of relevant facts testify. People v. Mason, 183 Cal. App. 2d 168, 6 Cal. Rptr. 649 (1960). They do not guarantee the accused that a victim, accuser, complainant, complaining witness, or private prosecutor will be called as a witness or appear at the trial, and the establishment of the elements of the crime by the testimony of other witnesses does not constitute a variance from an indictment naming the victim. People v. Jolliff, 31 Ill.2d 462, 202 N.E.2d 506 (1964); State v. Malloch, 225 A.2d 760 (Me., 1967); Gaertner v. State, 35 Wis.2d 159, 150 N.W.2d 370 (1967); State v. James, 76 N.M. 376, 415 P.2d 350 (1966); Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971); People v. Gomez, 26 Cal. App. 3d 225, 103 Cal. Rptr. 80 (1972); Commonwealth v. Fisher, 131 Pa. Super. 117, 198 A. 925 (1938). Accord, Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841. Certainly, there is no constitutional requirement that one, who has no personal knowledge of relevant facts and cannot give material evidence concerning the crime, be offered as a witness or appear at the trial. State u Malloch, supra; People v. Mason, supra.

Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978). On the federal side, there is no constitutional right to pretrial discovery. Wardius v. Oregon, 412 US. 470 (1973). Neither the Sixth Amendment nor the due process clause of the Fourteenth Amendment requires a State to provide pretrial depositions as asserted by appellant. “There is no general constitutional right to discovery in a criminal case....” Weatherford v. Bursey, 429 U.S. 545 (1977). In Pennsylvannia v. Ritchie, 480 U.S. 39 (1987), the U.S. Supreme Court rejected an argument that the confrontation clause could be used to mandate pretrial discovery. The Court stated, “If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the law supports such a view. The opinions of this court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. (Citations omitted). The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses....” Pennsylvania, supra, at 52.' Thus, the confrontation clause offers appellant no help.

Equal Protection Clause

Appellant attacks the “inequality between criminal and civil litigants regarding depositions....” He asserts he is denied equal protection under the laws because he believes civil litigants enjoy a greater ability to prepare for trial than do criminal defendants. Appellant cites no U.S. Supreme Court or Eighth Circuit cases for his argument that the equal protection clause of the Fourteenth Amendment requires civil and criminal litigants be treated the same procedurally. We decline appellant’s invitation to hold that the equal protection. clause requires that civil and criminal defendants have identical discovery rights. Equal protection does not require that persons be dealt with identically; it only requires that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary. See Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996).The issue of equal protection involves “whether people in the same situation are being treated differently....”Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998). While both criminal and civil defendants may be called litigants, they are far from similarly situated.

III. Ark. R. Crim. P. 28.1

Appellant asserts he was not released at nine months pursuant to Ark. R. Crim. P. 28.1(a), and that therefore charges against him should be dismissed with prejudice. Appellant’s argument is merit-less. McDole raises this issue on direct appeal after trial and conviction, and it is therefore moot. Simpson v. Sheriff of Dallas County, 333 Ark. 277, 968 S.W. 2d 614 (1998). “As our cases make clear, a person held in violation of Rule 28.1(a) is only entitled to release on his or [her] own recognizance, not dismissal of the charges or absolute discharge. (Citations omitted.)” Simpson, supra, at 284. Appellant further argues that the trial court should have recused in that it did not address the issue of his pretrial release. The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Id. at 244. Appellant has made no such showing.

IV. Rule 404(b)

As his final point on appeal, McDole asserts it was error for the trial court to deny his motion to exclude the testimony of Larry Foster that appellant had told him of “this exact scenario” five months prior to the murder. Appellant objected at trial on the basis of relevance and on appeal argues that the testimony constitutes inadmissible character evidence. The rule argued at trial would have been Ark. R. Evid. 402 and appellant now argues Ark. R. Evid. 404. Relevance involves whether the evidence has any tendency in fact to make determination of the action more or less probable. Ark. R. Evid. 401. Rule 404 involves admissibility of character evidence. Therefore, the trial court was not apprised by appellant of the particular error now argued, and as such, it will not be considered on appeal. In Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998), we again reiterated

that we will not consider an argument raised for the first time on appeal. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged, and the appellate court will not address arguments raised for the first time on appeal. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

Appellant has thus failed to preserve this point for appeal.

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.


author: PER CURIAM.

text:
    Melvin SHOEMATE v. STATE of Arkansas
    CR 98-1107
    5 S.W.3d 446
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Dunham & Faught, P.A., by: James Dunham, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   PER CURIAM.

