author: Robert L. Brown, Justice. Steele Hays, Justice, David Newbern, Justice,

text:
    Orville LINDSEY v. STATE of Arkansas
    CR 94-638
    890 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal is brought from a judgment of conviction for two counts of rape involving a child younger than age 14 for which the appellant, Orville Lindsey, received two life sentences. The victim was Lindsey’s daughter, B.L., who was age eight at the time of the offenses. Lindsey raises two points on appeal: (1) the trial court erred in permitting testimony of his daughter’s trench foot condition; and (2) the trial court erred in excluding evidence that the victim, B.L., had accused others of raping and sexually molesting her. Neither point warrants a reversal of the judgment, and we, therefore, affirm.

On May 19, 1993, Corporal John Serrette of the Russellville Police Department was dispatched to the home of Roger Dale Mason after being notified of a disturbance there. When he arrived, he found B.L., and after talking to her, it became apparent to him that she was a victim of sexual abuse. B.L. told the police officer that Lindsey had sexually abused her. She was taken to the Russellville Police Department for questioning and then to St. Mary’s Hospital in Russellville where she was examined by a pediatrician, Dr. Robin Goodman. B.L.’s hymenal opening was found to be significantly enlarged and in an irregular shape, suggesting repeated penetration. Dr. Goodman also found that she had gonorrhea bacteria in her throat and a severe case of trench foot which results from feet being kept warm, moist, and unclean for a prolonged period of time. Both of B.L.’s feet were afflicted with the condition and were puffy and swollen with peeling skin and inflammation.

Lindsey was arrested on May 21, 1993, and charged with raping B.L. by sexual intercourse and oral sex and with endangering her welfare and the welfare of her six-year-old sister by allowing each to develop the trench foot condition. On the day of the trial, defense counsel for Lindsey orally moved the trial court to allow the testimony of three proposed witnesses who would testify that B.L. had accused other persons of sexual conduct. Lindsey also sought severance of the endangerment charge for purposes of trial. The trial court severed the endangerment charge but initially reserved judgment on whether evidence of B.L.’s trench foot ailment could come in at the trial of the rape charges. The court made the following ruling:

I’ll grant your motion with respect to a severance of the endangering the welfare of a minor in the second degree. That’s on the Amended Information as Count III. So, that charge will not be considered by this Jury in terms of the factual basis for that charge. It may have some relevance under 404(b). What I’d rather do at this time is to deny your request for motion in limine on that aspect. ... I can envision a situation where it might be relevant. You know, if it is an examination — one or more girls taken to the hospital for examination of the basis of what brings us here today and then that condition in Count III was seen and observed by the treating physicians, that could have a basis of some relevance under 404(b); but I’d rather hear how that comes out. I’m not sure how it would come out; but the actual charge itself, I will sever.

After the trial court made this ruling, defense counsel continued to argue that any proof of trench foot would be highly prejudicial and inflammatory and of no probative value. The trial court reiterated that it might have some relevance on the issue of Lindsey’s intent. The prosecutor added that the State intended to introduce proof of B.L.’s trench foot as part of her total condition at the time of the doctor’s examination and, hence, it was relevant under Ark. R. Evid'. 404(b). Defense counsel countered that this was an effort by the State to prove one crime by proof of another crime. The trial court concluded the discussion by denying Lindsey’s motion to exclude testimony of B.L.’s trench foot condition.

On the issue of Lindsey’s three proposed witnesses who would testify about B.L.’s prior allegations of sexual conduct, the trial court ruled that this testimony was prohibited by the Rape Shield Act and that Lindsey’s request for an exception to the Act, orally made on the day of the trial, did not comply with the Act’s stated procedures.

Trial commenced and, during the State’s direct examination of Dr. Robin Goodman, a question was asked about whether the doctor immediately noticed something about B.L. and her younger sister when they were at the hospital. Defense counsel objected, and this exchange ensued at the bench:

Defense Counsel: Your Honor, at this point, I wish to object to this question. He’s going to ask about the feet; and I don’t think it is relevant at this point.
Prosecutor: Your Honor, it’s been testified about seeing it that night. It’s the same examination and it will all go into the mix; and I think the Jury is entitled to hear about that.
Defense Counsel: I don’t think it has any probative value on the rape at all.
Prosecutor: It’s the physical condition of the child and it goes to this man, absence of mistake, and the manner in which this man treated his children.
The Court: I think I’ve ruled on that on your motion in limine earlier. I’ll stand by that ruling. I’ll overrule your objection.

Dr. Goodman was then questioned about B.L.’s trench foot malady which the doctor described:

Basically in [B.L.’s] case both of her feet were very swollen. The skin, especially the skin under her toes and up near the balls of her feet were almost white because they were so puffy and swollen. The skin was starting to peel off from around the toes and on the balls of the feet. The surrounding skin was very red which would mean it was very inflamed; and it was very tender when you touched the skin around these areas.

Prior to Dr. Goodman’s testimony, Kent Tallent, a Pope-Yell County SCAN employee, was called by the State as a witness and testified. Defense counsel explored on cross-examination whether the State Department of Human Services had placed custody of B.L. with Lindsey because he was a fit parent. On redirect examination, the State continued to explore Lindsey’s fitness as a parent as did defense counsel on recross-examination.

Lindsey was found guilty by the jury and sentenced to two life terms in prison, to be served concurrently.

I. RULE 404(b)

Lindsey first contends that the trial court erred in allowing Dr. Goodman to testify about B.L.’s trench foot illness because it was irrelevant to the trial on the rape charges and prejudiced his case. Lindsey further urges that the error was particularly egregious because the trial court had severed the endangerment charge involving B.L.’s case of trench foot for trial. The State counters with several theories: (1) B.L.’s trench foot was part of the res gestae of the case; (2) under Ark. R. Evid. 404(b) proof of trench foot was relevant to the issue of Lindsey’s intent or tendency to abuse B.L.; and (3) defense counsel opened the door on the issue of whether Lindsey was a fit parent, thereby allowing testimony of B.L.’s trench foot.

We begin with the observation that trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990).

In the instant case, we are dealing with the admissibility of a wrong or act, apart from the specific rape offenses, which involved the neglect of B.L. to such an extent that she developed a severe case of trench foot. As a general proposition, proof of other crimes, wrongs, or acts is not admissible under our Rules of Evidence merely to prove the bad character of the defendant and to show that his actions conformed to that character. Ark. R. Evid. 404(b). Rule 404(b), however, does recognize exceptions to the general rule:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This court has recognized that the list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes or wrongs or acts would be relevant and admissible. Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); see also Strong, McCormick on Evidence, § 190, p. 345 (4th Ed. 1992).

We have further made it clear that if the introduction of testimony of other crimes, wrongs, or acts is “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986), quoting Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 806 (1954); see also Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986). In White v. State, supra, we concluded that the trial court correctly ruled that the testimony regarding a prior beating of the victim, his wife, was admissible to show a specific propensity to beat that person. It was, therefore, probative of the defendant’s participation in his wife’s murder. We further observed that the appellant had been entitled to a cautionary instruction limiting the use of this evidence, yet failed to ask for one. Because the appellant in White failed to ask for a cautionary instruction, we held that he could not claim error on appeal.

Lindsey also failed to ask for a limiting instruction in the instant case that the proof of trench foot could only be considered as relevant behavior in connection with the rape offenses and not merely as proof of his general bad character. Under our decision in White v. State, supra, this failure forecloses a claim of error on appeal. See also Ark. R. Evid. 105. No doubt, Lindsey did not ask for this limiting instruction because he did not believe the trench foot evidence to be relevant for any purpose. We disagree, however, and choose to address the Rule 404(b) issue. We have no hesitancy in concluding that permitting an eight-year-old child to develop a severe case of trench foot is a form of neglect by the parent and that the neglect of a child’s physical needs is necessarily a form of abuse. Hence, we believe that a father’s perpetration of child abuse by neglect is relevant to a case of sexual abuse against that same child, when both forms of abuse are occurring at the same time. Such evidence is pertinent in that it establishes an intentional pattern of abusive behavior on the part of the parent toward the child — the first by neglecting her basic hygienic needs and the second by soliciting her to engage in sexual activity. A contemptible lack of caring for a child’s essential healthcare needs easily intertwines with sexual abuse of the child. Both forms of abuse are intentional and evidence lack of care, concern, and respect for the child’s well-being.

In considering crimes, wrongs, and acts in a Rule 404(b) analysis in 1991, this court has further stated:

We have long held that all of the circumstances connected with a particular crime may be shown, even if those circumstances would constitute a separate crime.

Collins v. State, 304 Ark. 587, 591, 804 S.W.2d 680, 682 (1991); see also Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981). To have withheld from the jury the child’s obvious and total physical condition at the time of Lindsey’s arrest would have deprived them of the full circumstances surrounding the crime and the abuse perpetrated. Thus, we hold that proof of the trench foot condition as evidence of Lindsey’s abuse by neglect was relevant to the charge of rape of the child under Rule 404(b).

