author: Steele Hays, Justice. Jack Holt, Jr., Chief Justice,

text:
    Jennifer THOMPSON, a Minor, by Dwight Thompson and Debbie Thompson, Her Natural Guardians and Next Friends v. The Honorable Harold S. ERWIN, Circuit Judge of Randolph County, Arkansas
    92-513
    838 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      James M. Luffman, for appellant.

      Winston Bryant, Att’y Gen., by: Jack Gillean, Deputy Att’y Gen., and Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Petitioners seek a writ of mandamus ordering the respondent, the Honorable Harold S. Erwin, Circuit Judge of Randolph County, to proceed forthwith to the trial of a case involving their daughter as prosecutrix. Petitioners are the parents and next friends of Jennifer Thompson, who has charged five males with rape arising from an incident occurring on August 4, 1990, when Jennifer was thirteen. An information was filed against the five defendants on August 27, 1990.

The case was first set for trial on September 24, 1990, and reset to February 25. Thereafter four continuances have been granted on motions of the defendants and unopposed by the prosecuting attorney. Trial is presently set for October 22, 1992.

Petitioners acknowledge they have not sought relief in the trial court in the belief they have no standing. They concede, as well, there is no precedent for the issuance of a writ of mandamus at the behest of a victim of a crime. They refer us to several cases wherein mandamus was ordered: Peters v. Superior Court, 212 Cal.App.3d 218, 260 Cal. Rptr. 426 (1989); Koch-Ash v. Superior Court, 180 Cal.App.3d 689, 225 Cal. Rptr. 657 (1986); Schneider v. Flowers, 137 Misc.2d 512, 521 N.Y.S.2d 647 (1987), and Edmondson v. Bourland, 179 Ark. 975, 18 S.W.2d 1020 (1929). But those are civil cases involving parties directly affected by the proceedings. They have no precedential value in the case before us.

In the recent case of Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 21 (1989), we wrote:

A mandamus is not a writ of right but is within the discretion of the trial court, and the party applying for it must show a specific legal right and the absence of any other adequate remedy. State v. Board of Directors of School Dist. of Ashdown, 122 Ark. 337, 183 S.W.2d 747 (1916). It will not lie to control or review matters of judicial discretion, but only to compel the exercise of such discretion. Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W.2d 988 (1911).

We further noted in Eason that it is crucial to the American judicial system that trial courts retain the discretion to control their dockets, suggesting that the imperative of Canon 3(A)(5) of the Code of Judicial Conduct to promptly dispose of cases provides recourse in instances of neglect. Id. at 387.

Petitioners rely on Ark. Code Ann. § 16-10-130 (1987). The provision reads:

Notwithstanding any rule of court to the contrary and in furtherance of the purposes of Arkansas Rule of Criminal Procedure 27.1, all courts of this state having jurisdiction of criminal offenses, except for extraordinary circumstances, shall give precedence to the trials of criminal offenses over other matters before the court, civil or criminal, when the alleged victim is a person under the age of fourteen (14).

The identical provision appears at Ark. Stat. Ann. § 16-80-102 (1987) of the code.

However, we can find no inkling in the working of that statute that the legislature intended to create on behalf of youthful victims standing to pursue active involvement in pending criminal cases. Unquestionably, the act mandates the urgent scheduling of those cases for trial in preference to all other cases, absent extraordinary circumstances. But it does not follow that so drastic a step as to endow victims of crime with enforcement powers is to be inferred from the mere expedience of establishing a preference in the trial of cases. The creation of a preference by statute or rule of court is a familiar innovation in case management, and the wording of the statute does not suggest that anything other than a priority is intended.

Nor does the emergency clause alter our reading of the statute:

Section 3 of Acts 1985, No. 569, read: “It is hereby found and determined by the General Assembly that there has been a tremendous increase in the number of offenses perpetrated against children in this State, that children of very tender years have increasing difficulty remembering past events necessary for a criminal prosecution the longer the length of time between the event and the trial, and that offenses against children are especially serious as to require, as nearly as possible, immediate removal of the offender from society. Therefore, this Act is necessary to shorten the time between the occurrence of the criminal offense and the trial and punishment of the perpetrator. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.” Approved March 26, 1985.

Again, while it is crystal clear the act is aimed at the prompt disposition of criminal cases involving victims of tender years, nothing in the wording of the emergency clause suggests such victims are invested under the act with power to implement. That authority, that responsibility, resides in the trial court.

We are hampered in this case in drawing the sort of conclusive inferences from the lapse of time inherent to mandamus because the record presented tells us only that motions for continuances have been granted. The reason or urgency of those deferments is wholly unexplained. Thus, there is no clear showing that the continuances are unwarranted or that the trial court has failed in its responsibility.

While we do not in any sense denigrate the interest of a victim in the timely prosecution of an offender, the rights of an accused to a fair trial, including time to prepare, are founded on the highest sanction under law, the Constitution. Thus, a victim’s understandable desire for a swift result does not transcend a defendant’s rights under the Constitution, and time alone is not the measurement of either.

We note, coincidentally, that one of the five defendants, Joseph Wicker, who was sixteen years of age at the time of the alleged offense, moved to transfer to juvenile court. That motion was denied by order entered on November 25, 1991, followed by an appeal to this court. See Joseph Wicker v. State of Arkansas, Supreme Court No. 92-245, submitted September 28, 1992. It may be the trial of the remaining defendants was deferred awaiting the outcome of Wicker’s appeal. However, whether that development constitutes an “extraordinary circumstance” cognizable under the statute, we do not decide on this record. We merely mention that aspect of the case.

The fact that we decline to issue mandamus should not be construed as sanctioning what appears to be a signal disregard for § 16-10-130. If the Wicker appeal occasioned the delay, that will soon be removed as an obstacle and we venture to assume the trial court and prosecutor will give due regard to the statutory preference in the scheduling of trial. To promote a more circumspect compliance with the statute, we are today issuing Administrative Order No. V.

Writ denied.

Holt, C.J., concurs.

Jack Holt, Jr., Chief Justice,

concurring. The rape trial of Jennifer Thompson’s alleged assailants has been continued five times from September 24, 1990, to the sixth and current trial date set, on October 19, 1992. Examination of the record reflects that the orders of continuance were either preprinted forms or court orders which merely changed the date of trial, stated that the delay will be excluded from the speedy trial period because the continuance was granted at the request of the defendant or his counsel, and gave no reason for the request for continuance. In fact, the record is barren as to reasons for the continuance on any of the five sets of orders granting continuances. Arkansas R. Crim. P. 27.3 provides that courts shall grant a continuance “only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.” There is no showing of good causes as required by our rule, nor is there any indication that the continuances were granted for as long as necessary.

Given the importance placed by our Legislature on prioritizing trials where the victim is a child, these unexplained delays make our judicial system suspect and give credence to the well worn phrase, “justice delayed is justice denied.” Perhaps compliance with Ark. R. Crim. P. 27.3 and our new Administrative Order No. V will provide a cure to avoid ills seen in the record of this case.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    James Lawrence BLEVINS v. STATE of Arkansas
    CR 92-636
    837 S.W.2d 879
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      Daniel D. Becker and Terri L. Harris, for appellant.

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

James Lawrence Blevins, the appellant, was convicted of aggravated robbery of a restaurant in Hot Springs and sentenced to life imprisonment as an habitual offender. He contends the identification evidence used against him should have been suppressed because it resulted from the vehicle in which he was riding after the offense being illegally stopped. We find the stop was justified. The conviction is affirmed.

The crime occurred on November 7, 1991, at about 8:50 p.m. when two men entered the restaurant. One was armed with a knife and threatened the employees, while the other took $250.00. The robbers then left on foot, and an immediate call was made to the police. Officer Willis, who was nearby in an unmarked patrol car responded, and enroute to the restaurant, he observed a single car in the area of the crime scene. He saw the driver who fit the general description of the robbers. He followed the car for six blocks. When backup officers arrived he stopped the car.

Three males emerged from the car. Two of them, including Blevins, apparently had been staying down in the back seat so as not to be observed. A search of the driver and the occupants revealed $250.00 and a knife. One of the victims was brought to the scene of the stop where she immediately identified Blevins as one of the men who had robbed the restaurant.

Prior to trial Blevins moved to suppress the pre-arrest identification and any in-court identification alleging that the identification occurred as a result of an unlawful stop and detention. A hearing was held during which Officer Willis and the witness who made the identification testified. Officer Willis said he received the call concerning the incident. He was given a general description of two men and told that they were leaving the area on foot going east on Maurice Street. He arrived at the scene less than 25 seconds later at which time he observed no one on foot and the one car leaving the area. He stopped the car.

Officer Willis testified that he made the stop because there was no other foot or vehicle traffic in the area and, at minimum, the driver could have been a witness to the incident. The other witness, one of the robbery victims, stated she had a good opportunity to observe Blevins in a well lighted area. She added that she was taken to the scene of the stopped car approximately 10 minutes after the incident and was able to identify Blevins as one of the robbers.

