author: Steele Hays, Justice. David Newbern, Justice,

text:
    ESTATE OF Mary Jean OTTO v. ESTATE OF Ada V. FAIR, Deceased
    93-1182
    875 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994
    [Rehearing denied June 6, 1994.]

      Coffelt, Burrow & Sawyer, by: Stephen R Sawyer, for appellant.

      Clark & Clark, by: Jim Clark, for appellee.
   Steele Hays, Justice.

This appeal involves an interpretation of Ark. Code Ann. § 16-65-114 (1987), providing that interest on any judgment entered by any court shall draw interest at a specified rate. The sole point on appeal is whether the probate court erred in refusing to award interest pursuant to an order entered in 1987 finding that Mrs. Betty Fletcher and Mrs. Mary Jean Otto were entitled to the sum of $14,429.88 from the estate of Ada V. Fair, deceased.

In 1986 an order appointing a guardian of the person and estate of Ada V. Fair was filed in the Probate Court of Benton County. Later, on December 24, 1987, an order was entered awarding a judgment of $14,429.88 to Mrs. Fletcher and Mrs. Otto, daughters of Mrs. Fair, against the estate. The order reads in part:

That the petitioners, Betty Fletcher and Mary Jean Otto, are entitled to a judgment against the Estate in the full amount of $14,429.88, for their attorneys’ fees, with the proviso that the judgment will be of record but is not to be exercised or executed by the petitioners so long as Ada Fair lives and has a continuing need for assets in her estate to provide for her health and welfare. If at some later date it is determined by the Court that sufficient funds exist in the Estate in excess of the needs of Ada Fair, then and only then will the judgment be paid during her lifetime. Otherwise, judgment will remain of record and have such precedence as provided by law but without being exercised by the petitioners.

Mrs. Fair died in February 1993 and the guardianship was converted to an administration of a decedent’s estate.

Mrs. Otto had also died and in May 1993 her administrator filed a claim against the estate of Mrs. Fair to enforce the 1987 order with interest at the legal rate from December 2, 1987. The probate court held the estate of Mrs. Otto was entitled to one-half of the amount stated in the 1987 order, with the remaining one-half to Mrs. Fletcher. Noting that the 1987 order was entered by agreement, the court refused to order interest on the judgment and the estate of Mrs. Otto has appealed. We affirm.

Appellant maintains that unless a judgment expressly excludes the payment of interest, interest accrues. Shofner v. Jones, 201 Ark. 540, 145 S.W.2d 350 (1940); Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). We take no exception to that premise, except to note that the purpose of awarding post judgment interest is to compensate judgment creditors for the loss of the use of money adjudged to be due them. Hopper v. Denham 381 Ark. 84, 661 S.W.2d 379 (1983). This order, however, makes it clear that the “judgment” was not due and owing, but was subject to a determination “at some later date” that sufficient funds existed, “then and only then will the judgment be paid. . . .” The order also purported to prohibit any “exercise or execution” of the judgment.

This order by its own terms was not a final determination of an amount payable from the estate of Mrs. Fair. It did nothing more than fix an amount earned as attorneys’ fees, payment of which was subject to such later determination as circumstances warranted. It is clear that that determination was to be made by the probate court, depending on the resources of the estate.

In Lawrence v. Ford Motor Credit Co., 247 Ark. 1125, 449 S.W.2d 695 (1970), we said:

A judgment for money must be a final determination of rights of the parties in an action, must specify the amount the defendant is required to pay and must be capable of enforcement by execution or other appropriate means.” [Emphasis supplied.]

In Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967), we examined the law at home and abroad as to the constituents of judgments and orders for purposes of finality. The opinion notes that a ‘judgment’ will be tested by its substance, not its form, and summarized several relevant cases:

A finding by a court in a divorce case that there was due and owing by a plaintiff to a defendant the sum of $275.00 per month for a period commencing January 1, 1947 and ending January 1, 1950, was held not to have the force and effect of an adjudication disposing of the subject matter in a manner sufficient to constitute a judgment. Taliferro v. Taliferro, 178 Cal.App.2d 146, 2 Cal.Rptr. 719 (1960). A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original positions. Crowe v. DeSoto Consolidated School Dist., 246 Iowa 38, 66 N.W.2d 859 (1954). It must be such a final determination as may be enforced by execution or in some other appropriate manner. Wilson v. Corbin, 241 Iowa 226, 40 N.W.2d 472 (1950); Crowe v. DeSoto Consolidated School Dist., supra.

In the case at bar, we conclude that the failure to award interest was not inadvertent, but a further indication that the 1987 order was not final, except as to the amount. Payment was conditional according to the future needs of Mrs. Fair and subject to a determination “by the court” that sufficient funds existed.

The dissenting opinion would reverse on the ground that the trial court had no power to withhold execution. Sharum v. Dodson, supra. However, whether execution could issue under the order is not the question either the trial court or this court was asked to decide, but whether interest should accrue under the unique provisions of the 1987 order. For the reasons stated, we hold that interest should not accrue.

Affirmed.

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

David Newbern, Justice,

dissenting. The order entered on December 24, 1987, awarding attorney’s fees in the amount of $14,429.88 to Betty Fletcher and Mary Jean Otto against the estate of Ada V. Fair was a final judgment. A judgment is final if it determines the rights of the parties to an action, specifies the amount the defendant is required to pay, and is capable of enforcement by execution or other appropriate means. Lawrence v. Ford Motor Co., 247 Ark. 1125, 449 S.W.2d 695 (1970). The Trial Court specified in dollars and cents the amount awarded. The issue of attorney’s fees was decided. The debt was adjudicated. There was no need for further court action. Interest accrued and should have been awarded.

Although whether the judgment was capable of execution is not the ultimate issue, we must decide that question to determine the finality of the judgment. A judgment is final only if it is capable of enforcement by execution or other appropriate means. Lawrence v. Ford Motor Co., supra.

The Court rendering the judgment has no power to withhold execution. Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978); Taylor v. O’Kane, 185 Ark. 782, 49 S.W.2d 400 (1932). Therefore, the language in the judgment purporting to prevent execution until the death of Ada V. Fair or until the Court determined that sufficient funds existed had no effect on the finality of the judgment. The judgment could have been executed at any time following the date of rendition.

The majority opinion seeks to avoid the rule of the Sharum and Taylor cases by referring to this judgment as “unique.” The only thing “unique” about the judgment is.its attempt to provide that it is not to be executed, and that is directly contrary to the rule expressed in the Sharum and Taylor cases. The fact that the 1987 order was entered “by agreement” is irrelevant. The record shows only the Trial Court’s recitation that Ms. Fletcher “chose to forego her right to make a claim or anything at that time,” and Ms. Fletcher said, “I’m not going to ask for any money.” Nothing in the Trial Court’s recitation suggests that either party agreed not to pursue her entitlement to interest upon execution of the judgment.

In the Sharum case, a judgment in the amount of $3096 was awarded against an ex-husband for three years arrearages of child support. The order provided that execution on the judgment was to be held in abeyance as long as the ex-husband made payments of $5 per month on the judgment. We reversed and stated:

An execution may issue on any final judgment of any court of record for a liquidated sum of money. Ark. Stat. Ann. § 30-101 (Repl. 1962) [Ark. Code Ann. § 16-66-101 (1987)]. The court rendering the judgment has no power, in the absence of a stay or supersedeas pending appeal, to withhold execution beyond the ten day period fixed by Ark. Stat. Ann § 30-102 (Repl. 1962). Taylor, State Bank Commissioner v. O’Kant, 185 Ark. 782, 49 S.W.2d 400 [1932], International Shoe Co. v. Waggoner, Judge, 188 Ark. 59, 64 S.W.2d 82 [1933].

The statute requiring a ten-day waiting period before execution has been repealed. The law now permits execution anytime following the date of the judgment until the collection of it is barred by the statute of limitations. Ark. Code Ann. § 16-66-103 (1987). The rule that a court rendering a judgment has no authority to withhold execution, remains unchanged. We stated the reason for the rule to be that a judgment becomes a lien on real estate owned by the defendant in the county where the judgment was rendered from the date of the judgment. If the Court could stay or postpone execution, the judgment debtor could make away with all chattels owned by him and all real estate outside the county, free from the judgment lien, because no execution could be issued until the period of the stay had elapsed. That rationale, which remains sound today, was originally stated in Taylor v. O'Kane, supra.

The Trial Court had no authority to withhold execution until the death of Ada V. Fair or until it was determined that sufficient funds existed. The judgment was final as it could have been executed at any time following the date of the judgment; therefore, interest accrued at the rate of 10% per annum from the date of the judgment.

I respectfully dissent.

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


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Don SIDES v. Marvin M. KIRCHOFF
    93-1308
    874 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Leslie R. Ablondi, for appellant.

      Donald M. Spears, for appellee.
   Steele Hays, Justice.

Donald Sides filed this cause of action in the Hot Spring Circuit Court seeking damages of $30,000 against Marvin Kirchoff for breach of a lease agreement affecting real property in Mississippi.