The next question is whether, though relevant under Rule 404(b), the probative value of the trench foot condition was substantially outweighed by the danger of unfair prejudice and, thus, inadmissible under Ark. R. Evid. 403. There is no doubt that such proof of abuse by neglect would have an adverse impact on Lindsey at trial, but we do not believe that unfair prejudice occurred. This is not a case where Lindsey was on trial for rape, and evidence of an unrelated murder occurring a year earlier and involving a different victim was offered. Here, the victim was the same person — his daughter, B.L. Both the trench foot condition and the rapes occurred in the same time period. Furthermore, a parent/child relationship existed between the malefactor and the victim. We cannot say that Lindsey was unfairly prejudiced by this testimony.

In addition, we do not view the fact that the trial court severed the endangerment charge for trial to be conclusive of whether Dr. Goodman could describe the girl’s physical condition at the time of his examination under Rule 404(b). To be sure, severance may be granted where two offenses are not part of a single scheme or plan. See Ark. R. Crim. P. 22.2(a). Recently, we reversed a judgment of conviction of rape where severance of five rape counts was appropriate and had not been granted by the trial court. See Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994). We did so because the five rape counts involved alleged rapes of five separate victims at different locations outside of the defendant’s home over a twelve-month period. The analysis under Rule 404(b), however, is different because the options for determining relevance are much broader. As already stated, the Rule 404(b) exceptions go beyond a plan or scheme and include any independently relevant proof such as motive, opportunity, intent, absence of mistake, and other categories. Moreover, this list of exceptions is not all-inclusive. There may be other examples where the proof offered is independently probative. The focal point of a Rule 404(b) analysis is whether the proof of the other crime, wrong, or act is relevant, not whether it was part of a single plan or scheme. In this instance, the trial court correctly concluded that B.L.’s trench foot condition was relevant proof of the crimes charged.

Though we decide this point as a Rule 404(b) exception, defense counsel also opened the door to testimony of Lindsey’s fitness as a parent by his cross-examination of Kent Tallent, the Pope-Yell County SCAN employee. We agree with the State that defense counsel’s suggestion that Lindsey was a fit parent afforded the State the opportunity to rebut this with proof of the child’s actual physical condition while living with her father. See, e.g., McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). In McFadden, we held that proof of bad character, even when inadmissible under Rule 404(b), becomes admissible when a party opens the door by eliciting evidence of good character.

II. RAPE SHIELD ACT

Lindsey next maintains that the trial court erred in disallowing evidence of B.L.’s prior allegations of sexual ábuse. The trial court ruled that the Rape Shield Act, codified at Ark. Code Ann. § 16-42-101 (Repl. 1994), applied to these allegations. We decline to reach this issue for the simple reason that no written motion was filed by Lindsey on this point as required by § 16-42-101(c)(l). See Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Moreover, there was no proffer of testimony made by Lindsey, and it is, therefore, impossible for this court to know the nature of the accusations made, against whom they were made, and under what circumstances they were made. See Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). It is the duty of the appellant to present a record of the case sufficient for our review of the point raised. See Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). This Lindsey failed to do.

We have reviewed the record in this case for other reversible error in accordance with Ark. Sup. Ct. R. 4-3(h) and have found none.

Affirmed.

Holt, C.J., and Dudley and Newbern, JJ., dissent.

Hays, J., concurs.

Steele Hays, Justice,

concurring. I have some difficulty connecting the evidence of trench foot to whether the appellant was guilty of raping his nine-year-old daughter. However, for a number of reasons, I concur in the majority opinion. For one thing, the evidence strongly preponderates on the side of guilt. The enlarged and misshapen vagina of the victim showed telling signs of frequent penetration. The presence of gonorrhea bacteria in her throat reenforces that conclusion. The child herself made a credible witness and the examining physician testified repeatedly that there was no doubt that she had been sexually abused. In short, I am not persuaded there is any likelihood that the jury convicted the appellant based on evidence of trench foot rather than on the evidence of sexual abuse.

David Newbern, Justice,

dissenting. The thesis of the plurality opinion is that: (1) the evidence that Mr. Lindsey allowed his daughter to develop trenchfoot is evidence of abuse; (2) evidence that Mr. Lindsey raped his daughter is evidence of abuse; (3) evidence with respect to the trenchfoot charge is relevant to the rape charge because it shows a propensity on the part of Mr. Lindsey to abuse his child. That is precisely what is prohibited by Ark. R. Evid. 404(b). It is the result sought to be prevented by Ark. R. Crim R 22.2(a) which gives a defendant the right to a severance when two offenses are joined for trial solely on the ground that they are of the same or similar character.

Prior to the advent of modern joinder and severance rules, based on the ABA Standard cited below, the courts struggled with the issue of prejudice in a single prosecution of multiple offenses. The long since discredited “simple and distinct” rule attributed to Judge Learned Hand dealt only with the question whether jurors would be confused by evidence of more than one offense being presented. We have come a long way. M. Berger, Other Crimes Evidence: A Unified Approach to Severance and Admissibility, 45 Brooklyn L. Rev. 1117 (1979). The problem is solved by the two rules cited above.

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The plurality opinion mercifully does not attempt to show that one of the examples used in the rule was present in this case. It depends on the general “other purposes” language of the rule. The instances in which we have gone beyond the examples stated in the rule are those in which there is evidence of multiple sex offenses.

In Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), we held that five alleged sex offenses, charged against Mr. Clay, each involving a separate, unrelated young woman, were improperly joined. We recognized that we have been liberal in permitting, the joinder of sex offenses when they involved repeated offenses against the same child or occurred in one household. See Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987) (showing a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship).

The questionably liberal approach with respect to joinder of sex offenses is nothing new. It was discussed thoroughly in Slough & Knightly, “Other Vices, Other Crimes,” 41 Iowa L. Rev. 325, 333-334 (1956), quoted in 2 Weinstein’s Evidence, p. 404-80 (1988). It has, however, to do only with joinder of sex offenses, based upon a supposed irresistible and warped biological instinct, and not joinder of sex offenses and other offenses.

In Clay v. State, supra, we cemented the relationship in this jurisdiction between Rule 404(b) and Ark. R. Crim. R 22.2(a). We cited the Commentary to § 2.2(a) of the ABA Standards Relating to Joinder and Severance, Approved Draft and pointed out that if an accused were prosecuted separately on each charge as to which he had the right of severance, the evidence of the other crime(s) would not be admissible under Rule 404(b).

To say evidence that Mr. Lindsey was guilty of endangering the health of his child by allowing her to contract trenchfoot is relevant to the charge that he raped her can only be based upon the contention that it demonstrates he is a bad man, a person of bad character, or a person with a propensity to commit one crime because he has committed another. The dissenting opinion in Clay v. State, supra, argued that joinder should have been allowed because under Rule 404(b) the evidence of each of the separate sex offenses would have been admissible in each of the other cases because it showed the “propensity” to commit the crime. Again, that is what the rule disallows.

It makes no sense to give a criminal defendant the absolute right to sever offenses in order to prevent jurors from being unduly influenced by evidence of the commission of crime “A” in the consideration whether the defendant was guilty of crime “B” and then to allow evidence, in the prosecution of crime “B,” that the defendant committed crime ‘A.”

Mr. Lindsey did not open the door to character evidence. Here is how the testimony in question appears in the record:

BY MR. IRWIN [Defense Counsel]:
Q. Mr. Tallent [County SCAN Director], did you discover that a court in this state had placed these children with Mr. Orville Lindsey?
A. Excuse me?
Q. Did you discover that a court in the State of Arkansas had placed these children in the custody of Mr. Lindsey?
A. I had been told by Mr. Lindsey and Mrs. Lindsey in an interview that they had custody of the children.
Q. So, that’s how you know it?
A. Yes, sir.
Q. What about the mother of these children? Did she tell you they were taken from her by a court and put with Mr. Lindsey?
A. I believe that’s what she said that he had custody of her or of the children.
Q. But — and put in there by a court?
A. Yes, sir.
Q. And, when that happens does the court determine whether or not a person is a fit parent?
A. I don’t really know the proceedings of the Chancery Court. I assume that that is one of their concerns.
Q. All right.
BY MR. IRWIN: That’s all.

RE-DIRECT EXAMINATION

BY MR. KENNEDY [Prosecutor]:
Q. When custody is removed through the process you’ve just described is that by court order?
A. Yes, sir, that’s the only way it can be.
Q. Before custody is taken from a natural parent and placed with the Department of Human Services is there an adjudication that the natural parent is not a fit parent?
BY MR. IRWIN: I object, Your Honor. That’s not the only reason. In this particular case the father was in jail.
BY MR. KENNEDY: Your Honor, he opened the door.
BY THE COURT: That’s — that doesn’t state an objection.
BY MR. IRWIN: I objected.
BY THE COURT: That’s something you can bring out by argument or examination of the witness.
BY MR. IRWIN: All right. I’ll just ask him.
BY THE COURT: Go ahead.
A. Would you repeat your question, please sir?
Q. Before custody is placed in the Department of Human Services is there a necessity of an adjudication that the natural parent or custodial parent is not a fit parent?
A. Yes, sir.
BY MR. KENNEDY: Nothing further.

