author: Lavenski R. Smith, Justice. Tom Glaze, Justice,

text:
    Larron Clark McDANIEL v. STATE of Arkansas
    CR 99-166
    990 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Paul Petty, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant, Larron Clark McDaniel (“McDaniel”), appeals his conviction on drug charges from the Faulkner county circuit court. McDaniel entered a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b), and was sentenced to 120 months of imprisonment, with sixty months suspended. Appellant challenges the denial of his motion to suppress evidence on the grounds that the search of locked toolboxes and a briefcase in the bed of his truck based on an officer’s assertion that he smelled marijuana violated the Fourth Amendment of the United States Constitution. We disagree and affirm.

Facts

The suppression hearing produced the following facts. On the night of April 26, 1997, officers Tony Hartwick and Brad McNew stopped McDaniel and his passenger, Bobby McAdams. The officers did so after observing McDaniel driving left of the center line while driving through Damascus, Arkansas, at about 1:00 a.m. The police officers turned on their lights, and continued to follow McDaniel for approximately a quarter of a mile before McDaniel pulled over. Officer Hartwick testified that, upon approaching the truck, he smelled a strong odor of marijuana emanating from the cab. In contrast, Officer McNew testified that he did not smell marijuana as he approached the vehicle on the passenger side. Officer Hartwick asked McDaniel to exit the vehicle. Upon an initial visual inspection of the cab of the truck, Officer Hartwick testified that he did not see any evidence of marijuana use such as seeds, a pipe, a hemostat, rolling papers, or other drug paraphernalia. He asked McDaniel whether McDaniel had been drinking or using drugs because Officer Hartwick testified that McDaniel’s eyes were “bloodshot and watery.” McDaniel denied that he had been using any drugs or alcohol. Officer Hartwick also asked McDaniel whether he had any weapons, stolen merchandise, drugs or any other illegal item in the truck, and McDaniel again denied it. Officer Hartwick testified that McDaniel told him to “go ahead and look,” and Officer Hartwick began rummaging through the cab of the truck. Officer Hartwick did not request that McDaniel sign a consent to search form, although such forms were used by and available at the Damascus Police Department. McDaniel disputed that he gave Officer Hartwick permission to search the truck.

While this search of the truck cab was proceeding, Officer McNew had removed McAdams from the passenger side of the truck so that Officer Hartwick could conduct the truck cab search. Officer McNew testified that although McAdams had presented no threat at the time of the stop nor at any time during the detention, he patted him down to look for weapons. During this pat-down, Officer McNew felt something in McAdams left front pocket which turned out to be McAdams’s keys. Officer McNew continued the pat-down and felt another object which, he testified, was “not a weapon.” However, Officer McNew reached into McAdams’s pocket and pulled out a Tylenol tube although he knew it did not contain a weapon. He did not give it back to McAdams, however, because he believed from experience that it might contain “contraband.” Upon opening the tube, Officer McNew found what later turned out to be methamphetamine. Officer McNew then arrested McAdams, handcuffed him and placed him in the back of his police car, and walked back to the truck to show Officer Hartwick what he had found.

As Officer McNew approached the vehicle, he testified that he saw Officer Hartwick looking in a briefcase which he had retrieved from a large toolbox located in the truck bed behind the cab of the truck. While Officer McNew searched McAdams, Officer Hartwick finished searching the truck cab but found no weapons or drugs. He had also searched McDaniel and found no weapons on him. However, Officer Hartwick’s search did not end there. After Officer Hartwick found nothing in the cab of the truck to explain the strong odor of marijuana he testified he smelled, he read McDaniel his Miranda rights and then proceeded to search a locked toolbox in the bed of the truck. He testified that he usually looked in toolboxes regardless of whether the passenger was detained. Officer Hartwick retrieved the keys from inside the cab of the truck and directed McDaniel to show him which key opened the toolbox. Officer Hartwick testified that McDaniel showed him which key opened the box, although McDaniel disputed that he did, and Officer Hartwick opened the toolbox. Officer Hartwick testified that he then smelled the odor of marijuana coming out of it. He found a briefcase and opened it to find marijuana.

At this time, Officer McNew returned to show Officer Hart-wick what he had found on McAdams. After joining Officer Hartwick at the truck, Officer McNew found a smaller silver box which was locked in the larger toolbox. He, too, asked McDaniel to show him the key that unlocked the small box, and McDaniel did. Officer McNew found a baggie of off-white powder, along with pipes, empty baggies and other items. Officer McNew asked McDaniel what was in the baggie, and McDaniel told him it was methamphetamine. According to Officer McNew, he then arrested McDaniel and handcuffed him. Apparently, Officer Hartwick read McDaniel his Miranda rights before he began searching the toolbox. In denying the motion to suppress, the trial court found that the officers had probable cause to search the truck based on the fact that Officer Hartwick claimed he smelled marijuana.

Standard of Review

When we grant a petition for review of a court of appeals case, we review the judgment and proceedings before the trial court as if the appeal had been originally filed before us. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). When reviewing the denial of a suppression motion, we make an independent examination of the evidence based on the totality of the circumstances and will not reverse the trial judge’s decision unless it is clearly against the preponderance of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).

The appropriate starting place for cases involving potential unreasonable searches and seizures is the constitutional provision protecting citizens from such police conduct. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. 4. In general, a search is considered invalid absent a warrant based on probable cause to search. However, the United States Supreme Court first established the “automobile exception” to the warrant requirement in Carroll v. United States, 267 U.S. 132 (1925), recognizing that the mobile nature of automobiles justifies a search, based on probable cause, even when a warrant has not yet been obtained. In the last eighteen years, the United States Supreme Court has simplified the rules regarding warrantless searches of automobiles to narrow the requirements down to one bright-line rule. In United States v. Ross, 456 U.S. 798 (1982), the Court stated:

Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages, that may conceal the object of the search. The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.

Ross, 456 U.S. at 798, 823-825. This rule put to rest several different distinctions between searches of vehicles and the containers they may contain. See, United States v. Chadwick, 433 U.S. 1 (1977); Arkansas v. Sanders, 422 U.S. 753 (1979). Since Ross, the Court has also refined the issue of whether a police officer must obtain a warrant to open a container found in the trunk of a car when the search only extends to that container, and determined that no warrant is necessary should probable cause exist to believe that the container holds contraband. See, California v. Acevedo, 500 U.S. 565 (1991).

Two issues generally appear in search and seizure cases. First, we must consider whether there was probable cause to search the vehicle and any containers therein, and second, whether the scope of the search was appropriate for the item to be found. On the first issue, we have clearly recognized that “the odor of marijuana coming from a vehicle is sufficient to arouse suspicion and provide probable cause for the search of that vehicle.” Green v. State, 334 Ark. 484, 490, 978 S.W.2d 300, (1998); see also, Gordon v. State, 259 Ark. 134, 529 S.W.2d 330, cert. denied, 434 U.S. 929 (1976). We have recognized that the smell of marijuana emanating from a vehicle gives rise to reasonable suspicion to detain the occupants to determine the lawfulness of their conduct, to search the vehicle, and to arrest the occupants, depending on the circumstances. Brunson v. State, 327 Ark. 567, 571, 940 S.W.2d 440 (1997), citing Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996), Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989), and Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992).

In the instant case, there is no dispute whether the officers lawfully pulled McDaniel over for a traffic violation. See, Whren v. United States, 517 U.S. 806, 135 L.Ed.2d 89 (1996). Probable cause to search was also present based upon the smell of marijuana. Green, supra. Officer Hartwick testified that, upon approaching the truck, he smelled a strong odor of marijuana, as if it had just been smoked. Although Officer McNew testified that he did not smell the “strong” odor of marijuana, we will defer to the trial court’s finding of fact, absent an abuse of discretion, when the only determination is the witness’s credibility. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997).

Once probable cause is determined to exist, the second issue, the scope of the search, then arises. The U.S. Supreme Court has given direction on this point. “The scope of a warrant-less search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause.” Ross, supra, at 823. As the Court pointed out in Ross:

A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers,in the case of a home or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

Id., at 821. The Court further stated:

[J]ust as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.

Id., at 824.