Marvin Kirchoff moved for summary judgment and, alternatively, for dismissal upon allegations that any cause of action was barred on grounds of res judicata and election of remedies. The motion stated the “complaint has been previously tried and reduced to judgment” in Mississippi and the filing in Mississippi “constitutes res judicata even if personal service was not perfected.”

Donald Sides responded to the motion, conceding the subject matter of the complaint was originally tried in Mississippi and a judgment rendered but stating that when Sides attempted to have the foreign judgment registered against Marvin Kirchoff in Arkansas, Kirchoff convinced the court that he never received actual service and, consequently, the cause has never been tried in Arkansas or Mississippi.

The circuit court dismissed the complaint upon a finding that the issues could have been litigated in the previous proceeding in Mississippi “by a court which would have had both personal as well as subject matter jurisdiction, had personal jurisdiction been properly obtained.” Donald Sides brings this appeal. He maintains the trial court erred in that lack of personal jurisdiction defeats either the doctrine of res judicata or election of remedies. Finding merit in the argument, we reverse and remand.

Arkansas Code Ann. § 16-65-108 (1987) reads:

All judgments, orders, sentences, and decrees made, rendered or pronounced by any of the courts of the state against anyone without notice, actual or constructive, and all proceedings had under judgments, orders, sentences, or decrees shall be absolutely null and void.

A judgment rendered without notice to the parties is void. Woolfolk v. Davis, 225 Ark. 722, 285 S.W.2d 321 (1965). When there has been no proper service and, therefore, no personal jurisdiction over the defendants in a case, any judgment is void ab initio. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Holliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1972). In Forrest v. Forrest, 208 Ark. 48, 184 S.W.2d 902 (1945), we wrote:

Appellee was not a party plaintiff in the action. She was made a party defendant, it is tme, but the record reflects neither appearance by her nor service upon her in the suit. She could not, therefore, be bound by this order of dismissal, and appellants’ plea' of res judicata cannot be sustained.

Once the judgment in Mississippi was found to have been rendered without jurisdiction over the defendants, such judgment was void. It was as though suit had never been brought and there was no impediment to bringing the suit where personal jurisdiction over the defendants could be had. “A void judgment amounts to nothing and has no force as res judicata.” Arkansas State Highway Commission v. Coffelt, 301 Ark. 112, 782 S.W.2d 45 (1990).

This principle of law has universal acceptance. Restatement of Judgments, § 5.

If a state has no jurisdiction over the parties, a personal judgment rendered by a court of the state is subject to collateral attack in other states. Thus, if an action is brought in another state upon the judgment, the defendant can defeat the action by showing the lack of jurisdiction over him in the action in which the judgment was rendered. Similarly, if the plaintiff brings an action in another state upon the original cause of action, the action cannot be defeated by setting up the prior judgment.

Id. Comment (d).

Reversed and remanded.


text:
    WATKINS MOTOR LINES INC. v. Bobby HEDRICK and Cindy Hedrick, His Wife
    93-915
    873 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Daggett, Van Dover & Donovan, by: Robert J. Donovan and J. Shane Baker, for appellant.

      Easley, Hicky & Cline, for appellees.
   Steele Hays, Justice.

The appellees, Bobby Hedrick and Cindy Hedrick, were injured in a collision with a tractor-trailer owned by the appellant, Watkins Motor Lines, Inc. (Watkins). On May 25, 1991 Mr. and Ms. Hedrick were crossing the Hernando-Desoto Bridge between Memphis, Tennessee, and West Memphis, Arkansas. The Hedricks were travelling in a westerly direction and were struck from the rear while on the bridge. Watkins appeals a jury award of $125,000 to appellee Cindy Hedrick and $10,000 to appellee Bobby Hedrick.

On appeal, Watkins raises five points of error: (1) the circuit court erred in failing to grant a mistrial after the Hedricks’ attorney questioned the jury during voir dire regarding liability insurance; (2) the circuit court erred in refusing to set aside the judgment under ARCP Rule 60(b) because of the Hedricks’ misrepresentation of their marital status; (3) the verdict is excessive; (4) the circuit court erred in permitting the Hedricks’ counsel to question Watkins’s driver regarding the issuance of a traffic ticket after the accident; and, (5) the circuit court erred in ruling that it had in personam jurisdiction. We reverse and remand for a new trial.

Jurisdiction

Because the situs of the collision was subject to doubt, much of the argument before the trial court focused on whether Arkansas had in personam jurisdiction over Watkins under the Uniform Interstate and International Procedures Act, Ark. Code Ann. § 16-4-101 (Supp. 1993). In their complaint, the Hedricks alleged the accident occurred in Arkansas and, alternatively, that Watkins was authorized to do business in Arkansas and its tractor-trailer was in the process of actually entering Arkansas.

At a hearing on Watkins’s ARCP Rule 12(b)(2) motion the proof revolved on whether Watkins transacted any business in Arkansas. It was undisputed that Watkins was authorized to do business in Arkansas, maintained a trucking terminal in Little Rock, engaged in business in Arkansas, and that Watkins’s track was on the Hernando-Desoto Bridge leading into Arkansas.

At trial the proof established that the accident occurred while both vehicles were on the Hernando-Desoto Bridge. Since the parties were driving in a westerly direction (from Memphis towards Arkansas), they had to enter Crittenden County, Arkansas in order to traverse the bridge. Although the Arkansas State Police were initially contacted, it was stipulated that the accident was investigated by the Memphis City Police.

In the order denying Watkins’s Rule 12(b)(2) motion, the trial court found the collision arose directly out of Watkins doing business in Arkansas. Ark. Code Ann. § 16-4-101 (1987). However, Watkins contends because the Hedricks failed to prove the accident actually occurred in Arkansas, their claims could not arise from Watkins transacting business in Arkansas. Watkins relies upon Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992), where we held personal jurisdiction was lacking where no facts were alleged in the pleading as to how an accident occurring in Tennessee arose from transacting business in Arkansas by the defendant corporation. But the decision in Malone simply holds that the complaint failed to allege sufficient facts to connect the transaction of business in Arkansas to the accident which occurred in a foreign state.

In this case, however, jurisdiction is not dependent on Ark. Code Ann. § 16-4-101 (Supp. 1993), because at trial the proof was not in dispute as to the point of the collision. Watkins’s driver, Larry White, testified the collision occurred on the bridge “about three-quarters of a mile in Arkansas.” There was no proof to the contrary. Thus, Arkansas acquired personal jurisdiction over Watkins because the Hedricks’s cause of action arose directly from an act committed in this state by the agent of Watkins. Ark. Code Ann. § 16-58-120 (1987).

Liability Insurance

Watkins contends the circuit court erred in failing to grant a mistrial after counsel questioned prospective jurors as to whether they had any interest in any liability insurance company. It is improper to unnecessarily call to the jury’s attention the fact that there is insurance in a case. Superior Forwarding Co. v. Sikes, 233 Ark. 932, 349 S.W.2d 818 (1961). The general rale is that if a party’s counsel acts in good faith, he may, in one form or another; question prospective jurors during the voir dire with respect to their interest in, or connection with, liability insurance companies. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). Finally, we will not reverse a ruling of the trial judge in permitting inquiries intended to elicit any possible bias or prejudice that might influence a veniremen’s verdict in the absence of a manifest abuse of that discretion. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

Counsel for the Hedricks asked the following questions during voir dire:

Now, do any of you own stock in a liability insurance company, own any stock? Any of you ever been an employee of a liability insurance company? I know, Mr. Gilly, you’re an agent, because you told me before.
Anybody ever been involved in any way in claims adjustment for an insurance company, or a railroad, or manufacturing company, anything like that?

Watkins contends counsel did not act in good faith because he was aware Watkins was not insured. In fact, the Hedricks’ counsel stated: “the property damage check which we received in this case ■was from Waco Fire and Casualty Insurance Company which led me to believe that he was insured, but I just learned yesterday that he was uninsured.” Although counsel admitted he knew Watkins was uninsured, he maintained the reason for the questions was to determine “whether there’s any bias or prejudice in the mind of the juror that would lean that juror toward a liability insurance carrier which would carry over into the area of a lawsuit, which would cause them theoretically to favor the defendant.”

Watkins contends that because counsel knew Watkins was not insured the questions were not asked in good faith. Watkins relies on Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W.2d 16 (1956), where we outlined the standard for questioning the venire regarding liability insurance. We stated:

The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith. If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies. [Our emphasis.]

Spanning several decades, our cases indicate that where liability insurance is involved good faith is satisfied. See, e.g. Hamby v. Haskins, 275 Ark. 385, 630 S.W.2d 37 (1982). Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Ellis & Lewis v. Warner, 182 Ark. 613, 32 S.W.2d 167 (1930); Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83 (1912). In every case we have located it was clear, or at least assumed, that insurance was involved. However, we have not heretofore addressed the propriety of such questions where the defendant is uninsured. In King v. Westlake, 264 Ark. 555, 572 S.W.2d 841 (1978), we upheld a trial court’s ruling permitting plaintiff’s counsel to ásk potential jurors whether they believed the size of jury verdicts affected their insurance premiums. Although there was no indication that insurance was involved, we determined that the plaintiff’s counsel had acted in good faith. In reaching the decision, we emphasized that good faith was satisfied where for some time preceding the trial date a number of liability insurance companies had advertised in several publications suggesting that jurors themselves were affected by the verdicts they rendered.

