author: Annabelle Clinton Imber, Justice.

text:
    Juanita JACKSON v. Jerry KELLY
    00-1450
    44 S.W.3d 328
    Supreme Court of Arkansas
    Opinion delivered May 31, 2001

      Richard F. Hatfield, for appellant.

      Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr., for appellee.
   Annabelle Clinton Imber, Justice.

This appeal raises an issue of first impression — whether Arkansas recognizes the tort of intentional interference with inheritance. We decline to recognize the tort in this case because the appellant’s remedy in probate court would have been adequate had she prevailed in her will contest.

Alta Austin died in 1997, and was survived by her two children, Juanita Jackson and Tommy Austin. Following her death, Tommy Austin petitioned the Lonoke County Probate Court to have her January 14, 1994 will admitted to probate. The will named Tommy as the sole beneficiary of Mrs. Austin’s estate and specifically excluded Juanita. Thereafter, Juanita contested the will in the probate court on the following grounds: (1) Mrs. Austin did not have the requisite testamentary intent to execute the document as required by Arkansas law, and (2) Mrs. Austin was subject to undue influence in preparing and executing the document. The probate court found that Juanita had failed to meet her burden of proof to invalidate the will, and admitted the will to probate. Juanita appealed the probate court’s decision to the Arkansas Court of Appeals. In an unpublished opinion, the court of appeals concluded that the probate court’s findings were not clearly erroneous and affirmed the court’s decision to admit the will to probate. Jackson v. Austin, CA99-34, slip op. (Ark. App. September 22, 1999).

Having lost in her attempt to invalidate the will in probate court, Juanita filed another action in the Mississippi County Circuit Court. In her complaint and amended complaint, Juanita made claims for (1) civil conspiracy and (2) tortious interference with an expected inheritance. Particularly, she alleged that Mrs. Austin had told Juanita many times that she would inherit one-half of Mrs. Austin’s property, thereby causing Juanita to expect an inheritance from her mother. However, on or about August 13, 1993, Juanita’s son, Andrew Jackson, borrowed $30,000 from Citizen’s Bank and Trust Company of Carlisle, and, at Andrew’s request, Mrs. Austin co-signed the note and placed two certificates of deposit in the amount of $37,600 as collateral for the loan. Juanita claimed that she had nothing to do with procuring the loan. On December 23, 1993, the due date on the loan, Andrew failed to repay the loan. According to Juanita, Andrew had contacted the bank about an extension on the loan and Mrs. Austin had agreed to the extension in discussions with Andrew.

Juanita further alleged in her complaint that Tommy Austin and his wife, Betty Austin, convinced Mrs. Austin that the bank would execute on her certificates of deposit due to Andrew’s failure to repay the loan on its due date. On or about January 10, 1994, Betty, who assisted Mrs. Austin in personal matters, made an appointment for Mrs. Austin with attorney Jerry Kelly. Four days later, Betty took Mrs. Austin to Mr. Kelly’s office in Carlisle, where Mr. Kelly conferred with Mrs. Austin and prepared the will that is the subject of this matter. Juanita claimed that the only reason Mrs. Austin prepared the will on January 14, 1994, and thereby disinherited Juanita, was that Mrs. Austin was convinced she would lose her certificates of deposit because of Andrew’s delayed repayment of the loan. Regarding the actions of Mr. Kelly, Juanita alleged that a loan officer at the bank talked with Mr. Kelly on or about January 14, 1994, and told him that the bank was not acting to take Mrs. Austin’s certificates of deposit and that no such action was contemplated at that time. After Andrew and Juanita were served with copies of Mrs. Austin’s complaint, on or about January 18, 1994, Andrew immediately repaid the loan in full, whereupon the bank released the certificates of deposit to Mrs. Austin. Consequently, the bank never executed upon Mrs. Austin’s certificates of deposit.

Juanita named Mr. Kelly and Betty Austin as defendants in her complaint and averred that both defendants, jointly and severally, conspired to have Alta Austin sign the January 14, 1994 will, leaving all of her estate to Tommy, and interfered with Juanita’s expected inheritance. She prayed for compensatory damages equal to one-half of Alta Austin’s property, legal costs, and punitive damages.