In Ross, the police received a tip from a reliable source who told them that an individual was selling narcotics from the trunk of his car in a particular location in the District of Columbia. The police officers stopped the car and driver matching the descriptions given by the informant. One of the officers opened the trunk, found a brown paper bag and, after opening the bag, found glassine bags containing heroin. The Court concluded its analysis by stating, “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Ross, at 825.

The U.S. Supreme Court elaborated further in Acevedo, supra. In that case, the police observed Acevedo leaving an apartment in which the police knew contained marijuana. Acevedo left the apartment carrying a brown paper bag which he placed in his trunk. Suspecting that the brown bag contained marijuana, the police stopped Acevedo and searched the trunk for the bag and opened it when they found it. The bag contained marijuana. The Court had previously held that while the bag could be confiscated, a search warrant was necessary to look in the bag. In Acevedo, however, the Court determined that such a rule was outmoded, in part based on Ross, and held that the bag could be opened without a warrant. The Court concluded, “The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” Acevedo, at 564. Because a vehicle is readily movable by any person, not just the suspect, exigent circumstances allow the vehicle to be searched at the scene. Reyes v. State, 329 Ark. 539, 548-550, 954 S.W.2d 199, 202-204 (1997). In United States v. Perkins, 994 F.2d 1184 (6th Cir. 1993), the appellate court upheld a warrantless search of a white tool box in the bed of his co-conspirator’s pickup truck where authorities found marijuana. Citing Acevedo, the court concluded that probable cause to stop and search the vehicle existed, together with exigent circumstances, to support the warrantless search of the toolbox and glove compartment.

We are readily mindful of the priceless value of constitutional liberties. They cannot be lightly infringed upon or they will inevitably be whittled away to worthless. In the instant case, the precedents governing automobile searches make it apparent, for better or worse, that driving citizens and their cargo are less protected than when at home. The facts and the law applicable to the instant case compel a holding that probable cause justified the search of appellant’s vehicle and that the scope of that search could include containers within the automobile that could contain the suspected and ultimately discovered marijuana. We therefore affirm the trial court’s denial of appellant’s motion to suppress.

Affirmed.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I must dissent. The majority opinion quotes the pertinent language from Ross v. United States, 456 U.S. 798 (1982), and California v. Acevedo, 500 U.S. 565 (1991), but seems to ignore its application to this case.

The majority is correct in finding Officer Hartwick’s testimony that he smelled marijuana provided him probable cause to search the cab of the truck. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). However, probable cause to search the cab of the truck does not justify a search of a locked toolbox in the bed of the truck and any containers, including locked containers, therein.

In Ross, Ross challenged only the search of closed containers within his vehicle’s trunk even though the searching police officers had probable cause to search Ross’s entire vehicle. The Supreme Court set out the criteria for courts to use to determine whether a warrantless search is reasonable under the Fourth Amendment:

The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrandess search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.

Ross, 456 U.S. at 824 (emphasis added). The Court then upheld the search, finding an informant’s tip provided the officers probable cause to search the closed containers in Ross’s trunk.

In Acevedo, the Court was confronted with the situation where police officers had no probable cause to search the entire vehicle, but instead had information that Acevedo placed a sack containing contraband in his vehicle’s trunk. The officers in Acevedo had previously observed activity at an apartment after obtaining information that a package of marijuana had been taken inside. The officers stopped and searched a person leaving the apartment and found marijuana on him. Acevedo subsequently arrived at the apartment, stayed about ten minutes, and left with a package. He was seen putting the package in his trunk. The officers later stopped his vehicle, searched his trunk, and found marijuana. In holding that the police were not required to obtain a warrant before opening the package found inside Acevedo’s trunk, the Court said: “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” Acevedo, 500 U.S. at 580.

Thus, the Court in Ross and Acevedo required police officers to have specific probable cause to believe they will find the object of their search in the places in which they conduct the search. However, the police must end their search once they have searched that area. In Acevedo, the Court stated, “[T]he police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.” Acevedo, 500 U.S. at 580 (emphasis added). Any search conducted in an area where the police do not have probable cause to believe they will find the object of their search is unreasonable and any evidence gathered by that search must be suppressed.

In this case, Officer Hartwick testified that when he smelled the odor of marijuana after stopping McDaniel, “[i]t smelled like someone had just smoked some marijuana.” Hartwick asked McDaniel if he had been drinking or using drugs; McDaniel said he had not. Based on Officer Hartwick’s testimony, the scope of the search was limited to the places in which there was probable cause to believe the officers would find evidence of freshly smoked marijuana. As neither officer testified they observed any activity to make them believe either McDaniel or his passenger had tried to put anything in the toolbox, the officers could search the cab of the truck for marijuana cigarettes or paraphernalia associated with smoking marijuana, but not the locked toolbox in the bed of the truck, nor the briefcase and locked box contained in the locked toolbox.

Once Officer Hartwick searched the cab of the truck and found no evidence of freshly smoked marijuana, his probable cause was extinguished. Acevedo, 500 U.S. at 580; Ross, 456 U.S. at 824. Because any further search of the truck was unsupported by probable cause and was therefore unreasonable under the Fourth Amendment, any contraband obtained from the search should be suppressed. For these reasons, I respectfully dissent.

       The U.S. Supreme Court recently reaffirmed its Ross rationale in Wyoming v. Houghton, 119 S. Ct. 1297 (1999).

         The majority relies on Ross to support its finding of probable cause in this case. However, Ross challenged only the lower court’s refusal to suppress evidence found in the search of the closed containers within his trunk and did not challenge the officers’ probable cause to search his vehicle’s passenger compartment. In this case, McDaniel specifically challenges the police officers’ probable cause to search the locked toolboxes. The Court in Ross cites the Court of Appeals’ decision that the officers had probable cause to search the entire vehicle, but did not consider the issue itself. The question of whether probable cause is required for different parts of a vehicular search was addressed in Acevedo.


source: Caselaw Access Project

author: Lavenski R. Smith, Justice. W. H.“Dub” Arnold, Chief Justice,

license: Public Domain

text:
    WAL-MART STORES, INC. v. Brenda VanWAGNER
    98-1364
    990 S.W.2d 522
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Bassett Law Firm, by: Curtis L. Nebben, for appellant.

      McKinnon Law Firm, by: Laura J. McKinnon, for appellee.
   Lavenski R. Smith, Justice.

This is an appeal from a decision of the Workers’ Compensation Commission. The single issue is whether the Commission’s decision that appellee, Brenda VanWagner, suffered a compensable injury is supported by substantial evidence. The case requires an interpretation of our workers’ compensation statute provisions specifying that a compensable injury be established by objective medical evidence. In particular, it concerns Ark. Code Ann. § 11-9-102 (Supp. 1997), including subsections (5)(A)(i), (5)(D), and (5)(E) made a part of the code by Act 796 of 1993. The case is before this Court on a grant of petition for review pursuant to Ark. Sup. Ct. R. 1-2(e)(i). Appellant, Wal-Mart Stores, Inc. (“Wal-Mart”), contends VanWagner failed to show by a preponderance of the evidence that she suffered a compensable injury to her right breast implant in the course of her employment. Wal-Mart asserts that the Commission’s decision, therefore, is not supported by substantial evidence. We disagree and affirm.

Appellee began working for Wal-Mart in July of 1994. It is undisputed that she had breast implants as a result of reconstructive surgery following a double mastectomy in the early 1980s. It is also undisputed that appellee suffered an injury to her shoulder at work on November 17, 1994. She received medical treatment from Dr. Gary Moffit. After the shoulder injury, VanWagner was returned to work on “light duty.” VanWagner alleges that on November 25, 1994, while working in the Wal-Mart bakery, she slipped on water, and in raising her arm to protect her shoulder as she began to stumble, fell against a piece of equipment suffering injury to her right chest. She contends this fall displaced and ruptured her right breast implant. VanWagner reported the injury to her supervisor, but no record of the report exists. Appellee reported the incident to Dr. Moffit on November 28, 1994. His medical report contradicted her statement that she had experienced a lot of bruising after the fall. VanWagner first mentioned displacement of her breast implant to Dr. Moffit on June 20, 1995, who referred her to a plastic surgeon, Dr. Alderson. Dr. Alderson performed surgery and substantiated that the right implant was displaced and ruptured. The Administrative Law Judge found VanWagner showed by a preponderance of the evidence that she suffered the injury in the course of her employment. Upon review, the full Workers’ Compensation Commission adopted the judge’s findings.

