author: RAY THORNTON, ANNABELLE CLINTON IMBER, Justice,

text:
    D’ARBONNE CONSTRUCTION CO. v. Sylvia Leann FOSTER, et al.

    01-661
    72 S.W.3d 862
    Supreme Court of Arkansas
    Opinion delivered April 25, 2002

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson and Julia L. Busjield, for appellants.

      Hamilton & Hamilton, by: James A. Hamilton, for appellee Sylvia Leann Foster.

      Richard Byrd and Holiman & Kennedy, by: Richard E. Holiman, for appellees Sherri, Gus and Randy Culbreath.
   RAY THORNTON,

Justice. The court of appeals certified this case to us for an interpretation of Rule 54(b) of Arkansas Rules of Civil Procedure. The issue presented is whether the appeal must be dismissed because the names “John Doe 1” and “John Doe 2” remain included in the caption of the case. No specific order was entered by the trial court disposing of any claim that might have been made against the two John Doe defendants, but the matter was completely tried and a verdict was entered which allocated 100 percent of the liability to two named defendants, while dismissing the other named defendant. The jury verdict and order of the trial court resolved all issues relating to all allegations of claims for damages, and no unresolved or unknown claims remain for further disposition. Under these circumstances, we conclude that any claims that might have been asserted against the two unidentified John Does were abandoned, and no issues remain to be decided. We conclude that the trial court entered a final order disposing of each and every claim against each and every party to the litigation, and that Ark. R. Civ. P. 54(b) does not require that the appeal be dismissed. Accordingly, we reassign the case to the court of appeals for decision on the merits of the appeal.

To be appealable, an order must be final. Ark. R. App. P.&—Civ. 2. The finality of a trial court’s judgment is governed by Ark. R. Civ. P. 54(b) and states in pertinent part:

(1) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the event the court so finds, it shall execute the following certificate . . . [certificate omitted], '
(2) Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Id. (emphasis added).

The purpose of Rule 54(b) is to prevent piecemeal litigation, and we have refused to engage in a review of an appellant’s claim against some defendants when claims against remaining defendants could possibly be asserted in the future. Shackelford v. Arkansas Power and Light, 334 Ark. 634, 976 S.W.2d 950 (1998); See also, Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994). However, this case does not present an order that disposes of less than all of the claims against all of the parties, and therefore there are no remaining issues to be litigated and there is no possibility of piecemeal litigation.

We recently held that John Doe defendants must be formally dismissed from a case when the plaintiff decides not to involve them in the litigation. Shackelford, supra. The plaintiff in that case amended the original complaint to exclude two John Doe defendants identified as a boat hoist manufacturer and an electrician. Id. This court held that simply amending the complaint, though an indication that the plaintiff meant for them to be dismissed, was not sufficient to dismiss them from the case, and any order that included those defendants in the caption would be invalid until the defendants were formally dismissed. Id.

The instant case presents a unique set of facts distinguishing it from Shackelford. Shackelford involved the finality of an order of summary judgment. Following the remand of an earlier case, Ms. Shackelford filed an amended complaint naming only AP&L as the defendant. AP&L moved for summary judgment, and Ms. Shackelford verbally assured the court that AP&L was the only defendant. The trial court entered a summary judgement order in favor of AP&L, but the caption to the order listed AP&L, Pat and Carrick Patterson, John Doe 1 and John Doe 2 as the defendants. The body of the summary judgment order referred only to AP&L. Specifically, the last sentence of the order named AP&L as a defendant and dismissed plaintiffs cause of action against that defendant with prejudice. She appealed the order of summary judgment to this court, and we dismissed her appeal without prejudice due to a violation of Ark. R. Civ. P. 54(b) because the rights and liabilities or claims of fewer than all the parties were resolved. Id.

Shackelford was decided on the basis of an order granting summary judgment that did not formally dispose of all possible claims against all other defendants, rather than as in this case where there was a complete trial, jury verdict, and an order allotting 100 percent of the liability between two defendants and deciding all issues relating to damages. In the instant case, the jury filled out a verdict form where the defendant parties were specifically identified. The form read as follows:

INTERROGATORY NO. 1
Do you find from a preponderance of the evidence that defendant, Lee Earnest Johnson was negligent and that his negligence was a proximate cause of the occurrence?
Answer yes or no:
YES /%/ Jerry Hudson
FOREPERSON
INTERROGATORY NO. 2
Do you find from a preponderance of the evidence that defendant D’Arbonne Construction Company was negligent and that its negligence was a proximate cause of the occurrence?
Answer yes or no:
YES /s/ Jerry Hudson
FOREPERSON
INTERROGATORY NO. 3
Do you find from a preponderance of the evidence that defendant, Warner Canley was negligent and that his negligence was a proximate cause of the occurrence?
Answer yes or no:
NO /%/ Jerry Hudson
FOREPERSON
[Jurors’ names omitted.]
INTERROGATORY NO. 4
If you answered “yes” to more than one of the first three interrogatories, then answer the following interrogatory: Using 100% as a whole, what percent of negligence which was a proximate cause of the occurrence, do you place on the defendants that you found in the first four interrogatories to have negligently caused this occurrence? Answer in percentages. Your answer must total 100%.
50% LEE EARNEST JOHNSON
50% D’ARBONNE CONSTRUCTION
0% WARNER CANLEY
Í 00% TOTAL /s/Jerry Hudson
FOREPERSON
[Jurors’ names omitted.]
INTERROGATORY NO. 5
Do you find that Lee Earnest Johnson was acting as an agent of the defendant, Caskey Terral, D/B/A Terral Logging at the time of the occurrence?
Answer yes or no:
NO /s/Jerry Hudson
FOREPERSON
[Jurors’ names omitted.]
INTERROGATORY NO. 6
Do you find that D’Arbonne Construction Company, Inc., was acting as an agent of the defendant, Caskey Terral, D/ B/A Terral Logging at the time of the occurrence?
Answer yes or no:
NO /s/Jerry Hudson
FOREPERSON
[Jurors’ names omitted.]

As is clear from the verdict form, all claims were decided, and all issues relating to the parties were disposed of. In addition to naming the defendant parties, the verdict form apportioned damages to each of the defendants in the case, settling the issue of damages. Unlike Shackelford, this case was completely tried, the verdict apportioned 100 percent of the liability and damages, and no unresolved claims remained. The plaintiffs never identified the John Doe defendants, the amended complaint eliminated all references to any claims against them, and the case proceeded to trial with no claims asserted against the John Does. All claims against the John Doe defendants were abandoned before the commencement of the trial, and extinguished by the verdict allotting 100 percent of the liability to named defendants. That conclusion resolves the issue before us, and is entirely consistent with a strict interpretation of Rule 54(b). We conclude there is no need for dismissal based upon these facts.

Furthermore, there is the issue of the status of the two John Doe defendants. The language of Ark. R. Civ. P 54(b) addresses party litigants only. The two John Doe defendants were never identified or served in accordance with Ark. R. Civ. P. 4(f), and were never made parties to this action. The record reflects that appellees successfully served the named defendants D’Arbonne Construction, Caskey Terral, and Earnest Lee Johnson. Nothing in the record reflects even attempted service upon the John Does by warning order or otherwise. While there is no required time for service of an unknown John Doe, certainly such service must be obtained before the conclusion of the litigation for the John Does to become parties to the litigation. Without having ever made the John Does parties to this litigation, appellee was under no obligation to file a nonsuit requesting voluntary dismissal pursuant to Ark. R. Civ. P. 41(a).

Because of the total abandonment of any claims against the John Doe defendants, because of the specific allotment of 100 percent of the liability to the named defendants on the verdict forms, and because the John Doe defendants were never made parties to this litigation, we conclude that the trial court’s order appealed from was a final order disposing of every claim against any and all parties to the litigation. To rule otherwise would contravene the judicial economy that Rule 54(b) was intended to encourage. Under these circumstances, we hold that Ark. R. Civ. P. 54(b) does not require that the appeal be dismissed. Accordingly, we reassign the case to the court of appeals for decision on the merits of the appeal.

Imber, J., dissents.

ANNABELLE CLINTON IMBER, Justice,

dissenting. This appeal should be dismissed under Ark. R. Civ. P. 54(b). The majority mistakenly concludes that the amended complaint eliminated all references to the John Doe defendants and the case proceeded to trial with no claims asserted against the John Does. The amended complaint was not designated an “amended and substituted” complaint, and it retained the two John Doe defendants in the style of the complaint. Therefore, it is not clear whether the claims asserted in the original complaint, including the claims asserted against the John Doe defendants, were still pending at the time of trial. Likewise, the pleadings do not support the majority’s conclusion that all claims against the John Doe defendants were abandoned before the commencement of the trial.