The Trial Court denied the motion to suppress and found facts in support of reasonable suspicion to stop the vehicle pursuant to Ark. R. Crim. P. 3.1.

1. Suppression

Reviewing the denial of a motion to suppress we make an independent examination based upon the totality of the circumstances and reverse only if the decision of the Trial Court was clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992).

Blevins argues the officer had no proper basis for stopping the vehicle in which he was riding as the report broadcast was that two men were leaving the scene on foot, thus there was no basis for stopping an automobile with only one person (the driver) visible in it. His argument is that there was no “reasonable suspicion” for the stop as required by Ark. R. Crim. P. 3.1. The Trial Court found the stop proper under Rule 3.1, and the State argues here that the ruling should be affirmed.

The State also argues that even if the stop did not meet the reasonable suspicion requirement of Rule 3.1, it was a proper one under Ark. R. Crim. P. 2.2 We agree with the latter argument, and thus need not decide whether there was reasonable suspicion that the driver of the car had committed an offense.

The officer stated he felt the vehicle’s occupant could have been a witness. Ark. R. Crim. P. 2.2 provides:

Authority to Request Cooperation.
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.

In a similar case we approved a stop of a vehicle spotted at some distance from the scene of a crime. In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), we considered a challenge to the stop of a vehicle where the robbers who committed the robbery in question were seen leaving from the rear door of the jewelry store, which placed them in a wooded area adjacent to and approximately one-fourth mile from a city park. It was in this park that the vehicle occupied by Baxter was seen by an officer shortly after the robbery information was broadcast, driving away from the scene of the crime. We concluded that the officer had reasonable justification for believing Baxter might well have seen the robbers as they fled into the wooded area in the direction of the park, as there were no leaves on the trees and Baxter was the only person visible in the park. We also found that the intrusion into Baxter’s right of privacy and freedom of movement when stopped by the officer for questioning was minimal as compared to the governmental interest in investigating a very serious crime.

Officer Willis was justified in stopping the car, thus the identification evidence which resulted was properly admitted into evidence.

2. Rule 11 (f)

The record has been examined in accordance with Ark. Sup. Ct. R. 11 (f). There were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


text:
    Roger BONDS v. STATE of Arkansas
    CR 92-438
    837 S.W.2d 881
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      Ralph J. Blagg, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Roger Bonds, was convicted of first degree sexual abuse of his thirteen year old niece. The jury imposed a four year imprisonment sentence and a $5000 fine. Bonds argues the Trial Court erred by (1) refusing to instruct the jury on carnal abuse in the third degree and sexual misconduct as lesser offenses included in rape, (2) allowing a minister, Danny Brown, to testify in violation of the religious privilege in Ark. R. Evid. 505(b) (1992), and (3) submitting a verdict form to the jury which incorrectly stated the minimum penalty for a Class C felony to be four years imprisonment. We find no reversible error and affirm the conviction.

The victim was visiting in the home of her cousin, Linda. Bonds is Linda’s father and the victim’s uncle. The victim stated she was sitting in a chair downstairs, while Linda was upstairs, and Bonds came over and “touched her privates.” She testified Bonds put his finger, tongue, and penis inside her.

Danny Brown, Bonds’ former employer, brother-in-law, and minister, stated he called Bonds to determine if the allegations he had heard about the sexual abuse were true. If the allegations were true, Brown intended to fire Bonds. Brown testified over objection that Bonds told him that Linda and the victim were upstairs when the phone rang, and he was downstairs watching television. The victim came downstairs to listen in on the conversation. Bonds told Brown the victim was not properly dressed, and she “caught him at a bad time.” Bonds admitted to Brown that he touched and kissed the victim’s breasts, but he denied raping her. After this conversation, Brown fired Bonds. At trial, Bonds testified to the same basic facts.

The Trial Court instructed the jury on the offense of rape and the lesser included offense of sexual abuse in the first degree. Defense counsel’s proffered instructions for the lesser included offenses of carnal abuse in the third degree and sexual misconduct were refused.

1. Lesser included offenses

Bonds requested the jury be instructed on carnal abuse in the third degree and sexual misconduct as lesser offenses included in rape. A person commits rape if he engages in sexual intercourse or deviate sexual activity with a victim less than fourteen years old. Ark. Code Ann. § 5-14-103(a)(3) (1987). A person commits carnal abuse in the third degree if he is twenty years or older and engages in sexual intercourse or deviate sexual activity with a victim who is less than sixteen years old. Ark., Code Ann. 5-14-106(a) (1987). A person commits sexual misconduct if he engages in sexual intercourse or deviate sexual activity with a victim who is less than sixteen years old. Ark. Code Ann. § 5-14-107(a) (1987). Carnal abuse in the third degree and sexual misconduct are misdemeanor offenses.

In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), Sullivan was convicted of raping his thirteen year old stepdaughter. He argued the Trial Court should have instructed the jury on the lesser included offense of carnal abuse in the first degree. We recognized that rape and carnal abuse in the first degree had become identical, except that carnal abuse required proof that the accused be at least eighteen years old. Therefore, carnal abuse in the first degree contained an element not included in rape, and it was not a lesser included offense. We reaffirmed the Sullivan holding in Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990), and Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991).

Following the Sullivan rationale leads to the conclusion that carnal abuse in the third degree is likewise not a lesser offense included in rape. Carnal abuse in the third degree contains two elements not included in rape, i.e., that the accused be twenty years or older and that the victim be less than sixteen. The Trial Court was correct in not instructing the jury on carnal abuse in the third degree.

Sexual misconduct also contains an element not included in rape, i.e., that the victim be less than sixteen years old. Even assuming, however, that sexual misconduct is a lesser included offense, there was no rational basis for instructing the jury on it. Ark. Code Ann. § 5-1-110(c) (1987). We have held that the only substantive purpose of the sexual misconduct statute is to fill the gaps in other sections of the Code which would occur when the sexual offender is less than 18 or less than 20 years old. McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985). As Bonds was forty-three at the time of the offense, sexual misconduct is inapplicable.

Bonds asserts the statutes deny him the right to equal protection of the laws as they prohibit him, because of his age, from receiving a misdemeanor jury instruction. Bonds did not obtain a ruling on his equal protection argument at the trial. Failure to obtain a ruling, even with respect to a constitutional question, precludes the issue on appeal. State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992).

2. A.R.E. 505(b)

Bonds argues the Trial Court erred by allowing Brown to testify about what he, Bonds, told him about the sexual abuse in violation of the religious privilege of Ark. R. Evid. 505(b). During a pre-trial hearing on Bonds’ motion to suppress this testimony, Brown testified he was a minister and associate pastor of Friendship Baptist Church in Clinton. He also owned a small air conditioning business where Bonds had been employed. Thirty days before the allegedly privileged communication, Brown had invited Bonds to attend his church. Although Bonds was not a member, he had attended church there on several occasions.

The alleged privileged communication occurred as a result of a phone call Brown made to Bonds. At the time of the call, Bonds worked for Brown. Although Brown had ministered to Bonds once in the past, Brown testified without contradiction that he made the call as Bonds’ employer. The Trial Court held the privilege did not apply because Brown was not acting in his “capacity as a spiritual advisor.”

A person has a privilege to refuse' to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor. A.R.E. 505(b). In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987).

The most recent case involving the religious privilege in Arkansas is Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992). It was held that the religious privilege was inapplicable despite the fact that Magar and his minister had several counseling sessions where the minister had agreed to keep any communications confidential. The privilege did not apply because “it was an accusatory situation initiated by Reverend Rowe that did not encompass spiritual counseling.”

There are stronger reasons for refusing to apply the religious privilege in the present case than existed in the Magar case. Brown was Bonds’ employer, brother-in-law, and friend. Brown testified at the suppression hearing that he called Bonds as an employer to determine if Bonds should be fired. There was no evidence of ongoing counseling between Brown and Bonds which Brown agreed to keep confidential. In light of these facts and the Magar decision, we have little difficulty determining that the communication was not made to Brown in his capacity as a spiritual advisor. The Trial Court’s decision was not clearly against the preponderance of the evidence.

3. Verdict form

Bonds’ last point relates to the verdict form submitted to the jury. The Trial Court correctly instructed the jury that the penalty range for a Class C felony, sexual abuse in the first degree, was a minimum of three years and a maximum of ten years imprisonment. The verdict form, however, in paragraph (C) indicated a minimum imprisonment for a Class C felony to be four years. The statutory minimum imprisonment for a Class C felony is three years. Ark. Code Ann. § 5-4-401(a)(4) (1987). The jury returned a four year imprisonment sentence.

Bonds did not object to the submission of this erroneous verdict form. An error in the verdict form cannot be raised on appeal if the point was not presented to the trial court. See, e.g., Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990); Curtis v. State, 279 Ark. 64, 648 S.W.2d 464 (1983); Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980).