RECROSS EXAMINATION

BY MR. IRWIN:
Q. Now, are you telling the Court that in this case there was an adjudication in this case that this man was not a fit parent or simply that he was in jail and couldn’t take care of the child? You had — you had a —you had a child service case protective order for the children, did you not?
A. We also have an adjudication order date June 29th of 1993, that specifically states that the Court — number four, the Court finds that [the children] are dependent-neglected as defined in the Arkansas Juvenile Code and that the allegations in the petition are true and correct.
Q. Yes, sir; and the definition of dependent-neglected in this particular situation was that their mother didn’t have them and the father was in jail and there wasn’t anybody to take care of them, was there?
A. No, sir. The reason that the children were found dependent-neglected was because of the sexual abuse allegations.
Q. Oh, that’s what that —
A. Yes, sir.
Q. — was, the allegations?
A. Yes, sir.
Q. That’s what we are trying today to see whether it’s true or not?
A. I assume so.
Q. Okay.

■ The initial questions asked by Mr. Lindsey’s counsel went to the placement of custody of the child with Mr. Lindsey rather than his wife. The first reference to fitness as a parent came with the question, “And, when that happens does the court determine whether or not a person is a fit parent?” The term “a person” in the context of the question could have referred to either parent; more particularly it could have referred to a determination that the child’s mother was unfit. The remainder of the questions by both parties had to do with removal of the child from Mr. Lindsey. In that series he was clearly on the defensive, attempting to show that the court had not determined him to be an “unfit parent” which is a far cry from presenting evidence of his good character. No door was opened.

Under our rules, Mr. Lindsey is entitled to be tried for one crime at a time.

I respectfully dissent.

Holt, C.J., and Dudley, L, join in this dissent.

       One reference was made by Dr. Goodman to the trench foot condition of B.L.’s sister, but no objection was made by Lindsey, and that issue is not raised on appeal.

       Act 934 of 1993 amended the Rape Shield Statute to include allegations of sexual conduct by the victim, but Act 934 became effective after the dates of the rape offenses.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Barbara Janelle TIGUE v. STATE of Arkansas
    CR 93-1353
    889 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Larry Honeycutt, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Barbara Janelle Tigue, was convicted of first degree battery for burning the hands of her fiance’s five-year-old daughter, Tasmine Wehunt. She received a sentence of 18 years and a fine of $10,000 and appeals the judgment of conviction on grounds that the circumstances of the injury did not manifest extreme indifference to human life as required for a conviction of first degree battery. Her precise point on appeal is that the trial judge should have dismissed the first degree battery charge based on the proof presented. We agree and modify the judgment of conviction to the lesser included offense of second degree battery and assess the maximum sentence of six years and a fine of $10,000.

The incident occurred on June 9, 1992, near Amity while Tigue was acting as babysitter for Tasmine Wehunt. Following lunch at the house of Tigue’s grandmother, Tasmine became ill and vomited in her hands. Tigue sent her to the bathroom to wash her hands and soon joined her there. While in the bathroom, Tasmine’s hands were scalded by hot water, and she received second and third degree burns. The third degree burns on one hand required skin grafts.

How the burns occurred was disputed at trial. Tigue testified that Tasmine had burned her hands before she joined her in the bathroom; that she put vaseline on the hands after she found out about the accident; and that she then sought medical help. She testified that Tasmine was in the bathroom two or three minutes before she joined her.

Dr. James A. Little, a general surgeon at Arkansas Children’s Hospital in Little Rock who treated Tasmine, testified that the burns could not have been accidental due to the time that one of her hands in particular would have had to have been in contact with the hot water to be burned so extensively. He also testified that the burns on that hand were “immersion” burns with a pattern which showed the level the scalding water reached up one arm as opposed to “splash” burns which are more associated with accidental burns. He stated that there was a line of demarcation on that arm below which the skin was burned and above which the skin was normal. There was also bruising around Tasmine’s biceps and elbows which indicated to Dr. Little that one of Tasmine’s hands was forcibly held in the hot water. The other hand exhibited splash burns, according to Dr. Little. He testified that Tasmine may have used that hand in an effort to remove her other hand from the hot water.

For her part, Tasmine told two people after the incident — her father, Terry Wehunt, and a social worker, Tamara Belcock — that “Janelle did it,” and testified at trial that Tigue took her to the bathroom and turned on the hot water. Tamara Belcock testified at trial that Tasmine told her that Janelle held her hands under the hot water and that she added, “Even when I yelled:” She also testified to the bruises on Tasmine’s upper arm.

The State first charged Tigue with second degree battery, a Class D felony. Two months later she was charged with first degree battery, a Class B felony. Tigue moved for a directed verdict at the close of the State’s case and at the close of all of the evidence, asserting that the injury was not life-threatening and, hence, the proof was insufficient to sustain a verdict for first degree battery. The motions were denied, and the jury returned a guilty verdict for first degree battery and assessed the sentence of 18 years and the $10,000 fine.

Tigue’s only point on appeal is that the trial court erred in denying her motions for a directed verdict on the first degree battery charge. Three statutes are involved in our analysis of this question. The first statute describes conduct for commission of first degree battery:

(a) A person commits battery in the first degree if:
(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life; ....

Ark. Code Ann. § 5-13-201(a)(3) (Repl. 1993).

“Serious physical injury” is defined by statute:
“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.

Ark. Code Ann. § 5-1-102(19) (Repl. 1993).

Second degree battery is described as follows:
(a) A person commits battery in the second degree if:
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person; ....

Ark. Code Ann. § 5-13-202(a)(l) (Repl. 1993).

The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993). It is further well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Id., citing Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1988).

This case turns on the phrase “under circumstances manifesting extreme indifference to the value of human life” contained in § 5-13-201. That phrase is what distinguishes conduct constituting first degree battery from that of second degree battery. Giving the phrase its plain meaning, the circumstances of first degree battery must by necessity be more dire and formidable in terms of affecting human life. On this point, we stated in 1977 that the phrase relates to proof of the intent or mental state of the' accused:

In the case at bar the phrase “circumstances manifesting extreme indifference to the value of human life” indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. The .language of the Arkansas statute does not require reasonable men to speculate as to its common understanding or application.

Martin v. State, 261 Ark. 80, 84, 547 S.W.2d 81, 83 (1977). The Commentary to the battery statutes goes further in illuminating the conduct and mental state embraced within first degree battery:

For the most part, battery in the first degree comprehends only life-endangering conduct. The severity of punishment authorized is warranted by the conjunction of severe injury and a wanton or purposeful culpable mental state. Each subsection describes conduct that would produce murder liability if death resulted.

Ark. Code Ann., Commentaries, p. 674 (1989). It is clear to us that first degree battery involves actions which create at least some risk of death and which, therefore, evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. See, e.g., Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).

The next step is a determination of whether the facts in this case can sustain a conviction for first degree battery. The test for determining sufficient proof is whether there is substantial evidence to support the verdict. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Daffron, supra; Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Daffron, supra; Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Here, there is no question that Tasmine suffered a “serious physical injury,” as defined under § 5-1-102(19). She received third degree burns on one hand which required skin grafts and resulted in permanent scarring and second degree burns on the other hand. But that is only one facet of proof necessary to sustain a conviction for first degree battery under § 5-13-201(a)(3).

There is no evidence that we can ascertain from the record that Tasmine was injured under circumstances manifesting extreme indifference to the value of human life. There was no testimony produced at trial to this effect; not even Tasmine’s treating physician, Dr. Little, suggested this. We conclude that a plain reading of the statute defining first degree battery requires a higher level of culpability than was exhibited in the case before us.

Where the evidence presented is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction 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... 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.” Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), quoting Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977); see also Davidson v. State, 305 Ark. 592, 810 S.W.2d 327 (1991).

The evidence in this case would clearly sustain a conviction of second degree battery because we have no doubt that there was sufficient proof that Tigue inflicted serious physical injury, as defined by statute, on Tasmine. We, therefore, modify the judgment of conviction to the lesser included offense of second degree battery under Ark. Code Ann. § 5-13-202(a)(l) (Repl. 1993) and reduce the sentence to the maximum term of years for a Class D felony — six years — and the maximum allowable fine — $10,000. See Ark. Code Ann. §§ 5-4-201(a)(2), 5-4-401(a)(5) (Repl. 1993).

Affirmed as modified.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. I disagree with the majority’s conclusion that the legislature intended the first degree battery statute to require a life-threatening injury. The majority finds the phrase, “under conditions manifesting extreme indifference to the value of human life” as distinguishing first degree battery from second degree battery. A comparison of the pertinent second degree battery statute demonstrates an existing difference between the two degrees of battery:

Ark. Code Ann. § 5-13-202(a) (1987).
A person commits battery in the second degree if
(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person.

