text:
    Jerry MACKEY v. STATE of Arkansas
    CR 97-312
    947 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant consented to a bench trial in the Pulaski County Circuit Court and was convicted of residential burglary. Pursuant to Ark. Code Ann. § 5-4-501 (Repl. 1993), the trial court found that appellant was an habitual offender with more than one but less than four previous felony convictions and sentenced him to 108 months’ imprisonment.

Appellant sought review from the court of appeals where he did not challenge the sufficiency of the evidence to convict him; rather, he claimed that there was insufficient evidence to support the finding that he was an habitual offender and should receive an enhanced sentence. In a 4-2 opinion, the court of appeals reversed and remanded the case for resentencing, asserting that this court has ruled that a defendant is not required to make a contemporaneous objection of any kind to preserve any issue in cases where a bench trial is held. In its opinion, the court of appeals stated that the supreme court has, “essentially relieved trial counsel of the duty to apprise the trial court of deficiencies in the evidence, including missing elements of proof.” Mackey v. State, 56 Ark. App. 164, 167, 939 S.W.2d 851 (1997).

In its petition for review, the State prays for supreme court review and contends the court of appeals has misinterpreted our rulings which are directly on point to this issue.

We conduct our review pursuant to Ark. Sup. Ct. R. l-2(f) as though the case had originally been appealed to this court, and we conclude that the trial court’s decision should be affirmed.

Initially, we note that this appeal does not include a challenge to the sufficiency of the evidence to sustain the conviction but only seeks to raise the issue whether the sentence imposed on the appellant as an habitual offender was supported by appropriate evidence that he had been convicted of multiple prior felonies as required for sentencing him as an habitual offender.

The court of appeals’ majority opinion relied upon our decision in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), where we held that, at a bench trial, a motion for a directed verdict for insufficient evidence to sustain a conviction was not required to preserve the issue on appeal. Our rationale for this decision was that in a bench trial, such a contemporaneous motion was superfluous, since the trial'judge was required to consider the sufficiency of the evidence in determining guilt.

By contrast, we have long held that a contemporaneous objection must be made to the trial court before we will review an alleged error on appeal. In Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980), we noted that “exceptions to the basic requirement of an objection in the trial court are so rare that they may be reviewed quickly.” We then delineated four exceptions to the contemporaneous-objection rule, none of which are applicable here.

Our decision in Strickland v. State, supra, was limited to the issue whether, at a bench trial, a directed-verdict motion was required to preserve for appeal the issue of sufficiency of the evidence to support a determination of guilt and conviction. We do not depart from either of these rules by following Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992), and specifically requiring that a contemporaneous objection is necessary to preserve the issue whether previous convictions should have been considered in the sentencing phase at a bench trial.

As pointed out by the dissent, there is a fine of cases which are directly on point. We find that this case cannot be distinguished from the facts of Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). In Withers, this court ruled that an appellant convicted at a bench trial failed to make a contemporaneous objection to the trial court’s finding that he had four or more felony convictions, and that failure to object barred him from raising the issue on appeal. The Withers court also noted that not only did the appellant fail to object to the habitual-offender finding, but that both the appellant and his own counsel admitted to his prior record, with his attorney arguing for leniency. On direct examination, the appellant admitted he had a record and testified as to those crimes. Withers, 308 Ark. at 510, 825 S.W.2d at 820. The supreme court found that it was understandable for the State to believe, in light of these admissions, that it was unnecessary to introduce a pen pack into evidence. Id.

Factually, this case cannot be- distinguished. In this case, the felony information charging appellant with residential burglary included a provision that appellant had been convicted of more than one but less than four felonies, thereby providing notice that appellant would be treated as a habitual offender. Appellant signed a Waiver of Jury Trial for this burglary felony. On that form, the words “felony” and “habitual” were circled and appellant was put on notice that he could receive a sentence ranging from five to thirty years in the state penitentiary. On direct examination during the guilt phase, appellant’s own attorney questioned: “Mr. Mackey, you’ve got prior convictions for what? Theft by receiving and possession of drug paraphernalia?” Appellant responded, “Yes, sir.” Later, on re-cross examination, appellant was asked if he got in trouble in 1990 and 1993 and whether he was currently on probation for the later offense. Appellant responded, “Yes,

Before ending the guilt phase, the State clarified the exact prior felonies it would use for habitual status, and stated it had certification for case 93-1657A for possession of drug paraphernalia. When the court asked how appellant had pled for that case, appellant’s own attorney conceded that he had also represented appellant on that previous case and appellant had pled guilty for that Class C felony. Continuing on the certification issue, the trial court inquired, “What else?” and the State said the other case was 90-72A which resulted in a bench trial on that theft by receiving charge, a Class C felony. No contemporaneous objection was made challenging the existence of these prior felonies.

During the sentencing phase, appellant’s attorney began calculating his client’s possible sentence and stated:

The only mistake we really saw with the presentence is that Miss Byrd counted the misdemeanors that were more than ten years old. So, I think the State will agree with me that it should be three point two five as opposed to a four.

After the State agreed that this reduction was accurate, appellant’s attorney continued to figure the appropriate sentence based on his client’s habitual-offender information:

So, that’s going to make it, if you follow the grid, seriousness level six, score of three. Going to make it a hundred and eight months in the Arkansas Department of Correction. . .

Appellant’s attorney requested that the court depart down from the hundred and eight months in prison based on the fact that he was convicted of a property crime, that there was not extensive property damage, that the appellant had obtained rehabilitation, and that no injuries occurred during the crime. The court denied the leniency plea and set sentence at the lowest setting on the sentencing grid.

As in Withers, not only did appellant fail to object to the habitual-offender finding, but both appellant and his own counsel admitted to his prior record, with his attorney arguing for leniency. While he did move for a directed verdict on the sufficiency of the evidence, appellant never questioned the habitual-offender status from the time the information was filed until appeal. In fact, appellant admitted the prior convictions, and he guided the trial court to the proper length of his own sentence of 108 months in prison.

The 1992 Withers case reiterated this court’s endorsement of the contemporaneous-objection rule in bench trials, at least to the extent of showing habitual-offender status for sentencing purposes. In 1993, we cited Withers in Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993), upholding the rule that a bench-trial contemporaneous objection must be made in order to challenge a judge’s determination that multiple prior convictions existed which established the defendant’s status as a habitual offender, and that the issue is waived on appeal absent that objection. In State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994), another appeal from a bench-trial ruling, this court held that the purpose for the contemporaneous-objection rule is to give the trial court the opportunity to know the reasons for disagreement with its proposed action before or at the time that court makes its ruling. Brummett, 318 Ark. at 222.

It is clear that while we do not require a directed-verdict motion for sufficiency of the evidence during the guilt phase of a bench trial, we do require a bench-trial contemporaneous objection to challenge the existence of prior convictions to establish habitual-offender status for the purpose of sentencing. We hold appellant is procedurally barred from appealing this issue.

We affirm the trial court’s decision.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Steven M. EDMONDSON v. STATE of Arkansas
    CR 97-614
    945 S.W.2d 943
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Wes Bradford, for appellant.
    No response.
   Per Curiam.

Steven M. Edmondson, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Wes Bradford, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice.

text:
    Harold D. QUALLS v. Daniel FERRITOR, Chancellor, and University of Arkansas, Fayetteville
    97-223
    947 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered June 30, 1997

      Appellant, pro se.

      T. Scott Varady, Associate Gen. Counsel and Jeffrey A. Bell, Associate Gen. Counsel, for appellees.
   Tom Glaze, Justice.

Appellant Harold D. Qualls filed suit, pro se, in Washington County Circuit Court, naming as defendants the State of Arkansas, the University of Arkansas at Fayetteville, and the University’s Chancellor, Daniel Ferritor. Qualls alleged that, in 1986, he was expelled from the University, but that, under an agreement dated March 23, 1987, the University agreed to readmit him, allow him to attend graduate school, and permit him to obtain a doctorate degree in education if he would surrender his Arkansas teacher certificate. Qualls further alleged he was readmitted and subsequently obtained his bachelor of special education and master of education degrees, but after completing ten hours towards his doctorate degree, was advised by the University that he did not qualify for a doctorate degree because he had no teacher certificate. Qualls asserted the defendants’ action caused him compensable damages in the total amount of $1,000,000, and punitive damages of $9,000,000.

The appellees responded to Qualls’s complaint by moving to dismiss on the grounds that Qualls had failed to state a claim upon which relief could be granted, and that such suit against the University and Chancellor Ferritor was barred under the sovereign immunity clause (Ark. Const, art. V, § 20) and the statutory immunity provision set out in Ark. Code Ann. § 19-10-305(a) (Repl. 1994). The trial court granted appellees’ motion, and Qualls brings this appeal, arguing the trial court erred in dismissing his suit.

We are unable to address Qualls’s argument because his abstract is flagrantly deficient. See Ark. Sup. Ct. R. 4-2(b). This court’s rules require abstracting of 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. Ark. Sup. Ct. R. 4-2(a)(6).

