author: Robert H. Dudley, Justice. Robert R. Wright, Special Chief Justice, James A. Ross, Jr., Special Associate Justice,

text:
    STEPHENS PRODUCTION COMPANY, Arkla, Inc., Arkla Exploration Company, and Arkoma Production Company v. Mildred M. JOHNSON, Trustee of the Mildred M. Johnson Trust, Mamie J. Keifer, Rosamond Johnson, Nora House, Sara Adams Ridgway, Sunbelt Exploration Company, and Jim T. Walker
    91-333
    842 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992
    [Rehearing denied January 11, 1993.]

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Hayes C. McClerkin and Barry A. Bryant, for appellants.

      Dorsey Ryan, for appellee.

      Turner & Mainard, by: Lonnie Turner, for amicus curiae.

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

   Robert H. Dudley, Justice.

The chancellor cancelled the oil and gas leases to some of the vertical geological formations of a drilling unit. The defendant production companies appeal from the chancellor’s finding that they have abandoned some of the formations, and the plaintiffs cross-appeal from the finding that the defendants have not totally abandoned the leases.

We cannot reach the merits of the case and must affirm the final order on both direct and cross-appeal for failure of the parties to comply with Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. There is no abstract, by either the appellants or the cross-appellants, of the complaint, the cross-complaint, or either of the answers. An abstract of those pleadings would be helpful. There is no abstract of the chancellor’s findings of fact or of the final order, and these are essential in order to understand this case. Equally critical are certain exhibits which are not abstracted or copied. The testimony of the witnesses about the exhibits is abstracted, but, without the exhibits, much of the testimony about the issues is meaningless.

It is necessary for a party to abstract the essential portions of the proceedings relied upon for appeal purposes. Otherwise, all seven members of the court would have to pass, from office to office, the one transcript and the one set of exhibits in order to examine and understand the case, and, with the number of cases submitted, that is impossible. We have no alternative other than to do as we have done in other comparable cases and affirm the decree of the chancellor. See Hunter v. Williams, 308 Ark. 276, 823 S.W.2d 894 (1992); Meyers Gen. Agency v. Lavender, 301 Ark. 503, 785 S.W.2d 28 (1990); Cash v. Holder, 293 Ark. 537, 739 S.W.2d 538 (1987); Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).

Accordingly, we affirm pursuant to Rule 9(d).

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

Special Chief Justice Wright and Special Justice Ross concur.

Robert R. Wright, Special Chief Justice,

concurring. I concur in this decision with great reluctance. I concur only because Rule 9 of the Rules of the Supreme Court and Court of Appeals has been violated. It is my view that Rule 9 should be amended to provide that as soon as the problem has been discovered, the attorney involved be given thirty days in which to correct the problem by filling a new abstract or such missing documents as may present a problem. As it exists in its present •form, Rule 9 is extremely harsh to litigants and lawyers alike. It is procedural in nature, but its application is punitive. The Rule should be amended as stated to ameliorate its harshness and to prevent injustice to those litigants whom it affects.

The situation in this case was such that the justices involved had to place great reliance upon the transcripts. There were five volumes, and I read most of them totally and some in part. I also examined the legal issues, involved in a number of cases, treatises, and law review articles. I felt qualified after that to render a judgment on the. merits.

It is my opinion, in that regard, that the Chancellor would have been affirmed, at least in large measure, if the merits had been reached. Under those circumstances, the application of Rule 9 would seem to make little difference in the outcome. While there was conflicting testimony and evidence, this Court adheres to the proposition that the Chancellor will be affirmed unless his holding is clearly erroneous. If for no other reason, affirmance would probably have resulted even though I did not agree with him in some respects.

One thing that I would have commented on if the case had been decided on the merits is a rule in Arkansas oil and gas law that seems not to be the better rule and, in fact, is contrary to that of some of our neighboring, oil-producing states. In Arkansas, a new lessee can obtain a second lease from the lessor and then notify the first lessee that his lease is not any good due to the failure to drill. Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983); S. Wright, The Arkansas Law of Oil and Gas, 10 U. Ark. Little Rock L.J. 699, 705 (1988). The better rule is that there should be a burden on the lessor to notify the lessee that if a well is not drilled within a certain reasonable period of time, the lease will be cancelled and there will be a new lessee. E. Kuntz, J. Lowe, O. Anderson, & E. Smith, Oil and Gas Law 287 (1986). The effect of non-drilling would not necessarily cancel the lease, which would still be subject to the prudent operator standard and the implied covenant of reasonable development, but requiring notice might help to prevent litigation, which should be an object of the judicial system.

James A. Ross, Jr., Special Associate Justice,

concurring. I concur in the results reached by the Court, but for different reasons. I would not affirm because of a failure to comply with Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. However, based on the merits of the case, I would affirm the Decree of the Chancery Court of Franklin County on both direct appeal and cross-appeal.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Levonia GRAY v. STATE of Arkansas
    CR 92-846
    843 S.W.2d 315
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      William R. Simpson, Public Defender and Joseph Cordi, Deputy Public Defender, by: Thomas B. Devine, III, Deputy Public Defender.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Levonia Gray argues in this appeal there was a lack of evidence at his bench trial to convict him of aggravated robbery, misdemeanor theft of property, and felon in possession of a firearm. Finding the evidence sufficient, we uphold the decision of the trial court.

Around 3:30 a.m. on September 11, 1991, a convenience store at 12th and Fair Park in Little Rock was robbed. The clerk described the robber as a black male, wearing a black ski mask, camouflage jacket and white pants. Two police officers, patrolling the area because of a spate of recent crimes, were parked in an alley near the store. They watched as a black male dressed in white pants and green camouflage jacket entered the convenience store and emerged moments later wearing a ski mask. He ran behind the building as they drove toward the rear of the building. There they discovered a brown Buick automobile parked in a vacant lot. An occupant, Frederick Ellis, was crouched down in the passenger’s seat. He told them that he was waiting on a friend who had gone into the convenience store. He said the friend wore white pants and a green jacket. The vehicle contained papers belonging to Levonia Gray. Some distance away, between the store and the car, they found a black ski mask.

Levonia Gray was taken into custody. He told police he knew nothing of the robbery, and that a kid named Fred had spent the night in his car on the night in question. A voice lineup was conducted using six subjects and the clerk picked the voice of Levonia Gray.

Frederick Ellis testified at trial that he had been riding around with Gray when Gray parked behind the convenience store and told him to wait. After about ten minutes the police arrived but Gray never returned. Gray was convicted and sentenced as an habitual offender to a total of forty-eight years in the Department of Correction.

Levonia Gray contends the evidence is short on all counts. He submits the most telling evidence connecting him to the crime was the testimony of Frederick Ellis. But Gray maintains Ellis was an accomplice and his testimony must be disregarded under Ark. Code Ann. § 16-89-111 (e)(1) (1987), providing that an accused may not be convicted of a felony on the testimony of an accomplice unless corroborated by other evidence tending to connect the accused with the crime. Gray cites those cases holding that the testimony of the accomplice must be excluded in determining whether the corroborating evidence is sufficient. See, e.g., Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983).

We cannot sustain the argument because the trial judge, sitting as fact finder, found that Ellis was not an accomplice, even though the police found him crouched down in the vehicle as they drove up to investigate. We cannot say on that ambiguous circumstance that Ellis was an accomplice as a matter of law. In reality it matters little how the accomplice issue is resolved, as the remaining evidence connecting Levonia Gray to the robbery was clear beyond any serious question — the clerk described the robber as a black male wearing white pants, camouflage jacket and ski mask; two officers saw a man dressed accordingly enter and leave the store headed toward the parked vehicle containing papers belonging to Levonia Gray; the ski mask was found some thirty feet from the car, as were tracks leading toward the car and .then away from it; the clerk identified the voice of Levonia Gray as that of the robber and while the trial judge minimized the voice identification in his findings, he did not discount it altogether. In short, we find the evidence, though circumstantial, entirely adequate to support the conviction.

Affirmed.


author:
David Newbern, Justice.
      Tom Glaze, Justice, Steele Hays, Justice, Donald L. Corbin, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Wayne AYRES and Jane Ayres
    92-243
    842 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Robert L. Wilson, Philip N. Gowen, and Charles Johnson, for appellant.

      Hobbs, Lewis, Mitchell, Garnett & Naramore, by: Ronald G. Naramore, for appellee.
   David Newbern, Justice.

This case involves the Trial Court’s decision to grant the appellees, Wayne and Jane Ayres, a new trial on the ground of juror misconduct. The appellant, Arkansas State Highway Commission (the Commission), argues the Trial Court lost jurisdiction by failing to rule on the motion for new trial within 30 days after it was filed, as required by Ark. R. App. P. 4(c) (1991). The Commission is correct, thus we must reverse and dismiss.

The Commission filed a complaint against the Ayreses seeking to condemn a portion of their property to build a highway. On June 27,1991, a trial was held on the amount of compensation to be awarded for the taking. The jury returned a unanimous verdict finding the Ayreses were entitled to no compensation because the benefits of the highway exceeded any damages they might have suffered. Judgment was entered on the verdict on July 9, 1991.

The Ayreses filed a new trial motion on July 12, 1991. The Trial Court, by written order dated July 29,1991, took the motion under advisement. A hearing on the motion was held August 19, 1991, an order granting a new trial was entered September 5, 1991, well over 30 days from the date the motion was filed.