Second degree battery requires a mental state of purposefully causing physical injury. First degree battery requires a mental state of purposefully causing serious physical injury, under subsections (a) 1, 2, and 3. See Tarrentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990), and Ark. Code Ann, § 5-2-203(c) (1987). We stated in Tarrentino:

The main way in which first degree battery [under sections -201(a) 1, 2 and 3] differs from second and third degree battery is the state of mind of the actor. To be convicted of first degree battery, a defendant must act with the purpose of causing serious physical injury to another person.

In other words, under second degree, while the victim must have suffered serious physical injury, the defendant’s mental state need only be with the purpose of causing simple physical injury. In first degree, the injury is the same but the defendant must have acted with the purpose of causing serious physical injury.

Because there is already this existing distinction in the mental states between first and second degree, it is not necessary to interpret the “extreme indifference language” to distinguish the two degrees of battery. Indeed, while I have found no agreement on the definition of the “extreme indifference” language, there is general agreement that when added to an existing mental-state requirement in a statute, that language elevates the offense by adding something to the mental requirement in the nature of wickedness, wantonness or depravity, and does not necessarily refer to the results of the conduct. See State v. Boone, 661 P.2d 917 (Or. 1983).

Further, contrary to the majority’s claim, the Commentary does not support its decision. The Commentary states:

For the most part, battery in the first degree comprehends only life-endangering conduct.

This language does not provide that all injuries for first degree battery must be life-threatening, but only “for the most part.” That language clearly implies there will be injuries under certain circumstances that will not be life-threatening. There is nothing else in the Commentary that contradicts this obvious interpretation and if the legislature had wanted all first degree batteries to be life-threatening, it could have easily said so.

Finally, the aggravated assault offense under the Model Penal Code uses the “extreme difference to human life” language but does not address whether it requires life-endangering conduct or injury. However, all the battery statutes of other states containing the “extreme indifference” language, which I have found are in agreement that the language does not require life-threatening injury. See e.g. State v. Joseph, 597 A.2d 805 (Vt. 1991); State v. Saucier, 128 N.H. 291, 512 A.2d 1120 (1986); State v. Dodd, 503 A.2d 1302 (Me. 1986).

Glaze, J., joins in this dissent.


author: Elizabeth Robben Murray, Special Justice. Robert H. Dudley, Justice, David Newbern, Justice,

text:
    Jim C. PLEDGER, Director, Department of Finance and Administration v. WORTHEN BANK & TRUST COMPANY, Inc., Executor of the Estate of Granville M. Cook, Deceased
    93-1025
    889 S.W.2d 732
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994
    [Rehearing denied January 23, 1995.]

      Joyle Kinkead, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Richard A. Williams, for appellee.

      Dudley and Newbem, JJ., would grant rehearing; Roaf, J., not participating.

   Elizabeth Robben Murray, Special Justice.

In this appeal, the Director of the Department of Finance and Administration challenges the Summary Judgment of the Chancery Court that the Estate was entitled to a marital deduction and, accordingly, is entitled to a refund of Arkansas estate taxes paid under protest. We affirm.

Granville M. Cook died on August 20, 1989. He executed his Last Will and Testament on December 2, 1970; the First Codicil on December 7, 1981; and the Second Codicil on July 6, 1983. He was survived by his wife, Ruby S. Cook.

Under the terms of the Will, if Ruby S. Cook survived Mr. Cook for a period of six months, she received 50% of the Estate outright. In 1970, it is undisputed that 50% was the percentage that qualified for the marital deduction for federal estate tax purposes. Under the Will, the remaining 50% was placed in trust for the benefit of Mrs. Cook. Article Fourth of the Will mandated the distribution of the trust net income to Mrs. Cook at least quarter-annually for the remainder of her life.

The 1981 First Codicil sought to take advantage of changes in the federal estate tax laws. Under the First Codicil, the Estate was divided into two shares. The first share (Share No. 1) passed outright to Mrs. Cook and was equal to the minimum amount necessary to secure the marital deduction and which will result in no federal estate taxes. Share No. 2, consisting of the balance of the Estate after deducting the amount allocated to Share No. 1, passed in trust.

The Second Codicil, executed July 6, 1983 provides as follows:

Because of the health of my wife, Ruby M. Cook, I hereby give, devise and bequeath the property, both real and personal, previously given to my wife, Ruby M. Cook, to People’s Bank and Trust Company, to be held in trust by them for my wife, Ruby M. Cook. The purpose of the trust being that said trustee holds such funds and property for the use and benefit of my wife Ruby M. Cook, and do all things necessary in their judgment, to assist the said Ruby M. Cook, included but not limited to investments, payment of bills, payment to said Ruby M. Cook of funds sufficient to maintain her station in life in any and other things which might be done with said funds by my wife, Ruby M. Cook, should she be in good health.
The purpose of this Codicil is not to reduce any bequest given to my wife, but is merely for the purpose to provide for the support and care of my wife, by reason of her health.
Said People’s Bank and Trust Company for the use and benefit of my wife shall be entitled to receive in trust for her all funds which I have previously designated as bequests to my wife.
Said Trustee shall be required to use the same care in the management of this Trust as they are required to use in the management of all trusts now being administered by them.
They shall have the power to sell, exchange, mortgage or otherwise (sic) any and all property coming to their hands under this Trust.
As amended and modified by the First Codicil and this Second Codicil thereto, I hereby republish, and affirm my Last Will and Testament dated the second day of December, 1970.

Following the death of Mr. Cook, Worthen Bank & Trust Company (successor to People’s Bank and Trust) as executor petitioned the Probate Court of Pope County for an Order construing the Will and the two codicils. The question for the Probate Court, as here, was the effect of the Second Codicil. If the Second Codicil created a completely new Trust, there were no instructions concerning distribution of income and principal, nor were there any provisions for the distribution upon the death of Mrs. Cook.

In October, 1989, the Probate Court entered an Order construing the Will and the First and Second Codicils. The Probate Court found that the combined effect of the three instruments was as follows: (1) if Ruby S. Cook survived the decedent by six months the Estate was divided into two shares, the first funded by property which would be subject to the unlimited marital deduction and the other funded by the unified credit equivalent exemption from estate tax liability; (2) both shares of the Estate were to be held in trust for the benefit of Ruby S. Cook; (3) with respect to each Trust Article Fourth of the Will required that (a) the net income was to be distributed to Mrs. Cook at least quarter-annually for the remainder of her life and (b) the Trustee was to distribute from principal any amounts necessary for Mrs. Cook’s care and maintenance, if the net income was insufficient for that purpose; and (4) under Article Fifth of the Will, if Mrs. Cook did not survive the decedent for six months or following her death, the assets of each Trust would be distributed to the Cooks’ children.

Neither the Internal Revenue Service nor the State of Arkansas were parties to the proceeding in the Probate Court, and no appeal was taken from the Probate Court’s Order construing the three instruments.

On or before August 20,1990, Worthen Bank & Trust Company, Inc., as executor, timely filed a United States Federal Estate Tax Return (Form 706) electing to qualify Share No. 1 for the marital deduction and provided a copy of the return to the appellant. As a general rule, no marital deduction is allowed if a life estate passes to a surviving spouse and upon that spouse’s death, the remainder passes to someone other than the surviving spouse. The surviving spouse’s interest is considered to be a “terminable interest.” Section 2056(b)(7) of the Internal Revenue Code (26 U.S.C. § 2056(b)(7)), however, provides an exception to that general rule. If certain requirements are met, the surviving spouse’s interest is considered to be “qualified terminable interest property.” If under the terms of the Will and codicils, Mrs. Cook is entitled to all of the income from the property, payable annually or at more frequent intervals, and no person has the power to appoint any part of the property to any person other than Mrs. Cook, it is qualified terminable interest property.

Upon examination of the return, the Internal Revenue Service notified the Estate that it was denying the Estate the marital deduction under § 2056(b)(7). This increased the taxable estate of the decedent and, accordingly, increased the amount of the federal credit allowable for state death taxes. Ark. Code Ann. § 26-59-106(a). The Department of Finance and Administration issued the Estate an assessment of estate taxes in the sum of $40,950 plus interest in the amount of $10,716. The Estate paid the assessed taxes and interest under protest and brought this suit for refund. Jurisdiction is in chancery court pursuant to Ark. Code Ann. § 26-18-406 (1987).

Arkansas Code Annotated § 26-59-106(a) provides:

A tax is imposed upon the transfer of real estate and personal property of every kind owned by every person who at the time of death was a resident of the State of Arkansas, the amount of which shall be a sum equal to the federal credit allowable under the Federal Estate Tax laws, 26 U.S.C. § 2001 et seq., as in effect on January 1, 1983.

There is no dispute as to the material facts; only questions of law remain. For his first point on appeal, the appellant urges that contrary to the decision of the chancellor, he is “not required” to look behind the IRS disallowance of the marital deduction to see if the IRS examiner was correct as to the nature of the interest Mrs. Cook received. We note appellant does not go so far as to say he is bound by the IRS decision but only that he may, if he so chooses, accept it. We do not believe the parties or this Court are bound by the decision of the Internal Revenue Service as to the construction of a will and codicils under Arkansas law nor do we find the above quoted statutory language mandates that interpretation.