Recently, in Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998), we concluded that claims against two John Doe defendants were still pending, and that there was no final order as to the two unknown defendants or a Rule 54(b) certification. We therefore held that this court did not have jurisdiction to hear the case, and we dismissed the appeal without prejudice so that the trial court could enter a final order as to the remaining defendants, John Doe 1 and 2. Id. Similarly, this case still has pending claims against John Doe 1 and 2, and there is no final order as to the two John Doe defendants or a Rule 54(b) certification. The majority’s opinion ignores the plain language of Rule 54(b) that provides:

Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.

Ark. R. Civ. P. 54(b)(2) (2001). The majority’s opinion also, sub silentio, overrules Shackelford v. Arkansas Power & Light Co., supra. Furthermore, the majority incorrectly holds that service on John Doe defendants must be obtained before the conclusion of the litigation under Ark. R. Civ. P. 4(f) (2001). Rule 4(f) provides for service by warning order upon a defendant whose identity or whereabouts remains unknown. However, the last sentence in Rule 4(f)(1) expressly states: “This subsection shall not apply to actions against unknown tort-feasors.” Ark. R. Civ. P. 4(f)(1) (2001). Thus, Rule 4(f) does not require service by warning order upon the unknown tortfeasors in the instant case. As the majority points out, there is no time limit for service on John Doe defendants. After Rule 4(i) establishes the 120-day time limit in which defendants must be served after the filing of the complaint, the last sentence of that subsection states: “This paragraph shall not apply . . . to complaints filed against unknown tortfeasors.” Ark. R. Civ. P. 4(i) (2001). Rule 4 of the Arkansas Rules of Civil Procedure simply sets no deadline for serving an unknown tortfeasor.

Based upon the plain language of our rules of civil procedure and our decision in Shackelford v. Arkansas Power & Light Co., supra, we do not have jurisdiction to hear this case and should dismiss this appeal without prejudice so that the trial court may enter a final order as to the remaining defendants, John Doe 1 and 2.

I respectfully dissent.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Kenneth HAWKINS v. STATE of Arkansas
    CR 01-1065
    72 S.W.3d 493
    Supreme Court of Arkansas
    Opinion delivered April 25, 2002

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Katherine Adams, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

. Appellant, Kenneth Hawkins was convicted of rape, and sentenced to life imprisonment as a habitual offender pursuant to Ark. Code Ann. § 5-4-501 (Supp. 2001). This conviction stems from the rape of appellant’s stepdaughter, R.T., who was under the age of fourteen at the time the offense occurred.

During appellant’s trial, the physician who treated R.T. after the rape, was permitted to testify that R.T. identified appellant as her attacker. Appellant objected to this testimony arguing that it was hearsay and that it should have been excluded. The trial court overruled appellant’s objection.

On appeal, appellant challenges the trial court’s evidentiary ruling. We affirm the trial court.

In his only point on appeal, appellant contends that the trial court erroneously permitted R.T.’s doctor to testify that R.T. identified appellant as her attacker. Appellant argues that this testimony is impermissible hearsay. A trial court is accorded wide discretion in evidentiary rulings. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002). We will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id.

Pursuant to Rule 801(c) of the Rules of Evidence, “‘hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Such testimony is generally inadmissible evidence. See Rule 802 of the Arkansas Rules of Evidence.

In the case now before us, appellant objected to Dr. May Hawawini testifying as to statements made to her by R.T., during her examination of R.T. The trial court denied appellant’s hearsay objection without explanation. On appeal, the State argues that Dr. Hawawini’s testimony was admissible pursuant to Rule 803(4) of the Arkansas Rules of Evidence. This rule provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Id.

We have recently reviewed our court’s interpretation and application of Rule 803(4) in Flores supra. In Flores, we were asked to determine whether hearsay evidence was properly admitted pursuant to Rule 803(4). Specifically, we were asked to determine whether the trial court erred when it allowed a treating physician to testify that his patient’s mother identified her boyfriend as the individual who had inflicted injuries on her child by throwing him up against a wall. Flores, supra. We discussed previous cases in which this court addressed appropriate use of Rule 803(4). Additionally, we reviewed cases in which our court of appeals and the Eighth Circuit Court of Appeals has applied or refused to apply the medical-treatment exception to the hearsay rule. Flores, supra.

In Flores, we stated “the basis for this hearsay exception is the patient’s strong motivation to be truthful in giving statements for diagnosis and treatment.” Id. (citing Cotchett and Elkind, Federal Courtroom Evidence 144 (1986)). We further acknowledged that statements describing medical history regarding the cause of the condition are also admissible under the rule, if pertinent to the diagnosis or treatment. However, where such information is not relevant for diagnosis, but rather attempts to fix blame, it must be excluded. Flores, supra.

After providing the background for the exception, we applied a test that was articulated by the Eighth Circuit in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980) to assist us in determining whether hearsay evidence fits within the medical-treatment exception. Flores, supra. The two-prong test asks: first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment. Flores, supra. In United States v. Renville, 779 F.2d 430 (8th Cir. 1985), the Court of Appeals explained:

The test reflects the twin policy justifications advanced to support the rule. First, it is assumed that a patient has a strong motive to speak truthfully and accurately because the treatment or diagnosis will depend in part upon the information conveyed. The declarant’s motive thus provides a sufficient guarantee of trustworthiness to permit an exception to the hearsay rule. Second, we have recognized that a fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription.

Id. (Internal citations omitted).

After applying this test to the facts in Flores, we determined that the trial court properly admitted the mother’s statement to the doctor concerning the fact that the child was physically abused based on the medical-treatment exception, but had improperly admitted the portion of the testimony that identified Flores as the child’s attacker. Id. We determined that the identification of the perpetrator was not used by the physician in the diagnosis or treatment of the child’s injuries. Accordingly, we concluded that the statement that identified the perpetrator was improperly admitted pursuant to Rule 803(4). Flores, supra.

The facts in this case are readily distinguishable from the facts in Flores. Specifically, in the case sub judice, the declarant was a child victim who was responding to questions from the physician seeking to determine the cause of the injury and the treatment to be provided. By contrast, the hearsay statements in Flores were not made in response to questioning of a victim by a physician in her process of ascertaining circumstances reasonably pertinent to diagnosis or treatment. Another critical distinction between the case now before us and Flores is that the hearsay statements in Flores were made in an effort to shift blame from one child abuser to a second child abuser. Here, the statements were made by an abused child in response to an effort by the doctor to treat and diagnosis the child’s injuries.

In Flores, we also noted a modification of the principles of Rule 803(4) that is relevant to the case sub judice. Specifically, we stated:

Only in the special situation of sexual or physical abuse of a child has the rule of excluding the identification of the. perpetrator been modified. Again, it is the Eighth Circuit Court of Appeals that has outlined this child-abuse exception in the leading case on the matter. See United States v. Renville, 779 F.2d 430 (8th Cir.1985).

Flores, supra.

In Stallnacker v. State, 19 Ark. App. 9, 715 S.W.2d 883 (1986), our court of appeals considered the Renville approach in deciding whether a trial court had properly admitted a physician’s testimony regarding a victim’s identification of her father as her sexual abuser. The identification was made in response to the physician’s questions. Stallnacker, supra. The victim was admitted to the emergency room of the hospital complaining of abdominal pain. The treating physician, while completing a menstrual and sexual history to rule out certain medical conditions, asked the child if she had ever engaged in sexual intercourse. Id. The child responded “only when my father made me.” Id. This statement was introduced into evidence at trial through the treating physician. Stallnacker sought to exclude the evidence on appeal. Id.

The court of appeals, in its consideration of whether the evidence should have been admitted looked to the Eighth Circuit’s Renville opinion and quoted the following language with approval:

We believe that a statement by a child abuse victim that the abuser is a member of the victim’s immediate household presents a sufficiently different case from that envisaged by the drafters of rule 803(4) that it should not fall under the general rule. Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment.

Stallnacker, supra. (quoting Renville, supra.).

The court of appeals noted that child abuse extends further than physical injury, and the “physician must be attentive to treating the emotional and psychological injuries which accompany this crime.” Stallnacker, supra (citing Renville, supra). Additionally, the court of appeals noted that “prevention of recurrence of the injury is a paramount consideration in the treatment of children who have been sexually abused in the home.” Stallnacker, supra. The court of appeals also explained that this consideration is expressed in the legislatively imposed duty placed on physicians to report suspected cases of child abuse. Id. Finally, the court of appeals noted that the obligation on the physician to prevent the abused child from being returned to an environment in which he or she cannot be adequately protected from recurrent abuse “is most immediate where the abuser is a member of the victim’s household.” Id. (citing Renville, supra.) The court of appeals concluded that the trial court properly admitted the hearsay evidence from the treating physician identifying Stallnacker as the patient’s abuser. Stallnacker, supra.