Rule 4(c)

Rule 4(c), as amended by our Per Curiam order effective March 14, 1988, provides in part that if a trial court neither grants nor denies a new trial motion within 30 days of its filing, the motion will be deemed denied as of the 30th day. We have interpreted this provision to mean a trial court loses jurisdiction if a motion for new trial is not decided within 30 days from its filing. Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992).

The amendment deleted the language in the older version of Rule 4(c) which concerned taking a motion under advisement or setting a hearing date within 30 days, thus requiring that a motion for new trial be deemed denied if neither granted nor denied within 30 days from its filling. When counsel for the Ayreses filed his motion for new trial on July 12, 1991, Rule 4(c) did not mention taking a motion under advisement or setting a hearing date within 30 days.

The Ayreses argue that, despite the change in the Rule, when their new trial motion was filed, the law was unclear whether setting a hearing date or taking the motion under advisement within 30 days from filing would satisfy the requirements of Rule 4(c). They contend their confusion was caused by two of our opinions. The first is Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), which pre-dated the July 12th filing by approximately two months. In that case, there was no order deciding the new trial motion, taking it under advisement, or setting a hearing date within 30 days. Holding the Trial Court lacked jurisdiction, we wrote:

Though Rule 4(c) was somewhat different prior to the effective date of our Per Curiam of March 14,1988, which simplified its terms, it consistently has required the trial court to act in some form or fashion on new trial motions within thirty days of filing, and we have previously held that failure to act within that time frame results in loss of jurisdiction to grant the relief requested under the motion. We have further held that a decision by the trial court within the thirty days which is not entered of record fails to meet the dictates of Rule 4(c). (citations omitted).

The issue of whether taking a new trial motion under advisement or setting a hearing date within 30 days would satisfy the requirements of Rule 4(c) was not before us in the Phillips case. The clear implication, however, was that only a decision entered of record within 30 days will satisfy the requirements of Rule 4(c). An order taking a motion under advisement or setting a hearing date is not the equivalent of a “decision” of record.

The second opinion cited by the Ayreses is that of Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). The Ayreses argue that in the Deason case we continued to discuss taking a new trial motion under advisement or setting a hearing date within 30 days even though our current Rule 4(c) had been adopted at the time of the decision. The Ayreses are in part correct in their assertions. The Deason case did contain references to the older version of the Rule despite the fact that the newer version was adopted over a year before the opinion was delivered. However, in 1985, when the original complaint in the Deason case was filed, the older version of Rule 4(c) was still in effect. The current version of Rule 4(c) was adopted approximately two and a half months before the final judgment was entered and the new trial motion was filed. On appeal, neither party raised the issue regarding the change in the Rule which had occurred after the filing of the complaint but before the entry of judgment and the filing of the motion for new trial.

We agree with the Ayreses counsel that the opinion in the Deason case could have been misleading and that we may have been remiss in failing to mention the Rule change despite the fact that it was not argued and might or might not have affected the outcome there. In view, however, of the clarity of the change in the Rule 4(c) and its undoubted applicability to this case, we have no choice but to reverse the Trial Court’s order granting a new trial.

Reversed and dismissed.

Glaze, J., concurs.

Hays and Corbin, JJ., dissent.

Tom Glaze, Justice,

concurring. I agreed with Judge Hays’ dissent in Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), but since that is now precedent, I concur in the majority court’s decision.

Steele Hays, Justice,

dissenting. I would affirm the order granting a new trial because the trial court vacated the judgment within the time permitted under ARCP Rule 60(b). My views on the inherent power of trial courts to take that action are stated in a dissenting opinion to Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991).

Corbin, J., joins.

Donald L. Corbin, Justice,

dissenting. I would concur because the majority is technically correct in their analysis of the case law as it pertains to our Rule 4(c) of the Arkansas Rules of Appellate Procedure. However, I dissent because the result reached is not consistent with justice; particularly so, when considering the confusion to the members of the Bar that this court created in its effort to obtain a Rule 4(c) that is more efficient to the appellant process.


author: David Newbern, Justice.

text:
    Bill HANNAH, et al. v. Marvin DEBOER, et al.
    92-665
    843 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992
    [Rehearing denied January 19, 1993.]

      John I. Purtle, for appellant.

      Larry E. Graddy and William C. Adkisson, for appellee.
   David Newbern, Justice.

The question before us is whether the Trial Court erred in declaring void an election establishing Beaverfork Fire Protection District #1. Statutes pertaining generally to creation of improvement districts require a certain form of notice to be placed on support petitions circulated for signatures of affected property owners. The appellants, Bill Hannah and others (Hannah Group) circulated petitions seeking an election to create the District without placing that notice on the petitions. Opponents of the district, Marvin Deboer and others (Deboer Group), challenged the election on that basis. The election had been called by the County Judge for December 3, 1991. The Deboer Group obtained a temporary injunction in Chancery Court on November 26, but at a hearing on November 27 the injunction was dissolved and the case transferred to the Circuit Court where the complaint was amended to claim illegal exaction and seek a writ of mandamus. The election was held, and the voters approved the District. The Circuit Court thereafter held that the election was void, and the Hannah Group has appealed.

Recognizing that there are several groups of statutory provisions dealing with improvement districts, the Circuit Court concluded that, if the general improvement district petition notice requirement applied, the Hannah Group had not met the requirement. The circuit Court concluded further that if the general notice requirement did not apply, the specific statutes on the procedure for holding an election to determine whether a fire protection district is to be created were unconstitutional, due to lack of provision for pre-election notice and hearing at which affected property owners could voice objections. Either way, according to the Circuit Court, the election was void.

We find no need to deal with the constitutional pronouncement. We hold that even if the general statute requiring a particular form of notice applies to a petition to hold an election, as opposed to one seeking to establish a district by ordinance, the requirement became directory rather than mandatory after the election. Substantial notice was given to those who signed the petition, and we find no real prejudice, especially in view of the result of the election. We thus reverse the decision and dismiss the case.

The Circuit Court’s order voiding the election and the argument of the Deboer Group before us seem to suggest that not only was there a deficiency in the notice given the petitioners but they, or perhaps affected prospective voters, were entitled to some sort of public hearing prior to the election.

1. The statutes

Title 14, Chapter 284 of Arkansas Code Annotated is entitled “Fire Protection Districts.” Subchapter 1, §§ 14-284-101 through 14-284-123 (1987 and Supp. 1992), is primarily a codification of Act 183 of 1939, as amended, which provides for creation of a fire protection district by petition of a majority in value of property owners in the proposed district. We are not concerned with Subchapter 1 in this case.

Subchapter 2, §§ 14-284-201 through 14-284-224 (1987 and Supp. 1992), the one with which we are concerned, is entitled “Fire Protection Districts Outside of Cities and Towns.” It consists primarily of codification of Act 35 of 1979, as amended. Section 14-284-203 (1987) provides two separate methods of establishment of such districts:

Fire protection districts may be established to serve all or any defined portion of any county in either of the following ways:
(1) By the quorum court by ordinance enacted after notice and public hearing; or
(2) By the county court pursuant to an election of the qualified electors of the proposed district initiated, called, and conducted as provided in this subchapter.

If the district is to be established by the first of these Subchapter 2 methods, the procedure for petitioning the quorum court for an ordinance doing so is governed by § 14-284-204 (1987) which provides for publication of notice “of the adoption of the ordinance” and for “a public hearing on the ordinance.”

If the district is to be established by the second Subchapter 2 method, the procedure for petitioning the county court to hold an election is governed by § 14-284-205 (1987). Subsection (a) provides that if a certain percentage of voters in a county or defined portion of a county petition for an election the county court will call the election. Subsection (b) prescribes the wording of the ballot, requiring that it state essentially, “FOR” OR “AGAINST the establishment of a fire protection district in ..........(county),..........(designated area), and the levy of assessed benefits on real property in the district to finance the district.”

We find no statutory requirement for a public hearing prior to an election, and we have difficulty understanding the argument that one is necessary.

The Circuit Court looked to yet another Statute appearing in Chapter 86 of the Code which deals with improvement districts generally. He concluded the Hannah Group’s petition should have had in it the notice provision specified in Ark. Code Ann. § 14-86-201(a) (1987) as follows:

NOTICE
YOUR SIGNATURE HEREON SHOWS THAT YOU FAVOR THE ESTABLISHMENT OF AN IMPROVEMENT DISTRICT. IF THE DISTRICT IS FORMED, YOU MAY BE CHARGED FOR THE COST OF THE IMPROVEMENTS.

Subsection (b) makes it a misdemeanor to circulate or cause to be circulated a petition for establishment of an improvement district of “whatever nature” absent such a provision.

2. Lack of notice

The petition circulated by the Hannah Group leading to the election in which the voters approved the district did not contain the notice in the statutory form. It did, however, contain a paragraph setting out the maximum assessments which could be levied on various categories of lands in the event the voters approved establishment of the District. Assuming the Circuit Court is correct in ruling that the statutory wording was required on the petition for calling an election, the question we must decide is whether that failing was a sufficient basis to void the election. We think not.

It should be noted here that the Deboer Group expresses no fault with the ballot or the post-petition election procedures which resulted in the establishment of the District. Their complaint is about the petition which led to the election. Beneath that argument must lie the assumption that if the signers of the petition had notice they could be charged with costs of the district they would not have signed and there would have been no election; yet an election has been held in which a majority of the eligible voters have approved the District.