This court followed the King rationale in the more recent case of Fuller, wherein the court found the trial court erred in permitting the plaintiff’s counsel to broach the subject of jury verdicts and their effect on insurance premiums without first requiring counsel to establish a proper foundation. Fuller, 301 Ark. at 19-A, 781 S.W.2d at 465, 466.

Likewise, counsel in the present case failed to lay the proper foundation before asking his questions of the jurors. Based upon this court’s holdings in King and Fuller, we must reverse and remand on this point.

Marital Status

Watkins contends the circuit court erred in refusing to set aside the judgment under ARCP Rule 60(b) because the Hedricks misrepresented their marital status to the jury. When the Hedricks filed this action they were married and their complaint asserts that they are husband and wife. However, they had separated and divorced by the time the case came to trial, a development which Watkins did not discover until after the trial. Watkins maintains a fraud was practiced on the court by reason of the Hedricks representing themselves as presently married when they were not.

The trial judge recognized that the testimony clearly reflected the existence of a marital relationship between the Hedricks and the jury was deliberately led to believe that was the case. He concluded, however, that they had not commited a fraud upon the jury.

We need not resolve this issue, as the problem is self-correcting, on retrial. As to the matter of the traffic ticket, we would not expect that issue to again arise and the amount of the verdict is no longer relevant.

Reversed and remanded.

Corbin, J., not participating.


author: Tom Glaze, Justice.

text:
    Teresa McCLENDON v. STATE of Arkansas
    CR 93-1160
    875 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Teresa McClendon was charged with the capital murder of Bennie Young, and she was tried, convicted and sentenced to life imprisonment without the possibility of parole in the Arkansas Department of Correction. The two following points of error are raised on appeal: (1) the trial court erred in not suppressing the custodial statement of the appellant, and (2) it also erred by refusing to exclude jurors who had participated in the voir dire examination of a co-defendant who was tried and convicted a week prior to McClendon’s trial. We affirm.

McClendon and co-defendants, Tyrone Williams and Patricia Young, were charged with murdering Bennie Young, McClendon’s father, on November 25, 1992. Williams was McClendon’s boyfriend and Patricia Young was McClendon’s mother and the wife of the victim. On November 26, 1992, McClendon was interviewed by video tape and confessed to her father’s murder. According to McClendon’s custodial statement, Williams, her mother and McClendon planned to kill Bennie Young by suffocating him with a pillow after he fell asleep. After Bennie Young fell asleep on a couch, McClendon held his feet while Williams attempted to suffocate him. During an ensuing struggle, Williams repeatedly stabbed Mr. Young with a knife, and McClendon joined in stabbing her father by using a pair of scissors. After the murder, Patricia Young took McClendon and Williams to a Super 8 Motel located on Scott Hamilton Drive in Little Rock.

Dr. William Sturner, the medical examiner for the.State of Arkansas, testified that Bennie Young died as a result of multiple stab wounds. A knife, a pair of scissors, t-shirt, bra, and shorts were found in a dumpster behind the Super 8 Motel where McClendon and Williams had stayed. Traces of human blood were found on the t-shirt, bra and shorts.

On appeal, McClendon principally contends that her confession was involuntary because she was intoxicated. She submits the impact of her intoxication combined with the following factors made her confession involuntary: (1) she was a young woman; (2) several police officers were present; and, (3) she was informed that her co-defendants had already told the police what had occurred.

The state has the burden of proving by a preponderance of the evidence that a custodial confession or inculpatory statement was given voluntarily or was knowingly and intelligently made. And while this court makes an independent determination based on the totality of the circumstances, a trial court will not be reversed unless its determination is clearly erroneous. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). Whether an accused had sufficient mental capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver is a question of fact for the trial court to resolve. Id. The fact that an appellant might have been intoxicated at the time of his statement, alone, will not invalidate that statement, but will only go to the weight accorded it. Id.

According to McClendon’s own testimony, she was interviewed by the police shortly before 9:00 p.m. on November 26,1993 — the day after Bennie Young’s murder. McClendon also testified that she had been drinking alcohol all morning, but had consumed her last drink at about 12.30 p.m. In Midgett, we affirmed a trial court’s determinations that two hours was a “reasonable time in which [the police] could have expected [Midgett] to have sobered” and that Midgett understood his rights and gave his statement voluntarily and spontaneously. Id. Here, the evidence shows that at least nine hours elapsed between the time McClendon had her last drink and the time she was interviewed. Even though McClendon claims that she does not “handle alcohol well,” it cannot be said that the trial court clearly erred in finding that McClendon was not intoxicated when she gave her confession.

As previously mentioned, McClendon also claims that she was intimidated by the presence of three police officers at her interrogation, that her youth contributed to the element of coercion and that the officers made false statements which induced her to testify. First, we point out that McClendon was twenty-two years old and an adult at the time of her interrogation. Even so, we have held that defendants as young as sixteen years of age may voluntarily and knowingly waive their Miranda rights. See Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). We cannot say the trial court was wrong in ruling McClendon’s age did not impact her confession so as to make it involuntary. Furthermore, McClendon’s account of the officers’ statements that they induced her to testify differs from the account given by the officers. All three officers denied having told McClendon that she would be charged with capital murder regardless of what she said. This issue is simply a matter of credibility and was within the trial court’s discretion to decide. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). And finally, while McClendon claims the three officers’ presence at her interview somehow made her confession involuntary, we must disagree. Absent some proof of coercion, the mere presence of the three officers here cannot be said to have rendered McClendon’s confession involuntary. See Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989) (where three officers heard the defendant’s confession).

McClendon’s second argument is that her case was prejudiced by the court’s denial of her motion to exclude all jurors from the venire for her trial who had participated in the voir dire •of Tyrone Williams’s earlier trial. The trial court denied the motion “because [McClendon] ha[s] strikes and strikes for cause.” The trial judge indicated that he would be very cautious and do his best in “excluding anyone who may have in any way been tainted by anything they’ve seen or heard, whether that be by media or street talk or past proceedings.” The judge also noted that all jurors and alternate jurors who had actually sat for the Williams trial had already been excused. McClendon now claims that the court’s denial of her motion violated Ark. Code Ann. § 16-33-304(b)(2)(B)(iv) (1987), which provides:

(b) It may be general, that the juror is disqualified in serving in any case, or particularly, that he is disqualified from serving in the case on trial.
* * *
(2) Particular causes of challenge are actual and implied bias.
4= * *
(B) A challenge for implied bias may be taken in the case of the juror:
(iv) Having served on a trial jury which had tried another person for the offense charged in the indictment.

The plain language of the foregoing statutory provision permits persons accused of a crime the right to exclude all jurors who have served as jurors in the trial of a co-defendant. McClendon makes no such contention here, since the persons who actually served on the .Williams jury were in no way allowed to participate in the McClendon trial. McClendon cites no authority to support her proposition that a defendant’s right under § 16-33-304(b)(2)(8)(iv) should be extended to exclude potential jurors who had not actually served as a juror in a prior trial involving the same offense. We do not consider arguments unsupported by convincing authority, unless it is apparent without further research that they are well taken. Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been reviewed and no other errors appear which were prejudicial to the appellant.

Based on the foregoing, the trial court’s decision should be affirmed.


author: Donald L. Corbin, Justice.

text:
    Tyrone Denoise WILLIAMS v. STATE of Arkansas
    CR 93-1183
    874 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Tyrone Denoise Williams, appeals a judgment of the Saline Circuit Court convicting him of the capital murder of Bennie Young and sentencing him to life imprisonment without parole. Appellant asserts two points for reversal. We find no merit and affirm.

First, appellant argues the trial court erred in allowing the admission of a videotape of the crime scene and autopsy photographs of the victim. Appellant concedes the videotape and photographs are relevant evidence and acknowledges that the trial court has discretion in admitting this type of evidence. However, appellant argues that to allow the. admission of both a videotape and still photographs of the same body is to give the trial court unlimited authority to admit photographs in contravention of Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

The videotape was admitted into evidence during the testimony of Saline County Sheriff’s Deputy Wayne Bean. Deputy Bean testified that he arrived at the scene of Bennie Young’s murder at approximately 9:51 p.m. on November 25, 1992. The scene was a two-bedroom trailer in Saline County. He described the scene as consistent with a struggle — debris lying everywhere with blood spattered on the walls and tracked down the hall. Deputy Bean stated that he videotaped the crime scene within thirty minutes of his arrival. The videotape, as admitted by the trial court, showed the victim as he lay on the floor before his body was moved by the investigating officers. The trial court ruled inadmissible the portion of the tape showing the coroner and the officers rolling the victim’s body while investigating the wounds.