Qualls’s entire argument on appeal is premised on a document dated March 23, 1987, which he labels a “trade agreement, or waiver.” Flowever, that agreement appears nowhere in the abstract, and apparently was not presented to the trial court. Also, no testimony is abstracted concerning the March 23 document, even though Qualls mentions the document repeatedly in his statement of the case and argument in his brief. Qualls’s briefing problem is exacerbated by his listing and placement of a number of letters, certificates, and other papers in his brief, which are not in the transcript and were never considered by the trial court. As a consequence, we cannot consider them on appeal. See Rochelle v. Piles, 244 Ark. 606, 427 S.W.2d 10 (1968).

Finally, we note that Qualls, as appellant, has the burden to demonstrate any reversible error and present a record evidencing such error. See Rad-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). In addition, we are guided by the settled rule that when the appellant does not cite authority or make a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). Here, Qualls cites no legal authority to support his argument, and while he offers five pages of argument, the argument is unclear, most likely because a proper record is not presented to help us understand his contentions. This court holds pro se litigants to the same requirement as attorneys. Jewell v. Ark. Bd. of Dental Examiners, 324 Ark. 463, 921 S.W.2d 950 (1996).

In sum, we affirm the trial court’s ruling because of Qualls’s deficient abstract and his failure to demonstrate reversible error.

Newbern, J., not participating.

       On motion of Qualls, the trial court later dismissed the State from the lawsuit.


text:
    DeAnthony Tyrone SMITH v. STATE of Arkansas
    CR 96-1484
    947 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered June 30, 1997

      Johnson & Richards, P.L.L.C., by: B. Kenneth Johnson, for appellant. ■

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant DeAnthony Tyrone Smith, who was on probation for burglary and theft, was arrested and charged with aggravated robbery and aggravated assault. Smith retained attorney Lori A. Mosby to defend him against the State’s revocation petition and its felony charges. At a bench trial, on July 30, 1996, Smith was found guilty of the aggravated robbery and assault offenses and sentenced to twenty-six years, and was found in violation of his probation agreement, for which he was given thirty-six years.

After the trial court found Smith guilty, it asked the prosecuting attorney and Ms. Mosby if they had any evidence to present during the sentencing phase. Mosby said no. When the sentencing phase began, the trial court learned Mosby had left the courthouse, and Smith was left to represent himself. The trial judge proceeded to explain the sentences he intended to impose for each crime — aggravated robbery, aggravated assault, burglary, and theft — and at the State’s urging, the trial judge had Smith sign the conviction judgments.

After Smith signed the judgments, the trial court advised Smith of his right to appeal, and that if he could not afford an attorney, the court would appoint one. The trial court also informed Smith that he could file a claim of ineffective assistance of counsel. After completion of the sentencing phase, new counsel was appointed to represent Smith, and, on August 28, 1996, that counsel filed a timely notice of appeal from the July 30, 1996 convictions. On the same August 28 date, he filed a motion for a new trial, alleging (1) Ms. Mosby had failed to procure certain material witnesses to testify at trial, and (2) his speedy trial rights had been violated. No hearing was held or ruling obtained on Smith’s new-trial motion, and no additional or second notice of appeal was filed by Smith after the thirty-day deemed-denied period expired, as is required in Rule 2(a)(3) of Appellate Procedure — Criminal and Rule 4(c) of Appellate Procedure — Civil.

In his appeal, Smith contends that, because his counsel faded to appear and represent him during the sentencing phase, the trial court violated his Sixth Amendment right by proceeding without defense counsel being present. Smith relies upon Mempa v. Rhay, 389 U.S. 128 (1967), and argues the time of sentencing is a critical stage in a criminal case and counsel’s presence is necessary.

The State counters by urging that this Court lacks jurisdiction to consider Smith’s claim, because the trial court never ruled on Smith’s new-trial motion, and therefore Smith was required to file an additional or second notice of appeal after thirty days expired from the time of filing his motion. The State further argues Smith could not simply rely on the “deemed denied” time period in any event because a hearing was required to give the trial court an opportunity to explore the facts surrounding the ineffective assistance of counsel allegations contained in Smith’s posttrial motion. See Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996). The State is mistaken. Although Smith did not obtain a hearing on his ineffective assistance of counsel claim or file a second notice of appeal when his new-trial motion was deemed denied, Smith’s appeal from the conviction judgment is authorized by Rule 2(b) of Appellate Procedure — Criminal. Rule 2(b) provides as follows:

(b) Time for Filing. A notice of appeal is invalid if filed at any time prior to the day that the judgment or order appealed from is entered or prior to the day that a post-trial motion is deemed denied except as provided herein. If a notice of appeal is filed on the same day that the judgment or order appealed from is entered or on the day that a post-trial motion is deemed denied, the notice of appeal shall be effective. A notice of appeal filed within thirty (30) days of entry of the judgment of conviction shall be effective to appeal the judgment, even if a post-trial motion is subsequently filed. If a post-trial motion is filed after the notice of appeal, it shall not be necessary, to preserve the appeal of the judgment of conviction, to file another notice of appeal of the judgment. If an appellant wishes to appeal an adverse ruling on a post-trial motion and the appellant has previously filed a notice of appeal of the judgment, the appellant must file a notice of appeal regarding the ruling on the motion within the time provided in subpart (a)(2) or (3) hereof. (Emphasis added.)

As gleaned from the foregoing rule, Smith’s notice of appeal dated August 28, 1996, was filed within the thirty-day period from which to appeal the trial court’s July 30, 1996 conviction judgment and was effective to appeal that judgment even though Smith had also filed a new-trial motion. Further, we have held that the issue of denial of counsel must be raised on direct appeal or be waived. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). The question remains, however, whether Smith preserved his Sixth Amendment or right-to-counsel issue in his direct appeal of the July 30 judgment, since his appointed counsel never raised that constitutional issue below. We conclude that he has.

This court’s decision in Furr v. State, 285 Ark. 45, 685 S.W.2d 149 (1985), is controlling. There, this court rejected the State’s argument that Furr’s failure to object to the lack of counsel at the trial level precluded such argument on appeal. The Furr court stated the following:

The appellant’s statutory rights are reinforced by the sixth amendment of the United States Constitution. The U.S. Supreme Court addressed the issue of right to counsel in Mempa v. Rhay, 389 U.S. 128 (1967) finding that counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” The Court held that the time of sentencing is a critical stage in a criminal case and counsel’s presence is necessary. See Annotation, Parole or Probation Revocation, 36 L.Ed. 2d 1077 § 23(a) p. 1117 (1974); Annotation, Probation - Revocation - Right to Counsel, 44 ALR3d 306 § 2 p. 311 (1972). The commentary after § 41-1209 [now Ark. Code Ann. § 5-4-310 in Ark. Crim. Code Ann., Original Commentary at 253-254 (1995)] cites Mempa for the proposition that indigent defendants are entitled to appointed counsel if sentencing is to follow revocation. See also Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972).
The right to counsel may be waived, but the waiver must be made knowingly, voluntarily, and intelligently. Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977). Here the only potential evidence of waiver is the fact that appellant waived his right to counsel when he initially pled guilty. Almost one year passed between the appellant’s plea of guilty and his revocation hearing. Obviously, it cannot be said that the waiver of counsel when the plea was entered constitutes an intelligent waiver to all further proceedings. Such a rule would circumvent the appellant’s right to counsel during the most critical aspect of the criminal proceedings against him, revocation of his probation and sentencing nearly a year later.
Under the circumstances of this case, the trial court had a duty to advise appellant, either by the service of notice of the revocation hearing, or in open court, of his right to be represented by counsel. When the court failed to do so it committed prejudicial error.

The circumstances in the present case are like the ones found in Furr. The trial court here never advised Smith that, during sentencing, he had a right to be represented by counsel. If for no other reason, counsel could ensure that Smith’s convictions and sentences were not based on misinformation or a misreading of court records. See Mempa, 389 U.S. at 133.

In sum, the record reflects Smith was never informed that he had a right to counsel for the sentencing phase, or that he knowingly, voluntarily, and intelligently waived such right. Consequently, we reverse and remand this cause for resentencing.

       At the same time, the prosecutor described to the judge that he had understood Mosby was going to explain the conditions of suspended imposition of sentencing, but there is no indication that happened.


author: Donald L. Corbin, Justice. Ray Thornton, Justice,

text:
    J.T. v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    96-1006
    947 S.W.2d 761
    Supreme Court of Arkansas
    Opinion delivered June 30, 1997

      Suzanne Penn, for appellant.

      Ed Wallen, Office of Chief Counsel, for appellee.

      Merry Alice Bost Hesselbein, Guardian Ad Litem.
   Donald L. Corbin, Justice.

Appellant J.T. appeals the judgment of the Pulaski County Chancery Court terminating her parental rights to T.T., who is now thirteen years of age, pursuant to Ark. Code Ann. § 9-27-341 (Supp. 1995), and authorizing Appellee Arkansas Department of Human Services (“DHS”) to consent to the adoption of T.T. Appellant raises three points for reversal that necessarily involve our interpretation of section 9-27-341; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(17)(vi) (as amended by per curiam July 15, 1996). We find no error and affirm.