Remaining mindful of the reasoning of these cases, we must now determine whether the trial court properly admitted Dr. Hawawini’s testimony. Dr. Hawawini testimony was as follows:

Q: [prosecuting attorney] What did she [R.T.] come to your office for on that date? What was her problem?
A: [Dr. Hawawini] On that date she was brought by her grandmother, complaining of pain when urinating, dysuria.
Q: How was she acting on that day?
A: It was actually brought to my attention. I was examining another patient in another room when I heard [R.T.] screaming and crying and saying that — and I went out to see what was going on. My nurse was trying to give her a urine cup to have a sample, to give us a sample, and that’s when she was crying that she didn’t want to go pee.
Q: Had you ever seen her act like that before?
A: No.
Q: How does she normally act?
A: She’s been always sweet and cooperative and, a very sweet and outgoing girl, yeah.
Q: Were you able to get her calmed down where you could perform some sort of examine on her?
A: Yes. What happened is, I told her it’s okay. We don’t have to do it if it’s that painful at that point. Let’s just talk and do a physical exam first. And we quieted her down first.
Q: And after she got quieted down, did you perform a physical exam on her?
A: Yes. I had to talk to her first a little while and calm her down. And then I started interviewing her and do a physical exam on her, yes.
Q: And when you talk about a physical exam, do you examine the genitalia?
A: Well, as a part of a complete physical exam, especially when you have such a complaint, urinating, any problems with urination, a genitalia exam is a part of your exam. You should perform that, yes.
Q: And you performed that on her at that time?
A: Yes.
Q: What were your physical findings, if any, did you see on her then?
A: It was, it was severe erythema and edema, which is like severe redness and swelling of the genital area, the labia minora, and all around, the tissue around it. It was very tender to touch.
It was really hard at that point to kind of calm her down. We were talking to her all through. But it was very tender to touch.
* * *
A: Well, I had prepared some Q-tips to do cultures and we obtained a few cultures. But I didn’t do all the cultures. It was very hard to continue. But then I quiet down [R.T.] and then sat down and asked her if there is anything that she wants to tell me about, that there is something going on or •—
Q: And was that what you call a patient history? Was a patient history taken of [R.T.] by you at that time?
A: Yes. It was, the detail was really afterward when I was, after I examined her.
Q: And did you use that history in making you final diagnosis of [R..T.] on that day?
A: Yes ma’am.
Q: What did she tell you happened to her?
Ms. Byrd: [defense counsel] I just object to hearsay, your honor.
The court: All right. That will be overruled.
Q: [prosecuting attorney] What did she tell you happened to her?
Dr. Hawawini: I would like to read my note, your honor.
The court: That would be good.
Dr. Hawawini: Okay. I started interviewing [R..T.]. She was crying, and then she said that she wants to tell me about it and asked to be alone, that me and her be alone, left alone in the room. And started to cry again and said, I don’t know how to tell you.
I said, quote to quote, “Do you want me to ask you questions?”
She said, quote to quote, “Yes.”
I said, “Did somebody try to hurt you?”
She said, “Yes.”
I said, “Is it a stranger?”
She said, “No.”
I said, “Is i.t a man or women?” She started crying then and I started talking.
Quote to quote, she said, “It’s a man. He is no stranger. He lives with us. He is a truck driver. He is my stepfather.” And stopped again to cry.
Then, I said, “It’s okay. Everything will be okay.” And she nodded her head and stopped crying. And I said, “Can you tell me just what, tell me what happened?”
She said, “He hurt me. He put his private parts between my legs.”
I said, “How many times did it happen? Did it happen only one time?”
She said, “No, more.”
I said, “When was the last time?”
She said, “A while ago, in February on a Tuesday,” and started crying again and did not want to talk about it anymore.
And I said, “Just one last question. Did you tell anybody else?”
She said, “No. Only you.”
Q: [prosecuting attorney] And based upon that, what did you do after?
A: Well, after that, I had, I had, you know, reassured her, spent a little time with her. And then I told her that I am going to have to tell somebody about it so we make sure to see what happen in that, it will never happen again. And then I went and called the DHS office. I called Dr. Jerry Jones at Child House at Children’s for further evaluation.

We now address the issue whether Dr. Hawawini’s testimony regarding the identification of appellant as R.T.’s rapist was properly admitted under Rule 803(4). R.T.’s identification of appellant as her abuser allowed Dr. Hawawini to take steps to prevent further abuse by her stepfather, who was a member of her household. Additionally, R.T.’s identification of appellant as her abuser allowed Dr. Hawawini to take steps to treat the emotional and psychological injuries which accompanied the rape. Moreover, we note that based on R.T.’s statements Dr. Hawawini referred her to a physician at Children’s Hospital who specialized in treating children who are sexually abused. Finally, R.T.’s identification of appellant as her abuser permitted Dr. Hawawini to fulfill her legislatively imposed duty of calling the child-abuse hotline and reporting the crime. Under our analysis it was not necessary that the victim’s statement be made following a physician’s explanation to the child that the question is important to the diagnosis or treatment, nor is it necessary that the victim manifest an understanding of the importance of her statements to the treating physician. But see Olesen v. Class, 164 F.3d 1096 (8th Cir. 1999). Accordingly, we hold that R.T.’s statements to Dr. Hawawini fall within the medical-treatment exception set out in Rule 803(4) and were properly admitted by the trial court.

4-3(h) Review

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

Affirmed.

Imber, J., not participating.

       In Flores, we concluded that the Renville analysis did not apply to the facts of that case.

         Arkansas Code Annotated § 12-12-507 (Supp. 2001) requires medical personnel to report suspected child maltreatment.

       Our court of appeals has also extended the Renville analysis to include situations involving physical abuse when the victim answers a doctor’s inquiry about what happened. See Clausen v. State, 50 Ark. App. 149, 901 S.W.2d 35 (1995).


author: JIM HANNAH, Justice.

text:
    Jason McGEHEE v. STATE of Arkansas
    CR 00-760
    72 S.W.3d 867
    Supreme Court of Arkansas
    Opinion delivered April 25, 2002

      Sam T. Heuer, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Justice.

Jason McGehee appeals the trial court's denial of his petition for postconviction relief. His prior appeal from the denial of his petition for postconviction relief was reversed and remanded for the trial court to make the specific findings of fact and conclusions of law required under Ark. R. Crim. P. 37.5, and due to a flagrantly deficient abstract. McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). McGehee’s convictions on capital murder and kidnapping, and respective sentences of death and life imprisonment, were affirmed in McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) (“McGehee I”).

McGehee asserts five separate errors by counsel that he alleges required the trial court to find he is entitled to relief under Rule 37. More particularly, McGehee asserts ineffective assistance of counsel in: 1) failure to request a jury instruction declaring that Candace Campbell and Robert Diemert were accomplices to the capital murder; 2) failure to seek a similar ruling from the trial court as a matter of law; 3) failure to raise the issue of the constitutionality of his sentence given that others similarly involved were sentenced to lesser terms; 4) failure to raise on direct appeal the issue of the denial of transfer where co-defendant Benjamin McFarland had just been convicted of Melbourne’s murder in Baxter County; and 5) abandonment of the issue of consideration of victim-impact evidence in the sentencing phase.

We find no reversible error and affirm the denial of the petition for postconviction relief.

Facts

This case arose from the murder of fifteen-year-old John Melbourne, Jr. In August of 1996, Melbourne was acquainted with Jason McGehee, Benjamin McFarland, Christopher Epps, and Candace Campbell, all of whom were older than he was. They were occupying a house in Harrison and ranged in age from seventeen to twenty-one years old. The facts show that McGehee was the twenty-one-year-old and the leader of the group.

McGehee moved into the house in Harrison while it was still being rented by Robert Diemert. However, Diemert moved shortly thereafter and ceased paying rent. Nonetheless, McGehee remained in the house, and the others moved in with McGehee. Melbourne stayed the night there occasionally. There was no power at the house, and the group apparently financed their purchase of food, alcohol, and drugs by stealing property and passing stolen checks.

On August 19, 1996, Melbourne was sent by McGehee to obtain cash by providing a stolen check made out for more than the amount required to purchase shoes. Melbourne made two attempts at Cooper Store in Harrison and was able to purchase shoes on the second attempt. The store owner became suspicious and called the bank. Upon determining that the check was stolen, the store owner called police who picked up Melbourne and Anthony Page and questioned them. Melbourne told the officers about stolen property and checks that could be found at and near McGehee’s house. Melbourne was then released into his father’s custody but was soon back on the streets in downtown Harrison.

Police proceeded to the house where they attempted to contact those living there. No one answered the door, and according to Christopher Epps’s testimony, the police proceeded directly to the stolen items including the stolen checks under the house. The police located the stolen property. This activity by police was observed by McGehee and the others who were hiding inside the house.

Later that night, John Melbourne, Jr., was murdered. The facts show escalating events that commenced with the visit by police and culminated with Melbourne’s death.