“The courts hold that ‘the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken’ ” Whitaker v. Mitchell, 179 Ark. 993, 18 S.W.2d 1026 (1929), quoting from Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887). That principle is particularly applicable in this case. Anyone reading the petition before signing it would have had more information than that required by the statutory notice. The ballot was in the proper statutory form, and the Deboers Group does not complain about the ballot or the election procedures beyond the petition.

Referring to Henard v. St. Francis Election Commission, 301 Ark. 459, 784 S.W.2d 598 (1990), and Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), cases cited by the Hannan Group for the proposition that election laws provisions are mandatory before the election is held but only directory afterward, the Deboer Group contends it mounted its challenge prior to the election. That may be so, but they mounted it in the wrong court. To challenge the petition they needed only follow Ark. Code Ann. § 14-86-402 (1987) and petition the clerk of the county court pointing out the problem with the petition. Instead they sought an injunction in a chancery court, resulting in the case being transferred to a circuit court which did not hold its first hearing until after the election, too late to argue that the rules were mandatory.

In Becker v. McCuen, 303 Ark. 482, 789 S.W.2d 71 (1990), we dealt with a mistaken pre-election notice publication by the Secretary of State. Although a mistake was made, the challengers did not take advantage of the proper remedy available to them but waited until the eleventh hour and asked a court to strike the matter from the ballot. The trial court declined as did we. The seeking of the wrong remedy in the wrong court in the case now before us did not preserve the mandatory nature of the election laws after the election. In addition, we fail to see the prejudice resulting from failure to follow the statutory form of notice on the petition now that a much broader representation of the people affected have spoken.

The judgment of the Circuit Court is reversed, and the case is dismissed.


author: Tom Glaze, Justice.

text:
    Adrian Bruce TISDALE v. STATE of Arkansas
    CR 92-570
    843 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Southern, Allen & James, by: Faye Bancroft and Joann C. Quirk, for appellant.

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

A Pulaski County Circuit Court jury found the appellant, Adrian Tisdale, guilty of two counts of kidnapping, one count of capital murder, and one count of criminal attempt to commit capital murder. Tisdale received sentences of life imprisonment on each kidnapping charge, life in prison without parole on the charge of capital murder and sixty years for attempted capital murder. Tisdale appeals the convictions and raises four points for reversal. We find his contentions without merit and affirm.

Tisdale first argues there was insufficient evidence upon which the jury’s verdicts of guilty could rest. We disagree and hold that there was substantial evidence to support the jury’s verdicts.

On November 10, 1991, at approximately 6:00 a.m., Little Rock Police were summoned to the parking lot of Little Rock Crate and Basket Company, located on East 14th street, where a white Toyota had been found. Two men, Ira Akins and T.J. Morgan, were found inside the car, and both had been shot in the head. Morgan had suffered three gun shot wounds while Akins had suffered two. The shots killed T.J. Morgan; miraculously Akins survived.

Ira Akins was the state’s star witness at trial, and it was upon his testimony that the jury returned a verdict of guilty on all charges. At trial, Akins recounted the events which transpired in the early morning hours of November 10, 1991, as follows:

At approximately 2:00 a.m. Akins exited a well known gambling house located near the Little Rock Airport. Akins walked to, entered and remained inside his girlfriends’s white Toyota which was situated in front of the establishment. A few minutes later, Tisdale and another man, Anthony Johnson, exited the gambling house and approached the white Toyota. Akins let the two men inside the car. (Akins and Tisdale knew one another.) Tisdale sat behind the passenger seat, while Johnson sat directly behind Akins, who was in the driver’s seat. Tisdale revealed a gun, and held it on Akins. Then, T.J. Morgan, Akins’ friend, left the gambling house and entered the white Toyota, taking the unoccupied passenger’s seat. T.J. Morgan was unaware that Tisdale had a gun.

Tisdale ordered Akins to drive. The four men drove around the projects in the area for approximately three-to-four hours until Tisdale told Akins to drive to Little Rock Crate and Basket Company. When the car stopped, Tisdale shot T.J. three times and Akins twice. A few days later, Tisdale was arrested after Akins identified Tisdale as the man who shot him and T.J. Morgan.

Tisdale claims reversal of his convictions is required in that, absent Akins’ own testimony, no evidence existed linking Tisdale to the shootings. Tisdale also points out the exculpating testimony of several uninterested witnesses. Further, Tisdale claims Akins could not recall the events which occurred prior to the shooting because the gunshot wounds caused Akins’ to suffer retrograde amnesia. He supported this theory through expert medical and psychological testimony and by eliciting and emphasizing numerous critical contradictions in Akins’ own account of the events leading up to the shooting.

Tisdale moved for a directed verdict at the close of the State’s evidence and again at the close of the case, thus preserving for appeal the issue of sufficiency of the evidence. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).

When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). On appeal, the appellate court does not weigh evidence on one side against the other; it simply determines whether the evidence in support of the verdict is substantial. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).

Unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990). Further, the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985); Meeks v. State, 161 Ark. 489, 256 S.W.2d 863 (1923). Although Akins’ description of the events leading up to the shooting sometimes varied drastically from statement to statement, Akins was sure of one thing — that Tisdale was in fact the person who shot him and T.J. Morgan. From this declaration he never wavered.

We affirmed the conviction in Davis based solely upon a store manager’s testimony that the accused was the person who had robbed the store some six years earlier. That case involved a six year old identification, while in the case at bar, the victim-witness, Akins, actually knew the accused and identification was not a problem.

The contradictory nature of both the lay and expert evidence necessarily required the jury to base its ultimate determination on the credibility of the witnesses before them. The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finders conclusion. Brown v. State, 309 Ark. at 506, 832 S.W.2d at 479 (1992). In keeping with these settled principles, we hold that the jury’s acceptance of Akins’ invariable testimony that Tisdale fired the shots, combined with acceptance of expert opinion that Akins did not suffer from retrograde amnesia, is sufficient to support the convictions.

Tisdale next argues that both kidnapping convictions are invalid, and must be set aside, in that their imposition violated Ark. Code Ann. § 5-1-110 (1987). That statute prohibits an accused from being convicted of more than one offense when the proof required to establish the greater offense necessarily includes proof of every element of another. In particular, Tisdale contends that the state used the kidnapping convictions as the underlying felonies for finding him guilty of capital felony murder of T.J. Morgan and criminal attempt to commit capital felony murder of Ira Akins.

Tisdale’s contention is without merit. The state amended its earlier information charging Tisdale with capital felony murder and explicitly charged Tisdale under Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1991) with capital murder for the premeditated and deliberated killing of T.J. Morgan. Thus, Tisdale was not charged under the “capital felony murder” provision when he was tried. It is clear that no proof of an underlying felony was necessary to convict Tisdale of the capital murder of T.J. Morgan, and consequently the dictates of § 5-1-110 were not violated.

However, the state did not amend its original charge against Tisdale of criminal attempt to commit capital felony murder of Ira Akins. Still, Tisdale’s contention of this charge is without merit as well. Regardless of the wording of the state’s charge, the trial court actually instructed the jury that it could only find Tisdale guilty of “attempted capital murder” if the jury found Tisdale purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of an offense, that offense being “capital murder,” which Tisdale committed, “if with the premeditated and deliberated purpose of causing the death of another person, he causes the death of another person.” Tisdale never objected to this instruction at trial nor to the trial court’s entrance of conviction on the kidnapping charge, and such issues raised for the first time on appeal will not be considered. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992); St Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990).

Tisdale next contends that the trial court abused its discretion in allowing an expert witness for the state, Dr. Yvette Baker, to testify regarding “memory loss” test results which had not been made available to Tisdale prior to trial, in contravention of A.R.Cr.P. 17.1. While such test results were not given to Tisdale’s counsel, we hold the trial judge did not abuse his discretion in allowing Dr. Baker to testify.

Judge Langston told counsel for Tisdale that the state’s conduct was unacceptable and stated that if the defense requested a days continuance, a continuance would be granted. Instead of moving for a continuance, counsel studied the test results with the assistance of his expert witness, and when asked a short time later, told Judge Langston that he was ready to proceed with the testimony of Dr. Baker. Any harm done to Tisdale was apparently remedied by the short recess, and because he agreed with the trial court’s solution, Tisdale cannot attack the solution on appeal. Hughes v. State, 264 Ark. 723, 727, 574 S.W.2d 888, 890 (1978).

Finally, Tisdale contends a new trial must be ordered in that (1) his counsel at trial was ineffective, and (2) other “numerous errors” committed during trial resulted in prejudice. We disagree.

Ordinarily, we do not address Rule 37 issues in a direct appeal from a judgment of conviction. Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987). We have reiterated time and again that the question of effectiveness of counsel may not be raised for the first time on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983); Haynie v. State, 257 Ark. 542, 518 S.W.2d 942 (1975). However, the record here shows that during his trial, not afterwards, Tisdale requested the court to relieve Robert Scull III from being Tisdale’s counsel. He based his request solely upon the fact that he wanted to call Anthony Johnson as a witness, while Scull opined that such an action would be against his best advice. The trial judge reviewed the applicable law, and denied Tisdale’s motion to relieve Scull as counsel.