Standard of Review

Upon a petition for review, we consider a case as though it were originally filed in this court. Burlington Indus. v. Pickett, 336 Ark. 515, 988 S.W.2d 3 (1999). On appeal in a worker’s compensation case from the Court of Appeals to this Court, the evidence must be viewed in the light most favorable to the Commission’s decision, and its decision must be upheld if supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Pickett at 518; E.R.C. Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

Compensable Injury

Prior to an examination of whether substantial evidence supported the Commission’s finding that appellee suffered a compensable injury, we must clarify the meaning of compensable injury. Appellant argues that based on Ark. Code Ann. §§ 11-9-102(5)(A)(i), (5)(D) and (5)(E)(i), in order for appellee’s injury to be compensable, it must be established by showing: (1) that it arose out of and in the course of employment; (2) that it occurred accidently as a result of a specific identifiable incident; and (3) that it was established by medical evidence supported by objective findings, i.e., findings not within the control of appellee. Appellant asserts that medical evidence is necessary not only to establish the existence of an injury,' but also to establish that a work-related accident caused the injury. Appellant, therefore, contends objective medical evidence of causation is elemental to proper proof of a compensable injury.

This court has not previously addressed this question. However, the Arkansas Court of Appeals has in at least two published opinions directly confronted the issue. In Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997), a worker alleged injury to his back when he fell while pulling a tarp over a load on a truck. The worker went to the emergency room and complained of neck pain, but it was not until several weeks later that an MÜRJ revealed herniation at C4-C5 in his spinal column. The employer contested compensability. It contested it, not as to the existence of the injury, but as to the injury’s causation by a work-related incident. The employer contended that objective medical evidence was necessary to show that the injury occurred on the alleged date or while working for the employer. The court of appeals held to the contrary, stating, “Were we to interpret the Act so strictly as to require objective medical evidence to prove nonmedical elements of compensability, we would defeat the overriding legislative intent. Consequently, we hold the requirement that a compensable injury must be established by medical evidence supported by objective findings applies only to the existence and extent of the injury.” Id. at 280. The court of appeals cited to Stephens Truck Lines in Aeroquip, Inc. v. Tilley, 59 Ark. App. 163, 954 S.W.2d 305 (1997). In Tilley, a worker with prior back problems alleged injury to his back from being pulled across a table by a 700 to 800 pound work implement. The court upheld the Commission’s award citing Millican and stating, “A claimant need not offer objective medical evidence to prove circumstances under which the injury was sustained or the precise time of the injury’s occurrence.” Id. at 168.

We find the court of appeal’s reasoning in Millican and Tilley persuasive. We therefore adopt the holding in Millican that objective medical evidence is necessary to establish the existence and extent of an injury but not essential to establish the causal relationship between the injury and a work-related accident. The plethora of possible causes for work-related injuries includes many that can be established by common-sense observation and deduction. To require medical proof of causation in every case appears out of line with the general policy of economy and efficiency contained within the workers’ compensation law. To be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case.

Adopting the Millican holding does not fully resolve this case, however. It means that appellee need not produce objective medical evidence that the fall she said occurred on November 25, 1994, caused her injury where objective medical evidence established the injury’s existence, and a preponderance of other non-medical evidence established a causal relation to a work-related incident. The remaining question, then, is did appellee meet her burden with the evidence she did produce? The principal evidence of causation for appellee’s injury consisted of appellee’s own testimony. She testified regarding the fall, reporting it to her supervisor, seeking medical attention and that others present witnessed it. She also offered some physician testimony recorded months later which was at best inconclusive. Appellant countered this evidence with the testimony of appellee’s supervisor who could not remember the incident and with physicians’ statements in which the physicians were unwilling to state a causal connection between the alleged fall and appellee’s medical condition. This case then resolves down to a matter of credibility. Was the claimant’s story believable?

Our case law on this issue is clear. Credibility of witnesses is properly the province of the Commission, which had the benefit of the witnesses’ presence to judge their demeanor and determine the weight to be accorded their statements. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). Upon review, it is not a matter of whether we would come to a different conclusion but whether reasonable minds could reach the Commission’s conclusion. Pickett, supra. After reviewing the record, we hold that reasonable minds could reach the Commission’s conclusion and therefore affirm its decision that claimant suffered a compensable injury.

Affirmed.

Arnold, C.J., dissents.

Corbin, J., not participating.

W. H.“Dub” Arnold, Chief Justice,

dissenting. The claimant has failed to satisfy the requirements of Ark. Code Ann. §§ 11-9-102(5)(A)(i), 11-9-102(5)(D), and 11-9-102(5)(E)(i) (Supp. 1997), which state in part:

(5) (A) ‘Compensable injury’ means
(i) An accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.
***
(D) A compensable injury must be established by medical evidence, supported by ‘objective findings’ as defined in § 11-9-1-2(16).
(E) Burden of Proof. The burden of proof of a compensable injury shall be on the employee and shall be as follows:
(i) For injuries falling within the definition of compensable injury under subdivision (5)(A)(i) of this section, the burden of proof shall be a preponderance of the evidence. (Emphasis added.)

The majority would award benefits based upon the claimant’s testimony that she struck her right chest against a proofer machine in the bakery and that this blow caused swelling, redness, and obvious bruising of her right breast. She claims that Dr. Gary Moffett noted the swelling and bruising on her November 25, 1994, visit. Dr. Moffett does not support this contention. In his report dated November 28, 1994, Dr. Moffett stated:

Brenda is seen today for complaint of worse shoulder pain. She states that while she is [sic] at work she slipped on the floor and through [sic] her right arm up in the air as she did. She states that it caused worsening pain, particularly along the anterior portion of her chest. She had a friend with her today and states that she had a lot of bruising on her anterior chest. However, on visual inspection I found no bruising whatsoever. (Emphasis added.)

As pointed out by the appellant, the first documented complaint regarding the right breast is the report of Dr. Moffett dated June 20, 1995. Dr. Moffett noted:

She then started asking about her breast implant on the right side being higher than the one on the left side and she thinks that this is related to the injury as well. I told her I don’t see any relationship between it and the injury, [i.e., right shoulder injury] but I gave her the name of Dr. Alderson who is a plastic surgeon that she could see to have take care of this. Once again, I do not think it is a work related situation. (Emphasis added.)

Dr. Moffett referred the claimant to Dr. Roger Alderson and he first saw the claimant on July 12, 1995. Dr. Alderson states:

I told her that knowing the history of a 14 year old Silicone gel implant, there was a possibility of gel leakage. I could not determine cause and effect if she is demonstrated to have a leak, whether that was related to her injury at Wal-Mart or whether it could have been preexisting. (Emphasis added.)

The Workers Compensation Commission accepts the claimant’s testimony that she sustained an injury to her silicone implant and that she had a lot of bruising on her chest. She claims that Dr. Gary Moffett noted the swelling and bruising on her November 25, 1994 visit. However, Dr. Moffett disagrees with this statement. In his November 28, 1994 report Dr. Moffett states: “However, on visual inspection I found no bruising whatsoever.” Dr. Alderson said that he could not determine if the possibility of a gel leakage was related to her injury at Wal-Mart. However, the majority relies upon the medical testimony to affirm the case.

On appeal of a workers’ compensation case from the court of appeals to this court, we view the evidence in the light most favorable to the Commission’s decision and affirm that decision if it is supported by substantial evidence, Cleek v. Great Southern Metals, 335 Ark. 342, 981 S.W.2d 529 (1998). Substantial evidence exists f reasonable minds could have reached the same conclusion.

The questionable testimony of the claimant and the testimony of the doctors certainly does not compel a conclusion one way or the other, without resort to speculation or conjecture. Reasonable minds could not have reached the decision that was reached by the Commission in this case. The majority is sending the wrong message in affirming this case.