The dissent suggests that by our ruling today we will create not only chaos but two asymmetrical taxation system procedures for estates. We disagree. First, this Court’s decision in McCastlain v. Berry, discussed infra, does not appear to have opened any floodgates for estate tax disputes. Further, we do not equate resolution of legal questions pertaining to the construction of a will and its codicils to appraisals of property, examination of financial records or other matters regarding valuation of an estate. The appellee and the Internal Revenue Service will necessarily have to resolve the effect of our decision today on any federal estate taxes.

The appellant and apparently the Internal Revenue Service take the position that under the Second Codicil there is no provision for Mrs. Cook to receive the trust income at least annually, and so her interest does not meet the requirements of qualified terminable interest property pursuant to 26 U.S.C. § 2056(b)(7). The issue of Mrs. Cook’s rights to income or property under her late husband’s Will and codicils is a question of state law. Estate of Bowling v. Commissioner, 93 T.C. 286 (1989); Estate of Holland v. Commissioner, 64 T.C. 499 (1975). A similar situation faced this court in McCastlain v. Berry, 240 Ark. 587, 401 S.W.2d 38 (1966). In Berry, the Internal Revenue Service disallowed the estate a marital deduction on grounds the widow’s interest was subject to divestment. Accordingly, additional Arkansas estate taxes were assessed and paid under protest. We affirmed the probate court’s construction of the Will that, under Arkansas law, she received a bequest in fee simple and thus the bequest qualified for the marital deduction.

We believe the Chancery Court’s decision was right in concluding that the probate court correctly ascertained Mr. Cook’s intentions and properly construed the Will in a manner that harmonizes the Will and the First and Second Codicils. Under the terms of the original Will, Mrs. Cook was to receive one-half of Mr. Cook’s adjusted gross estate outright. The residue of the Estate was placed in trust for the benefit of Mrs. Cook during the remainder of her life and the co-trustees (one of whom was to be Mrs. Cook) were directed to distribute the net income of the Trust to Mrs. Cook at least quarter-annually during her lifetime. In addition, the trustees were given discretion to invade the principal of the Trust if needed for Mrs. Cook’s care and maintenance as long as the distributions did not exceed $5,000 in any single year. Under the First Codicil executed in 1981, Mr. Cook republished his Will and added a paragraph to take advantage of recent changes in the marital deduction formula under federal estate tax laws. The First Codicil divided Mr. Cook’s estate into two shares. There is no language in the First Codicil that negated the mandatory distribution of all net income to Mrs. Cook from the portion of the Estate held in trust.

Under the Second Codicil, Mr. Cook’s intentions are clear. Because of his wife’s health, he simply wished to change the bequest to Mrs. Cook from an outright bequest to one in trust. The Codicil specifically states:

The purpose of this Codicil is not to reduce any bequest given to my wife, but is merely for the purpose to provide for the support and care of my wife, by reason of her health.

If anything, the trustees were given broad powers to do anything necessary in their judgment to assist Mrs. Cook. Nothing in the Second Codicil negated the Will’s Fourth Article which provided for a mandatory distribution of net income at least quarter-annually to Mrs. Cook. To interpret the Second Codicil as not entitling Mrs. Cook to the net income from both Trusts would be contrary to Mr. Cook’s expressly stated intent that the Second Codicil “is not to reduce any bequest to my wife.”

The cases relied on by the appellant are easily distinguishable. In Nicholson v. Commissioner, 94 T.C. 666 (1990) the trust document at issue was not merely construed, but modified by a Court Order after the decedent’s death. In Wisely v. United States, 893 F.2d 660 (4th Cir. 1990), where the court determined that a qualifying income interest had not been created the decedent’s Will expressly directed the trustees that any income not used for the care and support of the surviving spouse was to be accumulated and added to the corpus of the trust. This language is clearly distinguishable from that contained in the Fourth Article of Mr. Cook’s Will.

Based on the above, we hold that the Chancellor properly granted summary judgment to the appellee and properly ordered the appellant to refund the taxes and interest paid under protest in the amount of $51,666 together with interest.

Dudley and Newbern, JJ., dissent.

Glaze, Corbin, and Brown, JJ., join.

Holt, C.J., joins.

Hays, J., not participating.

Robert H. Dudley, Justice,

dissenting. Granville M. Cook died testate on August 10, 1989, survived by his wife, Ruby S. Cook. Peoples Bank & Trust Company was initially appointed executor of the estate, and Worthen Bank & Trust Company, Inc., appellee, was appointed successor executor. The decedent died leaving a will and two codicils. On August 20, 1990, the executor filed a federal estate tax return, form 706, with the Internal Revenue Service. The return provided that a qualified terminable interest property election was made to qualify Share No. 1 for the marital deduction under section 2056 (b)(7) of the Internal Revenue Code. 26 U.S.C. § 2056(b)(7) (1988). On the same date, the executor filed an Arkansas estate tax return and attached to it a copy of the federal form 706.

Subsequently, the Internal Revenue Service determined that the estate was not entitled to the marital deduction because, under the will and codicils, Ruby S. Cook was not entitled to receive all of the net income of Share No. 1 for the remainder of her life. See § 2056(b)(7). As a result of this determination, federal estate tax was assessed.

As a consequence of the Internal Revenue Service’s determination that federal estate tax was due, appellant Director notified appellee executor of the estate’s liability for Arkansas estate tax. The amount of the Arkansas estate tax due was based on the amount of state estate tax allowable as a credit on the federal tax return. Ark. Code Ann. § 26-59-106(a) (1987). Appellee executor paid the tax and interest under protest and filed a petition in chancery court for refund of the amount paid. See Ark. Code Ann. § 26-18-406 (Repl. 1992).

At trial in chancery court it was agreed that appellee executor supplied appellant Director with copies of documentation that it had provided to the Internal Revenue Service, and from that documentation, the Internal Revenue Service had determined that additional federal estate tax was owed. Under federal law, the Internal Revenue Service would give credit on the federal return for any tax paid to the State. Appellant Director contended that the applicable state statute was written to correspond with the federal law. The applicable state statute, section 26-59-106 of the Arkansas Code Annotated of 1987, provides that the amount of state estate tax is equal to the amount of credit allowable under federal law.

The chancery court rejected appellant Director’s argument and ruled that appellant Director “erroneously concluded that it is not required to look behind the amount of the federal credit allowable.” Appellant Director’s first point of appeal is “the chancellor erroneously determined that appellant must look behind the amount of the federal credit allowable in determining the amount of the Arkansas estate tax due. Ark. Code Ann. § 26-59-106(a) (1987).”

The majority opinion affirms the ruling of the chancery court and, in discussing the first point of appeal, states that the Director only argues that he is “not required” to look behind the Internal Revenue Service’s disallowance of the marital deduction, but “does not go so far as to say he is bound by the IRS decision but only that he may, if he so chooses, accept it.” The majority opinion’s quoted statement is obtuse. The reason that the Director argues that he is “not required” to look behind the Internal Revenue Service’s disallowance of the marital deduction obviously is that the chancellor ruled that “[t]he Department of Finance and Administration erroneously concluded that it is not required to look behind the amount of the federal credit allowable.” The words “not required” are the chancellor’s words. The Director straightforwardly appeals from that ruling and, in doing so, uses the chancellor’s words. It is unfair to state, as the majority opinion does, that in some way the Director contends that he is not “bound by the IRS decision but only that he may, if he so chooses, accept it.” The Director does not make such an argument.

On the substantive merits of the case, the majority opinion disregards the language of the governing statute, which is as follows:

A tax is imposed upon the transfer of real estate and personal property of every kind owned by every person who at the time of death was a resident of the State of Arkansas, the amount of which shall be a sum equal to the federal credit allowable under the federal estate tax laws. 26 U.S.C. § 2001 et seq., as in effect on January 1, 1983.

Ark. Code Ann. § 26-59-106(a) (1987) (emphasis supplied). This statute plainly states that the amount of the state estate tax shall be the amount allowable as a “federal credit” “under the federal estate tax laws.” Id. This is the only statute that sets the amount of the state estate tax. It says nothing about “state credits” or “state determinations.”

The plain wording of the statute, standing alone, should be enough for the majority to hold that appellant Director’s first point of appeal has merit, but even if the plain wording is not enough, when the policy underlying the plain wording is considered, the merit of appellant’s point ought to be admitted. As set out in cases cited below, the Internal Revenue Service has the staff and resources to examine the books of accounts and other financial records, to conduct the appraisals of real property, to conduct the difficult evaluations of personal property, such as closed corporations with exclusive purchase agreements, and to do all the other complex tasks necessary to determine the value of an estate. Under the statutory design, the State does not have to duplicate the expense of such a staff and does not have to maintain the same resources. The federal and state statutes are deliberately harmonized so that the state provision for the amount of state estate tax will match the amount of credit allowed for state taxes on a federal estate tax return. The Director is, in the plain words of the statute, authorized to utilize the “federal credit” allowable “under the federal estate tax laws” to determine this otherwise complex and difficult question.