Appellant, Melvin Shoemate, was found guilty by . jury of rape and was sentenced to twenty years in the Arkansas Department of Correction. The judgment and commitment order was filed of record on May 8, 1997. On June 3, 1997, appellant’s wife prepared and filed a notice of appeal on appellant’s behalf. However, we take judicial notice of the fact that we returned and declined to file a partial record submitted by appellant because appellant’s notice of appeal was not filed by a hcensed attorney or by appellant. Subsequently, on October 9, 1997, appellant by his attorney, James Steven Dunham, submitted a motion to file a belated appeal from his rape conviction. Shoemate contended that his trial counsel, L. Gray Dellinger, failed to timely .file, within thirty days of the entry of judgment, a notice of appeal from Shoemate’s conviction. In the absence of an affidavit from Mr. Dellinger admitting negligence, we remanded the matter to the trial court for the purpose of settling the record and determining if the appellant had requested that Dellinger file a notice of appeal. On March 5, 1998, the supreme court clerk received a supplemental record on remand, and on March 12, 1998, Shoemate resubmitted his motion for a belated appeal. On March 26, 1998, we denied appellant’s motion for a belated appeal. Shoemate v. State, CR 97-1209 (March 26, 1998).

Following this denial, appellant filed a petition for postconviction relief on May 18, 1998. The trial court dismissed appellant’s petition with prejudice finding his petition untimely. The court explained that there had not been an appeal from appellant’s judgment of conviction. In addition, the court noted that the time for filing a petition for post conviction relief under Ark. R. Crim. P. 37 started to run on May 8, 1997, and that the ninety-day period expired on August 6, 1997. The court concluded that appellant’s petition was filed 375 days after the date of entry of judgment. In response to the trial court’s decision, appellant filed a motion for reconsideration which was denied. Appellant appealed the denials of his petition for postconviction relief and his motion for reconsideration. Those decisions are now before us.

Appellant argues that the trial court erred in dismissing his petition for post conviction relief as untimely because he had taken an appeal within ninety days from the judgment. Appellant contends that his wife filed the notice of appeal on June 3, 1997.

Arkansas Rule of Criminal Procedure 37.2(c) provides:

(c) If a conviction was obtained on a plea of guilty, or the petitioner was found guilty at trial and did not appeal the judgment of conviction, a petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of entry of judgment. If the judgment was not entered of record within ten (10) days of the date sentence was pronounced, a petition under this rule must be filed within ninety (90) days of the date sentence was pronounced.
If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court. In the event an appeal was dismissed, the petition must be filed in the appropriate circuit court within sixty (60) days of the date the appeal was dismissed. If the appellate court affirms the conviction but reverses the sentence, the petition must be filed within sixty (60) days of a mandate following an appeal taken after resentencing. If no appeal is taken after resentencing, then the petition must be filed with the appropriate circuit court within ninety (90) days of the entry of the judgment.

Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved in favor of our rules. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994). The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely petition for postconviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).

Appellant argues that Rule 37.2 uses the phrase “an appeal taken of the judgment” and the statute does not require that the appeal be perfected. He maintains that his wife had taken an appeal of his judgment when she filed a notice of appeal. This point raised by appellant appears to be controlling in this appeal. The reason that this issue is significant is because it is the only action that was attempted on appellant’s behalf within the ninety-day time limitations set forth in Rule 37.2(c). Appellant’s wife, however, was not a licensed attorney and could not pursue an appeal on appellant’s behalf. See Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987); Undent v. State Bd. of Law Examiners, 266 Ark. 683, 587 S.W.2d 563 (1979). Consequently, her action of attempting to file a notice of appeal was of no consequence in preserving appellant’s right to a direct appeal or appellant’s right to file a timely petition for postconviction relief. Appellant also argues that there was never an order or mandate dismissing the appeal filed by his wife; thus, the appeal is still pending. Appellant’s argument is misplaced because he ignores the fact that the notice of appeal and transcript submitted by his wife were never accepted or filed by the Clerk. Appellant was notified by letter filed on July 8, 1997, that we refused to accept his wife’s notice of appeal, and our letter also set forth the reason for not accepting the appeal. In sum, we never acquired jurisdiction of the appeal.

For his second point, appellant contends that his Rule 37 petition was filed within sixty days of the denial of his motion for belated appeal; thus, his petition was timely pursuant to Ark. R. Crim. P. 37.2(c). Appellant submits that Ark. R. Crim. P. 37.2 does not contemplate situations involving motions for belated appeals and that any other construction of Rule 37.2 would result in harsh, unintended, and unconstitutional results. We disagree. Rule 37.2(c) provides, in part, that “[i]f an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court.” As noted above, appellant failed to take an appeal of the judgment; thus, the sixty-day time limitation set forth in Rule 37.2(c) is not applicable to the facts of this case.

It was appellant’s burden to take prudent and diligent measures to protect his right of appeal. Here, appellant should have filed his Rule 37 petition within ninety days of his judgment of conviction despite the possibility that a motion for belated appeal might be filed. Because appellant failed to file a Rule 37 petition within ninety days of his conviction, he foreclosed his right to seek postconviction relief under Rule 37.