Based upon the majority opinion, the claimant can report her claim seven months after the alleged injury, simply state that she has suffered a compensable injury, and, even though her testimony is contradicted, the claim is compensable. No positive medical testimony is required, no physical evidence is required, and no witness is required; just a questionable statement by the claimant makes the claim compensable. The burden of proof would no longer be a preponderance of the evidence. For all of these reasons, I would reverse and dismiss.


author: Per Curiam.

text:
    William Nathan MARTIN v. STATE of Arkansas
    CR 98-387
    989 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Hurst Law Offices, by: Q. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   Per Curiam.

In 1995, the appellant, William Nathan Martin, pleaded guilty to one count of violation of the Arkansas Hot Check Law by writing an insufficient check for over $200. The Court that accepted his plea ordered that he be placed under supervised probation for a period of three years. In August of 1996, Martin was arrested and subsequently charged with rape and burglary. As a result of these charges and Martin’s violation of other conditions of his probation, the State filed a petition to revoke his probation. The Trial Court, after a hearing, revoked Martin’s probation and then sentenced him to ten years in the Arkansas Department of Correction. The Trial Court then filed a departure report that explained that the court departed more than five percent from the presumptive sentence because Martin committed additional felonies while on probation.

Martin appealed his sentence to the Court of Appeals. He argued that the Trial Court erred in departing from the sentencing guidelines by over five percent. The Court of Appeals declined to reach that argument, however, because it was not preserved with an objection below.

Martin subsequently filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In his petition, appellant alleged that the attorney who represented him during the revocation proceeding performed deficiently when he did not object to the Trial Court’s departure from the sentencing guidelines, and that he was prejudiced by this failure because he was precluded from arguing the issue on appeal. In its order, the Circuit Court concluded that counsel was not ineffective for failing to object to the departure because the presumptive sentencing guidelines did not apply to the revocation proceeding. The court noted that Martin received the benefit of the sentencing guidelines when he was given supervised probation. The court further found that even if the presumptive sentencing guidelines applied during the revocation proceeding, the sentencing court stated adequate grounds for departure in the report that it filed with the judgment and commitment order.

On appeal from the Circuit Court’s order denying postconviction relief, Martin reiterates his argument that counsel who represented him during the revocation proceeding was ineffective for fading to object to the departure from the sentencing guidelines. We find no merit to this argument and affirm.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

In its response, the State first contends that the presumptive sentencing standards do not apply in revocation proceedings. Specifically, the State refers to Ark. Code Ann. § 16-90-803 (a)(1) (Supp. 1995), which provides:

When a person charged with a felony enters a plea of guilty or no contest, enters a negotiated plea, or is found guilty in a trial before the judge, or when the trial judge is authorized to fix punishment following an adjudication of guilt by a jury pursuant to § 5-4-103, sentencing shall follow the procedures provided in this chapter.

Essentially, the State argues that the sentencing guidelines do not apply to a revocation proceeding because it is not listed among the circumstances in which following the guidelines is mandated. We disagree.

In Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989), we explained that there is a difference between being sentenced and being placed on probation. We cited Ark. Code Ann. § 5-4-101(2), which provides that “probation” means a “procedure whereby a defendant who pleads or is found guilty of an offense is released by the court without pronouncement of sentence but subject to the supervision of a probation officer.” (Emphasis added.) We then observed that since the imposition of probation is not a pronouncement of sentence, “if the trial court revokes probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.”

In this case, when Martin was placed on supervised probation for three years, he was not actually “sentenced,” and therefore, was not precluded from receiving the benefit of the presumptive sentencing guidelines during the revocation proceeding. In other words, the sentencing court was free to use the guidelines as it determined the appropriate punishment under the circumstances.

Martin further contends, however, that the sentencing court’s departure of more than five percent from the presumptive sentencing guidelines was error, and that it was ineffective assistance of counsel to fail to object to that error and at least preserve the issue for appeal. We find no error in the sentencing court’s departure from the sentencing guidelines, and therefore, we affirm the Circuit Court’s denial of relief on the ineffective assistance of counsel claim.

Ark. Code Ann. § 16-90-804(a)(2)(A) (Supp. 1995), which was in effect at the time that Martin was sentenced, provided as follows:

For the trial court to depart beyond the five percent (5%) range below or above the presumptive sentence, written justification shall be given for the most serious offense if the sentences are run concurrently or on each offense if the sentences are run consecutively, specifying the reasons for such departure.

§ 16-90-804(d) then provides a “nonexclusive list” of factors that “may” be used as reasons for departure. While “committing additional felonies while on probation” is not on the list of aggravating factors provided by the statute, we find it to be an appropriate reason when the sentence follows a revocation proceeding, and the preponderance of the evidence indicates that the defendant committed other felonies during his probation.

We cannot determine, however, if the departure was justified under these circumstances, and therefore whether counsel performed deficiently by failing to object, because Martin has not provided us with an abstract of the revocation proceeding. The Trial Court, in its findings of fact after the conclusion of the revocation hearing, concluded that the evidence offered to show that Martin committed rape and burglary indicated, at least, that he had committed criminal trespass or breaking and entering. Specifically, the court found:

Notwithstanding the degree of sexual conduct, you entered the home of Ms. Carlin without invitation where Ms. Carlin was asleep and had been with her boyfriend. You entered in the dark uninvited and it is the finding of the Court that the entry was at least an illegal entry arising to at least Criminal Trespass or Breaking and Entering.

Without an abstract of the evidence that was introduced during the revocation proceeding, we have no way to determine if the court’s upward departure from the sentencing guidelines was justified. It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). Accordingly, we must affirm on the ineffective assistance of counsel issue.

We note, moreover, that the conviction that was the basis for the ten-year sentence, the violation of Ark. Code Ann. § 5-37-302 et seq., is a Class C felony, for which the range of punishment is not less than three years nor more than ten years in the Arkansas Department of Correction. The sentence that Martin received, even with the upward departure, is within the statutory range.

Affirmed.


text:
    Alan WILLETT v. STATE of Arkansas
    CR 97-341
    989 S.W.2d 508
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      William M. Pearson, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Alan Willett was convicted of two counts of capital murder and we affirmed those convictions in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), but remanded the case for resentencing. Upon resentencing, Willett was again sentenced to death and we affirmed his sentence of death in Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998). A hearing was then held on January 22, 1999 and Willett waived his right to postconviction remedies under Ark. R. Crim. P. 37 and his right to appointment of an attorney under Rule 37.5. The State now brings this Motion for Final Review. Because we find that Willett was not shown to be competent to waive his right to postconviction remedies, we deny the motion and remand the matter to the trial court for a competency examination and hearing.

Upon the affirmance of a sentence of death by this Court, the circuit court that imposed the sentence of death shall conduct a hearing to consider the appointment of counsel to represent the person in postconviction proceedings. This hearing is to be held within twenty-one days after the mandate issued by the supreme court. Ark. R. Crim. Pro. 37.5(b)(1).

Here, the trial court erred in allowing Willett to waive his right to possible postconviction relief without a competency examination to determine whether he had the capacity to understand the choice between life and death and to knowingly and intelligently waive his right to postconviction proceedings. In State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998), we affirmed the finding that the appellant had knowingly and voluntarily waived his right to appeal following his conviction and sentence. In relying on our holding in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), we reiterated the procedure to be followed when a defendant elects to waive his right to appeal a death sentence:

. . . [T]he State has the burden of bringing the record of the lower court proceeding on this issue to this Court for review. . . . We will then review the proceeding to determine whether the defendant had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to appeal his sentence of death. The standard of review, as in other types of criminal cases, is whether the trial judge’s conclusion is clearly erroneous.

State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998).

For at least the past decade, we have recognized that the standard for competency to stand trial is not the equivalent of competency to elect execution. Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) (citing White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853 (1987). Based upon that distinction, we hold that the waiver of rights to postconviction remedies following the affirmance of a death sentence is governed by Franz and subsequent cases.