The medical examiner testified that the six photographs appellant challenges were taken at the time of the autopsy after the body had been cleaned. Each of the six photographs showed different wounds and areas of the victim’s body; even appellant’s attempt to abstract the pictures in words describes six different areas of the body. The medical examiner testified there were fourteen separate and distinct stab wounds that were the cause of death, the most serious of which was a wound to left chest which penetrated the heart.

Generally, the same considerations and requirements for admissibility that apply to photographs also apply to videotapes. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). In the recent case of Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994), we held on the facts there presented that no error occurred when the jury was shown both a videotape of the homicide scene and photographs of the victim’s wounds. We reiterated our law which is well settled:

The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973). Of course, if a photograph serves no valid purpose and could be used only to inflame the jurors’ passions, it should be excluded. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

Weger, 315 Ark. at 560, 869 S.W.2d at 691.

The medical examiner stated the photographs showed a variety of injuries which he would and did describe. The videotape showed the crime scene and shed light on the violence done to the victim. The tape and the photos showed the nature and extent of the wounds which is relevant to a showing of intent as intent may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds. Weger, 315 Ark. 555, 869 S.W.2d 688. The videotape and photos also helped the state prove an element of its case against appellant — the requisite level of intent associated with capital murder. Ark. Code Ann. § 5-10-101 (Repl. 1993).

We are well aware of appellant’s reliance on Berry, 290 Ark. 223, 718 S.W.2d 447. However, while Berry holds that' a trial court cannot admit photographs carte blanche, it only prohibits the admission of photographs whose prejudicial effect substantially outweigh any probative value. The record reflects that the trial court carefully considered the admissibility of these items on more than one occasion and that it did not admit all the photographs proffered by the state nor all of the videotape. Given the trial court’s careful consideration of these issues and the fact that the items were probative of an element of the crime and assisted the medical examiner’s testimony, we have no hesitation in concluding there was no manifest abuse of discretion.

Second, appellant contends the trial court erred in refusing to grant a mistrial when the state elicited evidence concerning appellant’s drug use. In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), we wrote:

Declaring a mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976).

Free, 293 Ark. at 73, 732 S.W.2d at 456.

Even assuming without deciding that error occurred when the trial court allowed the prosecutor to continue with the challenged question, any resulting prejudice could have been cured by an admonition to the jury. A mistrial therefore was not warranted and the trial court did not err in refusing appellant’s request for one. Moreover, appellant did not request an admonition. The only request was for a mistrial which was not warranted. We cannot say the trial court erred in this regard. See Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989).

In accordance with Ark. Sup. Ct. R. 4-3(h), we have examined the transcript for prejudicial rulings made against appellant. We have found no such errors. Accordingly, the judgment of conviction is affirmed.


author: Robert L. Brown, Justice.

text:
    LaQuanda JACOBS v. STATE of Arkansas
    CR 93-1269
    875 S.W.2d 52
    'Supreme Court of Arkansas
    Opinion delivered April 25, 1994

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

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal questions (1) the sufficiency of the evidence supporting the judgment of conviction for capital murder, and (2) whether the trial court erred in allowing a police detective to testify about a witness’s selection of the photograph of appellant LaQuanda Jacobs at a photographic lineup. Both points raised are without merit, and we affirm.

On February 9, 1992, at approximately 5:30 p.m., Kevin Gaddy and Tony Davis were walking near the intersection of 29th Street and Jefferson in Little Rock. As they entered the intersection, a gray car pulled in front of them, and a man and a woman got out of the vehicle. The woman had a pistol. The couple demanded that Gaddy and Davis give them the Chicago Bulls jackets that they were wearing. Gaddy started to hand over his jacket but then attempted to retrieve his brush from it. A struggle ensued. The woman fired her gun striking Gaddy in the chest. Gaddy ran a few yards from the scene and then collapsed. He was dead by the time that the police arrived.

There were several witnesses to the shooting, including Tony Davis and Sean Riggins. The police questioned the witnesses who gave varying descriptions of the shooter’s age (some said she was in her thirties), dress, and hair color. Most agreed that she was about five feet eight inches tall, heavyset, and had scars under her eyes. Tony Davis told the police that she was wearing pants, a blue-gray coat, and a knit cap.

At about 7:00 p.m. on the same date, Jacobs, who was age 16, was arrested along with several other suspects. When she was taken into custody, she was wearing a two piece white dress. She was questioned and photographed. A gun shot residue test was performed on her hands but proved negative. Tony Davis was shown her photo but was unable to identify her. Jacobs was then released.

Nine days after the shooting, the Little Rock Police Detectives showed Davis a second photo lineup, which included Jacobs. Davis at this later time identified Jacobs as the woman who shot Gaddy. More than two weeks after the shooting, Detective Mike Durham conducted a photospread with Sean Riggins. Riggins identified the photograph of Jacobs. She was then charged with capital murder under Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1991).

Prior to trial, Jacobs filed a motion to suppress in which she alleged generally that the two photo lineups were conducted in a manner that violated her constitutional rights. At the trial that followed, the prosecutor asked Detective Mike Durham whether Sean Riggins had identified Jacobs from a photo lineup. The defense objected, but the objection was overruled. Detective Durham stated that Riggins had identified Jacobs from a photographic display. The court then changed its ruling on the objection and stated that it had been under the mistaken impression that Detective Durham was testifying that Riggins identified Jacobs from a physical lineup. The court admonished the jury to disregard the detective’s testimony relating to the photospread identification. At the conclusion of Detective Durham’s testimony, the court reversed its ruling once again and stated that there was no difference between Detective Durham’s testifying that Rig-gins identified Jacobs from a photo lineup or from a physical lineup. The court instructed the jury that it could consider all of the detective’s testimony, including that relating to Riggins’s identification of Jacobs from a photo lineup.

At the end of the State’s case, Jacobs moved for a directed verdict due to insufficient evidence which was denied. Her defense which followed consisted of several alibi witnesses who placed her at a location other than the scene of the crime at the time of the shooting. She renewed her motion for a directed verdict at the close of her case which was also denied. The jury found Jacobs guilty of capital murder and sentenced her to life imprisonment without parole.

Jacobs’s first claim of error is that there was insufficient evidence to support the verdict. We disagree. Our analysis for determining whether sufficient evidence exists to support a conviction has been made clear:

A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

Moore v. State, 315 Ark. 131, 134, 864 S.W.2d 863, 865 (1993); see also Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993); Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993); Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992).

In the case at hand, in order to establish that Jacobs committed capital murder the State had the burden of showing that she committed or attempted to commit aggravated robbery, and that during the course of that robbery or attempt she caused the death of Kevin Gaddy. The State did so with the eyewitness testimony of Tony Davis and Sean Riggins as well as with the testimony of Detective Durham, who subsequently conducted the photographic lineup. The unequivocal testimony of Tony Davis, who identified Jacobs as the assailant, is sufficient on its own to sustain this conviction. See Lackey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990); Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Indeed, the testimony of Sean Riggins would be sufficient by itself to sustain this conviction. Id. Jacobs denied any participation in the murder and had alibi witnesses placing her in different dress and at a different location, which meant that the real question before the jury was the credibility of all of the witnesses. This was a matter for the jury to resolve, and it did so against Jacobs. See Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992); Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988); Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). In sum, the evidence supporting conviction was clearly substantial.

Jacobs’s other allegation on appeal is that the trial court erred in permitting Detective Durham to testify at trial about Davis’s and Riggins’s identification of her from a photospread. She claims that this testimony constituted hearsay and that there was no applicable exception to the bar against hearsay.

At the outset, it should be noted that'Detective Durham only testified concerning Riggins’s identification of Jacobs at the photographic lineup which means the potential error raised by Jacobs is limited only to the detective’s testimony about Riggins. It is well established that hearsay testimony is generally inadmissible due to lack of trustworthiness. However, Detective Durham’s testimony was not hearsay. See Ark. R. Evid. 801 (d)(l)(iii). This rule provides in relevant part:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is. . .
(iii) one of identification of a person made after perceiving him.

Detective Durham’s testimony was that Riggins identified Jacobs from a photo display. Riggins made this identification after seeing Jacobs shoot Gaddy. Riggins also testified at trial and identified Jacobs at trial. He was then cross-examined.

In Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983), this court resolved the issue raised by Jacobs. There, the appellant argued that a police officer should not be allowed to testify that a convenience store clerk picked him out of a physical lineup. We stated:

These contentions were recently considered and rejected in Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). In that case we held that under Rule 801(d)(l)(iii), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) a police officer could properly testify as to the existence and circumstances of an extrajudicial identification by witnesses if there is no defect in the identification procedure used, and if the person making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense.