Facts and Procedural History

The duration of this case was approximately two years, during which time there were numerous hearings conducted before the chancery court. The evidence presented below reveals the following facts. On March 18, 1994, DHS filed a petition for emergency custody of T.T., asserting that the child was dependent-neglected as defined in Ark. Code Ann. § 9-27-303 (Repl. 1993). The affidavit attached to the petition reflected that T.T. was at risk for emotional abuse due to the fact that she was living with her mother in a shelter, that her mother had a history of running from shelter to shelter, state to state, and that T.T. was not attending school regularly. The affidavit particularly described two specific incidents which had occurred at T.T.’s school. On March 16, 1994, Appellant forced T.T. into school through the use of an armlock behind the child’s back and by pulling the child’s hair. When T.T. visited with the school counselor that same date, the child reported that she had experienced pictures in her head, that she had no memories of earlier times in her childhood, and that she had been in foster care when she was two years of age and had been sexually abused. On March 17, 1994, Appellant again accompanied T.T. to school where Appellant lost control, displaying disruptive behavior and loud cursing for approximately forty minutes. The affidavit also indicated that a psychiatrist at the Arkansas Children’s Hospital had diagnosed Appellant as being mentally ill, but that Appellant had not accepted services which would comply with prescribed treatment. Additionally, T.T. was exhibiting the same symptoms that Appellant had, such as delusions and paranoia. The order granting the emergency custody was filed on March 22, 1994.

After a hearing on April 22, 1994, and based on the stipulation of the parties that the allegations contained in the petition were true, T.T. was adjudicated dependent-neglected. The stated goal of the case was one of reunification of the family. In the meantime, T.T. was ordered to pursue residential treatment and to participate in family therapy with Appellant. Appellant was likewise ordered to seek treatment by receiving a psychological evaluation and following any recommendations for medication and treatment.

On August 31, 1995, DHS filed a petition to terminate Appellant’s parental rights. The petition stated that the minor child had resided outside the parental home for a period in excess of one year and, despite meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, the conditions had not been remedied by Appellant to the extent that she was able to provide for the essential and basic needs, as well as the specific emotional needs, of T.T. Appellant responded to the petition by arguing that (1) DHS had violated the Americans with Disabilities Act by denying her visitation with T.T. and (2) the trial court had unlawfully delegated judicial authority by allowing visitation to be determined by what the child’s therapist recommended and by what the child desired.

After receiving testimony and other evidence during four separate hearings conducted on December 8, 1995, January 26, 1996, March 5, 1996, and March 15, 1996, the trial court entered an order terminating Appellant’s parental rights and authorizing DHS to consent to the adoption of T.T. This appeal followed.

Termination of Parental Rights

For her first point for reversal, Appellant argues that the trial court erred in finding clear and convincing evidence to terminate her parental rights. This court has stated that when the burden of proving a disputed fact in chancery is by clear and convincing evidence, the inquiry on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is defined as “that degree of proof which will produce in the factfinder a firm conviction as to the allegation sought to be established.” Id. at 637, 839 S.W.2d at 198. In making such determination, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id.

When the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Id.; Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Anderson, 310 Ark. 633, 839 S.W.2d 196. This is not to say, however, that parental rights should be allowed to continue to the detriment of the child’s welfare and best interests. In Burdette v. Dietz, 18 Ark. App. 107, 711 S.W.2d 178 (1986), the court of appeals held:

While we agree that the rights of natural parents are not to be passed over lightly, these rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.

Id. at 109, 711 S.W.2d at 180.

Section 9-27-341 provides for the termination of parental rights upon petition by DHS. Subsection (a) provides in part:

The intent of this section is to provide permanency in a juvenile’s life in all instances where return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time.

Subsection (b) provides that an order terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile based upon one of the enumerated grounds, including a finding that the minor child has been adjudicated dependent-neglected, has been out of the home for twelve months, and, despite meaningful effort by DHS to rehabilitate the home and correct the conditions which caused removal, the conditions have not been remedied by the parent.

During the hearings conducted below, the following pertinent evidence was presented. T.T., who was eleven years of age at the time she testified, said she wanted to live with her foster mother because she had more of a normal fife and she felt safer there. She said she had a regular school to go to and that she was not afraid that she would have to move around again. She said she did not really have a normal fife when she lived with her mother, and that if she had to five with her mother again, it would not be good because her mother could not take care of her and would probably move again. She said her mother was hardly taking care of herself. She said that there were times when she was afraid while she was with her mother, and that sometimes her mother would “act like she was fighting a sumo wrestler or something.” She indicated that she was afraid that she would catch her mother’s disease, and that she knew for a fact that she could catch the disease because when she lived with her mother, she started acting like her mother. She said that she felt sad about her mother’s right to visit her in the future being taken away because she did not want to hurt her feelings. She indicated that she loved her mother and wanted to see her have a good fife, but that her visits with her mother made her feel uncomfortable. She said that even if her foster mother could not adopt her and DHS would have to look for another place for her, she would still want her mother’s parental rights taken away.

Catherine Chaumont, a therapist with the Centers for Youth and Families, testified that T.T. entered the children’s residential program at the Arkansas Children’s Hospital on June 6, 1994, and that she was initially diagnosed as having shared psychotic disorder for which she was hearing voices and having hallucinations. She described persons diagnosed with shared psychotic disorder as having a close relationship with someone who has a psychotic disorder and exhibiting those psychotic behaviors, which they are exposed to on a regular or long-term basis by the other person. She stated that, initially, T.T. was extremely oppositional and non-compliant, to the extent that she would not follow rules and, at times, she required restraints, physical holds, and closed-door seclusions in order to secure her safety and the safety of the staff and the other children. She indicated that T.T. was extremely fearful of her mother and that, initially, she had been very reluctant to have contact with her mother, even during family therapy sessions. She stated that by October 1995, T.T.’s diagnosis had changed to one of oppositional defiant disorder, a less severe diagnosis, which indicated that she was getting better. She indicated further that the relationship between Appellant and T.T. was improving and that there was a bond between them. She stated that there were, however, times when Appellant appeared to become very agitated by some of T.T.’s questions. In one recent session, when T.T. had continued to press for answers involving verification of her birth, Appellant’s tone of voice had escalated and she became short with the child. She stated that recently T.T. had become more aggressive and noncompliant, requiring physical holds on her, which she had not required since she had been discharged from residential treatment in 1994. She stated further that it was apparent that T.T. began decompensating in early February 1996, coinciding with the continuance of the court hearing on the petition to terminate Appellant’s parental rights.

Ms. Chaumont ultimately recommended that T.T. be placed for adoption and that Appellant’s parental rights be terminated. She indicated that, although Appellant had done everything that had been asked of her by the court, and although her relationship with T.T. had improved significantly, T.T. still required more than Appellant was able to provide. She stated that T.T. was a “high risk” child and that because of her high needs, Appellant would not be able to maintain the child and keep her stable. She stated that T.T. needed a structured environment and needed parents who would confront her, setting very firm limits on her behavior and being able to enforce those limits by resisting the child’s challenges, threats, and verbal abuse. She stated further that when T.T. is around Appellant, she exhibits characteristics of a parentified child, one who assumes the role of acting parent, showing more parenting skills than the mother and sometimes assuming charge of the household. She stated that no amount of training or classes would enable Appellant to meet the needs of T.T. She stated that T.T. needed closure to this situation and that the child was even at the point of trying to recruit potential parents to adopt her.

Gail Brown, Appellant’s therapist, testified that Appellant had been diagnosed as being alcohol dependent, having bipolar disorder, and being manic type. She stated that Appellant was at that time undergoing therapy and treatment by medication. She estimated that Appellant had a Global Assessment of Function score of 68, out of a possible 100. She stated that a normal functioning person would score somewhere in the 90s and that a score of 68 would put Appellant at a level of functioning with mild symptoms, some depressed mood or mild insomnia, some difficulty in social, occupational, or school functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. She stated that Appellant would need to continue her therapy and take medication for the rest of her life. When asked if she thought T.T. should be returned to Appellant at that time, she stated that it would be best for Appellant that there be reunification with supervision through a gradual integration, involving visitation overnight and on weekends.

Dr. Nita Brown, a psychiatrist with the Centers for Youth and Families, testified that she had conducted a mental status examination on Appellant at the time T.T. was admitted to the Centers in June 1994. She stated she had observed Appellant having looseness of association, flight of ideas, and bizarre and paranoid ideation. She stated that while she was conducting the examination, Appellant became increasingly agitated, such that Dr. Brown terminated the session when Appellant physically approached Ms. Chaumont in a threatening manner. She stated that T.T. had expressed some fears of her mother and that the child had indicated that her mother had told her that people were trying to kill her (T.T.) or trying to electrocute her. Pertaining to Appellant’s mental condition, Dr. Brown described bipolar disorder as a mood disorder in which a person experiences mental states varying from manic, to psychotic, to depressed. During the manic moods, Dr. Brown stated, the person begins to have poor judgment and can become paranoid and have delusional and bizarre ideas. She stated further that bipolar disorder is a highly variable disease, at times affecting the person’s life only minimally, and other times affecting the person to a point where she is totally incapacitated. She stated that T.T.’s emotional requirements are such that she needs an extremely stable environment, which could not be adequately provided by Appellant because the course of the bipolar illness is characterized by ups and downs and by periods of deterioration. She stated further that, in her opinion, no amount of parenting classes or education could enable Appellant to give T.T. the stability she needs.