Here, the record reflects that Willett had stated his desire to waive his right to further postconviction remedies of his death sentence as well as his right to an attorney, but the record fails to reflect that a competency examination was conducted to determine whether Willett had the capacity to choose between life and death and to knowingly and intelligently waive all rights to postconviction review of the death sentence. The record merely reflects the trial court’s opinion that nothing had been brought to the court’s attention that indicated there was a question concerning Willett’s competence. Because of our holding in Franz, this finding by the trial court is not sufficient to allow us to sustain Willett’s waiver of his right to postconviction remedies under Rule 37. Accordingly, we remand the matter to the trial court for a competency examination and hearing. After the trial court holds its hearing and makes a judicial determination on Willett’s competency to elect execution and waive his right to post-conviction remedies under Rule 37, including his right to an attorney under Rule 37.5, the State shall bring the record of the lower court proceeding to this Court for review in accordance with the procedure set forth in Franz, supra.

Motion denied; remanded.

       See, Riggs v. Humphries, 334 Ark. 231, 972 S.W.2d 946 (1998); State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998).


author: Donald L. Corbin, Justice.

text:
    Phyllis Karen (Barrett) HAMILTON v. Randall Ray BARRETT
    98-1536
    989 S.W.2d 520
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Benny M. Tucker and George M. Callahan, for appellant.

      J. Sky Tapp, for appellee.
   Donald L. Corbin, Justice.

This is a child-custody case. Appellant Phyllis Karen Hamilton (Karen) appeals the judgment of the Montgomery County Chancery Court awarding custody of the parties’ two minor children to her ex-husband, Appellee Randall Ray Barrett (Randy). In an unpublished opinion, the Arkansas Court of Appeals affirmed the chancellor’s ruling. See Barrett v. Barrett, CA 97-1132, (Ark. App. December 9, 1998). We granted Appellant’s petition to review that decision, which was rendered by a tie vote, pursuant to Ark. Sup. Ct. R. 1-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999). For the reasons set forth below, we affirm the chancellor’s decision.

The record reflects that Randy and Karen were married on June 5, 1982. Two children were born of the marriage: Michael, born on August 19, 1986, and Ranch Michelle, born on July 11, 1989. Randy is president of the Mount Ida School Board, and Karen is an art teacher in the same school system. The parties separated on or about June 22, 1993, and a divorce decree was entered on September 26, 1994. Incorporated into the decree was the parties’ child-custody and property-settlement agreement, which provided that the parties would have joint custody of the children, with Karen being the primary custodian of the children. Randy agreed to pay child support in the amount of $120 per week, in accordance with the Family Support Chart. The custody and settlement agreement also prohibited both parents from having members of the opposite sex, to whom they were not married, stay overnight in their homes during any visitation or custodial periods.

Randy married Jennifer Gossett on December 31, 1994, and they had a child on September 24, 1996. Karen married Jody Hamilton on November 10, 1996. On August 1, 1995', Randy filed a petition for specification of visitation rights and reduction in child support. That petition was never ruled upon by the chancellor. Randy filed an amended petition on August 29, 1996, this time requesting a change of custody, and alternatively for a reduction in child support. The amended petition reflected in part that since the divorce decree was entered, there have been several substantial changes in circumstances, including Randy’s remarriage, the birth of a child from his remarriage, changes in Randy’s income and cattle operation, and an oral agreement reached by the parties for joint custody that Randy had maintained since the end of the 1996 school year. Karen denied that there had been any material change in the parties’ circumstances since the divorce.

During the hearing below, evidence was presented that was of a favorable nature to both parents. For example, several witnesses, including neighbors, the elementary school principal, teachers, and in-laws, testified that both Karen and Randy appeared to be good parents. There was also testimony that both parents were particularly interested in the children’s performance at school, and that both frequently participated in the children’s extracurricular activities. The evidence also showed that both Michael and Randi Michelle were bright, well-adjusted children who performed well at school. The chancellor found that both Randy and Karen were very responsible, good parents; that both had good, but different, discipline skills; and that both did a good job at enforcing each other’s prior discipline decisions.

Much of the remaining evidence concerned Karen’s relationships with men, particularly her actions in permitting male guests to stay overnight while the children were present, in direct violation of the parties’ custody and settlement agreement. Gary Breashears testified that he had a relationship with Karen, which began around August or September 1993, during Karen and Randy’s separation, and continued until November 1995. He stated that on one occasion in November 1995, he spent the night with Karen in her home while the children were present. On two other occasions, he, Karen, and the children had gone on overnight trips. During a trip to Alabama, which lasted several days, the four of them shared a motel room. Although he initially claimed that he had slept on the couch, he later admitted that there was no couch in the motel room. He then stated that he was not sure whether he and Karen had slept in one bed while the children slept in the other bed. In any event, he stated that Karen had not expressed a problem with the sleeping arrangements. Breashears also described a camping trip, during which he, Karen, and the children slept in tents. He admitted that he and Karen had slept together on that trip.

Jody Hamilton testified that he began dating Karen in October 1995. He stated that he had a sexual relationship with Karen between October and December 1995, while she was still dating Breashears. He indicated that between December 1995 to November 10, 1996, the date he and Karen were married, he spent the night at Karen’s home on numerous occasions. He admitted that the children had been present on some of those occasions. Indeed, he stated that the children had seen him in bed with their mother. Although he conceded that their actions were inappropriate, he justified them on the basis that they only occurred after he and Karen had decided to get married.

Karen admitted engaging in conduct that violated the custody and settlement agreement. Although she denied having ever slept with Breashears in her home while the children were present, she admitted that she had done so with Hamilton, prior to their marriage. Like Hamilton, Karen stated that she felt such conduct was appropriate because they were about to be married, and the children knew of their plan to wed. In contrast to this testimony, there was no evidence that Randy had violated the parties’ agreement by having female guests overnight at his home when the children were in his care.

At the conclusion of the hearing, the chancellor awarded Randy care and custody of the two minor children, with Karen being granted liberal visitation. The chancellor made no specific findings of fact on the issue of material changes in circumstances; however, in response to Karen’s directed-verdict motion, the chancellor found that Randy had presented evidence of a material change in circumstances. Specifically, the chancellor concluded that two events, Karen’s marriage to Hamilton and a child being born to Randy and Jennifer, satisfied the requirement that a substantial change of circumstances existed.

In reviewing chancery cases, we consider the evidence de novo, but will not reverse a chancellor’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). We give due deference to the superior position of the chancellor to view and judge the credibility of the witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). This deference to the chancellor is even greater in cases involving child custody, as a heavier burden is placed on the chancellor to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986). Where the chancellor fails to make findings of fact about a change in circumstances, this court, under its de novo review, may nonetheless conclude that there was sufficient evidence from which the chancellor could have found a change in circumstances. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

Our law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Jones, 326 Ark. 481, 931 S.W.2d 767. Generally, courts impose more stringent standards for modifications in custody than they do for initial determinations of custody. Id.

Before reaching the merits of this appeal, we first address an issue raised by one of the dissenting opinions from the court of appeals, concerning the evidence of Karen’s having male guests overnight in her home while the children were present. The dissent pointed out that the issue was not properly before the chancellor because Randy had failed to specifically plead it as a material change of circumstance. We disagree with that reasoning, as it is clear from the record that this issue was fully litigated, without objection by Karen. Arkansas Rule of Civil Procedure 15(b) provides in part that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Rule 15(b) provides further that the failure to amend the pleadings does not affect the result of the trial on these issues. See also Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998); Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). Thus, the issue of Karen’s having violated the custody and setdement agreement was properly presented to the chancellor and, likewise, is properly before this court for de novo review.

As to the merits of the case, Karen argues that the evidence failed to demonstrate that any material change in circumstance had occurred since the parties’ divorce, and that the chancellor thus erred in awarding custody to Randy. She further asserts that the court of appeals erred in refusing to apply this court’s holding in Jones, 326 Ark. 481, 931 S.W.2d 767, pertaining to a change in circumstances of the noncustodial parent. We disagree with both arguments.