278 Ark. at 260, 644 S.W.2d at 932. The Hilton and Martin cases control the case before us. Here, Jacobs fails to establish or even to argue at trial that there was a defect in the process itself. As a result, since the witness, Sean Riggins, was present at trial, identified Jacobs at trial, and was subject to cross-examination, Detective Durham’s testimony was properly admitted under Ark. R. Evid. 801(d)(l)(iii). The trial court’s ruling was correct.

The record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h), and there is no error that has been identified that would warrant reversal.

Affirmed.


author: Per Curiam.

text:
    CAMPBELL SOUP COMPANY v. Kathy Jo GATES
    94-340
    874 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered April 26, 1994

      Wright, Lindsey & Jennings, by: Roger A. Glasgow, for appellant.

      Lightle, Beebe, Raney, Bell & Hudgins, by: A. Watson Bell, for appellee.
   Per Curiam.

Appellant Campbell Soup Company petitions for a writ of certiorari to the court reporter of the White County Circuit Court, Allen Hill, directing that the transcript of the proceedings in Kathy Jo Gates v. Campbell Soup Company, et al., No. CIV 92-366, be completed and provided to the White County Circuit Clerk within thirty days. Campbell Soup obtained a court order extending the time to file the record in this cause until April 4, 1994, which date was the maximum length of time to lodge the record with the Supreme Court. Prior to April 4, 1994, Campbell Soup filed its petition for the writ of certiorari in this court to the court reporter, Allen Hill.

The court grants Campbell Soup’s petition for writ of certiorari and directs Allen Hill to complete and provide the transcript forthwith to the White County Circuit Clerk.

The court forwards a copy of this per curiam to the Board of Certified Reporter Examiners for any action it may deem necessary under its rules.


text:
    Allen Bruce WOODS v. STATE of Arkansas
    CR 94-311
    873 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered April 25, 1994

      Paul Johnson, for appellant.
    No response.
   .

Per Curiam.

We treat this motion for rule on the clerk as a motion for a belated appeal. Appellant filed his notice of appeal on November 9, 1993, whereas the judgment was not entered until November 10, 1993. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We will grant the motion for a belated appeal upon the admission of error by counsel and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Jeffrey GIBSON v. STATE of Arkansas
    CR 93-686
    875 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Stanley D. Rauls, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Jeffrey Gibson appeals his conviction of second-degree battery for causing physical injury to a law enforcement officer, arguing, in the main, that he did not know that the victim, Detective Mark Stafford, was a law enforcement officer and that Detective Stafford was not acting in the line of duty as a police officer in attempting to quell a disturbance at the Williamsburg Apartments. He also claims the trial court erred in permitting the testimony of others present as to their belief that Detective. Stafford was a police officer and in instructing the jury on the theory of accomplice liability. We affirm.

Facts

In early August 1992, Jeffrey Gibson (Jeffrey), and his twin brother, James Gibson (James), were drinking at the Wrangler, a local bar in Little Rock. Catherine Bunn (Catherine) and Jennifer Gibbs (Jennifer), Jeffrey’s former girlfriend, were also at the Wrangler, and when they noticed the Gibson brothers, they left the premises. Catherine drove Jennifer to Williamsburg Apartments. The Gibsons followed in their car. As Catherine pulled up to Jennifer’s parked car, James and Jeffrey drove near them. Jennifer walked to her car, and Jeffrey followed her.

The remainder of the facts are disputed in part, but the events leading up to Detective Stafford’s injuries appeared to be these. According to Catherine’s testimony, she was worried about Jennifer, and, fearing a confrontation, she went to a nearby convenience store and asked Jeff Clark, Harry Janson, Tim Cohen, and Brian Pierce for help. The group went to the Williamsburg parking lot, and the young men waited while Catherine went over to Jennifer’s car and asked if she was all right. Jennifer responded that she had asked Jeffrey, whom she thought to be drunk, to leave three times, but he had refused. When Catherine heard Jeffrey call Jennifer a “whore,” she told him, “Don’t you ever call a girl a whore,” and he hit Catherine on the left ear with his fist.

Apparently witnessing Jeffrey’s actions, Brian Pierce and the others came forward. James Gibson began to chase them, spraying them with mace. Brian Pierce grabbed a crowbar and began swinging at James Gibson, breaking James’s arm.

In the midst of this brawl, Detective Mark Stafford, a Little Rock Police Officer who resided at the Williamsburg complex, received a call to go to Napa Valley Apartments to do surveillance on a case. As he left his apartment, he noticed the group of young men and women fighting near the apartment-complex entrance. Dressed in shorts, t-shirt, and loafers and carrying an officer’s flashlight, he approached the group, identified himself as a police officer, showed them his badge, and tried to. calm things down. When Jeffrey accused Brian Pierce of breaking his brother’s arm, the two began to argue again, and Detective Stafford tried to separate them. The argument escalated, resulting in Detective Stafford being hit in the left arm with the crowbar as he grabbed the instrument and held on to it. Detective Stafford then succeeded in separating Brian from the Gibson twins and asked for identification. Someone asked who he was, and Detective Stafford told them again that he was a police officer. Jeffrey responded that he wanted a “real” police officer, an on-duty policeman with a real uniform, and that he wanted certain people arrested.

Still holding Brian up against a car, Detective Stafford asked again for IDs, and one of the men handed him his license. As Stafford returned the license, Jeffrey hit him on the top of the head. Stafford turned and grabbed Jeffrey by his shirt, and the two fell to the ground, with Jeffrey pinned under Stafford. Jeffrey’s brother James came up from behind and hit Stafford over the head or back (with a crowbar, according to some witnesses, although this is disputed), and Detective Stafford, who possibly hit his head as he fell, blacked out. Jeffrey got out from underneath the officer, rolled him over, and hit him (also kicking him, according to some witnesses) repeatedly, and James, according to Catherine, started doing the same. Jennifer and Catherine ran to Jennifer’s car and called 911 emergency services. As a result of the beating, Detective Stafford sustained a fractured jaw and has experienced some dizziness and trouble with memory.

Both Jeffrey and James Gibson were charged with second-degree battery for causing physical injury to a law enforcement officer while he was acting in the line of duty. James negotiated a plea agreement and entered a guilty plea. Jeffrey was convicted and sentenced to five years imprisonment, and he appeals.

Although Jeffrey specifies six assignments of error by the trial court, we consolidate them into three: (1) the trial court erred in denying Jeffrey’s motion for directed verdict due to insufficient evidence to convict; (2) the trial court erred in permitting testimony about the knowledge of persons other than the defendant as to Detective Stafford being a police officer; and (3) the trial court erred in instructing the jury as to accomplice liability.

We first address Jeffrey’s challenge to the sufficiency of the evidence prior to a review of any other asserted trial errors. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994); Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). On appeal, the evidence is reviewed in the light most favorable to the appellee, and the judgment will be affirmed if there is any substantial evidence to support the jury’s verdict. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). Evidence is substantial when it is forceful enough to compel a conclusion one way or the other, beyond suspicion and conjecture. Ricks, supra. We need consider only that testimony which supports the verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

I. Sufficiency of the evidence

Jeffrey’s challenge to the sufficiency of the evidence raises two questions: (1) whether the evidence supports the finding that Detective Stafford was acting as a law enforcement officer in the line of duty when he was injured; and (2) whether the evidence supports the finding that Jeffrey knew that Detective Stafford was a law enforcement officer when he struck and injured him. These issues were appropriately preserved in Jeffrey’s motion for directed verdict, which consisted of the following contentions:

Basically I would like to move for a directed verdict as to Count One, because there has been virtually no proof that Jeff Gibson knew Mark Stafford to be a law enforcement officer. In fact, one of their witnesses testified that he didn’t believe him to be a law enforcement officer. All of the witnesses testified they were asking for the real police, not Mark Stafford.
One element they have to prove is that he was acting in the scope of his authority. These witnesses testified that he was working private security, not as a law enforcement officer. They cannot meet those two critical elements in addition to intentionally or knowingly causing physical injury to Mark Stafford.

In order for the jury to have found Jeffrey guilty of second-degree battery in violation of Ark. Code Ann. § 5-13-202(a)(4)(A) (Repl. 1993), the State must have proven:

(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be: (A) A law enforcement officer . . . while such officer ... is acting in the line of duty . . .

In this regard, Jeffrey contends that he neither knew that Detective Stafford was a law enforcement officer nor that Stafford was actually working as such at the time of the affray.

On appeal, Jeffrey urges us to consider these issues as questions of statutory interpretation more so than as challenges to the sufficiency of the evidence. But Ark. Code Ann. § 5-13-202(a)(4)(A) (Repl. 1993) does not require interpretation because it is unambiguous.

Beginning with the question of whether Detective Stafford was acting as a law enforcement officer in the line of duty, we note that, pursuant to Ark. Code Ann. § 5-1-102, law enforcement officer means “any public servant vested by law with a duty to maintain public order or to make arrests for offenses.” Police officers are required to “diligently and faithfully enforce at all times all such laws, ordinances, and regulations for the preservation of good order and the public welfare.” Ark. Code Ann. § 14-52-203(b)(4) (1987). Officers have a statutory duty to “suppress all riots, disturbances and breaches of the peace.” Ark. Code Ann. § 14-52-203(b)(l) (1987).