Appellant testified at the December 8, 1995 hearing that T.T. should be returned to her custody “eventually,” after they had more therapy and visitation. She stated that she was asking the court to give her more help and more parenting classes. At the January 26, 1996 hearing, Appellant again expressed a desire to have more therapy before she would be ready to take custody of T.T. She stated that she did not think it was a good idea for T.T. to come home with her at that time. She stated that she felt they needed to spend more time together, perhaps in the form of weekend visits, before she took custody of the child. She stated that she knew what it meant when the therapists referred to T.T. being oppositional and that she would deal with that behavior by taking additional classes. Appellant also indicated that she was not working and that she was currently in a relationship with a man who was an alcoholic and who had not stopped drinking. It was further deduced over the course of the hearings that Appellant had had several relapses with alcohol, the most recent occurring in October 1995.

In making the determination to terminate Appellant’s parental rights, the trial court stated:

The Court finds that the mother’s mental illness was a factor that caused the child to enter foster care. The Court further finds that the mother has had consistant [sic] treatment for her mental illness and will need continued treatment for the rest of her life. The child has had some psychiatric difficulties also and has improved since entering foster care. However, the Court cannot close its eyes to the fact that it must do what is in the best interest of [T.T.] who is entering adolescence, is parentified, and needs a parent or care giver who can be confrontive and set limits, be resistant to challenges, threats, and verbal abuse that this child can exhibit. This child also needs to definitely know what is going to happen in her life. The Court notes that this case had been ongoing and that now is the time to make a permanent plan for the child. Ms. Chaumont, the child’s Therapist, testified last week that the child in the past several weeks has become markedly non-compliant and that school grades have plummeted, and that the child needs closure on this issue. The Court finds that the mother is unable to be the type of parent that this child needs and she is not able to learn how to be that parent. The Court notes that this is sad because the mother loves the child and has really tried to do what is required, but it has not yet transpired. The Court finds that long-term foster care is not appropriate for this child. This child is adoptable and, according to Ms. Chaumont, is very adoptable. [Emphasis added.]

We conclude that the finding of the trial court that Appellant does not have the capacity to be the type of parent T.T. needs was not clearly erroneous, in light of the testimony provided by Catherine Chaumont, Gail Brown, and Dr. Nita Brown, along with Appellant’s concession that she was not yet ready to take care of T.T. on a permanent basis. The foregoing evidence demonstrates that the trial court’s decision to terminate Appellant’s parental rights is supported by clear and convincing evidence and that such decision was in the best interest of the child.

Appellant additionally challenges the trial court’s ruling on the ground that the court made no finding of her unfitness as a parent. Appellant relies on Quilloin v. Walcott, 434 U.S. 246 (1978), in support of her assertion that there must be a showing of a parent’s unfitness before the parental rights may be terminated on the basis of what is in the best interest of the child. While we agree with Appellant that a proceeding to terminate parental rights is a two-step process, requiring the trial court to find (1) the parent unfit and (2) that termination of the parent’s rights is in the best interest of the child, we do not agree with her contention that the trial court here did not make a finding that Appellant was unfit. Although the trial court did not actually use the word “unfit,” the court clearly made a finding that Appellant was unable to be the type of parent that T.T. needs and that she is not able to learn how to be that parent. We conclude that such a determination by the trial court is a sufficient finding of Appellant’s unfitness, and that such finding is supported by clear and convincing evidence.

Americans with Disabilities Act

For her next point for reversal, Appellant makes two arguments involving the Americans with Disabilities Act (“ADA”). Appellant first argues that she was denied visitation with T.T. on the basis of her mental disability and that reasonable accommodations should have been made by DHS to provide visitation services to her, pursuant to section 9-27-341 (b)(2)(E) and the ADA. She next argues that it was error for Dr. Nita Brown to have denied her access to T.T. on the ground that she posed a threat to the child or Ms. Chaumont without first having conducted an individualized assessment of the severity and duration of any risk posed by her. She contends this was also done in violation of the ADA.

The trial court found that DHS had not violated the provisions of the ADA because any denial of visitation was not based on the fact that Appellant had a mental disability, but rather, on the mental and emotional state of T.T. The court stated that Appellant’s mental disability was a factor considered by the court, but only to the extent that the disability affected the child in a detrimental way. The court noted that it had in the past issued similar restrictions on visitation in cases where the parents had no identifiable disability, and also, that there had been cases when such restrictions were not necessary and where the parental rights were not terminated even though the parent had a disability such as mental illness.

Appellant has presented no direct authority to support her contention that DHS discriminated against her or failed to provide any services to her or make reasonable accommodations for her. Instead, Appellant merely relies on section 9-27-341 (b)(2)(E)(ii), which provides that DHS will make “reasonable accommodations” in accordance with the ADA in order to allow meaningful access to reunification and family preservation services. For the reasons outlined below, we affirm the trial court’s ruling.

The ADA provides in pertinent part that, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1994). Whether an individual has been denied the services of a public entity by reason of the individual’s disability is an issue of first impression in this court. We thus look to decisions from other jurisdictions for guidance.

In In re Torrance P., 522 N.W.2d 243 (Wis. Ct. App. 1994), the Wisconsin Court of Appeals determined that the inquiry of whether the father’s rights under the ADA had been violated was separate from and unrelated to the issue of whether the trial court erred in terminating the father’s parental rights. The court explained that Congress enacted the ADA to efiminate discrimination against persons with disabilities and to create causes of action for those persons, but Congress did not intend to change the obligations imposed by unrelated statutes, such as the Wisconsin statute requiring DHS to make a “diligent effort” to provide court-ordered services to persons involved in an action for termination of parental rights. The court stated that while the father’s developmental disability “must be considered in determining the reasonableness of the County’s efforts, neither his disability nor the ADA changes the inquiry or the County’s burden of proof” under the relevant Wisconsin statute. Id. at 245-46. The court con-eluded that any cause of action the father may have had under the ADA was pursuable under a separate cause of action, but that such a claim could not be the basis for an attack on an order terminating parental rights.

In In re CM., 526 N.W.2d 562 (Iowa Ct. App. 1994), the Iowa Court of Appeals passed over the issue of whether the ADA could be used as a ground for reversal of an order terminating parental rights. The court ultimately ruled that the issue was procedurally barred because it had not been raised below, although it did address the merits of the claim in the alternative by stating that reasonable accommodations had been made by DHS in that the mother had been provided with a lengthy list of services including those which accommodated her personality disorder.

More recently, in Stone v. Daviess County Div. Child Servs., 656 N.E.2d 824 (Ind. Ct. App. 1995), the Indiana Court of Appeals addressed a situation more closely akin to that in the present case, in that both parents and the children displayed mental, emotional, and psychological problems. The court initially determined that because Indiana statutes did not require that services be provided to any parents in proceedings to terminate parental rights, the requirements of the ADA were not applicable. The court nonetheless addressed the merits of the parents’ claim because the public entity had, in that case, elected to provide services. In its review of the claim, the court recognized that all that was required under the ADA was that the public entity reasonably accommodate a parent’s disability. The court stated that, “[i]n the final analysis, the rights of the parents under the Fourteenth Amendment and the ADA must be subordinated to the protected rights of the children.” Id. at 831. The court concluded that the services provided to the parents had been sufficiently tailored to meet their disabilities, but that the most significant factor that had not been remedied was the parents’ denial that there had ever been any inadequacy in the care of their children. The court thus determined that any additional services would not have cured the parents’ denial or their chronic parenting deficiencies.

Section 9-27-341 (b)(2) (A) requires a “meaningful effort” by DHS to rehabilitate the home and correct the conditions which caused the removal of the child as dependent-neglected. Subsections (b)(2)(E)(i) & (ii) provide that in the event termination of parental rights is based upon factors which arose subsequent to the original dependency-neglect petition, DHS shall make “reasonable accommodations” in accordance with the ADA to parents with disabilities in order to allow them meaningful access to reunification and family preservation services.

Assuming arguendo that the trial court based its decision to terminate Appellant’s parental rights on any such subsequent factors, the pertinent inquiry is whether DHS provided “reasonable accommodations” to Appellant to allow her a meaningful access to reunification services. Such accommodations were made in this case, in the form of providing Appellant with a mental evaluation, therapists, and prescribed medication for her mental illness, as well as access to family therapy, parenting classes, Alcoholics Anonymous sessions, transportation, and various casework services. Appellant was additionally provided general visitation with T.T., and was only denied that visitation when it became detrimental to the child. In that respect, we agree with the reasoning espoused by the Indiana Court of Appeals that the parent’s rights under the ADA must be subordinated to the protected rights of the child. Such reasoning is consistent with the General Assembly’s mandate that all juvenile court proceedings be viewed in terms of what is in the best interest of the child. See Ark. Code Ann. § 9-27-102 (Supp. 1995). We thus find no merit to this point.