In his answer, Mr. Kelly denied that venue was proper in Mississippi County and moved to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(3). He also disputed Juanita’s allegations (1) that she had nothing to do with procuring the bank loan; (2) that the bank had extended the loan; (3) that Mrs. Austin had agreed to the extension; and (4) that a loan officer had advised Mr. Kelly on January 14, 1994, that the bank was not taking action against Mrs. Austin’s certificates of deposit. Furthermore, based upon his assertion that the complaint failed to state facts upon which relief could be granted, Mr. Kelly moved to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(6). Finally, he asserted that Juanita’s claim was waived by the applicable statute of hmitations, as well as the doctrines of res judicata and collateral estoppel. In a joint memorandum, Mr. Kelly and Betty argued that the suit was barred by the probate court’s order admitting the January 14, 1994 will to probate pursuant to the doctrines of res judicata and collateral estoppel, and that the tort of intentional interference with expected inheritance had not been recognized in Arkansas.

The circuit court treated the joint motion to dismiss as a motion for summary judgment and, after conducting a hearing, entered an order dismissing Juanita’s claims against Mr. Kelly and Betty. The order stated, in pertinent part:

• “[T]he tort of interference with prospective inheritance is not recognized in the State of Arkansas.”
• “Even if the tort should be recognized, issue preclusion clearly bars the claim of plaintiff against defendant Betty Austin.”
• “[T]he claim of plaintiff against defendant Jerry Kelly fails as a matter of law based on no dispute as to any issue of material fact. The court finds that even if the tort of interference with prospective inheritance were recognized by the court that under the record before the court, defendant Kelly is entitled to prevail because [sic] an absence of proof as to some of the essential elements of that tort.”

Also, the findings of fact and conclusions of law announced orally by the circuit court at the conclusion of the hearing were incorporated into and attached to the written order. With regard to venue, the court found as follows: “I think that the broadening of the dismissal motions to summary judgment motions likely constitutes a waiver of the venue argument because it gets into substantive issues that would be dispositive on the merits.” With regard to the civil conspiracy allegation against Mr. Kelly and Betty Austin, the court stated:

I don’t think that there’s any doubt without getting into the not-yet recognized tort of interference with expectancy of an inheritance that’s been argued, and it’s been asserted by the plaintiffs in the case; without getting into that, I think that the issue, I think that issue preclusion clearly bars the claim for summary judgment purposes against Betty Austin, and am so holding.
As to Kelly, any conspiracy, any alleged conspiracy with Betty Austin that would lead to undue influence procurement or things of that nature, whether standing alone or as part of a prong of proof for the expectancy tort, uh, interference with expectancy tort, and the probate court has already found there was no undue influence, there was no procurement.

Thus, the circuit court found that the civil conspiracy claim against both defendants was barred by the previous probate court action. Juanita appeals from the circuit court’s order dismissing her claim against Mr. Kelly for tortious interference with an expected inheritance. She does not appeal from that part of the order dismissing Betty; nor does she appeal the dismissal of the civil conspiracy claim.

For her first point on appeal, Juanita argues that the trial court erred when it concluded that the tort of interference with inheritance is not recognized in Arkansas. She asserts that although there is no Arkansas case directly on point, this court impliedly recognized the cause of action in Anderson v. Bank of Hot Springs, 304 Ark. 164, 801 S.W.2d 273 (1990). We disagree. In that case, we affirmed the trial court’s summary judgment dismissal of a claim for tortious interference with expected inheritance. Id. In doing so, however, this court did not decide whether such a cause of action actually existed under Arkansas law because the issue was never raised by the parties.

Juanita urges this court to recognize the tort of interference with inheritance and cites as authority section 774B of the Restatement (Second) of Torts, which is entitled “Intentional Interference with Inheritance or Gift”:

One who by fraud, duress, or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Restatement (Second) of Torts § 774B (1979). The question then is whether we should adopt that section of the RESTATEMENT (SECOND) OF Torts as the law in Arkansas. We recently laid down principles to guide us in making such a decision:

This Court treads cautiously when deciding whether to recognize a new tort. While the law must adjust to meet society’s changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially averse to creating a tort that would only lead to' duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action.

Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 151, 27 S.W.3d 387, 391 (2000) (citing Trevino v. Ortega, 969 S.W.2d 950, 951-52 (Tex. 1998)). We declined to recognize the tort of intentional spoliation of evidence because “there are sufficient other avenues, short of creating a new cause of action, that serve to remedy the situation for a plaintiff’ and because “we do not find it necessary to create a new tort out of whole cloth in order to provide a party with a remedy.” Id., 342 Ark. at 150, 27 S.W.3d at 391.

Those same principles prevent us from creating a new cause of action to provide Juanita with a remedy in this case. Particularly, she had access to an adequate remedy in probate court. Her claim for interference with inheritance in this case was based on her own assertion that her mother, the decedent, “had many times represented to [her] that she would inherit one-half (1/2) of [the decedent’s] property....” Thus, in her complaint, Juanita prayed for compensatory damages equal to one-half of the decedent’s property. Had Juanita succeeded in her will contest in probate court, the will that excluded her from inheriting from the decedent would not have been admitted to probate, and the decedent’s estate would have passed according to the statutory rules of intestate succession. Arkansas Code Annotated Section 28-9-204 (1987), regarding intestate succession, states, in relevant part:

Heirs will take per capita in the following circumstances:

(1) If all members of the class who inherit real or personal property from an intestate are related to the intestate in equal degree, they will inherit the intestate’s estate in equal shares and will be said to take per capita.
(A) For illustration, if the intestate leaves no heirs except children, the children will take per capita and in equal shares

Because the decedent left only two children, Juanita and Tommy, had Juanita prevailed in her will contest, she would have inherited one-half of the decedent’s estate. A successful will contest would have provided her with the same remedy that she sought in her tort action in circuit court. Thus, we conclude that Juanita was provided with an adequate remedy in probate court. Under these circumstances, we hold that it is unnecessary to create a new tort in this case.

Even among those jurisdiction that have recognized a cause of action for intentional interference with inheritance, most courts hold that the plaintiff, in order to pursue the cause of action, must show that there are no adequate alternative remedies to the tort action.

Most states that have considered the issue have held that a claim for tortious interference with expectancy of inheritance may only be brought where conventional probate relief would be inadequate .... If a will contest is available to the plaintiffs, and a successful contest would provide complete relief, no tort action is warranted.

James A. Fassold, Tortious Interference with Expectancy of Inheritance: New Tort, New Traps, 36 Ariz. Atty. 26 (January 2000) (citing Moore v. Grayheal, 843 F.2d 706, 711 (3d Cir. 1988) (applying Delaware law); Firestone v. Galbreath, 895 F. Supp. 917, 926 (S.D. Ohio 1995) (applying Ohio law); McGregor v. McGregor, 101 F. Supp. 848, 850 (D. Colo. 1951) (apparently applying Colorado or Louisiana law); Beren v. Ropfogel, 1992 WL 373935 (D. Kan. 1992), aff'd, 24 F.3d 1226 (10th Cir. 1994); Benedict v. Smith, 376 A.2d 774, 776 (Conn. Super. Ct. 1977); DeWitt v. Duce, 408 So.2d 215, 218 (Fla. 1981); Robinson v. First State Bank of Monticello, 454 N.E.2d 288, 294 (Ill. 1983); Minton v. Sackett, 671 N.E.2d 160, 162 (Ind.App. 1996); Allen v. Lovell’s Administratrix, 197 S.W.2d 424, 426 (Ky. 1946); Brignati v. Medenwald, 53 N.E.2d 673, 674 (Mass. 1944); Scott v. Estate of Ehrmann, 916 S.W.2d 872, 874 (Mo. App. 1996); Griffin v. Baucom, 328 S.E.2d 38, 42 (N.C. 1985)). See also Marilyn Marmai, Tortious Interference with Inheritance: Primary Remedy or Last Recourse, 5 Conn. Prob. L.J. 295 (1991). The reason for such a prerequisite has been stated as follows:

One frequently cited reason for allowing recovery for intentional interference with inheritance is that every wrong should have a remedy. Yet the facts giving rise to the tort are often identical to facts giving rise to a will contest. If either action would provide an adequate remedy, the plaintiff should be limited to the probate action because that is the preferred method for resolving issues related to wills. Accordingly, most jurisdictions prohibit a plaintiff from pursing the tort action unless a probate action is either unavailable or inadequate.