After conviction, Tisdale filed a pro se motion for a new trial arguing the ineffectiveness of Scull and pointing to alleged errors made by Scull, including, but not limited to the fact that Scull did not call some witnesses requested by Tisdale. Because Tisdale’s only objection at trial was that Scull failed to call Anthony Johnson, then it is that contention alone which has been properly preserved for direct appeal. Sumlin, 273 Ark. 185, 617 S.W.2d 372.

Tisdale’s contention has no merit for two distinct reasons. First, decisions to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Second, Scull ultimately decided to call Anthony Johnson as a witness and Johnson did testify at trial. Thus, Tisdale’s objection to Scull’s failure to call Anthony Johnson is therefore moot.

Tisdale next argues that “numerous errors” were committed at trial and therefore, the trial judge committed error in not granting his motion for a new trial. This contention is wholly without merit. Tisdale’s post-conviction motion for a new trial was based solely upon alleged ineffectiveness of counsel. The motion fails to cite any of the occurrences now alleged to be “errors” requiring a new trial. This court will not consider arguments raised for the first time on appeal. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992).

Furthermore, a new trial will not be ordered because Tisdale failed to support the alleged “errors” with citations of legal authority, and such deficient contentions are not considered on appeal. McArthur v. State, 309 Ark. 196, 830 S.W.2d 832 (1992).

Pursuant to Ark. Sup. Ct. R. 11(f), the state has made certain that all objections decided adversely to Tisdale have been abstracted and briefed. No issues of prejudicial error exist.

Affirmed.


author:
Donald L. Corbin, Justice.
      Robert L. Brown, Justice,

text:
    Raymond BUSHONG and Betty Bushong v. The GARMAN COMPANY and The Clorox Company Continental Casualty Co., Intervenor
    92-436
    843 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Murrey L. Grider and Ponder & Jarboe, by: Dick Jarboe, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: John V. Phelps, for appellee Clorox Co.

      Mixon & McCauley, by: Don Mixon, for appellee Garman Co.

      Snellgrove, Laser, Langley, & Lovett, for intervenors.
   Donald L. Corbin, Justice.

On May 12, 1988, appellant, Raymond Bushong, was cleaning a bathroom on the premises of Stewart Electric, his employer, in Jonesboro, Arkansas. Appellant was trying to remove grease from the bathroom floor and had used almost an entire gallon of undiluted Clorox without success when a co-employee, Greg Rollins, suggested he try using Vapco Brite’ Alum, an air conditioner coil cleaner. Greg Rollins poured approximately one-half (1/2) a cup of the Vapco Brite’ Alum on the floor directly on top of the Clorox Bleach which was already there. Vapco Brite’ Alum is a product sold to refrigeration and air conditioning wholesalers to clean condenser coils and refrigeration and air conditioning units. It is intended for use by professional refrigeration and air conditioning service personnel. Neither appellant nor Greg Rollins are professional refrigeration or air conditioning service personnel, although their employer, Stewart Electric, employed such people. Neither appellant nor Greg Rollins read the labels of either the Clorox Bleach or the Vapco Brite’ Alum. Appellant had never read the labels of any of the products he used in cleaning. At the time of the accident, appellant was a warehouseman who also did some cleaning for Stewart Electric and Greg Rollins was an estimator for Stewart Electric. Neither appellant nor Greg Rollins had ever used Vapco Brite’ Alum before, but both were aware it was used in cleaning air conditioners. After the Vapco Brite’ Alum was poured onto the floor, appellant continued to clean the floor in the bathroom, which was approximately four (4) feet by four (4) feet. Soon after, the mixture started to foam and a white fog vapor was coming up from the floor which appellant inhaled. Appellant claims the inhalation of these vapors caused him personal injury.

Appellant filed a complaint on April 5, 1990, against The Clorox Company, the manufacturer of Clorox Bleach, The Garman Company, the manufacturer of Vapco Brite’ Alum, and Greg Rollins. As to the Clorox Company and The Garman Company, appellant alleged they:

negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [the irrespective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by [appellant] causing him great damages and injuries ....
. . . expressly and impliedly warranted that [their respective products] were fit for the purpose for which they were intended. . . .
... are absolutely or strictly liable in that they manufactured and marketed [their respective products] and failed to issue proper and necessary warnings when [they] knew or should have known that the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas.

Appellant alleged Greg Rollins

was negligent in that he failed to use that degree of care exercised by ordinary and prudent persons under the same or similar circumstances and further, he knew or ought to have known by the exercise of ordinary care that the mixing of the aforementioned two chemicals would cause a cloud of fumes which would be harmful to Plaintiff.

Continental Casualty Company, appellant’s employer’s insurance carrier at the time of the accident, moved to intervene pursuant to Ark. R. Civ. P. 24 and Ark. Code Ann. § 11-9-410 (1987) of the Arkansas Workers’ Compensation Act. The order allowing the intervention was filed on July 25, 1990.

On October 9, 1991, appellee Clorox Company moved for summary judgment. On October 22, 1991, appellant filed an amended complaint re-alleging the same causes of action, but expanding the absolute or strict liability claim to allege:

[t]he defendants, Garman and Clorox, are absolutely or strictly liable in that they manufactured and marketed the products herein and failed to issue proper and necessary warnings when the said Defendants knew or should have known the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas. The Defendants are also strictly liable in tort inasmuch as both produced a defective product. The Clorox product was defective in the fact that it contained sodium hypochlorite the brite alum was defective in that it contained hydrofluoric acid. Either chemical in combination with other chemicals could release a poisonous gas and were dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics. Both products would fail to perform as safely as an ordinary consumer would expect them to perform when used in an an intended or reasonably foreseeable manner. Further the benefits of the products do not outweigh the risks of danger inherent in their design.

On November 12, 1991, appellee Garman Company also moved for summary judgment.

On November 19,1991, the trial court found “the warnings on the labels for Clorox and Brite’ Alum, the respective products of Clorox Company and Garman Company, are adequate under the facts of this case and that Raymond Bushong and Greg Rollins failed to read the labels” and for that reason granted partial summary judgment in favor of Clorox Company and Garman Company on all allegations of failure to warn and improper labeling. Summary judgment was also granted on the breach of warranty issues upon appellant’s admission that they did not have a case for breach of express or implied warranties. On December 3, 1991, Clorox Company, filed a supplemental motion for summary judgment on the product defect and negligent manufacture issues. On January 8, 1992, the trial court granted the supplemental motion for summary judgment and found “all claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice.” Appellant’s and intervenor’s, Continental Casualty Company’s, claim against Greg Rollins was dismissed without prejudice pursuant to plaintiffs oral motion in open court for a voluntary nonsuit against Greg Rollins. This appeal followed. Since this case presents questions in the law of torts, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(o).

On appeal, appellant cites four points of error in the trial court’s granting of summary judgment to appellees The Clorox Company and The Garman Company. They are (1) the warning on the labels for Clorox and Brite’ Alum are not adequate as a matter of law; (2) the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings; (3) there are material issues of fact to be determined in this cause; and (4) the trial court erred in refusing to require separate appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite’ Alum, before ruling on the motion for summary judgment.

I. ADEQUACY OF THE WARNINGS

For his first point of error, appellant alleges the trial court erred in finding the warnings on the labels for Clorox and Brite’ Alum were adequate as a matter of law under the facts of this case. We need not reach this issue since we uphold the trial court’s granting of summary judgment on the failure to warn and improper labeling issues based on appellant’s failure to read the labels. We do note, however, that adequacy of a warning is generally a question of fact for the jury. See First Nat’l Bk., Albuquerque v. Nor-Am Agric. Prod., Inc., 537 P.2d 682 (N.M. Ct. App. 1975) (and cases cited therein), cert. denied; Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo. Ct. App. 1984), aff'd en banc 723 P.2d 1322 (Colo. 1986).

II. FAILURE TO READ WARNINGS

For his second point of error, appellant alleges the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings and it was error for the trial court to grant summary judgment on this basis. We have not previously addressed this issue.

The parties have cited cases from various jurisdictions which hold both that failure to read the label precludes a claim of inadequate warning and that it does not. We think the better rule is that failure to read the label does not automatically preclude a claim for inadequate warning. We find the rule applied in Safeco Ins. Co. v. Baker, 515 So. 2d 655 (La. Ct. App. 1987) particularly persuasive and we adopt the reasoning therein. Safeco holds the plaintiff originally has the burden of proving the warnings or instructions provided were inadequate. Once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded adequate warnings or instructions. This presumption may be rebutted by evidence “which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances.” Safeco Ins. Co., 515 So. 2d 655, 657 (La. Ct. App. 1987); See also Johnson v. Niagara, 666 F.2d 1223 (8th Cir. 1981). In this case, appellant himself admitted that he had never read a label on a cleaning product during the three years he worked at Stewart Electric. Given this, we cannot say the trial court erred in finding appellant’s failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.

III. NEGLIGENCE AND DEFECTIVE PRODUCT CLAIMS

Appellant’s third point of error alleges it was error for the trial court to grant summary judgment on Counts V and VI, the negligent manufacture and the defective product claims. Appellant contends there were material issues of fact to be decided as to these claims and it was, therefore, improper for the trial court to grant summary judgment on these claims. In addressing this issue, there are two sub-issues which must be addressed: (1) was summary judgment proper as to the negligence claims; (2) were there material issues of fact to be decided as to the defective product claims against Clorox or Garman.