After the police left upon finding the stolen goods, the group at the house agreed that Melbourne had “snitched.” The facts show that the group then agreed that Melbourne needed to be taught a lesson. They decided that upon Melbourne’s return, they would beat him to teach him not to “snitch.”

Anthony Page testified that the group was always talking about beating someone. McFarland and Epps found Melbourne in town and asked him to return to the house, which he did. Upon his return, Melbourne was attacked by Epps as he spoke with McGehee about his arrest. Then McGehee began to beat Melbourne as well. At this point, Melbourne was being beaten with fists and also being kicked. McFarland joined in, as did Campbell. Melbourne was stripped naked, and the assault continued. There was some evidence that Campbell sprayed him in the face with Lysol and burned him with a candle.

This initial beating lasted about an hour and a half or possibly two hours. The evidence fails to show that there was any discussion of killing Melbourne throughout this time. The first mention of death in the evidence comes shortly thereafter from a conversation between McGehee and Charla Bright. Bright was their neighbor who came over twice as she heard the noises of Melbourne being beaten. She observed Melbourne as he was being assaulted. She testified that she was later assured by McGehee that Melbourne would not be hurt. However, she also testified that MeGehee told her that if this had occurred in a bigger city, he would be killed for what he had done. McGehee told her Melbourne had “narked them out.”

The next mention of death was in a car on a trip to Utah that included a stop in Omaha, Arkansas. The trip was undertaken because both McGehee and Epps were wanted by the police and were now more fearful of arrest because of the police visit to their home. According to Epps’s testimony, they overheard the police use their names while hiding from the police in the house as the police searched for the items they were told of by Melbourne. Near the close of the two-hour beating, Diemert arrived. He had a car. Diemert testified that McGehee had discussed moving to Utah with him previously, and when McGehee suggested that they go that night, he agreed.

By the time Diemert arrived, McGehee had allowed Melbourne to put his shirt and shorts on. Diemert testified that as they loaded the car he was unaware that Melbourne had his hands bound. Bright testified she heard the group leave that night.

They then left for Utah, but headed first for a house in Omaha that McGehee’s uncle had rented until recently. According to Campbell’s testimony, she understood they were going to the house in Omaha to leave McFarland, Epps, and Melbourne there. According to Epps’s testimony, they were going to leave Melbourne there.

Campbell testified that during the ride to Omaha, she was sitting in McGehee’s lap in the front passenger seat, and someone in the back seat asked Melbourne how it felt to know he was going to die. Again, according to Campbell’s testimony, upon their arrival in Omaha, they took Melbourne in the house there. He was stripped naked again, and the assault on Melbourne began again. Everyone present was engaged in the assault on Melbourne. According to Diemert, Melbourne was kicked, hit with fists, hit with a box fan, and struck with a piece of wood used like a bat. Diemert also testified that a butcher knife was placed at Melbourne’s throat. According to Epps’s testimony, the butcher knife was placed at Melbourne’s stomach. Diemert further testiT fied that Campbell kicked and then burned Melbourne’s genitals with a candle. Campbell testified that during this beating McGehee asked Melbourne how it felt knowing he was going to die. Melbourne attempted escape but was grabbed and brought back.

It appears the group decided to take a break from their brutal assault, and they went outside to have a smoke. According to Campbell’s testimony, Epps was guarding Melbourne while the rest talked outside. Again, according to Campbell, McGehee asked McFarland if he was going to take care of Melbourne, which Campbell understood meant they intended to kill him. She testified that McFarland was hesitant, but that McGehee was suggesting they get rid of Melbourne. Campbell testified further that then she and Diemert were told to go wait in the car, which they did. Diemert testified that McGehee led Melbourne down a path into the woods. McFarland and Epps followed along. At this time, Melbourne again had his hands bound and had not been allowed to dress. Again according to Diemert, the three returned about thirty minutes later without Melbourne.

Standard of Review

McGehee’s conviction and sentence were affirmed by a decision of this court handed down June 17, 1999. Pursuant to Ark. R. Crim. P. 37.5(k) “Special Rule for Persons Under Penalty of Death,” Rule 37.5 is applicable to McGehee because'he became eligible to file a petition under Rule 37.2(c) after March 31, 1997. A five-page order setting out findings of fact and conclusions of law is provided. Therein, the trial court discusses each issue raised by McGehee and makes specific findings and conclusions. The trial court denied McGehee’s petition.

Where ineffective assistance of counsel is asserted, the reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Thomas v State, 330 Ark. 442, 954 S.W.2d 255 (1997). In order to rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000).

To prevail on a claim of ineffective assistance of counsel, McGehee must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors, the result of the trial would have been different. Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Failure to Request Jury Instruction or seek a Determination as a Matter of Law that Campbell and Diemert were Accomplices

McGehee’s first two assertions of ineffective assistance of counsel — the failure to request a jury instruction declaring Campbell and Diemert were accomplices to the capital murder or the failure to seek a similar ruling from the trail court as a matter of law — are so closely related that we will discuss both assertions together.

The State relied heavily upon the testimony of Campbell and Diemert in its proof of the capital murder. As this court stated in its opinion on McGehee’s direct appeal, the trial court instructed the jury that Epps was an accomplice to the capital murder as a matter of law, and that Epps, Campbell, and Diemert were accomplices to the kidnapping as a matter of law. McGehee, 338 Ark. at 160. However, as this court also noted, it is not apparent from the record that McGehee ever requested that Campbell and Diemert be declared accomplices with respect to the capital-murder charge as a matter of law or that the issue be submitted to the jury. This court held McGehee was procedurally barred from pursuing this issue on appeal, and McGehee now argues this failure was ineffective assistance of counsel requiring relief under Rule 37. More specifically, McGehee argues that this constitutes a failure to preserve a challenge to the sufficiency of the evidence and, as such, is a proper ground for postconviction relief, citing Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995).

If Campbell and Diemert had been found to be accomplices either by the court or by the jury, their testimony would have required corroboration. A person cannot be convicted of a felony based upon the testimony of. an accomplice, unless that testimony is “corroborated by other evidence tending to connect the defendant with the commission of the offense.” Ark. Code Ann. § 16-89-111 (e) (Supp. 2001); McGehee, supra. We must then determine whether Campbell and Diemert were accomplices. The law is well settled that a witness’s status as an accomplice is a mixed question of law and fact. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Hummel v. State, 210 Ark. 471, 196 S.W.2d 594 (1946). However, when the facts show conclusively that the witness was an accomplice, the issue may be decided as a matter of law. King, supra. When the accomplice status instead presents issues of fact, the question is submitted to the jury. Id. The trial court was never asked to declare Campbell and Diemert accomplices nor to submit the issue to the jury. McGehee argues that his counsel’s failure to do so constitutes ineffective assistance of counsel because if the testimony of Epps, Campbell, and Diemert is excised, there is no direct or circumstantial evidence to link McGehee to the murder scene.

Before we discuss the status of Campbell and Diemert, we must note that McGehee’s argument is based on an assumption that death was inflicted by strangulation by McGehee, Epps, and McFarland after they led Melbourne down the path into the woods.

In McGehee I we stated at 158:

The beating initially occurred at Appellant’s house in Harrison and later continued at Appellant’s uncle’s house in Omaha, Arkansas. After having beaten the boy for approximately, two hours, Appellant, McFarland, and Epps took Melbourne out behind the house in Omaha, into a wooded area, and strangled him.

At page 166 we stated:

Dr. Charles Kokes, an associate medical examiner at the State Crime Laboratory, performed an autopsy on Melbourne’s body, which was severely decomposed. Dr. Kokes testified that there was evidence of trauma to Melbourne’s skull. Particularly, he found numerous small fractures on the front of the cranium, around the nasal apeture, on the left cheekbone, and near the left orbit, the bony depression that houses the eyeball. Additionally, there were two traumatic indentions on the right side of the front of the skull. Dr. Kokes stated that the fractures were indicative of blunt force being used on the victim, and that the injuries he observed would be consistent with multiple beatings over a long period of time by persons using fists, feet, and various other devices. Dr. Kokes indicated that the manner of Melbourne’s death was homicide, and that the blunt-force injuries to the victim’s head played a part in his death.
[FN 1] Dr. Kokes was not able to examine the body for evidence of strangulation, as the soft tissue around the neck had already completely decomposed.

Campbell was present at the beating in Harrison, and both Campbell and Diemert were present at the beating in the house in Omaha. Diemert was present in Harrison, but it appears he arrived there after the beating had ceased. Neither was present at the events in the woods. McGehee’s reliance on death by strangulation as the only cause of death is in error. Dr. Charles Kokes’s initial opinion in this case was that death was caused by blunt-force head injuries and strangulation. Dr. Kokes further testified that the body was so decomposed that there was no soft tissue evidence of strangulation in this case, and strangulation was included in his opinion based on investigative material he was given. He testified that the bony injuries that they would normally look for to indicate strangulation were not present. According to Dr. Kokes, this was likely a consequence of Melbourne’s young age. More specifically, Dr. Kokes’s testified, “Concerning the cause of death, we know that there was infliction of blunt force trauma to the head and face area.” Thus, the expert evidence as to the cause of death was the blunt force trauma to the head and face area.