In the first place, Karen’s reliance on our holding in Jones, is misplaced. She asserts that Jones stands for the proposition that the noncustodial parent’s remarriage cannot be properly considered by the chancellor in determining whether a modification in custody is warranted. This interpretation is too narrow. In Jones, this court held that based on the facts presented, Dr. Jones’s remarriage did not constitute a material change in circumstances. In other words, the holding in Jones merely underscores the rule that changes in circumstances of the noncustodial parent, including a claim of improved fife because of remarriage, were not alone sufficient to modify an order of custody. Indeed, during oral argument before this court, Dr. Jones admitted that at the time of the divorce decree, it was within his reasonable contemplation to remarry. Given those facts, this court held:

Stated simply, Dr. Jones cannot use the circumstances he created as grounds to modify custody. Given his awareness of the circumstances at the time he voluntarily entered into the agreement to award custody of Cameron to Ms. Jones, we cannot agree that his remarriage constituted a material change in circumstances.

Id. at 491, 931 S.W.2d at 772.

In sum, the holding in Jones was not intended to prohibit the chancellor from ever considering the event of a noncustodial parent’s remarriage as a change in circumstances affecting the best interest of the children. Rather, it is limited to the facts of that case, wherein there was evidence that the noncustodial parent’s remarriage was reasonably contemplated at the time he entered into the custody agreement and, thus, could not have constituted a change in circumstances arising since the entry of the prior order. The Jones decision is further distinguished from the instant case in that the decision rested largely on Dr. Jones’s repeated procurement of ex parte orders. Moreover, the Jones court held that the chancellor had erroneously shifted the burden to Ms. Jones to prove her emotional stability. Accordingly, Jones is not controlling for the above reasons.

In the second place, we disagree with Karen’s assertion that there was no evidence of material changes in the parties’ circumstances. Testimony was presented demonstrating that during 1995 and 1996, after her divorce from Randy, Karen entertained both Breashears and Hamilton overnight in her home, or in other locations, while the children were present. The parties’ custody and settlement agreement, entered on September 20, 1994, specifically provided that neither parent was to have members of the opposite sex to whom they were not married stay overnight while the children were in their care. That agreement was incorporated into the divorce decree; thus, Karen is wrong in asserting that there was no noncohabitation order entered by the chancellor. We have held that the purpose of such an order “is to promote a stable environment for the children, and is not imposed merely to monitor a parent’s sexual conduct.” Campbell, 336 Ark. at 389, 985 S.W.2d at 730, (citing Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1995)). In the event that a parent violates the order, the chancellor may take necessary, even drastic, steps to ensure that the children are raised in a proper custodial environment. Id. At a minimum, a violation of such an order may be considered by the chancellor as a material change in circumstances affecting the best interest of the children. Here, proof was presented that Karen’s behavior violated the parties’ custody and settlement agreement. This evidence, combined with the events of Karen’s remarriage and the birth of Randy’s child, demonstrates material changes in the parties’ circumstances. Thus, the chancellor’s decision to award custody to Randy is not clearly erroneous.

Additionally, we note that Karen takes issue with the court of appeals’ conclusion that Randy met his burden of proving material facts that were unknown to the chancellor at the time of the original custody award. She argues that the issue of what the chancellor knew prior to entering the decree and custody order was never raised by Randy below, and is thus not proper for consideration on appeal. There is no merit to this argument for two reasons. First, the chancellor informed the attorneys at the beginning of the hearing that they should only present evidence of events that occurred after the divorce decree was entered, thus acknowledging the principle that in custody-modification cases, courts usually restrict evidence to those facts arising since the prior order. See Campbell, 336 Ark. 379, 985 S.W.2d 724. Secondly, our de novo review of the evidence reveals that the conduct between Karen and Breashears and, later, between Karen and Hamilton occurred after entry of the decree and custody order on September 26, 1994. Thus, it is irrelevant whether the issue of the chancellor’s previous knowledge was raised below, as it is clear that the evidence presented at the modification hearing demonstrated that Karen engaged in conduct in violation of the custody and setdement agreement after the custody order was entered.

In sum, we conclude that the chancellor was presented with facts demonstrating a material change in circumstances, arising since the prior order of custody, such that a modification of custody would be in the best interest of the children. We thus affirm the chancellor’s decision to award custody to Randy.


author: Robert L. Brown, Justice.

text:
    Brian Alan HODGES v. Jody LAMORA, Myron Lamora, Gary Grimes, and Jim Rush
    99-47
    989 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Oscar Stilley, for appellant.

      Ledbetter, Cogbill, Arnold & Harrison, LLP by: Virginia C. Trammell, Charles R. Ledbetter and Ronald D. Harrison, for appellees.
   Robert L. Brown, Justice.

This appeal concerns a dismissal with prejudice of appellant Brian Alan Hodges’s amended complaint filed against appellees Jody Lamora, Myron Lamora, Gary Grimes, and Jim Rush. Hodges now claims that the chancery court erred in ruling that he had no standing to bring the complaint and, second, in dismissing his civil conspiracy claim. We find no error in the chancery court’s decision, and we affirm.

The facts of this case involve the theft of prescription drugs from the Sebastian County Detention Center. In 1995, Hodges was a police officer in Barling, and Jody Lamora was a staff nurse for the Sebastian County Sheriff s Department. Her husband was Myron Lamora, who served as chief of police in Barling. Gary Grimes was Sebastian County Sheriff, and Jim Rush was a deputy sheriff and administrator of the Sebastian County Detention Center.

In 1995, an internal investigation was conducted within the Sebastian County Sheriffs Department to determine the reason that prescription drugs were missing from the Sebastian County Detention Center. During the course of the investigation, investigators discovered that Jody Lamora had failed to account properly for the number of dosages of Stadol, a prescription pain medication, that she gave to the inmates. It was determined that the use of 172 cc’s of Stadol was unknown. (Hodges’s subsequent complaint stated that 253 dosages were unaccounted for.) Jody Lamora agreed to cooperate with the sheriffs investigators in return for an agreement with Sheriff Grimes that any statement given would be used for internal actions only and not for a criminal prosecution. During an interview with one of the sheriffs investigators, Michael Underwood, she admitted that she had injected herself with the missing Stadol in order to alleviate the pain of migraine headaches. Sheriff Grimes advised the prosecuting attorney of what had transpired, and the prosecuting attorney recommended that the sheriff contact the Arkansas State Police Drug Division Unit for assistance in investigating the matter.

On January 3, 1996, at a hearing conducted at the sheriffs department with all appellees present, Jody Lamora submitted her resignation to Sheriff Grimes. At that time, Sheriff Grimes told her that she would have to pay restitution for the Stadol taken in the amount of $1,283.20. (Hodges complains that the loss to the County was $3,500.) The sheriff then offered her additional time in which to make restitution because she was unemployed and would be entering a treatment program for substance abuse.

On May 8, 1998, Hodges filed a class-action lawsuit on the basis that an illegal exaction had occurred because Jody Lamora never made restitution, even though she later was employed by the City of Barling. Hodges further alleged that Myron Lamora, Gary Grimes, and Jim Rush had conspired to excuse the restitution and to hide Jody Lamora’s theft.

Appellees filed their answer and then filed a Motion to Dismiss. On August 25, 1998, the chancery court dismissed Hodges’s complaint without prejudice. In doing so, the court found that Hodges lacked standing to bring the suit and had failed to plead facts supporting a claim for illegal exaction or for civil conspiracy under Ark. R. Civ. P. 12(b)(6). The court’s order also gave Hodges twenty days to file an amended complaint to state a cause of action. On September 14, 1998, Hodges filed his amended complaint. Appellees Rush and Grimes filed second answers in which they reiterated prayers for dismissal. On September 25, 1998, the chancery court again dismissed Hodges’s complaint against all defendants, but this time with prejudice.

Hodges first urges that the chancery court’s finding that he had no standing to enforce the restitution agreement against Jody Lamora was wrong because this case constitutes an illegal exaction under Article 16, Section 13 of the Arkansas Constitution. Hodges further maintains that because the use of prescription drugs for “recreational highs” by a county nurse is not a legitimate county expenditure, failure to collect restitution amounts to a misapplication of county funds. Accordingly, a private citizen and resident is able to collect the amount lost to the county by means of an illegal exaction lawsuit. We disagree.