In accord with these statutes, we have held that a police officer is, “in a sense, on duty 24 hours a day, seven days a week and is not relieved of his obligation to preserve the peace while ‘off duty.’” Meyers v. State, 253 Ark. 38, 46, 484 S.W.2d 334, 339 (1972). See also Gritts v. State, 315 Ark. 1, 864 S.W.2d 859 (1993); Dilday v. State, 300 Ark. 249, 778 S.W.2d 618 (1989) (deputy sheriffs hired by planned community are authorized by statute to discharge their duties throughout the county, even if outside the planned community; these duties include the authority to arrest). As the concurring opinion in Dilday noted, a police officer “has the official power of the office at all times.” 300 Ark. at 255, 778 S.W.2d at 622.

The State put before the jury substantial evidence that the victim, Mark Stafford, was employed by the City of Little Rock as a police officer on August 7, 1992, the date on which Jeffrey Gibson assaulted Detective Stafford during the course of the parking-lot brawl. Nowhere in his brief does Jeffrey assert that Mark Stafford was not employed as a police officer by the City of Little Rock. As in Meyers, Detective Stafford, precisely because of his status as a law enforcement officer, had a statutory duty to maintain public order and to diligently enforce, at all times, such laws as were necessary for the preservation of good order, and to “suppress all riots, disturbances, and breach of the peace” — twenty-four hours a day, seven days a week.

Jeffrey claims that even though police officers may be on duty twenty-four hours a day, the State failed to prove that Detective Stafford was acting “in the line of duty.” This assertion, however, brings us back to the challenge to the sufficiency of the evidence, and, as stated earlier, the evidence was more than sufficient to support the jury’s finding that Stafford was acting in the line of duty. Jeffrey also claims that because Stafford failed to follow police department procedures while quelling the affray, he should not now be considered a “law enforcement officer . . . acting in the line of duty.” Because this argument was not raised below, we will not consider it now.

With regard to whether Jeffrey knew that Detective Stafford was a police officer, we consider an Arkansas Court of Appeals decision helpful and instructive. In Hubbard v. State, 20 Ark. App. 146, 725 S.W.2d 579 (1987), the appellant was convicted of battery in the second degree for knowingly or intentionally causing physical injury to one he knows to be of sixty years of age or older. See Ark. Code Ann. § 5-13-202(a)(4)(C) (Repl.1993). In holding that the State did not meet its burden of proof in establishing that the appellant knew the victim’s age, the court explained:

The plain wording of [5-13-202] imparts that knowledge on the part of the defendant must be personal to him. The statute does not provide a substitute or explanatory equivalent. We believe the test is whether from the circumstances in the case at bar, appellant, not some other person or persons, knew that his victim was sixty years of age or older. A different result by this court could have been reached had the General Assembly defined “knows to be” in the above statute to include one who has information that would lead an ordinary, prudent person faced with similar information to believe that the information is fact.

Hubbard, 20 Ark. App. at 148, 725 S.W.2d at 580-581.

In applying the Hubbard rationale to the case at hand, we also consider an appropriate test to be whether or not, from the circumstances in the case before us, Jeffrey — and not some other person or persons — knew that his victim, Detective Stafford, was a law enforcement officer.

During his testimony, Detective Stafford explained his working situation and the fact that he was on his way to conduct surveillance in an unrelated case when he ran into the Gibsons and others in the Williamsburg parking lot. The State introduced a photocopy of Stafford’s Little Rock detective’s badge into evidence. Moreover, most of the group involved in the altercation testified that Stafford had shown them his badge and had told them that he was a police officer. As for whether Jeffrey knew that Detective Stafford was a police officer, the detective explained that he had gone to the site of the altercation and, noticing that it mainly involved three males (one young man with a broken arm, one with a crowbar in his hand, and one with cuts on his face), identified himself as a police officer and showed those present his badge. All of the State’s witnesses verified this testimony. Even Jeffrey admitted on cross-examination that he had heard Stafford state that he was a Little Rock police officer, although he claims that he did not believe him. Catherine Bunn testified that before Jeffrey struck Detective Stafford, he looked him in the eye and said, “I don’t care who you are mother f____. I don’t care if you are a police officer.”

Resolution of these questions requires a determination of who is telling the truth, and credibility of witnesses is a matter for the jury. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Clearly, the evidence was more than sufficient for the jury to find that Jeffrey struck and caused physical injury to Detective Stafford, who was acting as a law enforcement officer in' the line of duty, knowing that Stafford was acting as a police officer.

II. Testimony of others as to their belief that Detective Stafford was a police officer

As previously mentioned, the challenge to the sufficiency of the evidence raises a question of whether, at the time of the fight, Jeffrey knew that Mark Stafford was a police officer. Claiming he did not, he submits that the trial court erred in permitting Harry Janson and Jeff Clark, two prosecution witnesses, to testify that they believed Detective Stafford to be a police officer on the night in question. This aspect of his argument is of no moment because his objection to Harry Janson’s testimony was sustained, and he did not ask for an admonition to the jury. See Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993). In addition, Jeffrey failed to state grounds or to obtain a specific ruling on his objection to Jeff Clark’s testimony. In order to preserve an issue, the objection below must be specific enough to apprise the trial court of the particular error about which appellant complains. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992).

The objections were also untimely. Prior to Janson’s and Clark’s testimony, Catherine Bunn gave her opinion, without objection, as to Stafford’s status: “I believed he was a police officer and I treated him like one.” Failure to object at the first opportunity waives any right to raise the point on appeal. Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991). An objection to inadmissible testimony should be made promptly. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). Jeffrey claims that there was no need to object to Catherine’s testimony because she saw Stafford identify himself and show his credentials. However, Jeff Clark also testified that he saw Detective Stafford flash his badge; thus, this distinction is flawed. We have held that where similar evidence was previously admitted without objection, the admission of later testimony on the same subject is not prejudicial. Hooper, supra. Similarly, the court has refused to find prejudicial error where the evidence erroneously admitted was merely cumulative. Id; Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert, denied 484 U.S. 872 (1987) and 490 U.S. 1075 (1989).

III. Accomplice liability jury instruction

For his last allegation of error, Jeffrey claims that the trial court erred in instructing the jury on accomplice liability. This objection was properly made and preserved, but the argument is meritless.

According to Ark. Code Ann. § 5-2-403 (Repl. 1993), an individual is liable for the commission of a criminal offense as an accomplice if he, with the purpose of promoting or facilitating the commission of the offense, either solicits, advises, encourages, or coerces another person to commit the offense, or aids, agrees to aid or attempts to aid the other person in planning or committing the offense. See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). A person need not take an active part in an offense to be convicted of such if the person accompanied the person or persons who actually committed the offense and assisted in such commission. Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert, denied 464 U.S. 835 (1983).

Several witnesses testified that both brothers acted in punching and perhaps kicking Detective Stafford. Catherine Bunn claimed that James Gibson hit Stafford over the head with the crowbar and that, at that point, Jeffrey got out from beneath Stafford and began hitting and kicking him, and that James Gibson started doing the same. Tim Cohen testified that Jeffrey got on top of Stafford and hit him in the face after James hit the officer in the back and knocked him out. Harry Janson’s testimony was essentially the same as Catherine’s; he stated that both Jeffrey and James kicked and punched Stafford in the face. Under the circumstances, we hold that the facts support the accomplice jury instruction.

Affirmed.

      Although Stafford worked as a policeman, he also worked security for Williams-burg for a reduced rent. As a “courtesy officer” he helped, for example, with lockouts or loud music complaints.


text:
    Luther MARTIN v. STATE of Arkansas
    CR 93-1314
    875 S.W.2d 81
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Jim Pedigo, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Luther Martin was sentenced to forty years imprisonment in the Department of Correction for aggravated robbery of a convenience store in Hope, Arkansas. He raises three arguments for reversal of his conviction: (1) the trial court erred in permitting the prosecutor to twice amend its original information prior to actual trial and in denying Martin’s request for a continuance and a new lawyer in light of the fact that the court granted the prosecution’s second request to amend; (2) the trial court erred in admitting Detective Bill Otis’s testimony as to information received from a third party during his investigation; and (3) the trial court erred in denying his motion for directed verdict.

We first address Martin’s challenge to the sufficiency of the evidence prior to a review of his other asserted trial errors. Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994); Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994); Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994). On appeal, the evidence is reviewed in the light most favorable to the appellee, and the judgment will be affirmed if there is any substantial evidence to support the jury’s verdict. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). Evidence is substantial when it is forceful enough to compel a conclusion one way or the other, beyond suspicion and conjecture. Ricks, supra. We need consider only that testimony which supports the verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993).

I. Sufficiency of the evidence

Reviewing the evidence in the light most favorable to the State, as appellee, we hold that the evidence was more than sufficient to uphold Martin’s conviction.