Those who inflicted the blunt-force trauma to Melbourne’s face and head caused or played a part in his death. The question in this case is whether Campbell and Diemert were accomplices to McGehee in causing Melbourne’s death. Under Ark. Code Ann. § 5-2-403 (Repl. 1997), an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if; with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in' the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

This statute was enacted by Act 280 of 1975. In Wilson & Dancy v. State, 261 Ark. 820, 827-828, 552 S.W.2d 223 (1977), this court stated that an appropriate definition of accomplice was found in Simon v. State, 149 Ark. 609, 233 S.W. 917 (1921), and quoted in Burke v. State, 242 Ark. 368, 373-374, 413 S.W.2d 646(1967):

The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.
s]i % í|í #
The term ‘accomplice’ cannot be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense.
To constitute one an accomplice, he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescence or silence, in the absence of a duty to act, is not enough, however reprehensible it may be, to constitute one an accomplice. The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime.

In Atkinson, supra, this court noted that presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. In Atkinson, supra, this court stated:

Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Id. A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that defendant was not present at the murder scene and did not directly commit the murder. See Sumlin v. State, 273 Ark. 185, 618 S.W.2d 372 [617 S.W.2d 372] (1981) (holding that it is irrelevant that Sumlin, who was in jail at the time of the murder, did not pull the trigger, if he aided, solicited, or encouraged his wife, Ruth Sumlin, in committing the murder).

347 Ark. at 347.

In its Findings of Fact and Conclusions of Law on the Rule 37 petition, the trial court erred when it found that counsel was not ineffective in failing to submit the issue of the accomplice status of Campbell and Diemert to the court or to request a jury instruction on the issue. There was sufficient evidence to submit the issue of accomplice liability to the jury as to Campbell and Diemert had counsel requested a jury instruction. Both Campbell and Diemert were friends with McGehee. Both were present and could see that Melbourne was deprived of his freedom and was being subjected to physical assault. Campbell was present both at the beating in Harrison and at the beating in Omaha. Diemert was present in Harrison just after the beating ceased there and present in Omaha. Campbell and Diemert were present in the car when someone in the back asked Melbourne how it felt to know he was going to die, and both were present at the Omaha house when McGehee asked Melbourne during the beating how did it feel knowing he was going to die. Standing alone, that would constitute sufficient facts, but by their own admission both participated in the beating of Melbourne to some extent. The evidence of the degree of their involvement was in question, and the issue should have been submitted to the jury, had counsel so requested. This court has stated that the question must be presented to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996); King, supra.

Even though we hold that the issue of accomplice liability should have been submitted to the jury, had counsel so requested, relief under Rule 37 is not required. Even if Campbell and Diemert had been found accomplices by the jury, their testimony was corroborated. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Henderson v. State, 337 Ark. 518, 990 S.W.2d 530 (1999). Corroborating evidence must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996). See also, Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).

In Gordon, supra, this court noted that the corroborative evidence must be substantial evidence, which is stronger evidence than that which merely raises a suspicion of guilt. Gordon, supra; Hogue, supra. Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. Gordon, supra. But corroboration need not be so substantial in and of itself as to sustain a conviction. Id. See also, Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983). In Henderson v. State, 279 Ark. 435, 440-441, 652 S.W.2d 16 (1983), this court stated:

Corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Olles v. State, 260 Ark. 571, 573, 542 S.W.2d 755, 758 (1976), citing Yates v. State, 182 Ark. 179, 31 S.W.2d 295 (1930). In addition to being substantive, the corroborating evidence must be substantial. Olles, at 573, 542 S.W.2d at 757. Substantial evidence is stronger evidence than that which merely raises a suspicion of guilt. It is evidence which tends to connect the accused with the commission of the offense charged. However, it is something less than that evidence necessary in and of itself, to sustain a conviction. Olles, at 573, 542 S.W.2d at 757-58; Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). The corroborating evidence may be circumstantial, but it must be of a material nature and legitimately tend to connect the accused with the commission of the crime. Pollard at 756, 574 S.W.2d at 658, citing Roath v. State, 185 Ark. 1039, 50 S.W.2d 985 (1932). Corroboration may be furnished by the acts, conduct, declarations or testimony of the accused. Olles, at 574, 542 S.W.2d at 758. False statements to the police and flight by an accused may constitute corroborating evidence. Bly, at 619-20, 593 S.W.2d at 454.

The evidence does not have to be sufficient to sustain the conviction but it must, independent from the testimony of accomplices, tend to a substantial degree to connect the defendant with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). Moreover, corroboration can be provided by the acts, declarations, or testimony of the accused. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001). Daniels, supra.

Evidence of the events in Harrison came from witnesses other than Campbell, Diemert, and Epps. Charla Bright lived next door to the home Jason McGehee and the others were occupying. She testified she knew both McGehee and Melbourne. According to her testimony, on the afternoon of August 19, she was in her bedroom and heard thumping on the wall in the house next door. She went over to see what was going on but was not let in. She returned to her home, but still heard the same noises. Bright went back, and this time she stuck her foot in the door and used her hip to force the door open some. She saw they had Melbourne up against a wall, and McFarland and Epps were hitting and kicking him. Bright asked Campbell why this was happening and she responded, “Don’t worry about it, you’re just going to get yourself into trouble.” McGehee then came to the door and told Bright, “Don’t worry about it, he’s our ‘homey,’ we’re not going to hurt him.” She further testified that McGehee told her that if they “were in a bigger city, he’d be killed for what he’s done. . . he’s our friend and we’re just going to teach him a lesson.” Again according to Bright’s testimony, soon thereafter McGehee came over to Bright’s house and told her not to worry about it, that Melbourne was his “homey,” and that they were not going to hurt him. McGehee assured her that Melbourne was their friend and that they were just going to teach him a lesson. Later that same evening, Bright, Epps, and McFarland drove into town looking for drugs. According to Bright’s testimony, McFarland and Epps discussed the kicks they were giving Melbourne, whether they were “good or not and how hard. ...”

There was also testimony from Anthony Page that connected Melbourne and McGehee. There was also testimony from Mandy Trice that Melbourne spent time in the company of McGehee. Page also testified that on August 19, 1996, he went with Melbourne to the shoe store to cash the stolen check and was subsequently arrested along with Melbourne. Page further testified that he knew that the check was stolen because it was on the same account as a check that he had previously cashed for McGehee. Page also testified that on the night that he and Melbourne were arrested, Page was approached by McFarland on the town square. Page testified that McFarland told him that Melbourne had snitched on them, and that they had him at the house where “he was in the process of getting the worse [sic] ass beating of his life.” According to Page, McFarland then asked Page if he wanted to help, which he declined to do.

Page also testified that he did not wish to go to McGehee’s house at that point out of fear because he, too, had given information to the police and because “all they ever talked about was beating people’s asses.” Page additionally testified to an event a week or so before where he was asked to take McGehee, McFarland, Melbourne, and a man named Clinton Spears to an outlying area to smoke marijuana. However, when they got there Spears was beaten for snitching, and McGehee made multiple threats that he wished to kill Spears. Further evidence was provided in the property receipt given to Melbourne by the police when they took the shoes he’d purchased, which were found in the home in Harrison, and which bore McGehee’s finger print.

The testimony of Page and Bright established that Melbourne was beaten in the house in Harrison because he had “snitched.” Thus, the beating was established as an intended act, and both Bright and Page put McGehee in the house and established a relationship between McGehee and Melbourne. See Stickley v. State, 294 Ark. 44, 740 S.W.2d 616 (1987). Additionally, “proof of ill will and threats” is sufficient to corroborate an accomplice’s testimony. Sargent v. State, 272 Ark. 336, 339, 614 S.W.2d 503 (1981); Roberts v. State, 96 Ark. 58, 131 S.W. 60 (1910). Bright testified that McGehee told her that had Melbourne “snitched” on his cohorts in a big city, he would have been killed. According to Page’s testimony, he was present when McGehee beat up Spears for “snitching,” and again according to Page’s testimony, McGehee voiced threats to Spears that he wanted to kill him.