Nita Ledford, Note, Intentional Interference with Inheritance, 30 Real Prop. Prob. & Tr. J. 325 (1995).

Furthermore, Juanita’s claim for tortious interference with inheritance constitutes a collateral attack on the earlier probate decree:

[C]ourts from many other jurisdictions have squarely faced the issue of determining when a tortious interference action ought to be considered an impermissible collateral attack on the probate proceedings. The vast majority of these cases characterize as collateral a later tort action whenever the plaintiff has failed to pursue an adequate remedy in the probate proceedings ... When plaintiff was the only heir and could have taken intestate by proving her claim of undue influence to defeat the will at probate, no later tort action is allowable to relitigate the undue influence claim.

DeWitt v. Duce, 408 So.2d 216, 218 (Fla. 1981). See also, Reinhardt v. Kelly, 164 F.3d 1296, 1300 (10th Cir. 1999) (“[A] claim of undue influence in the execution of a will is ancillary to a will challenge and belongs in state probate court.”), and McKibben v. Chubb, 840 F.2d 1525, 1530 (10th Cir. 1988) (“When a claim is brought charging undue influence or fraud in the execution of a will, that action is ancillary to the challenge of the will and belongs in the Kansas probate proceedings ....”). This court has long held that where a probate court has subject matter jurisdiction, its judgment is conclusive, unless reversed, and cannot be attacked collaterally. Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990). Thus, we refuse to allow Juanita to make a collateral attack on the probate court’s order, which was affirmed by the Arkansas Court of Appeals.

Juanita nevertheless suggests that she did not have an adequate remedy in the will contest because, even if she had been successful in that action, she could not have sought recovery of her legal costs or an award of punitive damages. This suggestion is without merit. In determining the adequacy of relief for a claim of tortious interference with inheritance, an award of punitive damages is not considered a valid expectation. In re Estate of Roeseler, 679 N.E.2d 393, 406 (Ill. App. Ct. 1997); Maxwell v. Southwest National Bank, 593 F.Supp. 250, 253 (D. Kan. 1984). Similarly, it stands to reason that the recovery of legal costs is not a valid expectation.

Finally, Juanita contends that we should recognize a cause of action of intentional interference with inheritance because, if we do not, other plaintiffs will be left without an adequate remedy in probate court. She hypothesizes that there would be no adequate probate court remedy where the plaintiff is not an heir of the testator or where the property purportedly to be left to the plaintiff was in a trust and not in the decedent’s estate or subject to the decedent’s will. However, the undisputed facts of this case are that Juanita was an heir of the testator, and the property was not in a trust. In this case, the relief available in probate court would have been adequate had she prevailed — she would have inherited one-half of the decedent’s estate.

For the above stated reasons, we affirm the circuit court’s dismissal of Juanita’s claim for tortious interference with expected inheritance.

Affirmed.

       As a result of that same visit, Mr. Kelly also prepared a complaint for Mrs. Austin. In that complaint, which was later filed in Lonoke County Circuit Court, Alta Austin alleged that Andrew had breached his loan agreement with the bank and that the bank “presendy or will in the immediate future execute upon the Certificates of Deposit to the extent of the loan balance [.]” She prayed for a judgment against Juanita and Andrew in the amount of $30,553.32 to compensate her for losses, costs, and attorney’s fees. The complaint alleged that both Juanita and Andrew had persuaded Alta Austin to pledge her certificates of deposit as security for the loan to Andrew. The lawsuit was eventually dismissed.

       He subsequendy filed a separate motion to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(3) for lack of venue.

       Juanita never presented another will of the decedent for probate.