The negligent manufacture claims alleged

Garman and Clorox, by and through their agents and employees negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [their respective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by the Plaintiff, Raymond Bushong causing him great damages and injuries as set out hereinafter.

The trial court dismissed this claim on summary judgment stating “all claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice.”

As we said in West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991), “ We sustain a trial court’s ruling if it reached the right result, even though it announced the wrong reason.” Summary judgment was proper, but dismissal of the claim with prejudice was not. Summary judgment should have been granted because this allegation is insufficient under Arkansas law. Arkansas is a fact pleading state and appellant’s negligence claim does not state facts upon which relief can be granted. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Appellant’s complaint does not allege any facts which tend to prove appellees Clorox and Garman “negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected their products.” As we explained in Searle, summary judgment based upon failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts, which is the failure to have a claim. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608. When summary judgment is granted because of failure to state a claim, the dismissal should be without prejudice in order to afford the plaintiff-appellant a chance to plead further. Id. Therefore, the summary judgment for The Garman Company and The Clorox Company on the negligence issue is modified to be without prejudice.

The next sub-issue which must be addressed is whether there was any material issue of fact regarding whether Clorox or Brite’ Alum was defective. Appellant alleged Clorox was defective because it contained sodium hypochlorite which, “in combination with other chemicals could release a poisonous gas and [was] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics” and “would fail to perform as safely as an ordinary consumer would expect [it] to perform when used in an intended or reasonably foreseeable manner [such that] the benefits of the product[] do not outweigh the risks of danger inherent in [its] design.” Appellant alleged Brite’ Alum was defective because it contained hydrofluoric acid, which “in combination with other chemicals could release a poisonous gas and [was] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics” and “would fail to perform as safely as an ordinary consumer would expect [it] to perform when used in an intended or reasonably foreseeable manner [such that] the benefits of the product [] do not outweigh the risks of danger inherent in [its] design.”

In order to prevail in a products liability claim, appellant must prove

(1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product;
(2) The product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(3) The defective condition was a proximate cause of the harm to person or to property.

Ark. Code Ann. § 4-86-102(a) (1987). “ ‘Defective condition’ means a condition of a product that renders it unsafe for reasonable foreseeable use and consumption.” Ark. Code Ann. § 16-116-102(4) (1987).

“Unreasonably Dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer, or user who acquires or uses the product, assuming the ordinary knowledge of the community or of similar buyers, users, or consumers as to its characteristics, propensities, risks, dangers, and proper and improper uses, as well as any special knowledge, training, or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess.

Ark. Code Ann. § 16-116-102(7) (1987).

Summary judgment is an extreme remedy which is only proper when it is clear there are no issues of fact to be litigated. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). “Once the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact.” Anderson v. First Nat’l Bank, 304 Ark. 164, 166, 801 S.W.2d 273, 274 (1990). An affidavit stating only conclusions is not sufficient. Miskimins v. The City Nat’l Bank, 248 Ark. 1195, 456 S.W.2d 673 (1970). “The response and supporting material must set forth specific facts showing that there is a genuine issue for trial.” Id. at 1205, 456 S.W.2d at 679.

In its motion for summary judgment and supplemental motion for summary judgment, The Clorox Company supplied the affidavits and depositions of several witnesses. None of these supporting materials contained any proof that Clorox was supplied in a defective condition which rendered it unreasonably dangerous. The Garman Company supplied interrogatories and depositions in support of its motion for summary judgment. None of the supporting material provided by Garman indicated Brite’ Alum was supplied in a defective condition which rendered it unreasonably dangerous. In order to prove the existence of a material issue of fact as to the defective condition of Clorox and Brite’ Alum, appellant offered the affidavits of Dr. Ronald Wise, a biochemist, and Mrs. Carolyn Wise, stating that:

On giving my deposition on the 8th day of March, 1991, an inquiry was made as to whether or not the product, Clorox or Brite’ Alum, was defective. My answer to that was no if “defective” meant whether or not the products were defectively formulated. In essence I was stating that the product as constituted did not deviate from the norm.
If defective were to mean that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner then my answer would have been that it was, in fact, defective.

These affidavits are conclusory in nature and do not set forth any specific facts tending to prove either Clorox or Brite’ Alum was supplied in a defective condition which rendered it unreasonably dangerous. Miskimins, 248 Ark. 1194, 456 S.W.2d 673. Therefore, appellant did not present proof of a material element of his claim. Summary judgment is proper when an appellant fails to present proof of a material element of his claim. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992). Thus, we affirm the trial court’s granting of summary judgment as to the defective product claims.

IV. MATERIAL SAFETY DATA SHEET

For his fourth point of error, appellant alleges it was error for the trial court to grant summary judgment before requiring appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite’ Alum. Even if the M.S.D.S. had been supplied, summary judgment was properly granted as to appellant’s claim against Garman. In order to withstand a summary judgment motion as to the defective product claims, appellant was required to produce proof that the product was supplied in a defective condition which rendered it unreasonably dangerous. Appellant claims he needed the M.S.D.S. to prove that Brite’ Alum was supplied in a defective condition. However, since appellant failed to supply proof sufficient to prove Brite’ Alum was unreasonably dangerous, Garman’s summary judgment motion was properly granted. Proof that Brite’ Alum was supplied in a defective condition would not cure appellant’s failure to supply proof Brite’ Alum was unreasonably dangerous. Appellant did not supply any proof of the

ordinary knowledge of the community or of similar buyers, users, or consumers as to [the] characteristics, propensities, risks, dangers, and proper or improper uses, [or] any special knowledge, training or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess.

As was noted previously, an affidavit stating only conclusions, but failing to set forth specific facts is insufficient to show there is a material issue of fact. Miskimins, 248 Ark. 1194, 456 S.W.2d 673. Since appellant failed to prove this element of his proof, he could not withstand a summary judgment motion even had the M.S.D.S. revealed chemical elements which would have allowed appellant’s expert to determine the product was supplied in a defective condition.

Affirmed in part; modified in part.

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

Robert L. Brown, Justice,

dissenting. The issue in this case is whether the warning on the Clorox container about hazardous toxic gases was conspicuous enough to draw a user’s attention — not whether Bushong actually read the label. If the warning on the label had been sufficiently eye-catching and had sounded some mental alarm, arguably the user would have read it. In any case, that is a question for the jury to decide. It is not a matter of law for the trial court on summary judgment. By holding as the majority does today, no matter how hidden or inconspicuous a notice of danger in the future may be, if the user fails to read a label in toto, he is foreclosed from recovery. I disagree that that is the law.

We have not reviewed a summary judgment couched on failure to read a warning until this case. Other jurisdictions, however, have refused to hold that failure to read a warning in and of itself is determinative of the warning’s adequacy. See, e.g., Spruill v. Boyle-Midway, Inc., 306 F.2d 79 (4th Cir. 1962); East Penn Manufacturing Co. v. Pineda, 578 A.2d 1113 (D.C. App. 1990); Jarrell v. Monsanto Co., 528 N.E.2d 1158 (Ind. App. 2 Dist. 1988); Shell Oil Co. v. Gutierrez, 119 Ariz. 426, 581 P.2d 271 (1978).

In East Penn Manufacturing v. Pineda, supra, the issue involved an exploding battery and an injured mechanic who was an experienced user. The jury found for the mechanic, and the manufacturing company moved for judgment n.o.v. on failure-to-read grounds which the trial court denied. On appeal, the District of Columbia Court of Appeals first noted that it had previously rejected the argument that adequacy of a warning label could be resolved as a matter of law. It then went on to discuss the mechanic’s failure to read the warning label on the battery, which was the size of a business card:

In the failure to warn context, it is first necessary to distinguish between (1) failure to take adequate steps to ensure the warning was communicated to the ultimate user — issues involving the prominence and location of the label — and (2) failure to provide a warning that, if communicated to the user, would have been adequate to warn of risks — which involves the content of the warning. When the failure to warn is based upon the steps taken to communicate the warning, the fact that the plaintiff never read the warning is itself evidence that the label was inadequate, and should not bar recovery. See Rhodes v. Interstate Battery Systems of Am., 722 F.2d 1517, 1519 (11th Cir. 1984). But when the cause of action is predicated on the content of the warning, as in this case, the plaintiffs own failure to read it will be contributory negligence in some jurisdictions. Id.

578 A.2d at 1124. Concluding that failure to read the label was ot itself fatal, the court affirmed the jury’s verdict on failure to warn.

In Shell Oil Co. v. Guiterrez, supra, a supposedly empty metal drum which had contained liquid xylene exploded because of welding work done within a few feet of the “empty” drum. Two men were injured. Neither had read the warning on top of the metal drum. In affirming the jury verdict in favor of the two men, Arizona Court of Appeals said:

That the party who is injured might not have read or heeded warning is not always sufficient to disprove the existence of a causal relationship between the injury and the defect. Adequate warning could have actuated a policy in handling “empties” which would have prevented the accident. ...
Furthermore, the adequacy of a warning label is not determined solely by reference to the words on the label but also by reference to the physical aspects of the warning, such as conspicuousness, prominence, and relative size of print. All of these physical aspects must be adequate to alert the reasonably prudent person. (Citing authority.) Here, the only label attached to the barrel was small in size, approximately 4” x 4”. The jury could have determined that the physical aspects of this label were inadequate in light of the foreseeable risk of injury, and that if a larger and more conspicuous label was attached, it would have been seen, read and heeded.
There was substantial evidence from which the jury could have concluded that the failure of the defendants to provide an adequate warning was a factor in producing the injuries. Cause in fact was an issue for the jury. Prosser, The Law of Torts, Sec. 41 (4th ed. 1971).