Additional evidence places McGehee in the house in Harrison and in the house in Omaha. According to Bright’s testimony, she heard them leave the house in Harrison. The next day, McGehee and the others were gone. According to Epps’s testimony, McGehee and Epps wanted to leave Arkansas because of outstanding warrants. McGehee wanted to go to Utah and wanted Diemert to take him there. Just as the accomplices testified, McGehee and Diemert, as well as others, were arrested in Utah. McGehee was charged with crimes there. There is evidence McGehee was in the house in Harrison on August 19 and that he was in Utah a few days later. There was also the testimony of Charles McMahan, who owned the property where Melbourne was killed. He testified that he had rented the property to a man named McGehee in the winter of 1995-1996, but that by summer no rent was being paid. This is consistent with the testimony that McGehee directed Diemert to drive the group out to an isolated farm his uncle had previously rented. There is also testimony from accomplices that Melbourne was stripped naked and beaten both in Harrison and in Omaha. According to Dr. Kokes’s testimony, the body recovered bore no clothing.

Thus, aside from the testimony of accomplices, there was evidence of a material nature that legitimately tended to connect McGehee with the commission of the crime. Therefore, even if Campbell and Diemert had been found to be accomplices, their testimony would have been corroborated by other evidence tending to connect McGehee with the commission of Melbourne’s murder. Neither the failure of counsel to request a jury instruction declaring Campbell and Diemert accomplices to the capital murder, nor the failure to seek a similar ruling from the trial court as a matter of law requires relief under Rule 37 because this failure did not make any difference in the result of the trial. See Strickland, supra; Thomas, supra.

Sentence of Other Defendants to Lesser Terms

McGehee alleges that there was equal culpability on the part of McFarland, Epps, Campbell, and Diemert. He notes that while McFarland and Epps received a sentence of life without parole for the murder, Campbell received a sentence of twenty years, and Diemert received a sentence of ten years, he received the death sentence. The argument is flawed in that neither Campbell nor Diemert were charged, tried, or sentenced for murder. In any event, such an argument has been rejected by this court. The issue is whether the imposition of the death penalty is arbitrary. Heard & Ferguson v. State, 272. Ark. 140, 612 S.W.2d 312 (1981). In Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), we noted that we no longer required proportionality reviews of death sentences, citing Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), and noting our discussion in Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), where we stated that a comparative-proportionality review is not constitutionally mandated in every case where the death sentence is imposed, citing Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984). We went on to note that our legislature, by enacting recent sentencing procedures, has provided a statutory check on arbitrariness by requiring a bifurcated proceeding where the jury is provided with information on aggravating and mitigating circumstances, and with standards in the use of that information. See Ark. Code Ann. §§ 5-4-103, 5-4-603—605 (Repl. 1997 and Supp. 2001).

Failure to Appeal the Trial Court’s Denial of the Motion for a Change of Venue

McGehee asserts his appellate counsel was ineffective for failure to argue on direct appeal that the trial court erred when it denied his change-of-venue motion. Venue had already been moved once from Boone County to Baxter County, but McGehee claims he should not have been tried in Baxter County because McFarland had just been tried there four months before.

The trial court found that in the Rule 37 hearing, McGehee made no showing of prejudice in the trial in Baxter County. The trial court further found there was no showing that the jury panel had any information about the pending charges against McGehee. McGehee argues prejudice because McFarland was tried in Baxter County just four months before him. McGehee then references two affidavits of community members who opined that McGehee could not receive a fair trial, as well as newspaper articles his counsel presented to the trial court. In short, McGehee offers no evidence of actual prejudice by any juror. This court in Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), found that voir dire of the jury provides adequate safeguards against pretrial publicity. Flere there is no evidence voir dire revealed anything other than a jury committed to giving McGehee a fair trial and following the instructions of the court. Thus, there was no showing of an abuse of discretion by the trial court in the denial of the motion, which is required for a reversal. Hill v. State 331 Ark. 312, 323, 962 S.W.2d 762 (1998). There is no merit to a claim of ineffective assistance of counsel on the failure to raise the denial of the change-of-venue motion on the direct appeal.

Victim Impact

McGehee argues his counsel was ineffective in failing raise the issue of the constitutionality of victim-impact evidence on direct appeal. McGehee challenges the constitutionality of Act 1089 of 1993, alleging it is void for vagueness because it requires a jury to consider victim-impact evidence under Ark. Code Ann. § 5-4-602(4) (Repl. 1997) in the context of weighing aggravating and mitigating circumstances under Ark. Code Ann. § 5-4-603 and § 5-4-604. He also argues that it gives insufficient guidance to the jury and judge. McGehee also discusses the use of victim-impact testimony to prove aggravating factors. McGehee then refers to an additional aggravating circumstance submitted to the jury, which is a reference to the victim-impact testimony.

The arguments as presented have already been presented to this court and rejected. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Again, on the argument presented, this court has already found victim-impact evidence relevant and admissible on this matter at issue here regarding whether the death penalty should be imposed. Lee v. State, 327 Ark. 692, 703, 942 S.W.2d 231 (1996). Speaking generally, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we upheld the underlying constitutionality of victim-impact testimony. See Nooner, 322 Ark. at 322-23, 907 S.W.2d at 688-89 (citing Payne v. Tennessee, 501 U.S. 808 (1991)). This decision has been reaffirmed since. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Based on the arguments presented, the admission of the victim-impact evidence in this case was consistent with prior case law. Thus, under these facts and arguments there is no merit to the claim of ineffective assistance of counsel.

Affirmed.

Imber, J., not participating.

       We note that in McFarland v. State, 337 Ark. 386, 391, 989 S.W.2d 899 (1999), we stated that “Epps, McFarland, and McGehee took turns strangling Melbourne until he died,” and that “McFarland admitted that he was the one strangling Melbourne with an orange cord when he expired.” Benjamin McFarland was a co-defendant of McGehee’s. However, in McFarland there is no discussion of Dr. Charles Koke’s testimony. Dr. Kokes performed the autopsy on Melborne’s body.


author: PER CURIAM.

text:
    Leonard MAGBY v. STATE of Arkansas
    CR 02-24
    72 S.W.3d 508
    Supreme Court of Arkansas
    Opinion delivered April 25, 2002

      Petitioner, pro se.
    No response.
   PER CURIAM.

On January 13, 1969, Leonard Magby entered a plea of guilty to grand larceny and burglary and was sentenced to three years’ imprisonment. More than thirty-two years later, on September 19, 2001, Magby filed a pro se petition for writ of error coram nobis in the trial court. Petitioner explained in the petition that he was challenging the judgment because the conviction was used to enhance a sentence imposed on him in a federal court proceeding. The petition was denied, and petitioner Magby filed a notice of appeal from the order rather than a petition for writ of certiorari in this court. We declared in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), that review of the denial of a writ of coram nobis was by certiorari, not appeal. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). Petitioner took no further action in this court, until he was notified on December 19, 2001, that the circuit clerk had forwarded the record to this court in response to the notice of appeal.

Now before us is petitioner’s motion seeking to file a belated petition for writ of certiorari to proceed with a review of the court’s decision to deny the coram nobis petition. As we find that there is no sound reason to continue to require a petition for writ of certiorari to be filed in this court rather than a notice of appeal to be filed in the trial court from the denial of a petition for writ of error coram nobis, the motion is moot. Our clerk is directed to lodge petitioner Magby’s appeal and set up a briefing schedule.

We further overrule our holding in Skinner v. State, 344 Ark. 184, 40 S.W.3d 268 (2001), which provided that a petitioner whose petition for writ of error coram nobis was denied must proceed in this court with a timely petition for writ of certiorari rather than a notice of appeal filed in the trial court. Any other case that is contrary to our holding in this matter is also overruled.

The writ of error coram nobis is an ancient writ developed from the common law of England that provides a remedy where the convicted criminal defendant is not protected by his right of appeal because the record on its face discloses no error to the appellate court. See Woods, The Writ of Error Coram Nobis in Arkansas, 8 Ark. L. Bul. 15 (1940). The review by this court of the denial or granting of a writ of error coram nobis by means of a petition for writ of certiorari is also a matter of common law. Either the convicted defendant or the State may seek review of the lower court’s decision to grant or deny the writ. State v. Hudspeth, 191 Ark. 963, 88 S.W.2d 858 (1935).

As we noted in Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999), we do not overrule our common law cavalierly or without giving considerable thought to the change. Adhering to precedent promotes stability and predictability and respect for judicial authority. Nevertheless, we have long recognized that “Precedent, it is said, should not implicidy govern, but discreetly guide. . . .” Roane v. Hinton, 6 Ark. 525, 527 (1846). In Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), we concluded that the test is whether it is more important that the matter remain settled than that it be setded correctly. One of the reasons to change the common law is when it has become outmoded and unjust. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997).

When dealing with a procedural change in the common law, the common law may be said to be outmoded and a change warranted when the procedure is needlessly complicated and there is no good cause to continue with the existing procedural rule. In the instant matter, requiring the petitioner to file a petition for writ of certiorari in this court within thirty days requires the petitioner to also produce a certified record of the lower court proceedings within that relatively short period of time inasmuch as the petition cannot be filed here without such a record. Moreover, the issues raised in the trial court in a coram nobis proceeding can be complicated and numerous and thus lend themselves to being fully briefed in accordance with our rules governing appeals.