A significant number of other states have similar statutory provisions. See, e.g., Henley v. Boswell, 316 So. 2d 342 (Ala. 1975); State v. Merchant’s Nat’l Bank, 91 So. 2d 480 (Ala. 1956); Page v. Comptroller, 313 A.2d 691 (Md. 1974); In re Gallagher’s Will, 255 P.2d 317 (N.M. 1953); In re Ward’s Estate, 49 P.2d 485 (Wash. 1935). For a more complete discussion of the development of this and other similar statutes see Max Oliver Cog-burn, The Credit Allowable Against the Basic Federal Estate Tax for Death Taxes Paid to State Statutes Enacted to Take Advantage Thereof— Constitutional Difficulty and Some Suggested Solutions, 30 N.C. L. Rev. 123 (1952). The Arkansas statute is not unique. It, like those of other states, was deliberately drafted to blend with the federal statutes. The words of the statute should be given their plain and ordinary meaning.

The majority opinion’s construction of the state statute destroys the symmetry of the federal and state statutes. Under the holdings of the majority opinion, the federal and state statutes become asymmetrical. Using the rationale of the majority opinion, neither the executor of an estate nor the Director will now be bound by the value assessed to an estate. As an example, assume the decedent owned Blackacre. The estate might claim, for state estate tax purposes, either a higher or lower value than did the Internal Revenue Service for Blackacre, and the Director might assess either a higher or lower value than did the Internal Revenue Service. If the Director assesses a higher value to Blackacre, the state estate tax would exceed the credit allowed under the federal estate tax, and thus the estate would be required to pay more taxes. If the Director assesses a lower value than did the Internal Revenue Service, the state estate tax would not be as great as the amount allowed by the Internal Revenue Service for the state estate tax credit, so the amount of the federal estate tax could be increased. This may well be the case at bar. Tax attorneys and the estates they represent will now have two separate estate tax proceedings rather than the present one. The whole estate tax procedure will be made unnecessarily complex, difficult and expensive. These complications could be avoided if the words of the governing statute were given their plain and ordinary meaning. The tax “shall be a sum equal to the federal credit allowable under the federal estate tax laws!' In response to the foregoing, the majority opinion offers two answers.

First, it answers that “we do not equate resolution of legal questions pertaining to the construction of a will and its codicils to appraisals of property, examination of financial records or other matters regarding valuation of an estate.” This is a holding that the estate is not bound by Internal Revenue Service’s determination of a legal question, but is bound by a factual determination on such matters as “property, examination of financial records or other matters regarding valuation of an estate.” Yet, there is only one statute, and it provides that the amount of the state estate tax “shall be a sum equal to the federal credit allowable under the federal estate tax laws.” It is impossible to candidly read the statute to provide that matters of fact shall be determined by federal law, but matters of law shall be determined by state courts. And, again, the statement only complicates estate tax matters. Suppose that the Internal Revenue Service determines that a decedent made gifts in contemplation of death, and the gifts must be counted for federal estate tax purposes. Is this a matter of law that is now subject to review by state courts for state estate tax purposes, or is it a matter of fact that is to be determined by Internal Revenue Service?

Second, the majority opinion answers that “a similar situation faced this court in McCastlain v. Berry, 240 Ark. 587, 401 S.W.2d 38 (1966),” but it “does not appear to have opened any floodgates for estate tax disputes.” The answer ignores the critical fact that the governing statute was neither cited, nor argued, nor at issue in McCastlain. But it is cited in this case, argued in this case, and is at issue in this case. The floodgates were not opened in McCastlain because the statute was not considered and was not given the interpretation the majority now gives it. The majority opinion will apply to all estate tax cases. There is only one state estate tax statute. Now, under the majority opinion, neither an estate nor the Director is now bound by a federal determination of the amount of “the federal credit allowable under the federal estate tax laws.”

Even the appellee executor does not seriously challenge the appellant Director’s interpretation of the language of the statute. Appellee executor merely says “such an interpretation . . . distorts the plain meaning of Ark. Code Ann. § 26-59-106(a).” Appellee executor offers no further challenge to the meaning of the words used in the statute. He does not suggest a reason for not giving the words their usual and customary meaning. He does not suggest an alternate meaning. Rather, he gives a wholly different reason to uphold the trial court. He contends that a literal reading of the statute would result in an “unconstitutional delegation of legislative and judicial power to the federal government.” Appellee executor then cites cases holding that the general assembly cannot delegate its legislative authority. See, e.g., Cheney v. St. Louis Southwestern Ry. Co., 239 Ark. 870, 394 S.W.2d 731 (1965); Crowly v. Thornbrough, 226 Ark. 768, 294 S.W.2d 62 (1956). The governing statute provides that the amount of credit is to be determined under the federal estate tax laws “as in effect on January 1, 1983.” The statute was enacted after January 1, 1983. See Ark. Code Ann. § 26-59-106 publisher’s notes (1987). Consequently, the statute was based on federal law in existence at the time it was adopted and is not subject to future federal legislation. It appears that every jurisdiction would hold this provision does not constitute an unconstitutional delegation of legislative authority. See Annotation, Constitutionality, construction, and application of provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 166 A.L.R. 516 (1947) and supplement in 42 A.L.R.2d 797 (1955). The statute at issue in this case is not “a formula subject to prospective federal legislation or administrative rules,” as was the provision in Cheney v. St. Louis Southwestern Railway Co., 239 Ark. 870, 394 S.W.2d 731 (1965). The statute, when given its literal meaning, does not amount to an unconstitutional delegation of legislative authority. Even if Congress should change the federal laws, the state estate tax still would be determined under the federal estate tax law “as in effect on January 1, 1983.”

In conclusion, this case does not involve a common law subject, and it does not involve this court’s determination of what the common law should be. Rather, this case involves taxation and the subject of taxation is governed entirely by statute. The governing statute provides that the state estate tax “shall be a sum equal to the federal credit allowable under the federal estate tax laws.” (Emphasis supplied.) The majority opinion affords no meaning to the clear wording of the statute that provides for the state estate tax, and it offers no explanation for its default in explaining the meaning of the statute. Therefore, I dissent.

Newbern, J., joins in this dissent.

David Newbern, Justice,

dissenting. Justice Dudley’s dissenting opinion expresses my views, but if we were to get further into the merits of this case, as does the majority opinion, I have another basis for disagreement, hence this separate opinion.

As recognized by the majority, in order for a terminable interest to qualify for the marital deduction, the surviving spouse must be entitled to all the income from the property, payable annually or at more frequent intervals. 26 U.S.C. 2056(b)(7). Prior to execution of the second codicil, the will of Granville M. Cook provided for distribution of a share of the estate outright to Mrs. Cook and a share in trust for Mrs. Cook with the income to be distributed to her at least quarterly. The second codicil changed the will to say that all property previously devised to Mrs. Cook would be placed in trust for her benefit but with no provision for an “at least quarterly” distribution to her of the income from the property.

Although he said in the second codicil he did not intend to reduce the bequest to his wife, Mr. Cook clearly did so. He converted a bequest to his wife to a bequest to a trust. It is a trust which did not exist prior to the execution of the second codicil. Instead of the trustees being, as in the trust created in the original will, Mrs. Cook and People’s Bank and Trust Company, as co-trustees, the sole trustee of this new trust is the Bank. In addition, Mr. Cook stated that Peoples Bank & Trust Company was to receive in trust for his wife “a// funds” which he previously designated as bequests to his wife. By that language he placed the property given outright to Mrs. Cook in the new trust in addition to the proceeds of the first trust in which Mrs. Cook was a trustee.

To say that the second codicil did not reduce or change the bequest to Mrs. Cook because Mr. Cook said it did not is a little specious. If I say in today’s will, “I devise blackacre to A,” and then in tomorrow’s codicil, “I devise blackacre to B, but it is not my intent to reduce the devise I made yesterday to A,” the instruments could be interpreted to result in a devise of black-acre to B. In that event, the devise to A has most certainly been reduced.

The creation of the new trust in the second codicil is inconsistent with the provisions of the will and the first codicil creating the first trust. Construction of the provisions in a will and codicil may be different from that which may be given to the same provisions in a will, since the mere making of a codicil raises an inference of a change of intention. Driver v. Driver, 187 Ark. 875, 63 S.W.2d 274 (1933). When a will and a codicil are inconsistent, the codicil, being the last expression of the testator’s desires, is to be given precedence. Ragland v. Commercial National Bank of Arkansas, 276 Ark. 418, 635 S.W.2d 258 (1982); Driver v. Driver, supra. In this case, the effect of Mr. Cook’s second codicil was to create a new trust. As the provision creating this trust is inconsistent with the provisions in the will and first codicil creating the first trust and devising 1/2 of his estate outright to Mrs. Cook, the second codicil takes precedence over the will and first codicil. As the new trust created in the second codicil does not contain a provision requiring the trustee to distribute income to Mrs. Cook annually or at more frequent intervals, it should not qualify for the marital deduction.