According to the testimony of Mary Kay Taylor, on December 26, 1992, she was working the 3:00 p.m. to 11:00 p.m. shift at the E-Z Mart convenience store in Hope, Arkansas. At about 7:40 p.m., a man, whom she described to police as black, five feet, nine inches tall, with a mustache, hair close to his head, a brown jacket, dark pants, and a plaid shirt, came into the store. He brought a Pepsi to the counter, got a dollar from his pocket, and placed it on the counter. He then put his right hand in his pocket, “as if he had a gun,” and said, “Freeze or you’re dead.” She did freeze, and the robber reached with his other hand over the counter, grabbed all the money out of each slot of the cash register, and headed for the door. As Ms. Taylor moved toward the phone, the robber said, “I told you not to move. I’ll kill you.” Frightened, she stopped until he went out the door and around the corner. Once he was out of sight, Ms. Taylor called the police. When they arrived, she recounted the events of the evening, emphasizing that while he removed the money, he kept his hand in his pocket as though holding a gun; it was her insistently stated belief that he had a gun.

Sergeant Stan Bailey, a member of the Hope Police Department, testified that he was working as patrol supervisor when he received a radio dispatch shortly after the robbery to look for a black male, five feet, nine inches to five feet, ten inches in height, and weighing 140 to 150 pounds. About seven blocks from the E-Z Mart, the sergeant saw a dirty, “beat up” Ford pickup truck parked on the street. The missing glass window on the driver’s side had been replaced with a piece of plastic. A black male was sitting in the passenger side of the truck accompanied by a black female who was standing beside the vehicle. Sergeant Bailey approached them and asked them if they had seen anyone fitting the description he had just received, to which they responded, “No.” Later, Sergeant Bailey heard that the robber was supposed to be in an old pickup with plastic on the driver’s window. At that point, he contacted Officer Zeke, told him about his contact with the vehicle, and asked him to go to the Shover Village apartment complex to attempt to locate the vehicle.

Acting on the information he received from Sergeant Bailey, Officer Zeke drove to Shover Village, where he spotted a pickup matching the description of the truck. Because the registration check on the truck revealed that it was registered to a Jewel Muldrew, a man for whom warrants were outstanding, Officer Zeke initiated a traffic stop and found that the driver was Martin. Officer Zeke told him that there were active warrants out for the car’s owner and that a truck matching that description had possibly been involved in an aggravated robbery. He did not arrest Martin, however, because he did not have a warrant for him.

Detective Gary Wayne Billings explained that after Officer Zeke informed him about stopping Martin, he obtained the photo spread which included Martin’s photograph and took it to the EZ Mart, where Ms. Taylor identified Martin. Later that evening, Sergeant Bailey examined the photo spread and also identified Martin. Based, in part, on Ms. Taylor’s and Sergeant Bailey’s identification of the suspect, a warrant was issued for Martin’s arrest, and he was picked up.

The photo spread was introduced into evidence. Officer Bailey’s testimony placing Martin near the scene of the robbery shortly after it occurred and Ms. Taylor’s unequivocal testimony identifying Martin as the culprit are sufficient to sustain the appellant’s conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990).

II. Amendment of informations

Martin’s next argument concerning error on the part of the trial court is premised on the fact that the court permitted the prosecutor, over Martin’s objection, to amend the charging instrument, an information, near the beginning of trial and again before the case had been submitted to the jury, and because the trial court refused to grant him a continuance after the second amendment so that he could get a new attorney.

An examination of the record of trial reflects that a felony information was filed with the circuit clerk on December 28, 1992, charging Martin with aggravated robbery-pursuant to Ark. Code Ann. § 5-12-103, stating that:

With the purpose of committing a theft, he was armed with a deadly weapon, and knowingly took or exercised unauthorized control over the property of another person, with the purpose of depriving the owner thereof . . .

The record further reflects the filing of a supporting affidavit for warrant of arrest, dated December 27, 1992, which alleged that:

With the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another, while being armed with a deadly weapon or representing by word or conduct that he is so armed.

(Emphasis added.) In addition, the affidavit spells out details constituting reasonable cause including the fact that “the suspect simulated a weapon in his right coat pocket while he reached into the cash register. . . .”

On the day of Martin’s trial, before voir dire began, the prosecutor asked permission to amend the information. In support of his request, he alluded to the original information and its supporting affidavit:

The affidavit which was approved by the Honorable Jim Gunter when the warrant was issued back on 12/27 of 1992. The language in the affidavit for probable cause had the correct language which correctly cites 5-12-103 Arkansas Code Annotated which is aggravated robbery statute. The only thing in the amended information that is changed is being armed with a deadly weapon or representing by word or conduct that he was so armed. That’s the only change that has been made, so certainly there could not be prejudice and we furnished both the affidavits to Mr. Pedigo and it’s been with him ever since we completed discovery, so I don’t think there is any surprise or prejudice to the Defendant and we would ask to go forward, and of course the Court’s instructions would include the language also and that’s why we amended it.

Defense counsel objected but acknowledged that he had received a copy of the amended information the day prior to trial. The judge overruled his objection, finding that the amendment was “just to the extent that it conforms with the probable cause affidavit that has been on file. . . .”

A short time later, after the jury panel had been sworn and the first amended information had been read, the prosecutor asked the trial court to allow a second amendment to the charging instrument, explaining that the information should not read, “with the purpose of committing a felony,” it should state, “with the purpose of committing a felony or a misdemeanor theft.” Counselor Pedigo asked for a recess to discuss this change with his client, Martin. After the recess, the trial court asked Martin if his attorney had talked with him and if he understood the amendment to the felony information. Martin responded that he understood and then asked for a continuance to “find my own lawyer because they indicted me on one charge and he ain’t been representing me right.” Explaining that Mr. Pedigo is a capable attorney, the trial judge denied his motion for continuance, stating:

[T]he Court does recognize that the second instrument or document in the file which is an affidavit for warrant of arrest executed by Judge Jim Gunter on 12/27 of ‘92, at which time Luther Lee Martin was the individual sought in the affidavit and for aggravated robbery and it is alleged that on or about the 26th day of December 1992, committed by and being the Defendant, with the purpose of committing a felony or misdemeanor theft, and at that time — that is the only amendment sought by the State at this time and it does not in any way prejudice this Defendant’s right to a fair trial.

Thereafter, the trial judge instructed the jury as to the second amended information, and Martin proceeded to trial.

Martin’s argument requires two determinations: whether the court erred (1) in permitting either amendment to the information, and (2) in denying his request for a continuance.

Pursuant to Ark. Code Ann. § 16-85-407 (1987), the State may amend an information up to a point after the jury has been sworn but before the case has been submitted to the jury as long as the amendment does not (1) change the.nature or degree of the crime charged or (2) if the accused is not'surprised. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993); Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). The amendments satisfied these criteria. As the trial court explained, the amendments merely tailored the information to the affidavit for warrant of arrest, the original information’s supporting document, and did not change the original charge of aggravated robbery against Martin. The facts constituting reasonable cause as provided in the affidavit clearly describe the factual allegations against Martin. Thus, from the date of his arrest, he and his counsel were on notice as to the specifics of the charges against him, and he cannot now claim to be surprised by either amendment.

Martin also contends that the trial court erred in refusing to grant him a continuance in order to engage a new attorney because of the changes in the information. In support of this contention, he complains that the court granted a continuance to the State two days prior to trial because their primary witness was not available. Trial courts are not required to grant continuances as a matter of quid pro quo.

The denial of a motion for continuance is within the sound discretion of the trial court, and the trial court’s ruling will be reversed only if there is an abuse of discretion. Kilgore, supra. The burden is on Martin to show an abuse of discretion. Id. He must also demonstrate prejudice before we will consider the trial court’s denial of a continuance as an abuse of discretion which requires reversal. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

There was no showing that Martin or his counsel were surprised by the wording changes made in the amendments to the information or that Martin was not receiving adequate representation by attorney Pedigo. Under the circumstances, Martin has failed to prove abuse of discretion.

III. Admission of Officer Otis’s testimony

Next, Martin contends that the trial court erred in allowing Officer Bill Otis’s testimony regarding information he received from an alleged informant because this information was inadmissible hearsay. In this regard, Officer Otis stated that he got a description of the robbery suspect from Ms. Taylor. Then as he began to say, “I developed some information that the suspect left the store —” Martin’s counsel objected on hearsay grounds. Mr. Pedigo was permitted to voir dire the witness, and Officer Otis explained that when he said “developed information,” he meant that he received information from one who wished to remain anonymous. Mr. Pedigo renewed his hearsay objection, and the prosecutor responded:

The State agrees it’s hearsay, and of course that’s why we have rules of evidence in this court and there are exceptions to that hearsay rule and he’s allowed to tell them if he relied on it and I think that’s what he is fixing to say that he relied on it and acted on it. •

The Court overruled the objection, and Officer Otis continued his statement, explaining that he learned that the subject had left the store in a dark blue, dirty, Ford pickup, with the driver’s window covered with plastic rather than glass. In reliance on this information, he broadcast a description of the truck to other units in the area. Because of this information, Sergeant Bailey was alerted that the truck he had seen on the street matched the description of the perpetrator’s vehicle, causing him to inform Officer Zeke to be on the lookout for the truck.