While we treat an appeal from the denial of bail as a petition for writ of certiorari, the denial-of bail is an exercise of the lower court’s discretion for which there is no other immediate mode of review provided and which can be reviewed' ordinarily with a limited record. See Smith v. State, 345 Ark. 472, 48 S.W.3d 529 (2001). By contrast, the review of an order denying a petition for writ of error coram nobis is similar to the review of an order denying a petition for writ of habeas corpus. In Fulks v. Walker, 224 Ark. 639, 275 S.W.2d 873 (1955), we held that there was no good cause to continue to require that denial of a petition for writ of habeas corpus in child-custody cases be reviewed by certiorari rather than appeal. As we said in Fulks:

Continued use of the term certiorari would needlessly complicate appellate procedure, which certainly should be as simple as it can possibly be made to be. Henceforth, we shall call these proceedings by their true names, appeals, and shall regard them as being governed by the statutes pertaining to appeals.

Fulks, supra.

We also concluded in 1985 that the review of a finding of contempt, which had been heard on a petition for writ of certiorari for some 100 years, was reviewable as a final order by means of an appeal. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985). In doing so, we noted that the rules of appellate procedure provided that the mode of bringing up a judgment, degree, or'final order for review was by appeal. There being no real distinction between the review of an order of contempt by certiorari or review by appeal, we said that henceforth, as with habeas corpus matters, we would call the proceeding by its true name, an appeal, and regard it as being governed by the statutes and rules pertaining to appeals. There is likewise no real distinction to be made between review of the denial or granting of a petition for writ of error coram nobis by certiorari or by appeal.

The mere change in the mode of review of an order, however, does not alter the standard of review employed by this court in determining whether the order should stand. The standard of review of the denial of a writ of error coram nobis shall remain whether the trial court abused its discretion in granting or denying the writ. Larimore v. State, 341 Ark. 397, 406, 17 S.W.2d 87, 96 (2000).

We now turn to the retroactive or prospective application of this change in procedure. Because the retroactive application of this change to the present petitioner is not likely to create significant harm, we conclude that the petitioner will be permitted to proceed in this court on appeal of the order. See Parish v. Pitts, supra. Prospective application of our holding that this court’s review of the denial of a petition for writ of error coram nobis shall be by appeal rather than by writ of certiorari shall commence with orders granting or denying petitions for writs of error coram nobis entered on or after the date of this opinion. Motion moot; appeal of order lodged.

       In those instances where the judgment of conviction was entered on a plea of guilty or nolo contendere, or the judgment of conviction which could have been appealed was not appealed and subsequently affirmed on appeal, the petition for writ of error comm nobis is filed directly in the trial court. If the judgment of conviction was affirmed on appeal, the petitioner must first proceed in this court and gain leave to file a petition in the trial court by means of a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error comm nobis. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001).


text:
    William Keith McDANIEL v. STATE of Arkansas
    CR 02-325]
    72 S.W.3d 511
    Supreme Court of Arkansas
    Opinion delivered April 25, 2002

      Ray A. Waters, for appellant.
    No response.
   PER CURIAM.

Appellant William Keith McDaniel, by and through his attorney, has filed a motion for rule on clerk. His attorney, Ray A. Waters, states in the motion that the record was tendered late due to a mistake on his part.

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

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


author: W H. "DUB" ARNOLD, Chief Justice,

text:
    Scharel Ann BURLEY v. STATE of Arkansas
    CR 01-1240
    73 S.W.3d 600
    Supreme Court of Arkansas
    Opinion delivered May 2, 2002

      Jeffrey W. Hatfield, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   W H. "DUB" ARNOLD, Chief Justice,

. The this case, Scharel Ann Burley, appeals from a Washington County Circuit Court order denying her motion for directed verdict and denying her motion in limine. Burley raises two points on appeal: (1) the evidence introduced at trial was insufficient to support the jury’s verdict of guilty on the charge of murder in the second-degree; and (2) the trial court abused its discretion in denying defendant’s motion in limine to exclude from evidence an investigation of alleged child abuse by the defendant against another child. We affirm.

On Wednesday, January 12, 2000, Central Emergency Medical Services responded to a 911 call from Prairie Grove, Arkansas. The paramedics arrived at the caller’s home at 8:48 p.m. to assist a baby in distress. Moments after the paramedics arrived, the baby stopped breathing. The child was identified as eighteen-month-old Samuel Sams. Samuel had been vomiting clear liquid and green mucus, and was breathing at a rate of ten breaths per minute. The paramedics began CPR and transported Samuel to Washington Regional Medical Center. He was pronounced dead at 10:47 p.m.

Dr. Charles Kokes, a medical examiner with the State Crime Lab, performed the autopsy. The cause of death was determined to be acute peritonitis caused by a tear in the child’s bowel. The tear was caused by an end-cap of a thermometer, measuring about three inches in length. The end-cap was still inside Samuel at the time of the autopsy. Dr. Kokes testified that peritonitis is associated with severe pain, but is not necessarily fatal. He further testified that the perforation of the rectal wall occurred six to twenty-four hours prior to Samuel’s death. Dr. Kokes opined that the force necessary to cause this type of tear would be roughly equivalent to pushing the eraser end of a pencil through six sheets of Saran Wrap. The medical examiner ruled Samuel’s death a homicide, and concluded that the perforation of his rectum wall by a thermometer cap was “not an accidental happenstance.”

Burley was the child’s caregiver at the time that the emergency call was made. Samuel had been in her care since Saturday, January 8, 2000. She told investigators that Samuel had a fever when she picked him up from his mother’s home on Saturday and that she had taken his temperature each day he had been in her care using a digital ear thermometer. Burley denied ever using a rectal thermometer on Samuel and stated that although she did own a rectal thermometer, she had not seen it for several months. She also told the investigator that she had called the emergency room when Samuel’s condition began to deteriorate and was told that Samuel would be fine as long as she could keep him hydrated. During the course of the investigation, Burley admitted that Samuel had not left her sight while he was in her charge, and that she was his only caregiver during the time period in question.

A search of a trash can in Burley’s home produced a clear piece of a thermometer cover that matched the piece found inside of Samuel’s abdominal cavity. The police also found a rectal thermometer on a bookshelf in Burley’s apartment. Paul Williams testified that around Thanksgiving he gave appellant a rectal thermometer that he received during a promotional event held by his employer, Wal-Mart. He further testified that he had seen Samuel the evening prior to his death and that there “was nothing wrong with him.” However, Williams also testified that the next morning he observed Samuel in a crib and he “was just laying there like he was dead.”

Brenda Westphall testified that her son had been in Burley’s care on Sunday, January 9, 2000. She further stated that she borrowed a rectal thermometer from Burley on Sunday when she came to pick up her son. After taking her son’s temperature, she left the thermometer, with both pieces of the protective cover intact, on a night stand in Burley’s apartment. According to Westphall’s testimony, the following day she noticed that the thermometer had been moved from the night stand. Two other witnesses testified that they had observed appellant taking Samuel’s temperature using a rectal thermometer. Finally, Burley’s telephone records were subpoenaed and the police found no evidence that Burley had made a call to the emergency room to seek advice on Samuel’s care.

On February 18, 2000, Burley was first charged with second-degree murder; however, the information was later amended to first-degree murder. A jury trial was held on August 8-9, 2000. A jury found Burley guilty of murder in the second degree, sentenced her to eighteen years’ imprisonment in the Arkansas Department of Correction, and imposed a $12,000 fine.

Sufficiency of the Evidence

First, Burley challenges the sufficiency of the evidence to support the jury verdict of second-degree murder. Specifically, Burley argues that the State failed to prove that she “knowingly” caused the death of the victim. In response, the State argues that the issue was not properly preserved for appeal. Burley did move for a directed verdict at the conclusion of the State’s case and again at the close of all the evidence in connection with the charge of second-degree murder. The State admits that Burley’s motion for a directed verdict as to second-degree murder was properly executed, but contends that appellant failed to get a ruling on her motion. In denying Burley’s directed-verdict motions, the trial court ruled only that the State has made a prima facie case on the murder in the first-degree charge. We hold that the motion is deemed denied pursuant to Arkansas Rule of Criminal Procedure 33.1(c), and we affirm.

This court has held numerous times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). In Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992), a case very similar to this one, the appellant moved for a directed verdict at the close of the State’s case, and the motion was denied. Donald renewed his motion at the close of all the evidence, as required by Ark. R. Crim. P. 36.21(b), but he failed to obtain a ruling from the court. In that decision, we held that, the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Id. at 198, 833 S.W.2d at 771 (citations omitted).