Similarly, we find no merit to Appellant’s second contention that it was error for Dr. Brown to deny her access to her daughter without making an individualized assessment of the risk posed by Appellant. In support of this contention, Appellant relies heavily on School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987). That case dealt with the issue of whether a teacher, who had been denied certification because she had tuberculosis, posed a threat to the general public if she were allowed to continue teaching. The Supreme Court held that in order to determine whether a person handicapped by a contagious disease is “otherwise qualified” to do the job, the trial court must conduct an individualized inquiry and make appropriate findings of fact based upon medical knowledge about the nature, duration, and severity of the risk posed to the general public. The holding in that case is thus inapplicable here because Appellant is not handicapped by a contagious disease and it was not alleged that she posed a threat to the general public. The sole concern here was whether it was in T.T.’s best interest to have contact with her mother at that particular stage in the child’s therapy.

We thus conclude that Appellant has failed to demonstrate that her rights pursuant to the ADA were violated by either DHS, Dr. Brown, or the trial court. Appellant was not denied any services on the basis of her mental disability; rather, the trial court’s denial of visitation with T.T. was motivated solely by what the court deemed was in the best interest of the emotionally fragile child. We further conclude that even if DHS had failed to make reasonable accommodations for Appellant’s disability, such failure would not negate the trial court’s decision to terminate Appellant’s parental rights.

Delegation of Judicial Authority

For her last point for reversal, Appellant argues that the trial court erred in allowing the therapists and the minor child to decide whether or not visitation or family therapy would occur. She asserts that the lack of regular visitation with her daughter and the failure to provide family therapy in a timely manner had “dire consequences” for her. Appellant does not attempt to explain what those particular consequences were, nor does she offer any convincing authority or argument in support of reversal on this point, which appears to be little more than an alternative attack on the trial court’s decision to deny her visitation with her daughter.

For the reasons discussed in the preceding section, we conclude there was no unlawful delegation of judicial authority by the trial court, as the visitation was only denied during those periods of time that the court and the child’s therapists determined such contact would be detrimental to the child. We are persuaded by the trial court’s well-reasoned determination that therapists and caseworkers must be allowed some discretion in carrying out the orders of the court in cases where a child’s emotional, mental, or physical health is at stake. Furthermore, because we have determined there was clear and convincing evidence presented indicating that Appellant lacked the capacity or ability to care for T.T., the issue of whether Appellant was denied regular visitation with her daughter is moot.

Affirmed.

Thornton, J., dissents.

Ray Thornton, Justice,

dissenting. As the majority acknowledges, there is a heavy burden placed upon the party seeking to terminate the parent-child relationship. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). As the United States Supreme Court stated when setting the “clear and convincing” standard of proof in Santosky v. Kramer, 455 U.S. 745 (1982), an allegation of parental unfitness must “adequately [convey] to the factfinder [a] level of subjective certainty about [the] factual conclusions . . . since the private interest affected is commanding and the threatened loss is permanent.” I respectfully dissent because I do not find that DHS met this burden in showing that J.T. is unable to learn how to be the kind of parent her daughter needs.

The Supreme Court has emphasized that a showing of parental unfitness must be made before the best interest of the child is considered in a parental-termination hearing. Smith v. Organization of Foster Families, 431 U.S. 816 (1978). As we pointed out in Bush v. Dietz, although the best interest of the child is a matter of primary concern in adoption proceedings, termination of the parental relationship is much more far reaching than a change of custody. Statutes permitting such termination are to be construed in light favoring continuation of rights of natural parents. Id. The proof falls short of the statutory and constitutional requirements articulated above. I cannot concur with the decision to uphold the trial court’s order of termination under the facts of this case.

Here, the court found that appellant’s mental illness was a factor that caused her daughter to enter foster care. The court found that appellant would need continued treatment for the rest of her fife, and concluded that, though she had improved, she had not yet become the type of parent her daughter needed, and that she was unable to become that type of parent. It is generally recognized that termination for mental illness requires that the mentally ill parent is unable to provide proper care for the child and that the inability is likely to continue for the foreseeable future. Ann M. Haralambie, Handling Child Custody, Abuse, and Adoption Cases, § 13.13 26 (2d ed. 1993); State v. Habas, 299 Or. 177, 700 P.2d 225 (1993); In re J.N.M, 655 P.2d 1032 (Okla. 1982); In re Hime Y., 52 N.Y.S.2d 241, 418 N.E.2d 1305 (1981).

As the majority notes, testimony indicated that, even though appellant had done everything required of her, she was not presently able to be the type of mother her daughter needs. However, no specific findings were made that appellant’s particular problems could not be cured or improved; there was only the bare statement of testimony that “no amount of training or classes would enable J.T. to meet the needs of T.T.” As the Oklahoma Supreme Court held in In re “the mere label of mental illness [should not be] allowed to replace an adequate investigation into the effect of the behavior . . . and the length of time the parents would probably be incapacitated.” Id. at 1036 (emphasis added).

The standard of clear and convincing evidence requires that there be specific proof of “the likelihood of correction or control of the condition” or that “the illness of [the parent] is of such a long term nature and has such a pathological effect on the children that termination is justified under constitutional standards.” Id.; see also In re Hime Y., supra. I do not believe the evidence supports such a finding in this case, and in my view, that lack of evidence is reflected in the conclusion that “J.T. is unable to learn how to be the kind of parent her daughter needs.” Here, parental counseling did not begin until after nineteen months of foster care, and the trial court reflected favorably on the improvements made in appellant’s parenting skills. The countervailing evidence simply falls far short of the “clear and convincing” standard required by the constitution. Santosky v. Kramer, supra. I would reverse and remand.


author: Donald L. Corbin, Justice.

text:
    Kevin Edward McELHANON v. STATE of Arkansas
    CR 97-336
    948 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered June 30, 1997

      Cross, Kearney & McKissic, by: Jesse L. Kearney, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Donald L. Corbin, Justice.

Appellant Kevin McElhanon was charged in municipal court with driving while intoxicated (“DWI”) in violation of Ark. Code Ann. § 5-65-103 (Repl. 1993), but was convicted of driving under the influence (“DUI”) in violation of Ark. Code Ann. § 5-65-303 (Repl. 1993). He appealed to circuit court where he was tried and convicted of DUI. ■ Appellant filed a petition for review from a decision of the Arkansas Court of Appeals delivered on December 23, 1996, where a 3-3 vote affirmed the lower court decision. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (e) (as amended by per curiam July 15, 1996). When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). We reverse and remand.

Appellant asserts five points for reversal, including error of the trial court in failing to try him on the original charge of DWI from municipal court, and entering judgment on the different charge of DUI. Because we find merit in that point, we need not address the remaining points.

Appellant was charged with DWI in violation of section 5-65-103, but found guilty in municipal court of DUI under section 5-65-303. It is unclear whether the municipal court convicted Appellant of DUI on the mistaken conclusion that DUI is a lesser-included offense of DWI, or if the court elected to amend the charge to DUI. Upon de novo appellate review, the circuit court determined the charge on appeal to be that of DUI rather than DWI. Appellant was then convicted of DUI in circuit court. The court of appeals affirmed Appellant’s conviction of DUI on the ground that by changing the charge from DWI to DUI, the nature of the original charge was not altered. We disagree with that analysis, because Appellant was prejudiced by the circuit court’s unauthorized action in changing the charge from DWI to DUI when Appellant had never been formally charged with anything other than DWI. The nature of the charge of DWI differs significantly with that of DUI in that the minimum blood-alcohol level required to convict a person of DWI is 0.10% while that required to convict of DUI is 0.02%.

It is well established that a defendant may only be charged with committing a criminal offense by one of three ways: information, indictment, or citation. See Ark. Const, art. 2, § 8; Ark. Const, amend. 21, § 1; Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985). An information or other charging instrument is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). An information is sufficient if the act or the omission charged as the offense is stated with a degree of certainty that enables the court to pronounce judgment on conviction. Johnson v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996). A variance between the wording of an indictment or information and the proof at trial does not warrant reversal unless the variance prejudices the substantial rights of the defendant. Id. An information may be amended during trial if the nature or degree of the crime is not changed and if the defendant is not prejudiced through surprise. Id. In this case, the only offense with which Appellant was charged was DWI. Appellant was prepared to defend against the charge of DWI; he was thus prejudiced by the circuit court’s decision to try him on the charge of DUI.