Affirmed.


author: Tom Glaze, Justice.

text:
    Jackie Kay WARHURST v. William David WHITE, Sr., Administrator of the Estate of William David White, II, Jonathon T. Giles, a Minor, by Elizabeth Blayney, His Mother and Next Friend, and Thomas E. Blayney and Elizabeth Blayney, His Wife, Individually
    92-102
    838 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      Jake Brick, for appellant.

      Saxton & Ayers, by: Clint Saxton, for appellees.
   Tom Glaze, Justice.

This wrongful death action was initiated by William White, as administrator of his son’s, David White’s, estate against Jackie Warhurst. David was a passenger on Jonathan Giles’ motorcycle when Warhurst backed her vehicle onto a street into the path of Giles’ motorcycle. The two vehicles collided, causing David’s death and Giles’ injuries. Giles, a minor represented by his mother, also filed a claim against Warhurst. Both White and Giles sought punitive damages as well as compensatory damages because Warhurst was legally intoxicated at the time of this unfortunate incident.

At a jury trial, David’s estate was awarded $510,000 compensatory and $500,000 punitive damages. Giles received a verdict of $40,000 compensatory and $500,000 punitive damages. The trial judge denied Warhurst’s motion for a new trial. Afterwards, Warhurst’s insurance carrier paid all of Giles’ compensatory damages and $50,000 of David’s compensatory damages. Warhurst now appeals the unpaid balance, challenging the damage amounts awarded by the jury.

Warhurst first argues the trial court erred by admitting into evidence four poems written by David’s mother after his death. Warhurst also claims the trial court should have excluded from evidence a copy of a tombstone design containing words selected by his parents. Citing Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955), Warhurst argues that generally a party cannot make evidence for himself by his own declarations, and it is a well-established rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in evidence in his favor. She further states the rule excluding self-serving declarations is a part of the hearsay rule, and its purpose is to prevent the manufacturing of evidence. In sum, Warhurst says the poems and tombstone epitaph were excludable hearsay which was both irrelevant and prejudicial.

Warhurst’s argument ignores that David’s estate sought damages for mental anguish, and accordingly, the jury was read twelve of the thirteen factors listed in AMI Instruction 2216, which the jury could consider when assessing compensation for mental anguish factors. Those factors particularly relevant here were the following:

(a) The duration and intimacy of the relationship and the ties of affection between the deceased and the survivor;

(b) The frequency of association and communication;

(c) The attitude of the deceased toward a survivor and a survivor toward a deceased;

(d) The duration and intensity of the sorrow and grief;

* * *

(f) The violence and suddenness of the death.

In meeting its burden, David’s estate utilized the state-of-mind hearsay exception rule, Ark. R. Evid. 803(3), to show David’s parents’ existing state of mind, emotion, sensation, or physical condition. Such exception has been recognized as being available to a plaintiff in a civil damage action as a means of establishing his or her mental anguish as an element of damages. D. Louisell and C. Mueller, Federal Evidence, § 441 (1980). It has been held that the self-serving nature of a declaration only goes to its weight, and not its admissibility. See United States v. DiMaria, 727 F.2d 265 (2d Cir. 1984). We will not reverse a trial court’s ruling on the admission of evidence absent abuse of discretion. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). Here, the poems and epitaph presented by David’s estate were admissible and relevant under Ark. R. Evid. Rule 803(3) on the mental anguish issue, and we cannot say that the trial court abused its discretion in allowing such evidence.

For her second point of reversal, Warhurst contends the trial court erred in allowing expert witnesses, testifying on Warhurst’s blood alcohol level, to rely upon the breathalyzer test given her after the collision. The trial court had excluded from evidence the breathalyzer test, showing Warhurst’s blood alcohol level at .13, because the officer’s machine had not been properly calibrated. Although Warhurst argues she objected to the expert witnesses’ reliance on the test, the record fails to support her contention.

Counsel for Warhurst moved in limine to exclude any testimony concerning the. 13 breathalyzer test record made from testing Warhurst after the collision, but the trial court indicated it was inclined to allow such testimony. In finally ruling to allow such testimony, the following colloquy between the court and counsel took place:

White’s counsel: I understand what the Court is saying. If you will look at the cases, it does say that the expert should be allowed to give what the basis of that is because otherwise it can be left out there —
The Court: The basis would be that they reviewed the test results.
Warhurst’s counsel: As I understand the Court, I would have no argument with that if they will adhere to the fact that the test result should not be mentioned insofar as .13, and of course they would have to delete [it] from Mrs. Horne’s deposition which is an evidentiary deposition — (emphasis added).

The experts, in giving their testimony, relied in part upon the breathalyzer test given Warhurst, but made no reference to the .13 test results. Warhurst’s objection reveals she had no disagreement with the trial court’s ruling to permit expert testimony concerning Warhurst’s blood alcohol level except the .13 breathalyzer test results should not be mentioned. This court has stated repeatedly that a party cannot change grounds for an objection on appeal. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). In the last analysis, Warhurst’s objection sought to exclude any mention of the .13 rating, not to prevent the experts from offering opinion testimony that was partially based upon the test given her. Because Warhurst obtained what she requested form the trial court below, we need not address the new or different argument she now argues on appeal.

In her final point, appellant argues the trial court erred in failing to set aside the compensatory and punitive damages as excessive. When this question is before us, we must study the proof, viewing it most favorably to the appellee, and decide the question of whether the verdict is so great as to shock the conscience of the court or to demonstrate passion or prejudice on the part of the trier of fact. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). This court has often held that the jury has great discretion in determining the amount of damages in wrongful death cases. See Jefferson Hosp. Ass’n v. Garrett, 304 Ark. 679, 804 S.W.2d 711 (1991). Also, in a recent case where a judgment amount for bodily injuries was argued as excessive, we held that, in determining whether the amount was so great as to shock the conscience, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Gibson v. Garrison, 308 Ark. 344, 824 S.W.2d 901 (1992).

David’s estate and Giles offered extensive evidence bearing on their compensatory damages. David’s estate incurred funeral and medical expenses in the amount of $10,216.33. Giles incurred medical expenses in the amount of $2,493.23. Both young men were fifteen-years-old at the time of the incident, and considerable testimony was elicited concerning the Whites’ mental anguish over the loss of their son, David. From our review of the evidence, we are unable to say the compensatory damages awarded David’s estate, $510,000, or Giles, $40,000, shocks our conscience.

Nor do we believe the punitive damage awards should be set aside. There is no fixed standard for the measurement of punitive damages. Matthews, 279 Ark. 328, 651 S.W.2d 453. Such damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. Id. Punitive damages may amount to somewhat of a windfall to the plaintiff and the amount of actual damages sustained by the plaintiff is but one criterion for the assessment of punitive damages. Lastly, we have held that the defendant’s financial wealth is a proper element to be considered in the computation of punitive damages. Id.

Warhurst basically told the jury that she had nothing of value and depended upon her $350 per week salary for living expenses. In suggesting the punitive damages here are in line with this court’s prior cases, David’s estate and Giles both point to our recent case of B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992), wherein this court affirmed a punitive award of one million dollars to Mr. Cotroneo who suffered injuries resulting from an accident caused by an intoxicated driver. David’s estate also sets out testimony of Warhurst from which it says the jury could easily infer and conclude Warhurst lacked any remorse. In the same vein, Warhurst claimed throughout the ordeal that she was totally innocent and without fault. David’s estate sought punitive damages in excess of one million dollars, and argues the jury weighed, as instructed, all factors in awarding one-half the amount the injured parties requested. Considering the dual purpose served in assessing punitive damages, we uphold the trial court’s refusal to set aside the punitive damages.

We affirm.

Hays and Corbin, JJ., concur as to point one because the poems and epitaph were not abstracted.


author: Donald L. Corbin, Justice.

text:
    Karen WEBB v. Renaldo D. THOMAS
    92-110
    837 S.W.2d 875
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      David Hodges and Josh McHughes, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson and Valerie Denton, for appellee.
   Donald L. Corbin, Justice.

On August 22, 1989, plaintiffs, appellant’s, Karen Webb’s car was struck from behind by defendant, appellee, Renaldo Thomas’s car. Ms. Webb brought suit seeking to recover damages in the amount of $250,000 for permanent impairment, past and future pain and suffering, past and future mental anguish, lost wages in the past and in the future, loss of ability to earn in the future, and past and future medical expenses. The case was tried on October 29, 1991, in front of a jury. The jury found for the defendant and assessed no damages. Since this case presents a question in the law of torts our jurisdiction is proper pursuant to Rule 29(1)(o).

On appeal, appellant asserts twelve (12) points of error. We find no merit to any of these points and affirm.

I.

For her first point of error, appellant argues that the trial court erred in denying her motion for a new trial. Appellant argues that the jury’s finding of no damages was so inadequate as to require the trial court to grant a new trial.