581 P.2d at 280-281.

In a third case, the Indiana appellate court reversed summary judgment which had been entered in favor of a sulphur manufacturing firm. Jarrell v. Monsanto Co., supra. There, the injured user poured two fifty pound bags of sulphur into a storage bin which then exploded and burned the user. The worker had not read the warning label on the bags that sulphur dust in air ignites easily. Using this fact as well as others, the trial court entered summary judgment. The Indiana Court of Appeals reversed and said in part:

In this case, [the user] admitted that warning labels appeared on the bags of sulphur but claims that he did not see any such warnings and did not read the labels. However, we cannot say as a matter law that the warnings on these labels, “WARNING!,” “SULPHUR DUST SUSPENDED IN AIR IGNITES EASILY!” and “Avoid creating dust in handling!,” sufficiently convey to a reasonable user the nature of the danger or the extent of the potential harm.

528 N.E.2d at 1163.

Finally, in Spruill v. Boyle-Midway, Inc., supra, the Fourth Circuit Court of Appeals affirmed a jury verdict in favor of the estate of a deceased 14-month-old child who died of chemical pneumonia after ingesting a small quantity of furniture polish. The Fourth Circuit described the labelling:

On the front part of the label appear the words “Old English Brand Red Oil Furniture Polish” in large letters; beneath this in small letters “An all purpose polish for furniture, woodwork, pianos, floors”. The reverse side of the label, the background of which is white, contains the following printed matter: at the top in red letters about 1 /8th of an inch in height all in capitals, “CAUTION COMBUSTIBLE MIXTURE”. Immediately beneath this in red letters 1 /16th of an inch high “Do not use near fire or flame”; several lines down, again in letters 1 /16th of an inch in height, in brown ink, all in capitals, the word “DIRECTIONS”; then follow seven lines of directions printed in brown ink in letters about 1 /32nd of an inch in height. On the eighth line in letters 1 /16th of an inch high in brown ink appear the words “Safety Note”; following this in letters approximately l/32nd of an inch in height:
Contains refined petroleum distillates. May be harmful if swallowed, especially by children.”

308 F.2d at 82. The mother of the child testified that she had read the large colored letters “CAUTION COMBUSTIBLE” but not the directions because she knew how to use furniture polish.

The court discussed the inadequacy of the warning relating to children:

The notice here given was not printed on the label in such a manner as to assure that a user’s attention would be attracted thereto. Indeed, we think one might reasonably conclude that it was placed so as to conceal it from all but the most cautious users. It is located in the midst of a body of print of the same size and color, with nothing to attract special attention to it except the words “Safety Note”.
Further, even if the user should happen to discover the warning it states only “contains refined petroleum distillates. May be harmful if swallowed especially by children.” The first sentence could hardly be taken to convey any conception of the dangerous character of this product to the average user. The second sentence could be taken to indicate to the average person that harm is not certain but merely possible. The expert medical evidence in this case shows that “harm” will not be contingent but rather inevitable, to young and old alike. Moreover, the 1st phrase of the sentence hardly conveys the thought that very small quantity of the polish is lethal to children.

306 F.2d at 86. The court then went on to conclude:

[H]ad the warning been in a form calculated to attract the user’s attention, due to its position, size, and the coloring if its lettering and had the words used therein been reasonable calculated to convey a conception of the true nature of the danger, this other might not have left the product in the presence of her child.

306 F.2d at 87.

The majority cites two cases to support its affirmance. Safeco Ins. Co. v. Baker, 515 So.2d 655 (La. Ct. App. 1987); Johnson v. Niagara, 666 F.2d 1223 (8th Cir. 1981). Both cases are distinguishable. In Johnson, the Eighth Circuit Court of Appeals affirmed a directed verdict in favor of the manufacturer of a . punch press due to the user’s failure to read the warning. Johnson v. Niagara Mach. & Tool Works, 666 F.2d 1223 (8th Cir. 1981). In affirming the district court’s decision, however, the Court observed in a footnote that the district court had found that the warning on the press was conspicuous and that the case did not involve an inadequate warning. The trial court in the case before us did not make similar findings on adequacy or conspicuousness.

In Safeco Ins. Co., the user had failed to install a prefabricated fireplace correctly because he did not read all the pages in an installation booklet, and a fire to the home resulted. The Louisiana Court of Appeals reversed a jury verdict in favor of the installer for fire damage to his home on causation grounds. In that case no hazardous substance was involved; nor did the appellate court have before it the issue of whether a warning label was conspicuous.

A jury should decide if the warning on the Clorox bottle was in a form calculated to attract Bushong’s attention and if conspicuous, was the wording of the warning adequate. Larger letters in color or a logo indicating toxicity like a skull-and-bones might well have averted injury in this case. At least, this was a question for the jury to consider. While failure to read a label with what is arguably an inadequate warning of a hazard might have surface appeal for disposing of this case, it really does not stand up under scrutiny. I would reverse the summary judgment and remand for trial.

Holt, C.J., and Newbern, J., join.


author: Donald L. Corbin, Justice.

text:
    STATE of Arkansas v. Glenda LONG and Willard Kelley
    CR 92-481
    844 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.
    No response.
   Donald L. Corbin, Justice.

Appellees, Glenda Long and Willard Kelley, were both charged by felony information with the capital murder of Willard Kelley’s wife, Shirley Kelley. Willard Kelley was also charged by felony information with hindering the apprehension of evidence in his wife’s murder. Both appellees were tried together by a jury. The case never reached the jury, however, because the trial court directed verdicts for appellees on all charges at the close of the state’s evidence. The state has filed this appeal.

The threshold issue in this case is whether the state is permitted to appeal from the trial court’s order directing verdicts for appellees. Resolution of this preliminary issue requires our construction of Ark. Sup. Ct. R. 36.10; our jurisdiction is therefore pursuant to Ark. Sup. Ct. R. 29(1)(c).

Our law is well settled that the state is not allowed to appeal from a directed verdict acquitting the defendant when the sole issue is the sufficiency of the evidence of the defendant’s guilt. State v. Dixon, 209 Ark. 155, 189 S.W.2d 787 (1945). The reasoning behind this rule is stated as follows:

The question of the legal sufficiency of the evidence in a given case constitutes a question of law for the decision of the court, but it cannot become a precedent for application in another case because of the varying state of facts in different cases, and therefore the decision of that question, even though it be one of law, is not important in the “uniform administration of the criminal law.”

Dixon at 158, 189 S.W.2d at 789.

Notwithstanding the foregoing rule as stated in Dixon, the state claims it should be permitted to appeal in this felony case because it has examined the transcript and determined the state was prejudiced by the trial court’s commission of an error, the correction of which is essential to the uniform administration of the criminal laws of this state. Ark. R. Crim. P. 36.10(c). The asserted error the state claims requires correction is that, when deciding appellees’ motions for directed verdicts due to insufficient evidence, the trial court erroneously weighed the credibility of the evidence rather than deciding the motions strictly on the sufficiency of the evidence.

In an effort to distinguish between the concepts of “sufficiency of the evidence” and “credibility of the evidence,” we repeat the following analysis used by the United States Supreme Court when presented with a different, yet somewhat similar issue:

[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The “weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.”

Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (quoting Tibbs v. State, 397 So. 2d 1120 (1981)).

This court has previously held it was error for a trial court to direct a verdict for a defendant on the basis that the state’s evidence was not believable. State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929). The state was permitted to appeal in Taylor because, similarly to the present case, the asserted error did not involve a question of the sufficiency of the evidence; rather, it involved a question of the credibility of the evidence. The Taylor court permitted the state to appeal reasoning that “[i]t was within the peculiar province of the jury to judge the credibility of the witness. It will also be within the province of the court to grant a new trial, upon motion of the defendant, if, in its opinion, the verdict was against the evidence.” Id. at 591, 22 S.W.2d at 35. Therefore, we agree that when a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction. Consistently with Ark. R. Crim. P. 36.10(c) and Taylor, we hold the state is entitled to an appeal in this case.

In the order entered in the present case, the trial court carefully recited the evidence presented by the state and then made conclusory comments. Based on several of those conclusory comments, we conclude the trial court erroneously weighed the credibility of the evidence instead of determining the sufficiency of the evidence. We discuss separately the recited evidence and some of the conclusory comments.

Dr. Fahmy Malak performed the autopsy on Shirley Kelley and determined her cause of death to be multiple crushing blunt trauma to the body, including the upper and lower extremities, the torso, head and neck. Dr. Malak explained he believed that while Mrs. Kelley was alive and standing, she was struck by a vehicle from the rear. Donald E. Smith, of the trace evidence section of the State Crime Laboratory, testified that hairs from the victim’s head were found on two automobiles. Other evidence showed that one automobile belonged to appellee Long and that the other automobile was not connected to either appellee in any way. The trial court observed the state’s theory that the jury could determine all, some, or none of Smith’s findings to be accuraté. However, the trial court stated it “could accept that the jury could believe all or none of Smith’s testimony, but there should be a reasonable, non-speculative basis in the record upon which a jury could believe he is correct on the hair on one vehicle and incorrect on the hair on the other. The court can find no reasonable, nonspeculative basis in this record for such distinction.”