However, according to Rule 33.1(c) of the Arkansas Rules of Criminal Procedure:

The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

(Emphasis added.) Ark. R. Crim P. 33.1(c).

Here, Burley did move for a directed verdict at the close of the State’s case-in-chief and, again, at the close of the evidence. The trial court ruled that the State had made a prima facie case for murder in the first-degree. The burden of obtaining a ruling on the second-degree murder motion for directed verdict was on Burley. Therefore, the motion was deemed denied for purposes of obtaining appellate review on the question of sufficiency of the evidence with regards to the second-degree murder charge. • Accordingly, this point is preserved for appellate review.

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is 'whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Smith, supra.

Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 111 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Phillips, supra. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).

Burley was charged with first-degree murder for “knowingly causing] the death of a person fourteen (14) years of age or younger at the time the murder was committed.” Ark. Code Ann. § 5-10-102(a)(3) (Repl. 1997). The jury was instructed on first-degree murder, second-degree murder, manslaughter, and negligent homicide. She was convicted by a jury of second-degree murder, having “knowingly” caused the death of the victim “under circumstances manifesting an extreme indifference to the value of human life.” Ark. Code Ann. § 5 — 10—103(a)(1).

In her argument, Burley offers various purportedly exculpatory facts to be weighed against evidence presented at trial by the State. This court, however, views only the evidence that is most favorable to the jury’s verdict and does not weigh it against other conflicting proof favorable to the accused. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). The jury is permitted to consider evidence of cover-up as proof of a purposeful mental state. Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000).

Here, the evidence was sufficient to establish that Burley knowingly caused the minor victim’s death. Burley inserted a thermometer and its three-inch cap into the victim’s rectum with such extraordinary force that she must have known that the result could be serious injury or death. The medical testimony of the physician who examined the victim presented evidence of maltreatment, particularly his description of the blunt force required to tear the child’s bowel, and his conclusion that this act was “not an accidental happenstance.” The autopsy studies indicated that the life-threatening injury occurred six to twenty-four hours prior to the victim’s death, during the time in which Burley was the only caregiver of the child, and she admitted that the minor victim had not left her sight during this time period. The medical examiner further testified that peritonitis is not necessarily fatal; therefore, Burley’s refusal to seek medical attention after the victim began a steady decline in health is further evidence that she manifested an extreme indifference to the value of the minor victim’s life. Finally, Burley’s statements that she had not used a rectal thermometer on the minor victim and that she misplaced her rectal thermometer months before the incident are improbable explanations of incriminating circumstances and are contrary to the physical evidence and testimony presented by the State at trial.

According to Arkansas Code Annotated § 5-2-202 (Repl. 1993), a person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). The evidence was sufficient to show that Burley forcefully inserted an object into the minor victim’s rectum knowing that the result could be serious injury or death. Therefore, the trial court is affirmed.

Rule 404(b)

Burley next argues that the trial court erred by admitting evidence of a police investigation into an allegation that Burley abused a child in her care approximately three months prior to the victim’s death. However, it is well settled that the admission or rejection of evidence under Arkansas Rule of Evidence 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Warner v. State, 59 Ark. 155, 954 S.W.2d 298(1998). No abuse occurred here, therefore we affirm the trial court.

On October 18, 1999, Fayetteville Detective Shawn Juhl began an investigation based upon a patrol officer’s report of a possible child-abuse case against Burley involving the victim’s sister, three-year-old sister Chelsea Sams. The abuse centered on the fact that Chelsea had several bruises on her buttocks along with a mark that appeared to have been made with something other than a hand. After interviewing the child’s grandmother and the child herself, Detective Juhl developed Burley as the suspect. Although Detective Juhl forwarded the results of his investigation to the prosecutor’s office with a recommendation that charges be filed against Burley, no charges were ever filed. The trial court denied Burley’s motion to exclude this testimony, but granted her request to give a cautionary instruction concerning the relevance of this evidence.

Appellant Burley argues that the State relies on its theory of the case, and not the facts of the case to argue the admissibility of the unsubstantiated allegation of child abuse. Burley contends that the testimony elicited at trial indicates that some time did elapse between the time the thermometer punctured the victim’s rectum and the time that the paramedics were called. However, Burley argues that there are absolutely no facts to support the State’s theory that the delay was due to Ms. Burley’s fear that she would be exposed to criminal liability.

Burley contends that “buying into the State’s argument can easily lead this Court down a slippery slope where evidence is admissible based on counsel’s theories of the case and not the facts.” Burley asserts that it is not plausible that an unsubstantiated allegation of a completely separate event, remote in time and not similar in nature, is relevant to any issue in this case. At trial, the State offered this evidence to show the jury that since Burley had been investigated before for child abuse, hence she is a person who probably committed the crime in the present action. Burley argues that this evidence is clearly in violation of Rules 401, 403, and 404 of the Arkansas Rules of Evidence.

Burley argues three independent reasons that this evidence should not have been admitted. First, Rule 404(b) states that “crimes, wrongs, or acts,” which are commonly and collectively referred to as “bad acts,” may be admissible to prove motive, opportunity, intent, etc., but there was no “act” here. We agree, and determine that the unsubstantiated allegation does not amount to a “crime, wrong, or act” under Rule 404(b), and therefore it should not have been allowed. Second, even if an unsubstantiated allegation was a “bad act,” the testimony does not prove any purpose such as intent, plan, motive, etc., set forth in 404(b). Finally, even if the evidence did satisfy the elements of 404(b), it still cannot pass the balancing test set forth in Rule 403. We disagree.

The State’s theory of the case was that Burley intentionally forced a thermometer cap through the minor victim’s rectum into his abdominal cavity and, instead of seeking medical care when obvious signs of distress appeared, failed to take him to the hospital out of fear that she would expose herself to further criminal liability and become a prime suspect in the minor victim’s murder. To that end, the State introduced evidence that Burley had been investigated just months before for abusing the victim’s sister while in her care and that she was told by the police that a warrant would be issued for her arrest.

If the introduction of testimony of other crimes, wrongs, or acts is independently relevant to the main issue, rather than merely to prove that the defendant is a criminal, then evidence of that conduct may be admissible with a cautionary instruction by the court. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused, it will not be excluded. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994)(plurality opinion).

First, there is no requirement under 404(b) that there must be a “bad act” as a prerequisite for admissibility. This Court has upheld the admission of evidence under 404(b) to prove motive based on the fact that the defendant was mainly a white supremacist sympathizer. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). Moreover, even assuming that the State’s proof does not amount to a “bad act” under 404(b), the evidence is admissible as simply relevant evidence of Burley’s motive. The testimony offered by Detective Juhl was that he was going to arrest Burley. Therefore, Burley’s motive for not reporting the incident with the minor victim in this case was her fear of arrest. This motive evidence was independently relevant to explain why Burley did not seek medical care sooner when faced with a child exhibiting obvious signals of deteriorating health. Moreover, the evidence did not unfairly prejudice Burley because the child-abuse allegation occurred near the time of the minor victim’s death and involved a child in Burley’s care.

However, Detective Juhl did not actually see the bruises on the child. He prepared his investigation from various statements and the patrol officers report. Detective Juhl testified at trial concerning his investigation into Chelsea’s suspected child-abuse case. During his testimony, he testified as to statements made by Chelshea and her grandmother. Burley did not object to the hearsay testimony given until after the testimony was given.

Second, this proof was offered by the State to establish Burley’s motive for failing to seek medical attention for the victim. Furthermore, this Court has frequently upheld the admissibility of proof that defendants commit other crimes not similar to the present crime in order to prove motive. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998) (upholding the admissibility of evidence that defendant used cocaine to prove motive for murder under 404(b)).

Burley admitted that she was the sole caregiver for the twenty-four hours prior to when the child was admitted to the hospital. She admitted that the minor victim never left her sight. Further, Burley knew that she had an ongoing criminal investigation, and she knew that if anything else were to happen she could face possible criminal prosecution. Therefore, because of her fear of arrest she did not take the victim to the hospital or seek medical treatment.

Finally, the evidence passed the Rule 403 balancing test. This court has repeatedly stated that when the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Ward v. State, 338 Ark. 619, 1 S.W.3d 6 (1999). Moreover, the jury was given a cautionary instruction regarding the evidence. As this Court affords great deference to a trial court’s ruling on relevancy and prejudicial impact, Lee v. State, 327 Ark. 697, 942 S.W.2d 231 (1997), the trial court here did not abuse its discretion by admitting this evidence of Burley’s motive.

The trial court in this case made the determination to allow the previous child-abuse investigation into evidence. However, the trial court also gave a cautionary instruction to the jury regarding the evidence. Therefore, the exercise of the discretion of the trial judge should be affirmed.

Affirmed.

        Reporter’s note: See Burley v. State, 75 Ark. App. 311, 57 S.W.3d 746 (2001).