On appeal, when a motion for a new trial has been denied, we affirm if there is substantial evidence to support the verdict. Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). In determining whether substantial evidence exists, the evidence is viewed in the light most favorable to appellee. Id.

In appellee’s favor, there was evidence the accident was minor resulting in minimal damage to appellant’s vehicle, appellant stated at the scene of the accident that she was not hurt, appellant drove home from the accident and went to work the next morning. Appellant testified she was stopped, saw appellee’s car approaching her from behind, knew he was going to hit her, put both feet on the brake and both hands on the steering wheel, but that she did not remember the actual impact. Appellee also testified about the accident. Appellee testified he was going approximately twenty miles an hour when he hit appellant. He tried to dodge her, but the impact did not cause appellant’s car to move forward. In view of the parties’ description of the accident, the jury could have found that the accident was too slight for the plaintiff to have suffered any injury at all. Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986).

Appellant testified she had been unable to work since the accident due to continuing medical problems caused by the accident which occurred over two years prior to the trial. Appellant produced medical bills totaling $2,738.97. She testified she had attempted to work at two different jobs during January through March of 1991, staying at one job for four days and the other approximately two months. She said she had been unable to continue working because pain in her leg and hip prevented her from standing and walking as the jobs required. Appellant also testified she had severe headaches since the accident along with the pain in the leg and hip and had gained weight because of inactivity caused by the accident. But, appellant had also been treated for headaches and nervousness before the accident with similar medication to that she was given after the accident and had previously been given medication to help her with weight loss. Appellant’s own doctor testified in his video deposition, which was shown to the jury, that appellant’s symptoms could have been caused by stress from events in her life rather than the accident. Additionally, there had been long periods of time before the accident during which appellant had' not worked.

This constitutes substantial evidence from which the jury could have concluded the medical expenses were attributable to preexisting causes and not to the automobile accident. Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991). If the jury could conclude the medical expenses were not attributable to the accident, it would naturally follow the jury could conclude appellant’s alleged pain and suffering was not a result of the accident and the reason appellant has not worked since the accident was not related to the accident. A reasonable jury could have concluded appellant’s medical problems were not attributable to the accident and, therefore, appellant was entitled to no damages.

II.

For her second point of error, appellant argues that the jury verdict is clearly against the preponderance of the evidence. Having determined above that there was substantial evidence to support the jury’s verdict, it follows that the jury verdict was not clearly against the preponderance of the evidence.

III.

For her third point of error, appellant objects to the issuance of a subpoena duces tecum by the Circuit Court of Pulaski County, without informing opposing counsel, on March 19, 1991, which was served on the Custodian of Records, Leisure Arts, Inc., the employer of appellant prior to the accident, requesting all medical records to be sent to appellee’s counsel. This issue was not presented or decided at the trial level and we do not consider issues presented for the first time on appeal. Fisher v. Jones, 306 Ark. 577, 816 S.W.2d 865 (1991); Schmidt v. McIroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

IV.

For her fourth point of error, appellant alleges it was reversible error for the trial court to permit appellee to use a medical examination form obtained from appellant’s employer in cross-examination. We need not actually decide whether the trial court erred in allowing appellee to use this document to cross-examine appellant because we will not reverse even if an evidentiary ruling is erroneous without a showing of prejudice. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). Appellant does not suggest any possible prejudice caused by this evidentiary ruling in her brief.

V.

For her fifth point of error, appellant claims that the trial court erred by allowing testimony by Dr. Leonard, via video deposition, that appellant had told her doctor prior to the accident that her son was involved in possession of a firearm. Appellant claims this evidence was not relevant. The court found this evidence was relevant to show that appellant’s medical problems may have been caused by circumstances other than the accident involving appellee. We have consistently held that rulings on the relevancy of evidence are discretionary with the trial court, and we will not reverse absent an abuse of discretion. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). We find no abuse of discretion in this ruling as we agree with the trial judge.

VI.

For her sixth point of error, appellant claims the trial court erred in allowing hearsay testimony by Dr. Leonard regarding reports he received from Dr. Denson, a neurologist. The trial judge allowed the testimony as something normally relied upon by Dr. Leonard. Appellant has failed to indicate any manner in which this evidence prejudiced her, therefore, we will not reverse. Wallace, 290 Ark. 589, 721 S.W.2d 659.

VII.

For her seventh point of error, appellant claims it was error for the trial court to sustain a hearsay objection to appellant’s testimony regarding appellant’s loss of her job. The testimony to which the trial court sustained appellee’s objection was testimony by appellant that “[t]wo weeks later my supervisor called and told me he was going to have to terminate me because I hadn’t called in.” Appellant claims that this evidence was not offered to prove the truth of the matter asserted, but to establish why appellant no longer worked at that job and was, therefore, not hearsay. Once again, appellant fails to give this court any indication of the prejudice caused her by this allegedly erroneous ruling. We will not reverse for mere error in evidentiary matters. There must be a showing of prejudice. Wallace, 290 Ark. 489, 721 S.W.2d 659. It is appellant’s burden to indicate to this court what, prejudice was caused by the allegedly erroneous ruling.

VIII.

For her eighth point of error, appellant alleges that the trial court erred in sustaining appellee’s objection to appellant’s testimony regarding the estimate of the cost of repair of her car and striking her testimony as to the amount of the estimate. We have held that estimates of damage are inadmissible hearsay when the person preparing the estimate has not been offered as a witness. See Home Mut. Fire Ins. Co. v. Hagar, 242 Ark. 693, 415 S.W.2d 65 (1967).

IX.

For her ninth point of error, appellant claims the trial court erred in ruling that the transcript of Dr. Leonard’s video deposition could not be introduced as an exhibit. The court allowed the video, which was played at the trial, to be introduced as an exhibit, but refused to allow the transcript to be introduced into evidence. Appellant asked to introduce the transcript of the video and appellee objected. The trial court sustained the objection and did not allow the transcript to be introduced into evidence. This court has not yet had the opportunity to decide whether a transcript of a video deposition should properly be introduced as evidence separately from the video itself and we will not do so here. In her brief, appellant suggests no prejudice causecl by the trial court’s refusal to allow the transcript of Dr. Leonard’s video deposition to be introduced into evidence. Since we will not reverse without a showing of prejudice, we will not decide whether the trial court committed error, but save that issue for another day. Wallace, 290 Ark. 589, 721 S.W.2d 659.

X.

For her tenth point of error, appellant alleges that the trial court erred in refusing to give her proffered future earnings instruction. The jury verdict, finding no damages for appellant, clearly would exclude a finding by the jury for appellant for future earnings. Since the jury verdict cures the alleged error by specifically precluding the relief requested by appellant, we need not decide whether the refusal to give the instruction was error and we will not reverse. See National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 132 (1990); Billings v. Gipson, 297 Ark. 510, 763 S.W.2d 85 (1989); Ray v. Murphy, 284 Ark. 512, 683 S.W.2d 916 (1985).

XI.

For her eleventh point of error, appellant contends it was error for the trial court to sustain appellee’s objection to appellant’s questioning appellee about the cost to repair his car. Appellant contends that this evidence was relevant to show the severity of the impact. Appellant was allowed to question appellee about the extent of the damage sustained by his car and does not suggest any prejudice caused by the trial court’s refusal to allow appellant to question appellee about the cost of repairing the damage. As we have said several times herein, we will not reverse absent a showing of prejudice. Wallace, 290 Ark. 589, 721 S.W.2d 659.

XII.

For her twelfth and final point of error, appellant contends that a comment by the trial judge during final argument to appellant’s attorney was prejudicial and requires reversal. The trial judge said “[w]ell I just wish you lawyers would leave your personalities out of this and. wind up your argument.” This comment was not likely to violate the judge’s duty to be fair and avoid the appearance of unfairness warranting a reversal as appellant alleges. Appellant has not indicated any way in which this would affect the jury’s assessment of the evidence or their verdict. Additionally, appellant did not object to the comment by the judge much less receive a ruling on the issue, and as we have said many times before, we will not address on appeal an issue that has not been presented at trial and ruled upon. Fisher v. Jones, 306 Ark. 577, 816 S.W.2d 865 (1991); Wallace, 290 Ark. 589, 721 S.W.2d 659.

Affirmed.


author: Per Curiam.

text:
    Bob PORTER, on Behalf of Himself and All Others Similarly Situated; and Arkansas Executive Committee v. W. J. “Bill” McCUEN, Secretary of State Coalition for a Healthier Arkansas, Inc., Intervening Respondent

    92-940
    839 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      Friday, Eldredge & Clark, by: Paul Benham III, for petitioners.

      Winston Bryant, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for respondent.

      Mitchell, Blackstock & Simmons, by: Clayton R. Blackstock, for intervening respondent.
   Per Curiam.