On appeal, the state argues that it was not for the trial court to decide which part of Smith’s testimony the jury would find credible. We agree with this contention, for it is well established that the jury has the right to believe all or any part of a witness’ testimony. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). The foregoing is but one example of situations where the trial court erroneously invaded areas within the province of the jury.

Another example of such invasion is seen in the part of the order where the trial court points out numerous inconsistencies in various witnesses’ testimonies and then concludes that the jury would have to engage in too much speculation and conjecture to find appellees guilty of the crimes charged. While it is true that a verdict cannot be supported by evidence requiring the jury’s speculation of a defendant’s guilt, it is also true that variances and discrepancies in the proof go to the weight or credibility of the evidence and are therefore matters for the factfinder to resolve. Jones v. State, 305 Ark. 95, 805 S.W.2d 642 (1991). Thus, when there is evidence of a defendant’s guilt, even if that evidence is conflicting as it was in the present case, it is for the jury as factfinder to resolve the conflicts and inconsistencies and not for the court to resolve on a directed verdict motion.

Yet another example of the trial court’s invasion of the jury’s province remains to be illustrated. The trial court stated in its order that it was concerned about the importance of the requirement that circumstantial evidence be “inconsistent with any other reasonable conclusion but the guilt of the defendants.” It is true that when circumstantial evidence alone is relied on as substantial evidence to support a verdict, that circumstantial evidence must indicate the accused’s guilt and exclude every other reasonable hypothesis. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). However, the question of whether the circumstantial evidence excludes every other reasonable hypothesis is for the factfinder to determine Id.; Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Thus, while the trial court’s concern was warranted, the analyzation of the circumstantial evidence should have been left to the jury as the factfinder in the case.

The foregoing review of the trial court’s order convinces us that when considering appellees’ motions for directed verdicts due to insufficient evidence, the court went beyond its duty to determine the sufficiency of the evidence and erroneously engaged in a weighing of the credibility of the evidence. We can do no more than declare the error of the trial court. We cannot reverse the judgment because, as the state acknowledged at the beginning of its brief, due to the trial court’s directing verdicts favorable to appellees, appellees’ double jeopardy rights prevent the state from retrying them on the same charges. Smalis v. Pennsylvania, 476 U.S. 140 (1986); Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929).

Error declared.


author: Robert L. Brown, Justice.

text:
    Ida Mae ALLEN v. Orlando David BURTON
    92-251
    843 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellant.

      Gary Eubanks & Associates, by: James Gerara Schulze and Darryl E. Baker, for appellee.
   Robert L. Brown, Justice.

The appellant, Ida Mae Allen, raises three points for reversal of a verdict and judgment against her in the amount of $300,000, resulting from a vehicular collision and injury to the appellee, Orlando David Burton. None of the points has merit, and we affirm.

On March 17, 1990, Ida Mae Allen and Orlando David Burton, were traveling separately on Highway 65 near Pine Bluff. Both parties were southbound. The portion of Highway 65 involved has five lanes — two southbound, two northbound, and one center turning lane. Allen was driving a car in the inside lane a short distance behind Burton, who was driving a motorcycle in the outside lane. Allen’s husband was a passenger in her car. Burton had a friend riding on the back of his motorcycle.

What happened next is disputed by the parties. According to Allen, she first observed Burton pulling into the outside lane from the shoulder of the highway. His right signal light was on, she said. Once he was in the outside lane, he did not turn off the right-turn signal, which remained on until the accident, according to Allen. She further stated that she was in the inside southbound lane behind Burton, while he was in the outside lane. As the front of her car began to come even with the front of Burton’s motorcycle, he turned left directly in front of her. She applied her brakes, struck the motorcycle, and ended up in the northbound lane headed toward a ditch.

Burton’s version of the incident was altogether different. He denied ever having been on the highway shoulder. Instead, he testified that he was attempting to turn into an intersection to get into the northbound lane of Highway 65 when the accident occurred:

Well, when I put my signal light on and looked in my mirror, I saw I had time to change to the center lane, so I changed. And I was driving very slowly in this lane so I could find an intersection so I could get off and turn around and go back. And as I saw an intersection that I could turn left into, when I got ready to turn, I put my signal light on and checked my mirrors. When I got — as soon as I went into my turn to get into the turn lane, then I was just hit from my left. The car behind me just ran into me.

Burton lost his left foot and a portion of his left leg because of the accident. He filed suit against Allen. Allen, in response, pled that Burton was under the influence of alcohol and was negligent,, which proximately caused his own injuries. Following a jury trial, the verdict of $300,000 was rendered.

I. AMI INSTRUCTION 902

Allen argues for her first point that AMI Instruction 902 was improperly given over her objection because it did not identify a specific purpose for which the superior vehicle could use the highway. The instruction read to the jury was as follows:

Now, when two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway [for any proper purpose] and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. Now, this does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road. (Brackets, ours.)

Apparently, before the jury retired to reach its verdict, Allen objected to AMI 902. However, no record of the objection was made. After the jury went out, the trial court stated that counsel could make his objection for the record “just as if it had come prior to our giving it to the jury.” Allen’s counsel then stated the objection:

Your Honor, the defendant objects generally and specifically [to] the court’s giving AMI 902 specifically named instruction number 13 having to do with the — having to do with the superior right of the forward vehicle in that I do not think this case presents the unique set of facts that the framers of the AMIs anticipated by the use of this instruction. Specifically, we have here an alleged change of lane situation, and I do not think that the instruction as given, or even generally or otherwise was proper under the circumstances.

The trial court then asked Burton’s counsel for a reply, and this colloquy ensued:

BURTON’S COUNSEL: Your Honor, just to be sure the record is clear on Mr. Huckabay’s objection, 902 goes to the giving of the instruction generally, not for the language that we inserted in the instruction or used the term “for proper purposes” rather than saying, “for purposes of turning through an intersection,” over such language . . . Mr. Huckabay’s objection is to the . . . instruction [being given] at all, not the language of the instruction.
ALLEN’S COUNSEL: Your Honor, I believe what I said was what I said.
BURTON’S COUNSEL: Well, I understand. . . .1 just wanted to be sure that when the brief time comes —
ALLEN’S COUNSEL: I have nothing more to say other than what I said. . . .
BURTON’S COUNSEL: Well ... I know what we said back in chambers, and I just wanted to be sure that
ALLEN’S COUNSEL: And I don’t think my instruction violated anything we said in chambers. Now, I [am] simply telling you what I objected to, and I think it’s pretty clear.

The trial court then ruled that though the proof was in conflict, there was some proof that Burton had completed a lane change and was the forward vehicle and that AMI 902 was appropriate.

We have held that the failure to insert a specific purpose in the bracketed portion of AMI 902 is error. Harlan v. Cubro, 250 Ark. 610, 446 S.W.2d 459 (1971). However, it is clear in this case that Allen objected to the propriety of the AMI 902 instruction under the facts of this case and not to the absence of a precise purpose set out in the AMI 902 brackets. It is further clear that she has raised the argument of lack of a precise purpose in AMI 902 for the first time on appeal. It is axiomatic that Allen was required to object distinctly and specifically to any deficiency in AMI 902 as given. Ark. R. Civ. P.51; see also Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). No such objection appears of record. Rather, Allen argued that this was a change-of-lane case, and the superior-vehicle instruction was not applicable. We have consistently held that a party cannot make a new argument on appeal. See, e.g., Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991). Because the objection concerning a specific purpose in AMI 902 was not raised below, we will not consider it for the first time on appeal.

We note on this point that a verbatim record of Allen’s objection to AMI 902 was not made when the objection was first brought to the trial court’s attention. This violates our Administrative Order No. 4, effective July 1, 1991, which states:

Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.

It puts this court at a considerable disadvantage in reviewing points pertaining to unrecorded hearings, when a verbatim record is not before us. Clearly, what is recollected after the jury retires may have gaps and may be disputed by the participants.

II. ALCOHOL DEFENSE

Allen next argues three points pertaining to Burton’s consumption of alcohol before the incident. The first point deals with whether she proffered an exhibit marked number seven in a timely manner. The exhibit involved is a hospital record made during Burton’s hospital stay with a handwritten notation: “Pt. refused to sign blood alcohol consent form @ 1735 h. as requested by State Trooper present in room. State Trooper removed pt.’s driver’s license from pt.’s wallet @ 1737 h.”

As in the case of the first issue, there was no recorded hearing relating to the admissibility of Exhibit 7 until after the jury began its deliberations. Apparently, however, a pretrial hearing was held on the various exhibits and witnesses to be presented by the parties. Allen asserts that the trial court denied admission of her exhibit, over her objection, at that time. The trial court’s memory of those events, which was recorded after the jury had retired, was different:

And, at that time, five of the six documents, as I recall, were reluctantly agreed to by plaintiff’s counsel that were admissible although . . . plaintiff s counsel did not waive his right to object to them if he felt [that] tactically and strategically he should do it at that time. It never dawned on me that Mr. Huckabay would not offer the sixth document for the Court’s ruling at the proper time in the course [of] the trial. I did, however, indicate I felt like there was probably a more valid objection to that document [than to] any of the other ones. And at such time as the trial proceeded to that point when Mr. Huckabay offered the other five documents, the sixth one was not offered and has not been until this time.