Appellant has also appealed the order denying his motion for reconsideration of the denial of his Rule 37 petition. Arkansas Rule of Criminal Procedure 37.2(d) provides:

The decision of the court in any proceeding under this rule shall be final when the judgment is rendered. No petition for rehearing shall be considered.

Under Rule 37.2(d), the trial court lacked jurisdiction to address appellant’s motion for reconsideration. Therefore, we also lack jurisdiction to entertain an appeal from the denial of that motion.

Affirmed.


author: DONALD L. Corbin, Justice.

text:
    Charlsie Johnson LUTTRELL and Lois Pruitt v. CITY of CONWAY and Arkansas State Highway Commission
    99-644
    5 S.W.3d 464
    Supreme Court of Arkansas
    Opinion delivered December 9, 1999

      Phil Stratton, for appellants.

      Michael L. Murphy, for appellee City of Conway.
   DONALD L. Corbin, Justice.

Appellants'Charlsie Johnson stice. appeal the order of the Faulkner County Chancery Court granting summary judgment to Appellee City of Conway. This appeal raise,s an issue of first impression involving the right of a municipality to maintain and improve property condemned for use by the Arkansas State Highway Commission. Hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

At the heart of this dispute is the chancellor’s interpretation of the Commission’s Minute Order No. 97-134. Appellants own lands abutting a section of public roadway formerly designated as State Highway 60. The lands in question were condemned in 1934 for use by the Commission. Appellants argue that the minute order was an improper attempt by the Commission to transfer its interest in the condemned property to the City. They contend that the minute order demonstrates that the Commission abandoned the property as surplus under Ark. Code Ann. § 27-67-321 (Repl. 1994). As such, they contend that the Commission was required to notify them that they had the option of reacquiring the property, pursuant to Ark. Code Ann. § 27-67-322 (Repl. 1994). We do not reach the merits of these arguments, as Appellants have failed to properly abstract the Commission’s minute order.

Our review of a case on appeal is limited to the record as abstracted in the briefs. Morse v. Sentry Life Ins. Co., 332 Ark. 605, 967 S.W.2d 557 (1998). 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.” Failure to abstract a critical document precludes us from considering any issues concerning it. Id.; National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997). Similarly, when those exhibits necessary for a clear understanding of the issues are not included in the abstract, we will summarily affirm the decision of the trial court. Id. This court has stated on occasions too numerous to count that it is impractical to require all seven justices to examine one transcript in order to decide an issue. Id.; Finnegan v. Johnson, 326 Ark. 586, 932 S.W.2d 344 (1996).

Here, Appellants have condensed a 219-page record into a seven-page abstract. The Commission’s minute order is abstracted as follows:

1. The existing route of State Highway 60, Section 0, from U.S. 65 Business Route, westward to the junction of State Highway 286 to become the responsibility of local jurisdiction.

The only other information we are given pertaining to this document is that it included a sketch showing changes to the state highway system in the vicinity of Conway.

Because we are asked to interpret the language used in the Commission’s minute order, and because our review is de novo, it is critical that we be furnished with the complete order. See Cleveland v. Estate of Stark, 324 Ark. 461, 923 S.W.2d 857 (1996) (holding that the abstract was deficient because it failed to furnish the document in question, a will, in its entirety). See also Morse, 332 Ark. 605, 967 S.W.2d 557 (holding that the four-page abstract was deficient, in part, because it included only a small portion of the text of the insurance contract, upon which the appeal was based). Without the benefit of knowing the full content and context of this critical document, we cannot determine whether the chancellor’s interpretation is clearly erroneous.

Perhaps even more' troublesome is the absence of the 1934 order of the Faulkner County Court condemning the property for use by the Commission. Appellants have contended in the argument portion of their brief that the 1934 order only granted to the Commission a permanent easement for public road purposes, rather than title to the land in fee simple as provided by Act 491 of 1953. See Ark. Code Ann. § 27-67-301(b) (Repl. 1994). The abstract, however, reflects only that the 1934 order “grant[ed] the petition of the Arkansas State Highway Commission condemning 40 feet on either side of a survey centerline which transverses lands which belonged to Plaintiffs’ predecessors in title located in Section 9, 5 North, 14 West.” From this condensed version of the order, it is not apparent what title the Commission obtained in the property. Moreover, because the abstract does not contain the petition for condemnation, we cannot tell what particular use of the land was requested by the Commission. Therefore, the information that the 1934 order “grant[ed] the petition” reveals nothing on the issue of title. Accordingly, we are unable to determine what interest the Commission held in the property and, correspondingly, what interest may have been transferred or conveyed to the City by the Commission’s minute order.

In sum, it is Appellants’ burden to abstract the record to demonstrate error, and we will not go to the record to determine whether reversible error occurred. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996). Because Appellants have failed to meet their burden, we have no choice but to affirm the chancellor’s ruling. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999).

GLAZE, J., would dismiss the appeal.