In Wisely v. United States, 893 F.2d 660 (4th Cir. 1990), the Court held that the marital trust’s silence as to the frequency of income payments, as well as the fact that the trust granted the trustees discretion to accumulate any income they deemed unnecessary for care and support of the testator’s spouse in a manner in which she was accustomed, disqualified the trust for the marital deduction. The majority attempts to distinguish that case by pointing out that Mr. Cook’s will and codicils do not expressly direct the trustees to accumulate and add to the corpus of the trust what is not used for Mrs. Cook’s care and support. In this case, as in Wisely, it is material that, by the terms of the new trust, the trustees have the sole discretion to determine how much income is necessary for Mrs. Cook’s support and when the income should be given. As Mrs. Cook is given no right to compel distribution of the income to her, and the trustees are not to distribute the corpus of the trust to anyone else, that which is not given to Mrs. Cook will automatically accumulate and be added to the corpus. Cf. Friedman v. United States, 364 F.Supp. 484 (1973), which reached the contrary conclusion based on a Georgia statute requiring annual distribution in these circumstances.

The lack of any provision for annual or more frequent distribution of the income, and the fact that Mrs. Cook is given no authority to compel distribution of the income to her from the trust created by the second codicil disqualified the trust for the marital deduction.

I respectfully dissent.

Dudley, J., joins in this dissent.


author: Per Curiam.

text:
    ARKANSAS DEPARTMENT OF HEALTH, Dr. Sandra Nichols, Director, Henry C. Robinson, Jr., Director and State Registrar of Vital Records v. WESTARK CHRISTIAN ACTION COUNCIL, a Nonprofit Corporation
    94-1264
    890 S.W.2d 581
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      George A. Harper, for appellants.

      DeLay Law Firm, by: R. Gunner DeLay, for appellee.

      Bettina E. Bronstein, Eve C. Gartner, and Dara Klassel, for intervenors.
   Per Curiam.

William Harrison, M.D., Planned Parenthood of Eastern Oklahoma and Western Arkansas, Inc., Planned Parenthood of Greater Arkansas, Inc., Curtis Stover, M.D., and Little Rock Planning Services, P.A. move to intervene in this appeal and assert primarily that they have an interest in the subject matter of the appeal and that their interest is not adequately protected by the appellants.

Appellee Westark Christian Action Council moves for a 30-day extension in which to file its response to proposed intervenors’ motion to intervene because it has filed a Freedom of Information Request to appellant Arkansas Department of Health for any correspondence between the appellants and proposed intervenors. The purpose of the request, according to Westark, is to determine whether the interest of the proposed intervenors is indeed different from that of the Arkansas Health Department.

The 30-day extension in which to answer proposed intervenors’ motion to intervene is granted to appellee Westark Christian Action Council.

The proposed intervenors pray in their response to Westark’s motion for extension for an additional 20 days to file their brief, either as intervenors or as amici curiae, after this court rules on their motion to intervene. That motion, too, is granted.

Holt, C.J., and Newbern, J., not participating.


text:
    Robert Lee DAVIS and Heather Patrice Hogrobrooks v. STATE of Arkansas
    CR 94-1210
    889 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Heather Patrice Hogrobrooks, for petitioners.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner, Robert Lee Davis, seeks a writ of prohibition directed to the St. Francis County Circuit Court to prevent his trial on two counts of delivery of a controlled substance. The St. Francis County Circuit Court denied petitioner’s motion to dismiss the charges on speedy trial grounds, and he now presents his motion to this court pursuant to A.R.Cr.P. Rule 28.1(d).

Petitioner, Heather Patrice Hogrobrooks, a practicing attorney, is legal counsel to petitioner Davis with respect to his impending criminal trial and has been employed in that capacity since December 1993. On September 15,1994, petitioner Hogrobrooks was found by the trial court to be in criminal contempt, in violation of Ark. Code Ann. § 16-10-108 (Repl. 1994), for willful disobedience in refusing to follow the trial court’s order to proceed with the trial of her client, petitioner Davis, on that date, and was sentenced to serve five days in the St. Francis County jail. The state’s written response to this petition indicates that, also on September 15, 1994, the trial court entered a second order amending the five-day sentence to a sentence of time served, and ordering petitioner Hogrobrooks’s release. At oral argument in support of this petition, petitioner Hogrobrooks stated she has served her jail time. Petitioner Hogrobrooks’s requested remedy is a writ of prohibition wherein she asks this court to set aside the criminal contempt citation as arbitrary and improper.

This court has jurisdiction of this petition pursuant to Ark. Sup. Ct. R. 1-2(a)(6). We respond to and rule on this petition separately as to each petitioner.

PETITIONER DAVIS

As to petitioner Davis, we first observe that a criminal defendant’s constitutional right to a speedy trial is protected by Article VIII of the Arkansas Rules of Criminal Procedure (Rules 27 — 30). This court adopted Rule 28 for the purpose of enforcing the constitutional right to a speedy trial. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). Rule 28.1(c) requires the state to bring this defendant to trial within twelve months from the time provided in Rule 28.2, excluding only such periods of time as are authorized in Rule 28.3. Petitioner’s argument in support of his motion mandates the identification by this court of the excludable periods of time authorized in Rule 28.3 in this case.

We must deny the writ as to petitioner Davis because the record does not contain all the information necessary for us to resolve this speedy trial issue; in particular the trial court’s docket entries included in the record, as petitioner admits, are ambiguous. Consequently, we cannot say the trial court erred in denying petitioner’s motion. Our law is well-established that a petitioner seeking a writ of prohibition in this court must produce a record sufficient to show the writ is clearly warranted. Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). Petitioner has not demonstrated that his speedy trial rights were violated; therefore, a writ of prohibition is not warranted. Archer v. Benton County Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994).

The petition for a writ of prohibition is denied as to petitioner Davis without prejudice to him to raise his speedy trial issue on direct appeal.

PETITIONER HOGROBROOKS

Our law is well-established that prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. See, e.g., Rhodes v. Capeheart, 313 Ark. 16, 852 S.W.2d 118 (1993), In considering this petition as to petitioner Hogrobrooks, .ancf putting aside consideration of any jurisdictional issues, \ve first observe the trial court is not proposing to cite petitioner for criminal contempt. That action is completed. Petitioner Hogrobrooks has been cited and, apparently, has completed the sentence imposed. Hence, a writ of prohibition is riot an appropriate vehicle for petitioner Hogrobrooks’s requested remedy which is that the contempt citation be reviewed and set aside.

Further, a writ of prohibition is an extraordinary remedy which issues only when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy Otherwise, and the writ is clearly warranted. State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994). Adequate remedies for review of the issuance of a criminal contempt citation include writ of certiorari, Rowell v. State, 278 Ark. 217, 644 S.W.2d 596 (1983), Blackard v. State, 217 Ark. 661, 232 S.W.2d 977 (1950), and direct appeal, McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989), Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 729 (1988). Therefore, a writ of prohibition should not issue in this case.

Finally, we note this petition, as it relates to petitioner Hogrobrooks, is also captioned as an appeal of the criminal contempt order. This court has jurisdiction of appeals in cases involving the discipline of attorneys-at-law pursuant to Ark. Sup. Ct. R. l-2(a)(8). Treating this petition, then, in the alternative, as a direct appeal by attorney Hogrobrooks from the trial court’s order entered on September 15, 1994 finding her in criminal contempt, we note initially that no notice of appeal has been filed in this matter. Pursuant to A.R.Cr.P. Rule 36.9, in the event no notice is filed, this court may act upon and decide a case when a good reason for the omission is shown by affidavit. See, e.g., Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979) (belated appeal granted). No such affidavit has been filed. We determine the appeal, if such was the intent of petitioner Hogrobrooks, has not been properly perfected for which reason this court is without jurisdiction and dismisses the appeal with prejudice.

The petition for writ of prohibition as to petitioner Hogrobrooks is denied with prejudice, and, in the alternative, her appeal from the trial court’s order entered on September 15, 1994 finding her in criminal contempt is dismissed.


text:
    Jason DOYLE v. STATE of Arkansas
    CR 94-632
    890 S.W.2d 256
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      McArthur & Finkelstein, by: William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Jason Doyle was convicted of first degree murder and sentenced to ten years imprisonment. He was also convicted of the criminal use of a prohibited weapon and sentenced to six years imprisonment to be served concurrently with the ten year sentence. The court of appeals affirmed. Doyle v. State, CACR 92-538 (June 2,1993). Appellant filed a petition for rehearing and a petition for review, both of which were denied in July 1993.

As a result of what was apparently a clerical error, the mandate was not issued until November 10, 1993. Approximately two weeks before the mandate was issued, appellant had filed in the trial court a petition pursuant to Criminal Procedure Rule 37 seeking post-conviction relief. The trial court denied the petition because it found that it was untimely. Appellant brings this appeal.