Allen’s counsel and the trial court plainly have a disagreement over what transpired at the pretrial hearing regarding this exhibit. The trial court, however, was definite that he had not ruled on its admissibility.

A proffer of an exhibit is essential to appellant review. See, e.g., Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985). That an exhibit must be offered into evidence before the taking of proof has concluded is self-evident. Here, the trial court stated that Exhibit 7 was neither offered as evidence nor proffered before the jury retired. The court, as a consequence, never had occasion to rule on the matter. A proffer of evidence is appropriate after the trial court has denied its admissibility. The trial court stated, though, that a denial never took place, and we give that statement credence. The Court of Appeals has stated that the trial court has great discretion as to the time when a proffer of proof may be made. Sitz v. State, 23 Ark. App. 126, 743 S.W.2d 18 (1988). We cannot say that the trial court abused that discretion in refusing to consider the contested exhibit after the jury had retired to consider its verdict.

The second issue concerns a comment by the trial court during voir dire. Burton’s counsel advised the jury panel that Burton would testify that he had consumed two beers before the accident. Counsel then inquired whether the fact that Burton had drunk any beer at all would cause any juror to decide that Burton should not prevail. Three prospective jurors indicated affirmative responses, and they were excused for cause.

Additional jury panel members were called forward and questioned about possible prejudices against persons who ride motorcycles. The trial court returned to the subject of alcohol, inquiring:

Would the fact that some alcohol was involved [affect your decision] ? Now, nobody has indicated that there was likely to be any proof that there was a quantity of alcohol sufficient to cause any of the laws of this state to be broken or anything like that.

At that point, Allen’s attorney requested a bench conference, and the proceedings were recessed. Out of the presence of the panel, he objected to the trial court’s alleged comment on the evidence that there would be no evidence that Burton was intoxicated. After some conversation, the trial court suggested the plausibility of such an instruction, and Allen’s attorney interrupted and said:

That’s fine. My — just wanted the Court to know I would not have done anything so bizarre as to have the jury excused for this objection, but that I thought, as I remember what the Court said, that was the reason for my objection.

By taking this position, Allen conceded that a mistrial was not warranted which precludes a claim of error on that aspect on appeal. See Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 520, 780 S.W.2d 543, 544 (1989). The remaining question then is whether it was incumbent upon Allen to pursue the remedy of a cautionary instruction which she appeared to agree to.

We think that it was. We have held that the burden is on the complaining party to request such an instruction. See Matkin v. Jones, 260 Ark. 731, 543 S.W.2d 764 (1976). It is further the complaining party’s burden to assure that the instruction is given, if the party is serious about curing asserted error. Allen did not do so, although her attorney had previously requested that course of action. She cannot now complain about its absence on appeal.

For her final point relating to alcohol, Allen contends that the trial court committed error in allowing Burton’s counsel to state in closing argument: “There is no competent evidence this man was intoxicated.” Allen hinges her argument on the court’s disallowance of Exhibit 7 relating to Burton’s refusal to permit a blood test for alcohol and urges that this exhibit would have constituted competent evidence of intoxication. As we have already indicated, Allen proffered this exhibit too late.

In addition, we view the statement by Burton’s counsel as argument — not evidence. There was ample proof before the jury that Burton had consumed three or four beers and half a pint of whiskey before the accident. Burton contested these facts and argued that there was no proof that he was drunk. We do not believe that Allen’s case was prejudiced by this remark in closing argument.

III. JUROR COERCION

The jury retired to deliberate at 4:58 p.m. They returned to the courtroom at 6:40 p.m. because of difficulty in reaching a verdict. Allen’s attorney indicated that the judge might wish to inquire “not as to their numerical standing” but if they were deadlocked. He added that if they were, the court should give them the dynamite instruction. The trial court stated that it would not inquire about where they actually stood. When the jurors had been reseated, the court addressed them:

Okay. I’ve been told by the bailiff that . . . it’s been reported to him that the jury has been unable to arrive at a verdict in this matter. Without telling me how you stand in terms of for or against the defendant, could you tell me numerically if the split is six to six or nine to three — or well, not nine to three because if it was nine to three you’d have a verdict. . . . But without telling me again which side is for, can you give me an idea of where the vote seems to stand if you’ve taken a vote.
JURY FOREMAN: Yes, sir. It is about eight to four.
THE COURT: About eight to four? Okay. Ladies and gentlemen, I have previously instructed you, of course you understand that it takes only nine to arrive on a verdict. I want to make sure you understand that to start with. Sometimes I wonder if folks really understand.

The court then gave AMI 2303, the “dynamite instruction,” which encourages a verdict. The court added that the jury should “give it the good ole college try” and make a reasonable effort to harmonize its views. Allen offered no objection to any of the foregoing. The jury then went back to their deliberations and returned with a verdict in Burton’s favor in fairly short order at 7:12 p.m. The verdict was agreed to by nine jurors.

We have said in a criminal case that an inquiry into numerical standing, though not commendable, might be done in such a way as not to constitute error. See Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988), citing Murchison v. State, 153 Ark. 300, 240 S.W. 402 (1922). Here, we discern no coercive motive on the part of the trial court. Indeed, the court repeated that in reaching a verdict jurors should not give up their individual convictions. The critical factor here, though, is Allen did not follow-up on his misgivings about a request for numerical standing or object when the trial court asked for the numerical split and added its comments. An appellant may not complain on appeal of an erroneous action of a trial court, if he acquiesced in that action or failed to object. Daniels v. Cravens, 297 Ark. 388, 761 S.W.2d 942 (1988).

Affirmed.

       The sixth document referred to by the trial court is the disputed Exhibit 7.


text:
    Laquince Termel HOGAN v. STATE of Arkansas
    92-674
    843 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered December 7, 1992

      Dowd, Harrelson, Moore & Giles, by: Gene Harrelson, for appellant.

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

The sole issue in this appeal is whether the trial court erred in refusing to transfer five charges against the appellant Laquince Termel Hogan from circuit court to juvenile court. These charges involved the delivery of crack cocaine, the delivery of marijuana, and the possession of crack cocaine with intent to deliver. We find no error in the court’s decision, and we affirm.

On December 17, 1991, Hogan was charged as an adult in circuit court with two delivery-of-marijuana offenses and two delivery-of-crack cocaine offenses arising out of events in September and December of that same year. Hogan at the time of the alleged offenses was seventeen, his date of birth being January 19, 1974. Arrest warrants were also issued on December 17, 1991, and served on Hogan at his high school. Following his arrest at the school, Hogan was charged with possession of crack cocaine with intent to deliver.

Hogan filed a motion to transfer all charges to juvenile court on January 29, 1992, on the basis that even though he was now eighteen, he had been seventeen at the time the alleged offenses were committed. Two hearings were held, one on February 4, 1992, and one on May 12, 1992. At the first hearing, Arkansas State Police Captain Hayes McWhirtor testified that when Hogan was arrested at school, he had eight or nine rocks of crack cocaine in his possession. At the second hearing, the trial court denied the motion and said that it was doing so because Hogan “had crack cocaine on him at school,” and that that fact distinguished this case from Blevins v. State, 308 Ark. 613, 826, S.W.2d 265 (1992). In Blevins, we granted a transfer of a sixteen-year-old’s case to juvenile jurisdiction where possession with intent to deliver crack cocaine was charged but no violence accompanied the charges.

Juvenile transfer matters are governed by Ark. Code Ann. § 9-27-318(e) (Repl. 1991), which includes these factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts;
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

We have held that it is not necessary to give equal weight to each factor in juvenile transfer cases and further that proof need not be introduced against the juvenile on each factor. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).

There was testimony at the juvenile transfer hearing in Hogan’s favor, such as no prior record, a 3.0 grade point average at school, school leadership and sports participation, plans to attend college, and the absence of violence employed in the alleged crimes. On the other hand, multiple drug charges are involved in this case, and one charge, according to Captain McWhirtor, involved possession of eight or nine rocks of crack cocaine while Hogan was on school grounds attending classes. There is, too, the fact- that Hogan is now eighteen and almost nineteen. In a 1991 juvenile transfer case, this court had the following to say regarding an appellant who had turned eighteen:

The appellant was seventeen years and seven months old at the time of the crimes, and has now reached his eighteenth birthday. A person who has reached his eighteenth birthday cannot be committed to a youth services center. Ark. Code Ann. §§ 9-27-331(a)(1) and 9-28-209(a)(1) (Supp. 1991).

Bright v. State, 307 Ark. 250, 252, 819 S.W.2d 7, 8 (1991). In Bright, we considered that circumstance to be an important factor in denying the transfer.

The fact that no commitment under juvenile jurisdiction could result from a transfer due to Hogan’s age and the fact there are multiple charges of a serious nature, one of which involves possession of a significant amount of crack cocaine on school grounds, compel us to conclude that the trial court’s decision was not clearly erroneous. See Walker v. State, 304 Ark. 402-A, 805 S.W.2d 80 (1991) (Supplemental Opinion).

Affirmed.