Martin submits that in denying his hearsay objection, the trial court violated his rights under the Sixth Amendment to confront his accusers because Officer Otis’s statement does not fall within any of the hearsay exceptions provided in Rule 803. Although he did argue hearsay below, he did not raise any constitutional objections. We have repeatedly held that we will not consider constitutional issues raised for the first time on appeal. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993); Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993); Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). We, therefore, address this issue in a limited manner.

An out-of-court statement is not hearsay if it is offered to show the basis of action. A.R.E. Rule 801(c); Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). Officer Otis’s testimony was given in order to explain why Sergeant Bailey instructed Zeke to locate the truck and determine the identity of the driver and why Martin’s photograph was placed in a lineup to show to the victim. See Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987). Because his testimony was provided in order to show the “basis of action,” we hold that the trial court did not err in overruling Martin’s hearsay objection.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Robert B. BROWN v. STATE of Arkansas
    CR 92-304
    875 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994
    [Rehearing denied April 18, 1994.]

      Diana M. Moulding, for appellant.

      Robert B. Brown, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Corbin, J., nol participating.

   Robert H. Dudley, Justice.

A jury found appellant guilty of first degree terroristic threatening, attempted first degree murder, and being a felon in possession of a firearm. The trial court ordered appellant’s sentences to run consecutively. The court of appeals certified the case to this court. We affirm the judgment of convictions.

Appellant makes eleven assignments of error by the trial court. The first three assignments contain a number of sub-points, but the gravamen of each is that the trial court erred in refusing to grant his motion for a directed verdict. We do not address the merits of the arguments.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. We have repeatedly written that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the motion is made. See, e.g., Brown v. State. 315 Ark. 466, 869 S.W.2d 9 (1994); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); and Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989). “A directed verdict motion must be a ‘specific motion to apprise the trial court of the particular point raised.’” Patrick v. State, 314, Ark. 285, 287, 862 S.W.2d 239, 241 (1993) (quoting Middleton v. State, 311 Ark. 307, 309, 842 S.W.2d 434, 435 (1992)). The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981).

Appellant’s abstract reflects that at the conclusion of the State’s case he “[m]oved for a directed verdict,” which was denied, and at the end of the case he “renewed motion for a directed verdict,” which was denied. Appellant’s record on appeal is limited to that which is abstracted. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). Thus, we do not know whether the motion to the trial court applied to one, two, or all three of the charges, and we do not know the specific grounds of the motion or motions.

In his arguments to this court, appellant contends that the trial court erred in refusing to grant a directed verdict on the felon in possession of a firearm count because Ark. Code Ann. § 5-73-103 (Repl. 1993) does not define “felony” or “felon” when the conviction occurred out of state. He argues that the trial court erred in refusing to grant a directed verdict on the terroristic threatening count because there was no proof that he “filled [the two police officers] with intense fright.” He argues that the trial court erred in refusing to grant a directed verdict on the attempted first degree murder count because the State failed to prove the “requisite intent.” Not one of these specific arguments was raised at the trial court level, and we will not reach them for the first time on appeal.

Prior to trial, the trial court ordered that appellant be committed to the State Hospital for observation and examination. He was examined and the hospital staff’s report stated that appellant had the capacity to effectively cooperate with his attorney and to understand the nature of the proceedings. On the first day of trial, appellant moved for a second mental examination. The trial court denied the motion, and appellant assigns the ruling as error. We summarily dispose of the argument. The State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979). This is in accord with guidance from the United States Supreme Court. See Ake v. Oklahoma, 470 U.S. 68 (1985).

Appellant argues that the mental examination did not comply with the mandates of Ark. Code Ann. § 5-2-305 (Repl. 1993) because he was examined by a psychologist rather than a psychiatrist. We do not reach the merits of the argument because it was not raised below. In a related vein, appellant argues that the evidence was insufficient to prove that he was sane when he committed the offenses, and that he should have been acquitted by reason of insanity or mental defect. The defense of insanity is an affirmative defense, and the defendant bears the burden of proof by a preponderance of the evidence. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Thus, appellant is arguing that the trial court should have granted a directed verdict for him on his affirmative defense. Again, a defendant must specifically preserve such issues by moving for a directed verdict at trial. Appellant did not move for a directed verdict on the basis of insanity or mental disease or defect, and he cannot raise the issue for the first time on appeal. Wilson v. State, 277 Ark. 43, 639 S.W.2d 47 (1982).

Appellant additionally argues that the convictions should be reversed because the trial court did not admonish the jury to disregard a comment made by a witness and did not admonish the jury to disregard a question by a deputy prosecutor. The argument is procedurally barred, as appellant did not ask the trial court for an admonitory instruction on either the comment or the question. See Novak v. State, 287 Ark. 506, 625 S.W.2d 518 (1985). The failure to give such an instruction is not prejudicial error in the absence of a request. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1989).

The trial court sustained appellant’s objection to both the comment and the question. Appellant acknowledges that he did not ask for admonitions after the objections were sustained, but contends that the trial court had a duty to “deal with the aftermath of an upheld objection” by admonishing the jury on its own motion. The argument is without merit because we do not impose a duty upon a trial court to give an admonitory instruction or limiting instruction in the absence of a request for such instruction. See Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1989).

One of appellant’s theories of defense at trial was justification. The jury was instructed that, as a matter of law, one is not justified in using deadly physical force if he knows he can retreat with complete safety. One of the State’s witnesses, over appellant’s objection, testified that appellant could have retreated safely from the premises but instead came back to the scene a second time and fired a weapon. Appellant argues that the trial court erred in overruling his objection. Rule 701 of the Arkansas Rules of Evidence allows admission of opinion testimony by lay witnesses if the opinions or inferences are “(1) [Rationally based upon the opinion of the witness and (2) [h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” Id. We have said that the requirements of Rule 701 are satisfied if the opinion or inference is one which a normal person would form on the basis of the observed facts, but if an opinion without the underlying facts would be misleading, then the objection should be sustained. See Carton v. Missouri Pac. R.R., 303 Ark. 568, 571-72, 798 S.W.2d 674, 675 (1990) (quoting 3 Jack B. Weinstein & Margaret M. Berger, Weinstein’s Evidence § 701[02], at 701-11, -12, -13 (1987)). Here, the testimony met the criteria of Rule 701. It was helpful to the jury in factually deciding whether appellant acted with justification, and the record shows that the witness had a rational basis for his opinion.

The State, in order to prove one of the elements of the charge of felon in possession of a firearm, offered a copy of a judgment of conviction from South Dakota that showed appellant had received a prior sentence of imprisonment. The foreign judgment did not reflect whether the crime was a felony, but it did reflect that the sentence was for four years. This information gave the jury an indication of how serious the violation was in South Dakota. Appellant argues that the trial court committed reversible error in refusing to excise that part of the judgment that showed the length of the sentence. We have said that a jury, in a felon in possession of a firearm case, is entitled to know the nature and the circumstances surrounding the prior conviction in order to appropriately determine the sentence in the pending case. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980). If the seriousness of the circumstances surrounding the prior offense were not to be considered in fixing the sentence, the General Assembly easily could have provided a definite term of imprisonment upon conviction of a felon in possession of a firearm rather than leaving it to the jury to fix any sentence not in excess of six years. In this case, since the judgment did not reflect whether offense was a felony, the term given for the prior conviction was the main indicator of the seriousness of the conviction for “burning within a structure where a person was lawfully confined.” Consequently, the trial court did not abuse its discretion in refusing to excise the length of the sentence.

Appellant argues that the trial court erred in ordering his sentences to run consecutively. It is the province of the trial court to determine whether sentences should be run concurrently or consecutively. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). We have remanded for resentencing when it was apparent that the trial judge did not exercise discretion. See Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). In this case the trial court plainly exercised its discretion. In pronouncing the sentence, the trial court stated that the jury had not imposed a harsh enough sentence for the attempted first degree murder, and, as a result, the sentences would be made to run consecutively.

For his eleventh and final assignment, appellant contends the trial court erred in overruling his objection to a statement made by the prosecutor in closing argument. The prosecutor said that the only reasons appellant did not kill one of the victims was that he was drunk and shooting at a spinning target and that “[h]e [had] a pretty short barrel on [his] pistol and I would submit to you, the shorter the barrel, the harder it is to hit what you’re aiming at.” The appellant contends the quoted sentence contained facts not in evidence.

A trial court has wide discretion in controlling, supervising, and determining the propriety of counsel’s arguments, and we will not-reverse absent a showing of manifest abuse. Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978). Further, some leeway must be given in closing arguments, and counsel may argue every plausible inference which could be drawn from the evidence. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The prosecutor’s remarks were not an unreasonable inference from the evidence. Thus, the trial court did not abuse its wide discretion.

Affirmed.