In deciding whether a motion to dismiss a complaint was properly granted, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995); Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In deciding the motion, we look only to the allegations in the complaint and not to matters outside the complaint. Neal v. Wilson, supra. As we said in Billy/Dot, Inc. v. Fields, supra, in determining the plaintiffs standing to bring a complaint, we treat only the facts alleged in the complaint as true but not a plaintiffs theories, speculation, or statutory interpretation.

In the instant case, Hodges hinges his standing on a theory of illegal exaction. The fallacy in his argument is that the facts stated in his complaint do not constitute an illegal exaction under the Arkansas Constitution. See Ark. Const. art. 16, § 13. Hodges cites this court to Pledger v. Featherlite Precast Corp, 308 Ark. 124, 823 S.W.2d 852 (1992), and we agree that the following language from Featherlite Precast accurately states the law:

The illegal exaction provision and the cases interpreting it encompass two (2) different types or kinds of exactions. One type involves the prevention of a misapplication of public funds or the recovery of funds wrongly paid to a public official. See, e.g., Brewer v. Hawkins, 242 Ark. 460, 408 S.W.2d 492 (1966). We have given this type of exaction an expansive interpretation because taxpayers are the equitable owners of all funds collected by a government and, in most of the cases, are liable to replenish the funds exhausted by a misapplication or wrongful payment. Under these conditions taxpayers are entided to broad relief. See, e.g., Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944). For convenience, we label this type of case a “public funds” exaction case.

308 Ark. at 128, 823 S.W.2d at 855.

The problem with Hodges’s argument is that his allegations do not constitute a “public funds” exaction case. Hodges contends that an illegal exaction occurred in two respects: Jody Lamora’s theft of county property and Sheriff Grimes’s failure to collect restitution. As an initial matter, we note that the investigation of the sheriff’s department into the missing Stadol was no substitute for the criminal prosecution of Jody Lamora, had the prosecuting attorney chosen to pursue that course. Charging a crime lies wholly within the province of the prosecuting attorney or grand jury. Ark. Const. amend. 21, § 1. The collection of an obhgation owed to the county is the responsibility of the prosecuting attorney. See Ark. Code Ann. § 16-21-103 (Repl. 1994). A sheriff has no authority to bring criminal charges or file suit to collect a debt owed to a county.

But, in addition, we do not view this situation as one where a citizen such as Hodges can enforce restitution resulting from a theft by means of an illegal exaction lawsuit. Hodges cites us to no caselaw for his novel theory. Assignments of error unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that the point is well taken. See Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). In any event, failure to collect restitution for theft surely does not qualify as a misapplication of public funds for illegal exaction purposes. Again, criminal charges and collection of a debt owed to the county are matters that lie within the ambit of the prosecuting attorney, and the available recourse must be through that office. Hence, we agree with the chancery court that Hodges lacked standing to bring this claim.

With regard to civil conspiracy, Hodges alleges in his complaint that the appellees, as a special favor to Myron Lamora, acted in a concerted fashion to accomplish an unlawful purpose — granting Jody Lamora “immunity” and not collecting restitution. The evidentiary basis for this charge comes in part from Hodges’s tape-recorded telephone conversation with Myron Lamora where the police chief commented that Sheriff Grimes “done me right” and “I knew I owed him.” These statements were made in connection with the sheriffs internal investigation of Jody Lamora’s theft of Stadol and his agreement not to use her statement as part of a criminal investigation.

We initially observe that the sheriff did not grant Jody Lamora immunity from prosecution and, indeed, had no authority to do so. The grant of immunity falls within the domain of the prosecuting attorney with the approval of the circuit judge. See Ark. Code Ann. § 16-43-601 through 606 (Repl. 1994, Supp. 1997). Furthermore, the sheriffs agreement not to use Jody Lamora’s statement, which was taken as part of his investigation, did not impede the prosecuting attorney from pursuing an investigation into the theft for the purpose of bringing criminal charges.

Hodges further contends that the police chiefs statements quoted above and in his complaint support the fact that a tacit conspiracy was in the works. See Chalmers v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996). Even viewing these allegations expansively, we cannot make the leap in logic that the police chiefs stated appreciation for how events transpired concerning his wife equated to a conspiracy. Hence, we agree with the chancery court that Hodges failed to state facts upon which relief could be granted under Ark. R. Civ. P. 12(b)(6) for civil conspiracy.

Affirmed.

       Jody Lamora also appears in the record as Jodie Lamora.

       Appellees Jody Lamora and Myron Lamora did not file an answer to the second amended complaint. Nor did they file an appellee’s brief in this appeal.


author: Annabelle Clinton Imber, Justice.

text:
    Randy Turrell JOHNSON v. STATE of Arkansas
    CR 98-1332
    989 S.W.2d 525
    Supreme Court of Arkansas
    Opinion delivered May 13, 1999

      Bart Ziegenhorn, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Randy Turrell Johnson, was convicted of capital murder and conspiracy to commit aggravated robbery and sentenced to life in prison. Mr. Johnson argues three points on appeal: 1) that the trial court erred by considering facts not introduced at the suppression hearing when it denied his motion to suppress the videotaped confession; 2) that the trial court erred in denying his request to redact certain portions of his confession that referenced prior convictions in violation of Ark. R. Evid. 404(b); and 3) that the trial court erred in denying his motion to dismiss the amended charge of conspiracy to commit aggravated robbery as it violated his right to a speedy trial. For the reasons set forth below, we affirm.

On December 21, 1996, Mr. Marvin Meux approached Mr. Johnson about planning a robbery. The two planned to call the victim, who was an acquaintance of Mr. Meux, and lure him over to Mr. Meux’s home where Mr. Johnson would rob him at gunpoint. In preparation for the robbery, Mr. Meux and Mr. Johnson went to the home of David Carter where Mr. Meux obtained a 9mm Lama handgun. Mr. Meux then called the victim, Mr. McKinley Arnold, from a pay phone and asked him to come to Mr. Meux’s home. When Mr. Arnold arrived in a white Jeep Cherokee, Mr. Meux got in on the passenger side as Mr. Johnson approached the vehicle. Wearing a black ski mask and carrying the gun obtained by Mr. Meux, Mr. Johnson attempted to rob Mr. Arnold. However, Mr. Arnold accelerated his vehicle dragging Mr. Johnson down the street. Mr. Johnson then fired the gun. Mr. Arnold was shot and later died from his wounds.

The homicide investigation eventually led the police to Mr. Johnson, who was in prison awaiting a parole revocation hearing. Mr. Johnson accompanied Detective Allen to the West Memphis Police Station and signed a form waiving his Miranda rights. Detective Allen proceeded to question Mr. Johnson about the murder, eventually obtaining a confession which was videotaped.

Mr. Johnson confessed to planning the robbery. Specifically, he admitted that the plan was for Mr. Meux to lure Mr. Arnold to his home, and then for Mr. Johnson to rob him with the gun. According to Mr. Johnson, Mr. Meux obtained the gun from David Carter’s home and then called the victim. Mr. Johnson maintained that the shooting was an accident. When Detective Allen asked him how long he had known Mr. Meux, Mr. Johnson explained that he met him while they were both at the penitentiary in 1990. At that time, Mr. Johnson was incarcerated for stealing a car.

By information filed February 20, 1997, Mr. Johnson was charged with capital murder for the death of McKinley Arnold. The State amended the information on April 22, 1998, adding a charge of conspiracy to commit capital murder. On April 28, 1998, the State again amended the information changing the conspiracy charge from conspiracy to commit capital murder to conspiracy to commit aggravated robbery. In the interim between the filing of the original charge and the amendments, a three-month continuance had been granted, which time was charged to Mr. Johnson pursuant to Ark. R. Crim. P. 28. During a pretrial hearing on April 28, 1998, Mr. Johnson objected to the conspiracy charge on the ground that it violated his right to a speedy trial because it was not filed and tried within twelve months of his arrest on February 18, 1997. The trial court found that the three-month continuance was an excludable period that applied to all of the charges and overruled the objection.