The trial court did not err in concluding that the petition was untimely. Rule 37.2(c) provides:

If an appeal was taken of a judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days (60) of the date the mandate was issued by the appellate court.

The petition must be filed after the mandate is issued because, when a case is directly appealed, the circuit court does not regain jurisdiction over the case until that event occurs. Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945). A court must have jurisdiction before it can do more with respect to a Rule 37 petition than examine it to see if it is timely. In Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989), we said:

a court always has the power and duty to examine the evidence and determine whether in fact it does have jurisdiction over the matter, (citations omitted) That being so, a [Rule 37] petition once tendered should be filed even though untimely so that the court may exercise the power and duty to determine whether jurisdiction exists .... once it is determined that jurisdiction does not exist, the disposition of the case must be made on that basis.

In accordance with Maxwell, once the trial court saw that the petition had been filed before the mandate was issued, it was bound to do no more than declare it untimely. It was incumbent on appellant Doyle to determine when the mandate was issued just as it is incumbent on a convicted defendant to determine when the judgment is entered before filing a notice of appeal.

Affirmed.


text:
    Jennings and Mitzi OSBORNE v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fiser and Catherine Cockrill
    93-1303
    890 S.W.2d 575
    Supreme Court of Arkansas
    Opinion delivered December 20, 1994

      The Perroni Law Firm. P.A., by: Samuel A. Perroni, for appellants.

      Wilson, Engstrom, Corum & Dudley, by: Gary D. Corum, for appellees.
   Per Curiam.

On December 5, 1994, this court, on de novo review, issued an injunction enjoining the' Osbornes from placing a massive Christmas light display on and about their home. The trial court and this court determined the Osborne display was a private and public nuisance. This court directed the Osbornes to reduce substantially the size and extravagance of the display so it will not attract the large crowds that had been drawn to the neighborhood in the past. On December 13, 1994, the Osbornes sought a motion for stay of mandate, announcing their intentions to petition for a writ of certiorari with the Supreme Court. On December 15, 1994, the appellees, by response, opposed the Osborne motion, suggesting to this court an ominous course of conduct by the Osbornes and their representatives, indicating plans to willfully disobey the court’s directives. We denied the Osborne motion for reasons set out by per curiam dated December 16, 1994. In denying that motion, this court retained jurisdiction of this cause. Among other things, this court’s December 16, 1994 opinion stated the following:

On December 5, 1994, this court, on de novo review, enjoined the Osbornes from placing a massive Christmas light display on and about their home .... we specifically directed the Osbornes to reduce substantially (1) the size and extravagance of the display at and about their home so the display will not attract large crowds to the residential neighborhood . . . Nor do we find merit in the Osbornes’ suggestion that the court’s injunction is extremely broad and vaguely worded. This court’s directives as reiterated above are clear and unambiguous ... In sum, massive commercial lighting displays generated by commercial transformers are not appropriate in quiet residential neighborhoods and violate express provisions of the bills of assurances .... we believe the immediate injunction is short, concise and readily understandable . . .

On December 19, 1994, appellees filed a motion for imposition of contempt sanctions, alleging that Jennings Osborne has deliberately disobeyed this court’s injunction. Appellees set forth the following:

1. Scarcely twenty-four hours after this court’s order dated December 16, 1994, the Osbornes’ lawyer advised the media by fax message that the Osbornes would light their display. At approximately 7:30 p.m. on Saturday, December 17, 1994, the Osbornes applied electric power to a vast portion of the massive display they have continued to build on the property they own on Cantrell Road. The display remained in operation until after 11:00 p.m., attracting hordes of sightseers, even though there had been no advance notice to the public concerning the lighting of the display.
2. Beginning shortly after nightfall on Sunday, December 18, 1994, hundreds of cars and a large number of pedestrian sightseers began to assemble in the neighborhood near the Osborne property. At approximately 7:30 p.m., Jennings Osborne once again lighted massive displays located on his property on Cantrell Road. Although no advance notice was given to the public, more traffic congestion and large crowds of pedestrians resulted; with traffic backed up on Cantrell Road to Pavilion in the Park on the east and 1-430 on the west.
3. Attached as exhibits to this Motion are affidavits of Lieutenant Jerry Smith, Arleta Power, and Tom Fiser, along with photographs and a videotape which verify the factual allegations set forth above.
4. The blatant and willful conduct of Jennings Osborne in deliberate disobedience of the injunction requires appropriate sanctions. Sanctions must be imposed to punish the premeditated defiance of the court’s orders and to compel future compliance with those orders.
5. The court is requested to issue an immediate order directing the personal appearance of Jennings Osborne, for the sole purpose of determining that he did in fact light the massive displays on and about his property.

Considering appellees motion and allegations therein, appellant Jennings Osborne is hereby ordered to appear before this court at 9:00 a.m on December 27, 1994, to show cause why he should not be held in contempt of court for willfully disobeying this court’s orders.


text:
    Christopher Ray STONE v. STATE of Arkansas
    CR 94-61
    890 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered December 20, 1994

      Frank Shaw and F.N. “Buddy” Troxell, for appellant.
    No response.
   Per Curiam.

On June 20, 1993, a judgment of conviction was entered against appellant Christopher Ray Stone for first degree murder and a sentence of life imprisonment was imposed. A timely notice of appeal was filed by appellant’s trial attorneys, Frank Shaw and F.N. “Buddy” Troxell. The transcript was lodged with this court on February 21,1994, and at that time appellant’s trial attorneys filed motions to be relieved as attorneys on appeal. Their motions to be relieved and to have substitute counsel appointed were denied. Counsel sought reconsideration of their motions to be relieved but reconsideration was denied.

Appellant’s attorneys next sought and obtained an extension of time in which to file the appellant’s brief to July 1, 1994. When appellant’s attorneys did not file the brief by that time, the State filed a motion to dismiss the appeal for failure to file a brief. A response to the motion to dismiss was filed on September 27, 1994, by F.N. “Buddy” Troxell on appellant’s behalf. Counsel also filed another motion for extension of time to file belated brief. By order entered October 10, 1994, this court denied the motion to dismiss appeal and granted the second motion for extension of time to file belated brief, extending the time to December 19, 1994. The order indicated that this was a final extension.

Ray Hartenstein has been contacted with regard to representing appellant on appeal, and he is familiar with appellant’s case, as he assisted appellant’s attorneys at trial. He has no objection to acting as appellant’s counsel for this appeal so long as he is granted a 60-day extension in which to file appellant’s brief.

Ray Hartenstein is added as counsel for appellant on this appeal and is granted a 60-day extension in which to file appellant’s brief in this matter.

Because existing counsel, F.N. “Buddy” Troxell and Frank Shaw, did not file a brief by December 19, 1994, which was the due date according to the final extension, we set a hearing date on Monday, January 2, 1995, at 9:00 a.m. and direct F.N. “Buddy” Troxell and Frank Shaw to appear and show cause why they should not be held in contempt for failing to file the brief in this case.


text:
    IN THE MATTER OF CONTEMPT OF COUNSEL, Frank Shaw and F.N. “Buddy” Troxell
    890 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered January 3, 1995
   Per Curiam.

On June 20, 1993, a judgment of conviction was entered against appellant Christopher Ray Stone for first-degree murder and a sentence of life imprisonment was imposed. A timely notice of appeal was filed by appellant’s trial attorneys, Frank Shaw and F.N. “Buddy” Troxell. The transcript was lodged with this court on February 21, 1994, and at that time appellant’s trial attorneys filed motions to be relieved as attorneys on appeal. Their motions to be relieved and to have substitute counsel appointed were denied. Counsel sought reconsideration of their motions to be relieved but reconsideration was denied.

Appellant’s attorneys next sought and obtained an extension of time in which to file the appellant’s brief to July 1, 1994. When appellant’s attorneys did not timely file, the State filed a motion to dismiss the appeal. A response to the motion to dismiss was filed on September 27, 1994, by F.N. “Buddy” Troxell on appellant’s behalf. Counsel also filed another motion for extension of time to file a belated brief. By order entered October 10, 1994, this court denied the motion to dismiss the appeal and granted the second motion for extension of time to file a belated brief, extending the time to December 19, 1994. The order indicated that this was a final extension. As of this date, briefs have not been filed on behalf of the appellant.

Counsel F.N. “Buddy” Troxell and Frank Shaw appeared before the court on Monday, January 2, 1995, and entered their respective pleas of not guilty to the charge of contempt.

It is necessary for a hearing to be held to determine whether respective counsel have a meritorious defense to the charge of failing to file their brief in a timely manner. We appoint the Honorable Darrell Hickman as a Master to conduct the hearing. Counsel will have the burden of proving, by a preponderance of the evidence, that they have meritorious reasons for not filing the brief when due as prescribed by the Rules of Supreme Court, Rule 4-3.

The Master shall conduct a hearing and make findings of fact. Upon receiving the findings of fact from the Master, we will make a decision as to whether or not counsel, Frank Shaw and F.N. “Buddy” Troxell, should be held in contempt.