Upon the “Expedited Motion” of CHAR, permission is hereby granted to offer proof on the validity of signatures alleged to have been improperly struck by the Secretary of State.


author: Steele Hays, Justice.

text:
    Bob PORTER, on Behalf of Himself and All Others Similarly Situated; and Arkansas Executive Committee v. W.J. “Bill” McCUEN, Secretary of State Coalition for a Healthier Arkansas, Inc., Intervening Respondent

    92-940
    839 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered October 9, 1992

      Friday, Eldredge & Clark, by: Paul Benham III, for petitioners.

      Winston Bryant, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for respondent.

      Mitchell, Blackstock & Simmons, by: Clayton R. Blackstock, for intervening respondent.
   Steele Hays, Justice.

This is an original action by Bob Porter, on behalf of himself and all others similarly situated, and Arkansas Executive Committee (Petitioners), against W.J. “Bill” McCuen, Secretary of State (Respondent). Petitioners seek an order invalidating a proposed initiated act offered under Amendment 7 to the Arkansas Constitution. The measure, if adopted by the electorate, would increase excise taxes on cigarettes and other tobacco products in Arkansas.

Petitioners challenge the ballot title (Court I) and the sufficiency of the initiative petition and the validity of a number of the signatures thereon (Count II). Petitioners seek an expedited handling of the case, the appointment of a Master to take evidence and make findings, and for an injunction against the measure appearing on the ballot at the general election on November 3, 1992.

Soon after the action was filed the organization sponsoring the measure, COALITION FOR A HEALTHIER ARKANSAS (CHAR), moved to intervene and to offer evidence in support of the validity of signatures challenged by petitioners. Intervention was granted, the Honorable Gerald P. Brown was appointed Master and the parties are now engaged in presenting proof on the factual issues relative to Count II.

To further expedite the processing of this case in the face of the impending election, the factual issues of Court II were severed from the nonfactual issues involving the ballot title (Count I) and briefs on that count were submitted to us on October 5, 1992.

Before turning to the specifics of petitioners’ attack on the ballot title, we mention that in determining the sufficiency of ballot titles under Amendment 7 we give a liberal construction and interpretation to the requirements of that provision consistent with its intent to reserve to the people a right to adopt, reject, approve or disapprove legislation. Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 697 (1968). We also recall that a ballot title is sufficient if it identifies the proposed act and fairly alleges the general purpose thereof, and it need not be so elaborate as to set forth the details of the act. Coleman v. Sherill, 189 Ark. 843, 75 S.W.2d 248 (1934).

Petitioners allege the ballot title is misleading, incomplete, deceptive and otherwise defective. Their primary complaint concerns the removal of a segment of the text of the proposed measure prior to circulation and after the Attorney General had inspected the proposal pursuant to Ark. Code Ann. § 7-9-107(a) (Repl. 1991). That statute reads in part:

Before any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, the sponsors shall submit the original draft to the Attorney General, with a proposed legislative or ballot title and popular name.

Additionally, petitioners rely on Ark. Code Ann. § 7-9-106(a) (Repl. 1991) which provides:

To every initiative petition for the initiative shall be attached a full and correct copy of the title and the measure proposed.

Petitioners contend that after the Attorney General had revised and approved the ballot title and returned it and the original draft of the text to the act as required under § 7-9-107, CHAR removed a segment from the text of the proposed act and it was this “sanitized” version that was circulated with the initiative petitions. The paragraph in question reads as follows:

(As the current 21 cent tax raises 60 Million, another 25 cents should raise about 74.29 Million. However, based on the Canadian experience, for every 10% increase in price, there will be an approximately 4 % reduction in sales (some say only 2 %). So, based on a current retail price of $1.60, the 25 cent tax increase may raise only 67.9 Million. Less the 3 % for the Constitutional Officers Fund and the State Central Services Fund, the Accounts projections are as follows:
(1) Health Education Account — 15% — $9.9 Million
(2) Medical Services Account — 50 % — $33 Million
(3) Senior Services Account — 20 % — $13.2 Million
(4) Children Services Account — 10% — $6.6 Million
(5) Disease Surveillance and Research Account — 5% — $3.3 Million
4% is a conservative estimate — the demand may only drop 2%.

Petitioners maintain the petitions should not have been circulated for signatures when the text of the proposal differed from the draft submitted to the Attorney General for approval and the Attorney General failed to include any reference to this paragraph in the ballot title. They contend'that when § 7-9-107 and § 7-9-106(a) are read together, the law does not permit a sponsor to submit one version to the Attorney General and a different version to the public.

We might agree if there were any materiality to the deleted segment. But we find none. It is an unnumbered, parenthetical aside in the nature of an editorial comment. It does not legislate or affect the proposed measure one way or the other. It is a mere appendage tacked on after the repealing clause which, from all appearances, was not intended to be any part of the measure. Indeed, that is how the Attorney General saw it and simply ignored it when revising and approving the ballot title. We regard it as nothing more than a projection of what might be generated in the way of increased revenues and should never have been included in the first place.

Next, Petitioners submit that the ballot title omits reference to the intent of the proposed measure to reduce tobacco consumption which would in turn reduce tax revenues. We find little merit here. We believe it can be assumed that voters are capable of recognizing a correlation between taxation levels and diminishing consumption. It isn’t necessary to spell out every aspect of an initiative in the ballot title. Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988).

Another contention involves the tax rate on “other tobacco products.” Petitioners complain that the ballot title is deficient in that it declares the tax to be “. . . . in an amount equivalent to the combined rate of tax on cigarettes prescribed by this act and Ark. Code Ann. §§27-57-208 (1987) and 26-57-802 (1987),” merely referring to the other tax as “equally proportionate.”

But we do not find that to be the case. The ballot title states:

An initiated act of the state of Arkansas to provide for a surtax on cigarettes and all other retail tobacco products in addition to all existing taxes in the amount of 12.5 mills per cigarette or 251 per pack and equally proportionate amounts on all other tobacco products.

Next, Petitioners assert the proposal unconstitutionally delegates the calculation of the tax on “other tobacco products” to an agency of the executive branch. Petitioners have not cited authority rendering this delegation suspect. The agency to which the authority is passed is given no discretion to vary the rate, it merely performs the calculation.

Two other points involve Petitioners’ claim that the ballot title fails to disclose that 3 % of the tax proceeds would be allocated to the constitutional officers fund and the state central services fund and, second, fails to disclose that certain sales of tobacco products in border areas will not be subject to any Arkansas tobacco tax. Both of these allocations are mandated under existing law and not by way of provisions of the proposed act. We find no deficiency on this ground.

Next, Petitioners argue that the ballot title fails to disclose or summarize the effect of Section 11, which places the determination of the tax rate on “other tobacco products” on the Department of Finance and Administration. It is enough to say that the ballot title fairly discloses that the DF & A will determine the rate of tax on specified products and that is the extent of our scrutiny under Amendment 7. Ferstl v. McCuen, supra.

Lastly, Petitioners urge that certain sections of the measure are vague and the ballot title fails to reveal their full effect. Under the measure funds are allocated to “tobacco free” schools. They contend that school “premises” are not defined and, hence, the consequences of using or possessing tobacco on or near school campuses is unexplained; they cite the danger of individuals transporting their children to school, being subjected to a “personal search,” and uncertainty as to the recovery of funds paid to a school which later violates the tobacco free standard.

Again, we do not see these particulars as critical to the ballot title. We have noted the difficulty of deriving a perfect ballot title. Ferstl v. McCuen, supra.

In conclusion, we are satisfied that the ballot title in this case provides an adequate basis for the electorate to make an informed decision as to whether to adopt or reject the proposed act. Accordingly, with respect to Count I we hold the petition to be without merit.

Petition denied in part.


text:
    John Oather CASTEEL, et al. v. W.J. “Bill” McCUEN, Secretary of State, and Arkansas State Board of Election Commissioners
    92-925
    838 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered October 9, 1992

      James F. Lane, for petitioners.

      Winston Bryant, Att’y Gen., by: Frank J. Wills, III, Asst. Att’y Gen., for respondents.
   Tom Glaze, Justice.

Petitioners bring this mandamus action against W. J. “Bill” McCuen, as Secretary of State, asking that McCuen certify to the seventy-five county boards of election commissioners the petitioners’ initiative constitutional amendment captioned the “Tax Referendum Amendment,” so the respective boards can place this issue on the November 3, 1992 General Election ballot. Petitioners timely filed their initiative petitions with the Secretary of State’s office, but that office ultimately determined the petitions failed to contain the requisite number of signatures — 69,641 signatures were needed to initiate the amendment, but McCuen’s office counted only 68,435. All parties agree that, for the petitions to qualify as an initiative measure under Ark. Const. amend. 7, the petitions must, prima facie, contain at the time of filing the required number of signatures. Czech, City Clerk v. Munson, Chancellor, 280 Ark. 219, 656 S.W.2d 696 (1983); Dixon v. Hall, Secretary of State, 210 Ark. 891, 198 S.W.2d 1002 (1946).