Also during the pretrial hearing on April 28, 1998, the trial court conducted a Denno hearing with regard to Mr. Johnson’s motion to suppress his confession. Detective Allen testified that he went over each of the Miranda rights individually with Mr. Johnson. According to Detective Allen, Mr. Johnson indicated that he understood each right and then initialed and signed the form waiving his Miranda rights. Mr. Johnson, on the other hand, testified that he did not intend to waive his rights and only initialed the form as instructed by Detective Allen. Mr. Johnson further testified that he had never been read his rights and was not familiar with them even though he had been arrested five times previously. The trial court found that Mr. Johnson knowingly, voluntarily, and intelligently waived his Miranda rights. After denying the motion to suppress, the trial court noted that Mr. Johnson’s testimony was completely incredible in light of his assertion that he had never been read his rights despite five prior arrests. The trial court further commented that he was familiar with the county’s law enforcement practices and did not believe Mr. Johnson’s claim that he had never been read his rights over the course of those five prior arrests.

During the trial, Mr. Johnson objected to the admission of a portion of his confession. Specifically, Mr. Johnson contended that the references to meeting Mr. Meux in the penitentiary and to his conviction for car theft were not admissible under Ark. R. Evid. 404(b) and 403. The trial court determined that this evidence was probative of Mr. Johnson’s prior relationship with Mr. Meux, especially as it related to the conspiracy charge, and that its probative value was not substantially outweighed by the danger of unfair prejudice. At the conclusion of the trial, the jury returned a guilty verdict on both charges and sentenced Mr. Johnson to life in prison without parole on the capital-murder charge and to forty-five years on the conspiracy charge. Mr. Johnson now appeals.

Mr. Johnson first contends that the trial court’s ruling on the voluntariness of his confession was based on facts not introduced in evidence at the Denno hearing, citing the court’s comments on its familiarity with law enforcement practices in the county. However, Mr. Johnson failed to object to the trial court’s ruling on this issue. We will not review issues raised for the first time on appeal. Tucker v. State, 336 Ark. 244, 983 S.W.2d 956 (1999). Thus, Mr. Johnson’s first point has not been preserved for review on appeal.

Mr. Johnson next contends that the trial court erred in admitting his statements about meeting Mr. Meux in the penitentiary and about his prior conviction for car theft in violation of Ark. R. Evid. 404(b) and 403.

Arkansas Rule of Evidence 404(b) states:

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

We have noted that the fist of exceptions expressed by 404(b) is not an exclusive list, but rather is exemplary of the purposes for which otherwise inadmissible evidence of other crimes, wrongs, or acts would be admissible. Thrash v. State, 291 Ark. 275, 726 S.W.2d 283 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Such evidence must, however, be independently relevant under Rule 404(b), and the probative value of the evidence must outweigh any danger of unfair prejudice in accordance with Rule 403. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Another crime is “independently relevant” if it tends to prove a material point and is not introduced merely to demonstrate that the defendant is a criminal. See Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998); Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994) (plurality opinion); White, supra. The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).

Mr. Johnson’s confession states in pertinent part:

Lt. Allen: How long have you known Marvin Meux?
Mr. Johnson: I went to the pen with him a long time ago. It was back in ’90. I stole a car. I don’t know what hé did.

In response to further questioning, Mr. Johnson acknowledged that he knew Marvin Meux by sight, and knew his name, to be Marvin Meux. The rest of the statement relates in detail how Mr. Johnson and Mr. Meux planned and executed the crime. The challenged statements establish a prior association between Mr. Johnson and Mr. Meux. This evidence of a prior relationship would make a conspiracy to commit a crime more plausible in that two persons who already know each other would be more likely to plan a crime together than would two complete strangers. Thus, the reference to meeting Mr. Meux in the penitentiary had some modicum of independent relevance to the conspiracy charge and was not introduced merely to show that Mr. Johnson was a criminal. Moreover, Mr. Johnson would have been entitled to a limiting instruction on the purpose for which the testimony was introduced, but he failed to request such an instruction. Regalado, supra; White, supra. Accordingly, we conclude that the trial court did not abuse its discretion in finding the challenged portions of Mr. Johnson’s confession to be independently relevant under Rule 404(b).

However, even if independently relevant, evidence of other crimes may still be excluded if the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Ark. R. Evid. 403. We have previously acknowledged that any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1997); Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). As stated above, the evidence in this case of a prior association between Mr. Johnson and Mr. Meux had some modicum of independent relevance to the conspiracy charge. Yet, its probative value was minimal at best when compared with the inherent prejudice that resulted from informing the jury that Mr. Johnson was a convicted felon who had served time in the penitentiary. Under these circumstances, it is clear that the slight probative value of this evidence was substantially outweighed by the danger of unfair prejudice. We therefore conclude that it was an abuse of discretion to admit the challenged portions of Mr. Johnson’s confession under Rule 403.

We must decide whether the conviction should be reversed because the trial court erred in admitting Mr. Johnson’s statement about his prior conviction and incarceration. When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). We apply this standard of review to evidentiary rulings made in the guilt phase of capital cases. See Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992).

A detailed review of the evidence reveals that Mr. Johnson confessed to the crime, and that the substantive details of that confession were corroborated by the testimony of other witnesses. For example, Mr. Johnson’s statement that Mr. Meux called the victim from a pay phone on Sixteenth Street was corroborated by the testimony of Detective Allen and Mr. Arnold’s sister, Ms. Annie Ruth Clark, who confirmed that the last number recorded on the victim’s caller identification was from the Sixteenth Street pay phone. Another witness, Eddie Overstreet, testified that Mr. Meux appeared at David Carter’s residence on the morning of the murder and obtained a Lama 9-mm handgun. This was also consistent with Mr. Johnson’s confession. Additionally, the police found the murder weapon in the possession of a Mr. Kenyatta Cotton. Mr. Johnson admitted in his confession that he sold the gun to Mr. Cotton after the murder. Finally, the medical evidence was consistent with Mr. Johnson’s description of how the shooting occurred. Based upon the evidence of guilt in this case, including most significantly Mr. Johnson’s own confession of his involvement and guilt, we hold that the trial court’s error in admitting Mr. Johnson’s statement about his felony conviction and incarceration was slight when compared with the overwhelming evidence of Mr. Johnson’s guilt on the charges of conspiracy and felony-capital murder. Accordingly, we hold that the error was harmless and affirm.

For his final point on appeal, Mr. Johnson asserts that Count II of the amended information, or the conspiracy charge, violates his right to a speedy trial because it was not filed or tried within twelve months of his arrest. As an extension of this argument, Mr. Johnson asserts that the three-month continuance granted prior to the filing of the conspiracy charge and charged to him as an excludable period under Ark. R. Crim. P. 28.3 applied only to his capital-murder charge and not to his conspiracy charge. Mr. Johnson presents no citation to authority and makes no convincing argument in support of his assertion. We have often stated that we will not consider assignments of error on appeal which are unsupported by convincing argument or authority unless it is apparent without further research that they are well taken. Barr, supra; Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). We would not address this point of appeal but for our Rule 4-3(h), which requires that we examine the record of trial in life imprisonment cases and review all errors prejudicial to the appellant. Even so, we reject Mr. Johnson’s argument because it is without merit.

Mr. Johnson’s interpretation of the speedy-trial requirement is inconsistent with the language of the rule itself, Ark. R. Crim. P. 28.2, which provides in pertinent part:

The time for trial shall commence running, without demand from the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.

(Emphasis added.) Rule 28.2 contemplates that the clock for speedy-trial purposes begins to run from the date of the arrest for all charges stemming from the same criminal episode, irrespective of when any charge is filed. The offenses here arose from the same criminal episode. It logically follows that any excludable periods under Ark. R. Crim. P. 28.3 must be figured into the speedy-trial calculation and applied to all charges stemming from the same criminal episode for which the original arrest was made. Otherwise, the prosecutor would be forced to calculate a different speedy-trial period for each charge filed and try the most recently filed charge first, thereby producing an illogical result. We therefore conclude that the three-month continuance granted to Mr. Johnson was properly excluded from the speedy-trial calculation on the conspiracy charge and affirm the trial court on this point as well.

The record has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) and it has been determined that there are no errors with respect to rulings on objections or motions prejudicial .to, Mr. Johnson not discussed above. Because we hold that the trial court’s error in admitting Mr. Johnson’s statement about his felony conviction and commitment to the penitentiary was harmless, we affirm.

Affirmed.