Contrary to what the municipal court may have determined, DUI is not a lesser-included offense of DWI. To find a lesser-included offense, there are three factors to consider: (1) The lesser offense must be established by proof of the same or less than all the elements of the greater offense; (2) the lesser offense must be of the same generic class as the greater offense; and (3) the distinction between the two must be based upon the degree of risk or injury to person or property or upon grades of intent or degrees of culpability. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). An offense is not a lesser-included offense of another if each crime requires a different element of proof. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). An offense is not a lesser-included offense solely because a greater offense includes all the elements of the lesser offense. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985).

Where the evidence is insufficient to convict for a certain crime, but where there is sufficient evidence to convict for a lesser-included offense of that crime, this court may ‘“reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.’” Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977) (quoting Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969)). Though charged with a greater offense, a defendant may be found guilty of a lesser-included offense, and on appeal, the conviction may be modified from the greater to the lesser offense and the court may fix punishment or remand the case. Davidson v. State, 305 Ark. 592, 810 S.W.2d 327 (1991).

Considering that DUI is not a lesser-included offense of DWI, in that DUI requires an additional element of proof of the defendant’s age (less than twenty-one years) and a different level of intoxication (prohibiting 0.02% blood-alcohol content), the municipal court erred and prejudiced the Appellant when it changed the charge from DWI to DUI on its own motion. Thus, because the municipal court erred in changing the offense, the circuit court likewise erred in trying and convicting Appellant of the uncharged offense of DUI.

In addition, Ark. Code Ann. § 5-65-107 (Repl. 1993) provides that persons charged with violating section 5-65-103 “shall be tried on those charges or plead to such charges, and no such charges shall be reduced.” This language applies to the reduction of the offense, not to the number of prior offenses as in State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), where this court established that section 5-65-107 did not apply to the change to a lesser quantity of the same offense such as DWI fourth offense to DWI first offense. The charge in this case was erroneously changed to a separate offense, not a lesser-included offense, or an offense of lesser quantity, and this change was done in violation of section 5-65-107. Moreover, although appeals from municipal court to circuit court are tried de novo, Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993), the circuit court can render no judgment that the lower court is not authorized to render.. See Ark. Code Ann. § 16-19-1105 (Repl. 1994); Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987).

In this case, Appellant was charged with one offense (DWI), but found guilty of another (DUI). Appellant was entitled to be tried in circuit court on the same cause of action for which he was tried in the municipal court. The municipal court violated section 5-65-107, by altering the charge and, consequently, the circuit court was not authorized to change the charge on appeal. Appellant could not be found guilty of a lesser-included offense of DWI, because there is no such offense. Furthermore, because Appellant was charged with DWI in violation of section 5-65-103, he could not be tried or found guilty of any other charge, because that would be a violation of section 5-65-107. For the foregoing reasons, we reverse the decision of the circuit court and remand the case back to that court so that Appellant may be tried for the offense of DWI.

Reversed and remanded.


author: Robert L. Brown, Justice.

text:
    Glenda HANNON v. ARMOREL SCHOOL DISTRICT # 9, aka Armorel Public Schools
    96-1014
    946 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered June 30, 1997

      Roachell Law Firm, by: Travis N. Creed, for appellant.

      W. Paul Blume, for appellee.
   Robert L. Brown, Justice.

Appellant Glenda Hannon raises three points on appeal in connection with her termination under her school contract for the 1992-93 school year and the circuit court’s dismissal of her appeal: (1) the trial court erred in permitting appellee Armorel School District to use conduct under a prior contract to terminate her; (2) the General Assembly did not intend for termination procedures to be a “backup” to violation of the nonrenewal provisions; and (3) termination by the School District violated the strict compliance provision of the Arkansas Teacher Fair Dismissal Act. We agree with Hannon, and we reverse and remand.

Hannon had worked in the School District for the 1990-91 and 1991-92 school years as an elementary school teacher. She taught a gifted-and-talented class and instructed students in music and reading. In April 1992, then Superintendent Jim Thomas recommended to the Armorel School Board that Hannon’s contract not be renewed. The School Board accepted the recommendation and voted not to renew Hannon’s contract. No notice was given to Hannon of these proceedings. On April 22, 1992, Han-non received a letter from Superintendent Thomas that concluded she had not performed adequately based on performance reports, complaints from parents of students, and the superintendent’s own observations. Hannon then filed a complaint with the School District about its failure to give her a proper nonrenewal notice, and the School Board reversed itself and elected to grant her a new contract on July 27, 1992. Next, in a letter dated August 12, 1992, Superintendent Thomas informed Hannon that he was going to recommend her termination. In a follow-up letter dated August 17, 1992, Thomas informed Hannon that she was suspended with pay pending the School Board’s decision. A termination hearing was held, and Hannon was terminated on September 24, 1992. For the 1992-93 school year, Hannon engaged in substitute teaching in another school district. In August 1993, she entered into a teaching contract with the Helena School District.

Hannon filed a notice of appeal to circuit court from her termination and sought reinstatement and back pay. After the School District answered, she moved for summary judgment on the same grounds raised in this appeal. A hearing was held in circuit court, and the court heard testimony about Hannon’s performance in the 1991-92 school year from Superintendent Thomas, Tom Gothard (president of the Armorel School Board), Sydney Kennedy (high school principal), and Kathy Lee (elementary school principal). Kathy Lee in particular testified that she received complaints about Hannon from the parents of students, the students themselves, and teachers. The complaints from the teachers, according to Lee, included “unfair treatment in the classroom, picking on other students, out of control, having other teachers handle discipline problems she should have handled in the classroom. It was forcing the other teachers to take their breaks and time off to handle the discipline problems that Ms. Hannon should have handled.” Other complaints also prompted Lee to investigate claims of Hannon’s poor performance. Lee testified that she personally observed Hannon in the classroom and that she worked out plans with Hannon to better her performance. For example, she assisted Hannon in attending reading classes at Arkansas State University to improve her teaching skills. Lee testified that she saw no significant improvement in Hannon’s performance. Sydney Kennedy, on the other hand, also evaluated Hannon during the 1991-92 school year and gave her above average marks for her teaching acumen.

The trial court ruled from the bench. The court considered the testimony presented as well as the transcript of the prior hearing before the School Board. The court concluded that the board would have been justified in either a nonrenewal or a termination, that Hannon’s due process rights were not violated, and that the School Board’s action was not arbitrary or capricious. The court denied Hannon’s motion for summary judgment and dismissed her appeal with prejudice.

We first feel compelled to discuss the order of dismissal by the trial court. The order was entered following a hearing on a motion for summary judgment in which the circuit court heard testimony. We recently had a similar situation in Honeycutt v. City of Fort Smith, 327 Ark. 530, 939 S.W.2d 306 (1997), where we concluded as follows:

Although the order is styled Summary Judgment of Dismissal, the trial court received testimony from Honeycutt at the summary-judgment hearing, and by doing so, went beyond the pleadings, discovery, and affidavits in reaching its decision. See Ark. R. Civ. P. 56(c). Thus, the court converted the matter from a proceeding for summary judgment to a bench trial on the question of whether Honeycutt was afforded his procedural rights before the Commission. See Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). The trial court then entered judgment in favor of the appellees, though it was styled inconsistently as both a summary judgment and a dismissal. We have stated in the past that we will look to the wording of an order or a judgment to determine its essence. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Magness v. McIntire, 305 Ark. 503, 808 S.W.2d 783 (1991). Here, the judgment was not an order of summary judgment for the reasons already stated. We conclude that the judgment followed a bench trial, though the appellees declined to offer testimony, and was dispositive of the issue of whether Honeycutt was denied a trial or hearing under state statutes or Commission rules. We will treat the judgment as such.

Honeycutt, 327 Ark. at 534, 939 S.W.2d at 308. Similarly, we will treat the order in this case as a judgment following a bench trial.

Hannon first contends that our case law prohibits the School District from considering a teacher’s conduct under a prior contract when making a termination decision. Hannon further contends that despite the defective nonrenewal due to failure to notify her, the School District still had approximately a month after the May 1 deadline to correct any errors and to terminate Hannon lawfully, and it failed to do so. Hannon underscores the point that the School District conceded that there was no conduct under the new 1992-93 contract to justify termination.

The Teacher Fair Dismissal Act requires strict compliance with all its provisions; otherwise, a nonrenewal, termination, suspension or other disciplinary action by the School District is void. Ark. Code Ann. § 6-17-1503 (Repl. 1993); Love v. Smackover Sch. Dist, 322 Ark. 1, 907 S.W.2d 136 (1995); Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). With respect to nonrenewal specifically, if notice of nonrenewal is not given to the teacher before May 1 of the contract year, the teacher’s contract is automatically renewed for the next school year. Ark. Code Ann. § 6-17-1506(a) (Repl. 1993). Requirements for termination are spelled out in the next section of the Act:

(a) A teacher may be terminated during the term of any contract for any cause which is not arbitrary, capricious, or discriminatory.
(b) The superintendent shall notify the teacher of the termination recommendation.
(c) The notice shall include a simple but complete statement of the grounds for the recommendation of termination and shall be sent by registered or certified mail to the teacher at the teacher’s residence address as reflected in the teacher’s personnel file.