Petitioners question McCuen’s count, claiming they filed petitions containing more than the required number of signatures. As a consequence, the only dispute between the parties in this action is a factual one. Consequently, we appointed a master, Judge Tom F. Digby, under ARCP Rule 53, and directed that he take evidence on this factual issue and file his findings of fact with the court. The master has now submitted his findings. In so doing, the master found that the petitioners failed to show by a preponderance of the evidence that they had filed the number of signatures to give legal effect to their petitions. The sole issue before us now is whether the master’s findings of fact are clearly erroneous. ARCP Rule 53(e)(2). A finding is clearly erroneous when, although there is evidence to support it, the court, on the entire evidence is left with the definite and firm conviction that a mistake has been made by the master. See Reporter’s Note to Rule 53.

Petitioners readily concede the evidence they presented failed to meet their burden of proving they had submitted the required number of signatures. They contend, however, their burden of proof was met when considering the respondents’ added testimony given by two Secretary of State employees, John Fincher and Jim Werner. Mr. Fincher testified that one of the counters, Amy Finnegan, had stopped counting signatures when 55,000 signatures were found, thinking the required or threshold number to certify the initiated measure had been met. Fincher subsequently informed Finnegan the required number was 69,641, so Finnegan continued her counting of signatures, which she then claimed totaled 71,060. It was later determined that Finnegan had made an error in counting the Garland County signatures, which required a deduction of 1,800, thereby reducing the total to 69,260, or below the 69,641 threshold amount.

However, petitioners rely on a snippet of Fincher’s testimony on cross-examination, indicating that when Finnegan had first stopped counting signatures when 55,000 were found, this number did not include more than 18,000 signatures on Pulaski County petitions. That being true, petitioners say the total signatures actually exceeded 71,000, after excluding the 1,800 error made by Finnegan. Werner, however, testified after Fincher and stated only 51,000, not 55,000, signatures were counted on petitions circulated outside of Pulaski County. Thus, including the 18,000 signatures in Pulaski county, Werner said that he and other employees found only a total of 69,000 signatures. Fincher’s earlier testimony on direct examination matched Werner’s conclusion that 69,000 signatures had been counted and that this final total was inflated by the 1,800 signatures error made by Finnegan. The master, in weighing this testimony alone, could reasonably find, as he obviously did, that the total signatures on petitioners’ petitions fell well under the 69.641 threshold number.

In reviewing the entire record, it is clear the petitioners, themselves, were unsure of how many signatures their group had obtained and how many petitions they had filed with the Secretary of State’s office. Petitioner John Casteel testified that he and others counted signatures three times immediately before filing them with the Secretary of State, and each time, they came up with three different numbers — 65,000, 70,000 and around 66,500. Obviously, two of petitioners’ own counts fell short of the 69.641 amount needed to give their petitions legal effect. Casteel admitted that confusion existed in his group’s count of signatures, but said they decided they had 69,790 signatures when filing their petitions. He again conceded that each time the petitions were counted, petitioners would come up with a different number.

Petitioners also offered testimony that some petitions they had filed with the Secretary of State’s office were now missing. McCuen and his employees countered this charge by explaining how the petitions had been secured and how impossible or improbable it was for any petitions to have been lost, taken or otherwise omitted. Petitioners do not now argue this point in their brief, but we mention it in passing only to demonstrate this factual dispute was thoroughly presented to the master, and the master, in observing the witnesses and their demeanor, resolved this factual issue in favor of the respondents.

Based upon the record before us, we are unable to say the master’s findings are clearly erroneous. Thus, because the petitioners failed to present the required number of signatures to give legal effect to their proposed initiative amendment, we are compelled to deny their request for writ of mandamus.

       Both parties submitted Judge Digby as one they would recommend as a master.


author: Jack Holt, Jr., Chief Justice.

text:
    Darinda RAY v. Carolyn GREEN
    92-314
    839 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered October 12, 1992

      Wright, Chaney, Berry, & Daniel, P.A., by: Benny M. Tucker, for appellant.

      Huckabay, Munson, Rowlett, & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Jack Holt, Jr., Chief Justice.

The issue in this case is whether the trial court erred in not awarding the Appellant, Darinda Ray, a new trial because the jury’s verdict for the Appellee, Carolyn Green, was clearly against the preponderance of the evidence or contrary to law. We affirm the trial court.

Ms. Ray was a passenger in a car that was rear-ended by Ms. Green while traveling north on Highway 7 between Arkadelphia and Hot Springs. The automobile in which Ms. Ray was riding was stopped and its driver’s electronic signal indicating a left turn was blinking. Ms. Green was following a pickup truck which passed the stopped vehicle using the right shoulder of the highway. Ms. Green also tried to swerve around the stopped vehicle and pass it on the shoulder, but struck the car in which Ms. Ray was riding. As a result, Ms. Ray claimed injury and resulting damages.

The jury returned a verdict in favor of Ms. Green. Ms. Ray filed a motion for a new trial pursuant to Ark. R. Civ. P. 59(a)(6) on the basis that the jury verdict was “clearly contrary to the preponderance of the evidence or is contrary to the law.” The trial court denied the motion and this appeal followed.

While a trial court has some discretion in setting aside a jury verdict, there is no longer the broad discretion that this court formerly recognized. The trial court is not to substitute its view of the evidence for that of the jury’s unless the jury verdict is found to be clearly against the preponderance of the evidence. Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989); Shelton v. Shelton, 296 Ark. 212, 752 S.W.2d 758 (1988); Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

On appeal, our test for reviewing the denial of a motion for new trial is whether there is any substantial evidence to support the jury verdict. RLI Ins. Co. v. Coe, 306 Ark. 377, 813 S.W.2d 783 (1991), cert. denied, 112 S.Ct. 959 (1991); Hodges v. Jet Asphalt & Rock Co., Inc., 305 Ark. 466, 808 S.W.2d 775 (1991); Ferrell v. Southern Farm Bureau Casualty Ins. Co., 291 Ark. 322, 724 S.W.2d 465 (1987). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellees. See Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). Substantial evidence compels a conclusion one way or the other and is more than mere speculation or conjecture. See Sander v. Walker, 298 Ark. 374, 767 S.W.2d 526 (1989).

In Isbell v. Ed Ball Constr. Co., 310 Ark. 81, 833 S.W.2d 370 (1992), we affirmed a trial court’s denial of a motion for new trial:

On review of a trial court’s denial of a motion for new trial the question is whether the verdict is supported by any substantial evidence. Harper v. Clark Equip. Co., 300 Ark. 413, 779 S.W.2d 175 (1989). Evidence favorable to the appellee is given the benefit of all reasonable inferences permissible under the proof. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).

See also Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992) (denial of mistrial affirmed).

In Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989), the appellant asserted that the trial court erred in failing to grant its motion for new trial because there was insufficient evidence to support the jury verdict. We stated:

When acting upon a motion for new trial challenging a jury’s verdict, the trial court is required by Ark. R. Civ. P. 59(a)(6) to set aside the verdict if it is clearly against the preponderance of the evidence or contrary to law. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). The test on review, where the motion is denied, is whether the verdict is supported by substantial evidence. Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). It is only where there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded men can only draw a contrary conclusion that a jury verdict should be disturbed. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).
Pineview’s argumént is essentially an attack on the credibility of appellees’ witnesses. The weight and value to be given to the testimony of witnesses is in the exclusive province of the jury. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).

Pineview Farms, 98 Ark. at 89, 765 S.W.2d at 926.

A review of the record reveals that both sides put on evidence at trial, the jury was properly instructed on the issue of negligence, and the jury chose to side with Ms. Green. Ms. Green testified that the accident occurred on a clear day and that the roadway which she was traveling was straight and dry. She testified that shortly prior to the accident she was traveling within the speed limit of 55 miles per hour and was following a black pickup truck at a normal distance, which she estimated to be three car lengths and that traffic was moving at a normal pace.

Ms. Green stated that as she was traveling along the roadway the black truck, without warning to her, unexpectedly swerved onto the right-hand shoulder and that she was suddenly confronted with a stopped vehicle in front of her. She applied her brakes but was unable to stop without rear-ending the stopped vehicle so she swerved to the right in attempt to avoid the collision. In sum, she said that she did everything she could to avoid the accident but there was nothing she could have done under the circumstances, and, “if [the driver of the black truck] had just stopped normally, there wouldn’t have been an accident.”

The jury was properly instructed on the elements necessary to find Ms. Green negligent. In addition, the jury was appropriately instructed that “the fact that an accident occurred, is not, of itself, evidence of negligence on the part of anyone,” and it was their duty to decide how a reasonably careful person would act under these circumstances and that the word “negligence” means the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do under the circumstances similar to those shown by the evidence in this case.

While it is clear from the evidence that there was an accident, that Ms. Green’s car struck the car Ms. Ray was riding in, and that Ms. Ray suffered some neck injury, the jury declined to find Ms. Green negligent under the facts and law given to them. See RLI Ins. Co. v. Coe, supra. Viewing the evidence in the light most favorable to the Appellee, Ms. Green, as we are required to do, we find there is substantial evidence to support the jury’s finding.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Larry ASHLEY v. STATE of Arkansas
    CR 92-270
    840 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered October 12, 1992

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Larry Ashley, the appellant, notified the Little Rock police that his wife, Debbie Ashley, had left Little Rock on Friday, April 5, 1991, for a weekend trip to Atlanta, Georgia, but had not returned home by Sunday evening as she should have, and he was worried about her. On Wednesday, April 10, 1991, a policeman discovered Debbie Ashley’s car parked in the long term parking area of the Little Rock airport. He noticed a dried substance, reddish-brown in color, that looked like blood, splattered around the trunk, with hair matted into it. He called the detective unit. They opened the trunk and found Debbie Ashley’s body inside. She had been shot once in the mouth and once in the abdominal area and had died days earlier as a result of the bullet wounds.

Appellant admitted to purchasing the gun used to kill his wife and admitted to firing the shots that killed his wife. However, he contended that the shooting was an accident, and that, after the accident occurred, he panicked and put her body in the car trunk, took it to the airport, and concocted the coverup story about the weekend trip to Atlanta. He was charged with capital murder. The jury found him guilty of the charge and sentenced him to life imprisonment without parole. We affirm the judgment of conviction.

Appellant’s initial point of appeal is that the trial court erred in refusing to grant his motion to dismiss the charge because the capital murder statute fails to adequately narrow the category of death cases and distinguish that category from non-death cases. We do not reach the issue. Appellant does not have standing to question the constitutionality of the statute setting out the grounds for the death penalty since he did not receive that penalty. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991).

Appellant next argues that the trial court erred in refusing to grant a mistrial when one of the State’s witnesses volunteered her opinion about an issue. The facts that form the predicate for the argument are that one of the State’s witnesses, Debbie Osteen, appellant’s supervisor at work, testified that on Tuesday, April 8, appellant told her his wife was still missing from her trip to Atlanta. She testified that she asked appellant various questions about his missing wife, such as, “Did she call her sister when she arrived in Atlanta?” Shortly afterwards, the witness said, “At the time I wasn’t sure whether he was telling me the truth. That’s why I was questioning him like that.” The statement was volunteered; it was not in response to a question. Immediately after the statement was made appellant moved for a mistrial. The trial court denied the motion, but gave a curative instruction to the jurors that they were to disregard the statement. Appellant assigns the ruling as error.

A mistrial is an extreme and drastic remedy that should only be used if there has been an error so prejudicial that justice could not be served by continuing the trial. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). A trial judge is given wide latitude in the decision to grant or deny a request for a mistrial, and his decision will only be reversed for an abuse of that discretion. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). In addition, a mistrial should only be declared if any possible prejudice cannot be removed with an admonition to the jury. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988).

The trial judge did not abuse his wide discretion by denying the motion and giving the curative instruction under these facts. This is true especially in light of the fact that the jurors would soon learn from the appellant’s own testimony that he was indeed not telling the witness the truth about his wife being missing on a trip to Atlanta.

Appellant next argues that the trial court erred by refusing to grant a mistrial after the prosecutor supposedly asked an unfairly prejudicial question. The argument is without merit. The prosecutor asked a member of the police department’s crime scene search unit: “Mr. Holloway, were you called in by the detectives with the Little Rock Police Department to do a crime scene search at the crime scene of the Debbie Ashley murder located at — ” At this moment defense counsel moved for a mistrial. The trial court correctly refused to grant the motion. At this juncture of the trial the testimony showed that detectives had opened the trunk of a car and had found the bloody corpse of Debbie Ashley. The witness, who was a member of the crime scene search unit, was asked if he had been called to conduct a crime scene search of the Debbie Ashley murder. The officer was, in fact, called to examine the crime scene, and Debbie Ashley appeared to have been murdered. The question did not mention appellant. It was not an attempt by the prosecutor to convey some unfair message to the jurors about appellant. The trial court did not abuse its wide discretion by denying the motion for a mistrial.

Appellant next argues that the trial court erred in refusing to grant yet another motion for a mistrial. During the State’s opening statement the prosecuting attorney outlined, among other things, the testimony of two of the State’s witnesses. Appellant moved for a mistrial because of the outline of the testimony of these two witnesses. The trial court ruled that the opening statement could not be prejudicial if the outlined testimony proved to be admissible, but if the outlined testimony proved to be inadmissible, appellant could later renew his motion. The testimony was later admitted without objection. Obviously, appellant was not entitled to a mistrial on the basis of the prosecutor’s opening statement outlining the testimony of two witnesses whose testimony was later admitted without objection.

Appellant makes three assignments of error involving the admission of evidence. In the first of these evidentiary arguments he contends the trial court erred in allowing into evidence the hearsay testimony of witnesses Sandra Skinner and Diane Clancy. We summarily dispense with this argument because the trial court sustained the only evidentiary objection made by appellant during the testimony of these two witnesses.

The second of the evidentiary arguments involves a photograph of the victim’s body in the trunk of the car, State’s Exhibit 10. As we have said a number of times, the decision to admit photographs lies within the sound discretion of the trial judge and will not be set aside absent an abuse of that discretion. Porter v. State, 308 Ark. 137, 822 S.W.2d 846 (1992). Even inflammatory photographs can be admitted if they shed some light on any issue or are useful to the jury. Owens v. State, 300 Ark. 73, 83, 777 S.W.2d 205, 210 (1989). The trial judge allowed State’s Exhibit 10 into evidence only after appellant questioned whether the jacket shown in another picture was the same jacket found on the victim. The trial judge allowed Exhibit 10 into evidence to show that the two exhibits were pictures of the same jacket. Thus, the trial court did not abuse its discretion in allowing the exhibit into evidence.

The third of the evidentiary arguments involves another photograph, State’s Exhibit 20, which is a picture of the victim’s open mouth taken during the autopsy. The picture showed the presence of gunpowder on the corner of Debbie Ashley’s mouth and established the close proximity of the gun to her mouth at the time she was shot in the mouth. The proof went to the issue of premeditation and deliberation by supporting the theory that the victim had been shot with the muzzle of the pistol inside her mouth. Clearly, the trial court did not err in allowing this photograph into evidence.

The sentence imposed in this case is life without parole, and under Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, an examination has been made of all objections decided adversely to appellant. None requires reversal of this case.

Affirmed.

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


text:
    Joseph WICKER v. STATE of Arkansas
    92-245
    839 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered October 12, 1992

      Riffel, King, & Smith, by: Kirby Riffel, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y' Gen., for appellee.
   Robert H. Dudley, Justice.

Joseph Wicker, appellant, stands charged in circuit court with taking part in the gang rape of a thirteen-year-old girl. Appellant was born on August 30, 1973, and the alleged crime took place on August 4, 1990; thus, he was sixteen years and eleven months old at the time of the alleged crime. He filed a motion to transfer the case to juvenile court, see Ark. Code Ann. § 9-27-318(d) (Supp. 1991), but the trial court refused to transfer the case. He then filed this interlocutory appeal pursuant to Ark. Code Ann. § 9-27-318(h) (Supp. 1991). We affirm the ruling of the trial court.

The factors to be considered in deciding whether to transfer a case to juvenile court are the seriousness of the alleged offense, whether violence was allegedly used, and whether the alleged offense is part of a pattern of adjudicated offenses, along with the prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(f) (Supp. 1991). In making its decision, the trial court is not required to give equal weight to each of the factors listed above. Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). In this case, the primary factor was obviously the seriousness of the alleged crime and its violent nature. The proof on the motion to transfer, when we view it most favorably to the appellee as we must do, shows a thirteen-year-old girl being held down while appellant and another sixteen-year-old boy committed the crime of rape against her to the cheers of onlookers. Such a charge is very serious, and the alleged crime is of an extremely violent nature. In addition, appellant is now past his eighteenth birthday and can no longer be committed to a youth services center. See Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991) and Ark. Code Ann. §§ 9-27-331(a) (1), 9-28-209(a)(1) (Supp. 1991). In view of these factors, we have no hesitancy in affirming the trial court’s ruling that appellant should stand trial as an adult.

Affirmed.


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    Alvin Lamont DAVIS v. STATE of Arkansas
    CR 92-575
    839 S.W.2d 182
    Supreme Court of Arkansas
    Opinion delivered October 12, 1992

      Paul Johnson, for appellant.

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

The appellant, Alvin Lamont Davis, was convicted of capital murder and sentenced to life imprisonment without parole in the Arkansas Department of Correction. His sole point of appeal is that the trial court erred in denying his motion for a directed verdict based on insufficient corroboration of the testimony of an accomplice. We find sufficient other evidence connecting Davis to the crime and, therefore, affirm his conviction.

In the early morning hours of February 13, 1991, an attempted robbery took place at the Waffle House on Scott Hamilton Road in Little Rock. David Barnett, an off duty Little Rock policeman, was eating at the restaurant at the time. Samantha Eddings, a waitress, and Chris King, a cook, were also present.