Ark. Code Ann. § 6-17-1507 (Repl. 1993). A cause for termination is arbitrary and capricious if it is not supported by any rational basis. Lamar Sch. Dist. No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982).

Hannon cites two cases to support her argument that conduct from a prior school year may not be used to support a termination in a subsequent school year. In Allen v. Texarkana Pub. Sch., 303 Ark. 59, 794 S.W.2d 138 (1990), we reversed the circuit court’s decision that the school district did not act arbitrarily in not renewing the contract. In that case, the notice of nonrenewal to the teacher contained one generic allegation for each of the years 1983, 1984, and 1987 with two generic complaints for 1988. In reaching our decision, this court looked to Ottinger v. Sch. Dist. No. 25, 157 Ark. 82, 247 S.W. 789 (1923), and the proposition stated in that decision that conduct under a teacher’s prior contract cannot constitute grounds for avoidance of a subsequent contract.

In Allen, the school board met in 1988 and terminated the teacher’s contract based on conduct that occurred in 1983 and 1984, but not based on conduct occurring in 1987 and 1988. We held this decision to be arbitrary and capricious. We further observed that the superintendent’s reference to a pattern of conduct or compilation of repeated behavior was insufficient because the reasons for the charges were not specified in the notice of non-renewal. We concluded:

It is obvious to us that the nonrenewal of Allen’s contract was based either on his conduct which occurred in 1983 and 1984 under previous contracts, or on charges which were not set out in the superintendent’s statement for nonrenewal. Regardless of which reason, we find the actions of the board arbitrary and capricious.

Allen, 303 Ark. at 63, 794 S.W.2d at 140.

Our holding in Allen was clearly premised on the failure to specify reasons for nonrenewal, which presumably included unspecified conduct that occurred some five years previously. We do not question the rationale for that decision. But the facts in Allen differ from those before us today. In the instant case, the issue is whether conduct in the 1991-92 school year can be used exclusively to terminate a teacher at the commencement of the 1992-93 school year. We think not. Section 6-17-1507(a) refers to termination during the term of a contract for any cause. We construe this subsection to tie the questionable conduct to the current contract term. Here, by everyone’s agreement, that was not done. Without a ground for termination in the 1992-93 school year, there was no basis for Hannon’s termination. We hold that Hannon’s termination by the School Board, which relied exclusively on past conduct, was arbitrary and capricious.

This is not to say that a pattern of conduct spanning several contract years may not be presented to a school board as the grounds for termination in addition to the conduct in the current school year. The specific conduct constituting the pattern, however, and the years when it transpired must be set out in the notice of termination to meet the requirements of § 6-17-1507.

We further agree with the policy argument made by Hannon that termination under § 6-17-1507, as it occurred in this case, was merely a subterfuge to enforce nonrenewal. To be sure, the School District had the remedies of nonrenewal and termination available to it in Hannon’s case. However, it appears obvious to this court that termination was used in this case to effect a nonrenewal when the procedure for nonrenewal was void due to noncompliance with the statute. Thus, the School District impermissibly sought to do indirectly that which nonrenewal provisions did not permit it to do directly. See Simmons v. Estate of Wilkinson, 318 Ark. 371, 885 S.W.2d 673 (1994). Were termination to be approved in instances such as this, a defective nonrenewal could be easily circumvented in every case. We decline to issue an opinion that would have the effect of undermining the clear directive of the General Assembly and emasculating the standard of strict compliance with the nonrenewal provision.

In short, we view Hannon’s contention that termination must not be used as merely a backup for a flawed nonrenewal as a point well taken. We reverse the trial court’s order for this reason as well. Because we have already discussed strict compliance with the Arkansas Teacher Fair Dismissal Act, we need not address Hannon’s third point.

The order of the circuit court is reversed, and we remand with instructions for the circuit court to determine damages for the 1992-93 school year. We decline, however, to order Hannon’s reinstatement because we perceive that issue as being moot.

Reversed and remanded.


text:
    Alan MINOR, Individually, and d/b/a Minor Manufacturing, Inc. v. J.P. FAILLA, Individually and In His Capacity as Councilman for the City of Gould, Arkansas, and Robert Stephens, Individually and In His Capacity as Councilman for the City of Gould, Arkansas
    96-1265
    946 S.W.2d 954
    Supreme Court of Arkansas
    Opinion delivered June 30, 1997

      Kearney Law Offices, by: John L. Kearney, for appellant.

      Ralph C. Ohm, for appellees.
   Robert L. Brown, Justice.

Appellant Alan Minor, individually, and d/b/a Minor Manufacturing, Inc. (Minor), appeals a directed verdict in favor of appellees J.P. Failla and Robert Stephens by the circuit court on his claim for defamation. The matter was tried by the court sitting without a jury.

The genesis for the litigation was a complaint for defamation filed by Minor against Failla and Stephens. The complaint alleged that Minor had filed a claim with the City of Gould seeking compensation for water damage and property loss to his necktie manufacturing plant. The matter was referred by City officials to the City’s liability carrier, which investigated the claim, and after determining its validity, paid a reasonable sum on Minor’s behalf for the losses. Minor alleged that after the claim was paid, Failla and Stephens made statements to third parties that Minor had obtained the insurance payment through “dishonest, fraudulent and/or criminal means.” Minor further alleged that the councilmen made the statements to private citizens in Gould and caused the statements to be published in the Arkansas Democrat-Gazette. And, finally, he alleged that they caused a criminal complaint to be filed against him with both the Lincoln County Sheriffs Department and the Arkansas State Police. Minor prayed for substantial compensatory and punitive damages. Failla and Stephens answered that any statements made by them were true and that they were protected by a qualified immunity due to their official capacities.

At trial, numerous witnesses testified about rainfall, converging pipelines, the City’s problem with sewerage, and whether the water or sewerage damage was caused by blockage in the pipeline on Minor’s property or the City’s. Lincoln County Sheriff Loyd Phillips testified that he was contacted by Stephens, who asked him to determine whether a claim had been paid to Minor Manufacturing and, if so, in what amount. He stated that he was also asked to determine whether the claim was legitimate. He testified that he contacted Failla, who wanted him to find out whether the sewer had “backed up” on the City’s property or on Minor’s property. The Sheriff added that Failla and Stephens believed that the claim, if it was paid, was not legitimate. He testified that he took no action but referred the matter to Lloyd Franklin, an investigator with the Arkansas State Police.

State Police Investigator Lloyd Franklin testified that he received the complaint from Sheriff Phillips regarding the loss at Minor Manufacturing and treated it as a criminal charge. He stated that his goal was to investigate whether the City had authorized an improper insurance claim. He added that he investigated the matter as a theft-of-property violation because if the liability was not the City’s, then unlawful deceit could be involved. He testified that at the completion of his investigation, he did not recommend a criminal charge to the prosecuting attorney, and none was filed.

Kay Perry, a senior claims adjuster for the City’s liability carrier, testified that she became familiar with the file when Stephens called and asked for a copy. She released a copy of the file to him, who she said was upset because the claim had already been paid to Minor. She testified that Minor initially claimed $5,058 but that total benefits paid on his behalf were $10,369.15.

Joe Farmer also testified. He stated that while he was employed by the Arkansas Democrat-Gazette, he covered the Gould City Council because the town was suffering financial difficulties and a turnover in the mayor’s office. He stated that Failla told him that there was an investigation occurring on an insurance payment made to Minor. He added that he did not believe that Failla thought Minor was guilty of any wrongdoing and specifically stated that he did not recall either Failla or Stephens indicating that Minor was engaged in wrongdoing.

Danny Snyder was called out of turn by the defense. Snyder testified that he was licensed as a master plumber and that he had found a significant number of tree roots in the line connecting Minor’s manufacturing plant to the City’s sewer system. He testified that prior to removing the roots, water was backed up to Minor’s two buildings. After the roots were removed, the water flowed freely to the sewer system. Snyder testified that he went into both of Minor’s buildings and found clear water, as opposed to sewer water, which caused him to believe that the flood problem was possibly caused by an overflowing commode. Snyder’s opinion throughout was that Minor’s building was flooded by clear water — not sewer water.

Failla and Stephens were then called by Minor as witnesses. Failla testified that he believed the City’s insurance carrier would deny coverage once it saw Danny Snyder’s report. He further stated that he had asked the City’s mayor, A.B. Allen, for a status report on Minor’s claim. After the claim was paid, he said he turned the matter over to Sheriff Phillips because he did not know what else to do. He admitted that he was contacted by Joe Farmer with the Arkansas Democrat-Gazette on at least two occasions during October 1993. Farmer authored two articles for the newspaper: one dated October 21, 1993, entitled: “Open city books or face inquiry, Gould citizen group warns mayor”; and a second dated October 27, 1993, entitled: “State police investigate whether manufacturer actually got settlement.” Failla agreed that his contributions to the October 27 article were accurately reflected by Farmer.

Stephens testified that when he learned of the damage to Minor’s business, he understood that there was a possibility that the City was at fault. He stated that he and Failla waited for a report on the final action to be taken on the claim but never received one. He testified that, based largely on Danny Snyder’s report, he did not believe the claim should have been paid. He also believed that there was a discrepancy in the amount paid because the payment was higher than that requested by Minor. Stephens testified that he then went to Sheriff Phillips with the insurance file because he believed that both the city council and the mayor should have been involved in the handling of the claim. He maintained that the insurance company should not have paid the claim. He added that he spoke with reporter Joe Farmer two times. He stated that he gave him a copy of the insurance file so that if Farmer printed anything, he would print the truth. He agreed with the October 27, 1993 newspaper article, which quoted him as saying that he did not believe the accident was the City’s fault.

Minor was the final witness to testify. He stated that after filing his claim for damage to his necktie manufacturing business, Mayor Allen and the city council agreed that the proper route to go was to submit a claim to the insurance carrier. Minor testified that he subsequently received two checks from the carrier totalling $3,638. He learned that money for damages to the buildings themselves would be paid directly to another company, Metro Builders & Restoration Specialists. After this payment, he said that he was approached by State Police Investigator Franklin, who told him that he had received information that he was trying to defraud the insurance company based on his receipt of over $10,000 on a claim that was worth approximately $3,000. He also testified that he spoke with reporter Joe Farmer on the same subject. To both men, he gave the same explanation for how payments were distributed. Nevertheless, he complained that Farmer’s October 20 article referenced payment of $10,000 to Minor Manufacturing and the fact “city officials” believed the claim to be worth only $3,200. He stated that he confronted Stephens over whether he was the source for the story about the $10,000 check. He testified that Stephens did not deny that he made the statement but said only that he did not agree with the settlement. Minor claimed that because of these articles, his business had closed in February 1994.

At the conclusion of Minor’s case, Failla and Stephens moved for a directed verdict on the basis that Minor had failed to prove that any statements made by them constituted slander. The trial court agreed. The court stated that Minor was caught in a “political crossfire” between the mayor and city council and that there were no false statements made by Failla and Stephens and no statements that reflected dishonest conduct on the part of Minor. The court further concluded that there was no showing of malice by the councilmen and that in any case Failla and Stephens would be entitled to a qualified privilege based on their positions on the city council and the City’s sewer committee. Judgment in favor of Failla and Stephens was entered accordingly.

The sole issue on appeal is whether the trial court erred in granting the councilmen’s motion for directed verdict. In reviewing an order granting a motion for directed verdict, this court considers the evidence in the light most favorable to the party against whom the verdict was directed. Lakeview Country Club, Inc. v. Superior Prods., 325 Ark. 218, 926 S.W.2d 428 (1996); Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985). If any substantial evidence exists that tends to establish an issue in favor of that party, it is error for the trial court to grant the directed-verdict motion. Lakeview Country Club, Inc. v. Superior Prods., supra.

Minor urges that the trial court erred in directing a verdict relating to the statements Failla and Stephens made to Sheriff Phillips because the statements constituted defamation per se in that they implicated Minor in criminal activity. A party must prove the following elements to establish a claim for defamation: (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Mitchell v. Globe Int’l Pub., Inc., 773 F. Supp. 1235 (W.D. Ark. 1991). The case at bar involves asserted damages resulting from spoken words against non-media defendants and is appropriately termed one for slander. See Braman v. Walthall, 215 Ark. 582, 225 S.W.2d 342 (1949). See also Parkman v. Hastings, 259 Ark. 59, 531 S.W.2d 481 (1976).

We have explained the test for establishing defamation per se as follows:

Where the natural consequence of the words is a damage, as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in office, or to a person of a profession or trade, they are in themselves actionable; in other cases, the party who brings an action for words, must show the damage which was received horn them.

Ewing v. Cargill, Inc., 324 Ark. 217, 219, 919 S.W.2d 507, 508 (1996), quoting Reese v. Haywood, 235 Ark. 442, 443, 360 S.W.2d 488, 489 (1962); Studdard v. Trucks, 31 Ark. 726, 727 (1877). The benefit to a plaintiff in establishing defamation per se is that no evidence of damages in the form of actual losses is required. Waymire v. DeHaven, 313 Ark. 687, 858 S.W.2d 69 (1993); Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990).

Although Minor never points to any specific slanderous statements made by Failla and Stephens to Sheriff Phillips, it is apparent that his argument focuses on what the two men asked Sheriff Phillips to do. Minor asserts that Failla and Stephens effectively filed a criminal complaint based on facts known by them to be false. Failla and Stephens deny this and maintain that they just wanted to know whether the insurance claim was legitimate.

In this case, the words of Failla and Stephens were actionable if, taken together with the attendant circumstances, they implicated Minor in the commission of a crime. This is a question of fact for the jury. Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989); Dean v. Black & White Stores, Inc., 186 Ark. 667, 55 S.W.2d 500 (1932). Given the attendant circumstances, and viewing the evidence in the light most favorable to Minor, we conclude that there was substantial evidence that Failla and Stephens had accused Minor of committing a crime. Although they argue that they merely sought an investigation to determine whether the claim should have been paid, the critical fact is that they solicited the aid of law enforcement to determine the claim’s legitimacy.

Nevertheless, the trial court determined that even if Failla’s and Stephens’s statements to Sheriff Phillips were slanderous, they were protected by a privilege. We agree. Determination of the existence of a privilege is a matter of law. See, e.g., Pogue v. Cooper, 284 Ark. 202, 680 S.W.2d 698 (1984). This court has stated that a publication may be conditionally privileged if the circumstances induce a correct or reasonable belief that (1) there is information that affects a sufficiently important interest of the recipient or a third person; and (2) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct. Dillard Dep’t Stores, Inc. v. Felton, 276 Ark. 304, 307, 634 S.W.2d 135, 136-37 (1982), citing Restatement (Second) of Torts § 595 (1981) . This court has further clarified the conditions under which the qualified privilege may be invoked:

A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matters which, without such privilege, would be actionable.

Navorro-Monzo v. Hughes, 297 Ark. 444, 451, 763 S.W.2d 635, 638 (1989), quoting Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 482-83, 140 S.W. 257, 259 (1911).

We have further held that the qualified privilege must be exercised in a reasonable manner and for a proper purpose and that the immunity does not extend to irrelevant defamatory statements that have no relation to the interest entitled to protection. Navorro-Monzo v. Hughes, supra. The qualified privilege is also lost if it is abused by excessive publication; if the statement is made with malice; and if the statement is made with a lack of grounds for belief in the truth of the statement. Navorro-Monzo v. Hughes, supra; Ikani v. Bennett, 284 Ark. 409, 682 S.W.2d 747 (1985). The question of whether a particular statement falls outside the scope of the qualified privilege for one of these reasons is a question of fact for the jury. See Braman v. Walthall, supra.

The case of Baker v. Mann, 276 Ark. 278, 634 S.W.2d 125 (1982), provides guidance on this point. In Baker, the mayor of Shannon Hills and five members of the city council signed a letter issued to the prosecuting attorney which contained allegations of missing public records, missing weapons that had been confiscated, lack of records showing the disposition of drugs and drug paraphernalia, and missing equipment, all of which implicated the police department. The former police chief and three former part-time police officers filed suit and alleged that they had not been guilty of any wrongdoing but that the letter accused them of criminal activity. The trial court directed a verdict on the ground that the letter was protected by a qualified privilege.

On appeal, this court agreed with the determination of the trial court:

In the present case the mayor and aldermen were discharging a public duty in asking the prosecuting attorney to initiate an investigation of former pubbc employees’ possible mishandhng of public records, public property, and pubbc funds.

Baker v. Mann, 276 Ark. at 281, 634 S.W.2d at 126. This court noted that there was an absence of proof on the issues of whether the letter was published with malice or with any knowledge that its contents were untrue.

In the instant case, Failla and Stephens both occupied positions on the City’s council and sewer committee and spoke to another pubbc official, Sheriff Phillips, about potential criminal activity in connection with their positions. We view this as nothing more than fulfillment of their official duties. Thus, we hold that the qualified privilege attached.

There are two additional points. There was some evidence presented of a perceived controversy between Failla and Minor with respect to Minor’s decision as president of the Gould School Board to deny Failla’s niece a transfer to another school district. We conclude this matter was not sufficiently developed and fails to rise to the level of substantial evidence of malice on Failla’s part. Nor do we agree that substantial evidence was presented that Failla and Stephens falsely accused Minor of a crime. In sum, the trial court correctly directed a verdict in favor of the councilmen.

Minor in his complaint also complained of Failla’s and Stephens’s intentional publication of slander through the Arkansas Democrat-Gazette newspaper. In his brief on appeal, however, Minor makes only passing reference to the fact that Failla and Stephens made slanderous comments to a news journalist, presumably Joe Farmer, but he does not develop this point in his argument. Rather, the thrust of his brief concerns the referral of the criminal matter to SherifFPhiUips and Minor’s contention that there was no qualified immunity. We will not speculate on which statements made to Farmer and published in the newspaper Minor claims to be slanderous. It is incumbent on the appellant to develop an issue for purposes of appeal. See, e.g., Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996).

Affirmed.