A person later identified as Charles Smith peered into the restaurant from outside, entered, and sat at a booth. A few minutes later, another male entered the restaurant wearing a brown ski mask and carrying a rifle that had a scope attached to it. The person in the ski mask pointed the rifle at Eddings and then at Barnett. Barnett knocked the rifle from his hands separating it from the scope. A struggle ensued in which the masked assailant was joined by Smith. Smith picked up the rifle and started hitting Barnett over the head with it. Barnett then attempted to draw his service weapon. Several shots were fired and Barnett fell. Smith and the masked assailant fled the scene together.

Charles Smith and Alvin Lamont Davis were arrested the next day and charged with capital murder, aggravated robbery, and theft of property. Prior to trial, the charges against Smith were reduced to first degree murder based on his guilty plea and his agreement to testify. Smith received a life sentence.

Ark. Code Ann. § 16-89-111 (e)(1) (1987) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The test for determining the sufficiency of the evidence is whether, if the testimony of the accomplice were eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). 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. Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985).

At trial, Charles Smith, the accomplice, testified that he was present at the Waffle House on the night of Officer Barnett’s murder. He identified Lamont Davis as the same person who came into the restaurant carrying a rifle. Smith stated that the rifle which he recovered from the floor was not loaded and that all four shots came from Barnett’s service weapon.

Several other witnesses corroborated the testimony of Smith. Samantha Eddings, the waitress, and Chris King, the cook, identified Charles Smith as the man who came in that night and sat in a booth. Both testified that another man carrying a rifle and wearing a ski mask came in a few minutes later and pointed his gun at Eddings and Officer Barnett. They testified that a struggle took place and Smith picked up the rifle and hit Officer Barnett over the head with it. Both stated that shots were fired and Barnett fell to the ground.

Yolanda Terry, an acquaintance of Davis and the cousin of Smith, testified that Davis and Smith were among a group of people who were at her house on February 13, 1991. She stated that the two men left with a rifle with a scope on it approximately the same time that the murder was committed. Bobby Richardson, an acquaintance of the appellant and Yolanda Terry’s brother, testified that Davis and Smith were not at Yolanda Terry’s house during the time that Officer Barnett was murdered but that they later appeared. Richardson testified that at Smith’s request he drove them to a location under the Broadway Bridge where Davis got out of the car and threw something in the river which he assumed to be a gun. Also, Diane Carlton, appellant’s aunt, testified that on February 14, 1991, Davis told her that he was with Smith at the Waffle House but that he didn’t kill anyone.

There is other evidence connecting appellant with the crime. The appellant’s fingerprints were matched to fingerprints taken from the inside of the interior door and wall in the foyer of the Waffle House. The shell casings found at the scene were consistent with those test fired from Officer Barnett’s service weapon. Also, Officer Barnett’s service weapon was recovered by Pulaski County Sheriffs deputies in the approximate location where Bobby Richardson testified that the appellant threw an object into the river.

In sum, there was ample evidence tending to connect the appellant to the crime and the trial court was correct in denying appellant’s motion for a directed verdict.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


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    STATE of Arkansas v. Ina L. JONES
    CR 92-554
    839 S.W.2d 184
    Supreme Court of Arkansas
    Opinion delivered October 12, 1992

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

      Woodruff & Huckabay, P.A., by: Curt Huckabay, for appellee.
   Steele Hays, Justice.

Appellant, Ina L. Jones was charged with possession of cocaine with intent to deliver. Her motion to suppress the evidence was sustained and the state has appealed pursuant to Ark. R. Crim. P. 36.10(a) and 16.2(d).

At the suppression hearing arresting officers testified that they observed a vehicle spin its tires as it left an area under surveillance. The vehicle’s tires squealed two more times and the car skidded slightly. Relying on a Blytheville traffic ordinance, No. 1010, the police stopped the motorist, appellant Ina Jones, and asked permission to search her vehicle. Mrs. Jones’s purse contained cocaine and a loaded .25 calibre automatic pistol.

At the conclusion of the hearing the trial court offered these comments:

The question that comes up is whether or not that spinning your wheels must also include a disregard for persons, property, traffic controls and conditions then present. This was apparently late at night, wasn’t anybody present but the police officer. I hardly see how it could indicate a disregard for persons, property, traffic controls and conditions then present. I am going to rule that the stop was not called for and that it was based only on a suspicion that she was involved leaving a high crime area driving a car that the police officer suspected was used for carrying narcotics, and I am going to say that the stop was illegal.

In the colloquy between court and counsel that followed the ruling, counsel for the state asked for specific findings as to whether Mrs. Jones had consented to the search:

The Court: I am not getting as far as that. I would say that she did, if you want a finding of facts, but that was after the illegal stop and is void, in my opinion.

Counsel for the state then asked “whether or not the officer’s testimony was credible with regards to what led up to his stopping her.”

The Court: If. I can clarify my ruling, I am not going as far as ruling that she did skid or didn’t skid. What I am ruling is, that the testimony by the officer who stopped her did not fulfill the requirements of Section One of the ordinance 1010, as there was no testimony whatsoever that there was a disregard for persons, property, traffic controls and conditions then present; and whether she skidded or whether she didn’t skid, the actions without those things, or one of those things being present, was not a proper reason for the officer to stop her.

On appeal, the state submits the question presented is whether the trial court correctly interpreted the ordinance in light of his findings, rather than a problem of search and seizure under the Fourth Amendment.

The ordinance reads:

Section 1. Hazardous driving is defined as the operation of a motor vehicle upon the streets, highways, alleys, public parking lots, private parking lots or upon private property within the city limits of Blytheville, Arkansas, in such a manner as to indicate a disregard for persons, property, traffic controls and conditions then present. Hazardous driving includes, but is not limited, to the following:
Starting or stopping a vehicle in such a manner that the tires of the motor vehicle lose traction and the vehicle slides from side to side, swerves, or otherwise deviates from its normal direct course or direction of travel. . . .
Application of power or accelerating a vehicle unnecessarily so as to cause it to spin, on the surface it is operating, producing noise and/or skidding or sliding.

The ordinance, as we read it, defines hazardous driving as driving which indicates a disregard for persons, property, traffic controls and conditions then present, including, but not limited to, starting or stopping a vehicle in such a manner that the tires lose traction and the vehicle swerves, or by accelerating unnecessarily so as to cause it to spin, producing noise or skidding, or both.

That is precisely what the state’s testimony established and we are not persuaded that more is required. The trial court observed that it was late at night and there was no testimony that there was a disregard for persons, property, traffic controls or conditions. It is undisputed that the stop occurred between 9:00 and 9:30 p.m. in an area known as Cherokee Courts, but beyond that the record is silent as to the presence of other motorists, pedestrians or dwellings. We cannot agree, however, that it was the state’s obligation under the ordinance to prove that appellee acted in disregard of persons or property. Appellee’s proof was directed, not toward the ordinance, but to whether she had consented to the search, an issue the trial court did not reach. Appellee did not dispute the testimony that her tires spun and it was incumbent on her to establish grounds for the suppression of the evidence seized by the state. See State v. Barter, 310 Ark. 94, 833 S.W.2d 382 (1992); Lipovich v. State, 265 Ark. 55, 576 S.W.2d 720 (1979) and Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4 (1977); Ark. R. Crim. P. 16.2(e).

It should be kept in mind that we are not dealing with guilt or innocence under the ordinance, merely with whether there was probable cause to conclude the ordinance had been violated; therefore, the trial court’s refusal to discredit the testimony that appellee’s tires squealed and her car swerved leaves but one question to be decided — whether the state must prove not only the offending conduct charged by the state, but that particular persons or property were affected thereby. We think not, anymore than that the state must prove that particular persons are affected by a blaring stereo in violation of an anti-noise ordinance, or that other motorists are jeopardized by one who is charged with driving while intoxicated. It is enough that the precepts of such ordinances are breached. Oliver v. State, 284 Ark. 413, 682 S.W.2d 745 (1985) provides an analogue. Oliver, appealing from a conviction for DWI, argued that because under the Omnibus DWI Act of 1983 “intoxicated” is defined as a substantial impairment of a driver’s reactions, motor skills and judgment, his conviction could not stand when the state failed to present evidence of his reactions, motor skills and judgment under normal conditions. We found no merit in the argument.

Appellee maintains that the ordinance is unconstitutionally vague, that due process requires adequate notice of what conduct is prohibited so that arbitrary and discriminatory enforcement is avoided. While those considerations may be pertinent where guilt or innocence is the issue, appellee has cited no authority which make them pertinent to probable cause proceedings, the purpose of which is merely to determine whether an officer has reasonable grounds to believe a crime has been committed. The proof in this case was essentially unchallenged that the appellee’s driving came within the prohibition of the ordinance and, accordingly, there was probable cause to stop and investigate.

Reversed and remanded.