       Other cases supporting the proposition that a claim for interference with inheritance will be allowed only where probate relief would be inadequate are: Maxwell v. Southwest National Bank, 593 F.Supp. 250, 253 (D. Kan. 1984) ("[I]f the plaintiff had challenged the will and succeeded, he could have obtained all the relief he could receive as damages in this case. ... Therefore, this court concludes that plaintiff has not stated a claim upon which relief can be granted with respect to plaintiffs claim of intentional interference with inheritance.”);
        Graham v. Manche, 974 S.W.2d 580, 583 (Mo. Ct. App. 1998) (“[m]ost courts allow a plaintiff to pursue an intentional interference claim only if special circumstances exist which make remedy of a will contest inadequate.”); In re Estate of Knowlson, 562 N.E.2d 277, 280 (Ill. App. Ct. 1990) (“Where a will contest is available and would provide adequate relief to an injured party, a tort action does not lie ....”); In re Estate of Hoover, 513 N.E.2d 991, 992 (Ill, App. Ct. 1987) (“The tort action will not lie, however, where the remedy of a will contest is available and would provide the injured party with adequate relief’).


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Don William DAVIS v. STATE of Arkansas
    CR 00-528
    44 S.W.3d 726
    Supreme Court of Arkansas
    Opinion delivered May 31, 2001

      Joel O. Huggins, for appellant.

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

This appeal arises from a trial court’s denial of a Rule 37 petition. Appellant, Don William Davis, shot and killed Jane Daniel in the course of burglarizing her home in Rogers. Appellant was charged with capital murder, burglary, and theft of property. He was sentenced to death by lethal injection on the capital-murder charge, and was sentenced to forty-year sentences on the burglary and theft charges. We affirmed appellant’s conviction on his direct appeal in Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993) (‘‘Davis I’’), cert. denied, 511 U.S. 1026 (1994). Appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. After a hearing on the matter, the trial court denied the Rule 37 petition. From that order, appellant brings his appeal and raises eleven allegations of error. We find no reversible error and affirm.

For many years, Arkansas has allowed collateral attacks upon a final conviction and appeal by means of a postconviction challenge to determine whether a sentence was void because it violated fundamental rights guaranteed by the Constitutions or laws of Arkansas or the United States. The present rule for such a challenge is Ark. R. Crim. P. 37, which provides the following grounds for a petition:

(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this state; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum sentence authorized by law; or
(d) that the sentence is otherwise subject to collateral attack ...[.]

Ark. R. Crim. P. 37.1. The most common ground for postconviction relief is the assertion that the petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984).

Other grounds that we have held are so fundamental that a breach renders a judgment a complete nullity and therefore can be addressed under Rule 37 include the following: (1) a trial by a jury of fewer than twelve persons, see Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996); (2) a judgment obtained in a court without jurisdiction to try the accused, see Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985) (citing Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982)); and a judgment obtained in violation of the constitutional provisions against double jeopardy. Travis, supra.

Rule 37 permits review to determine whether the sentence imposed on the petitioner is subject to collateral attack. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974). The presumption that a criminal judgment is final is at its strongest in collateral attacks on the judgment. Strickland, supra. There is a presumption of regularity-regarding every judgment of record of a court with competent jurisdiction. Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975).

Rule 37 does not provide an opportunity to reargue points that were settled on direct appeal. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). The rule does not provide a remedy when an issue could have been raised in the trial or argued on appeal. Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). Rule 37 does not permit a petitioner to raise questions that might have been raised at the trial or on the record on direct appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Postconviction relief is not intended to permit the petitioner to again present questions that were passed upon on direct appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). Rule 37 is a narrow remedy designed to prevent incarceration under a sentence so flawed as to be void. Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999).

On appeal from a trial court’s ruling on Rule 37 relief, we will not reverse the trial court’s decision granting or denying post-conviction relief unless it is clearly erroneous. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997). Based upon these principles of law, and upon our standard of review, we turn to the issues raised in this appeal.

I. Denial of due process

At arraignment, the trial court ordered an evaluation, and appellant received a psychiatric evaluation at the state’s expense from Dr. Travis Jenkins at the Ozark Guidance Center in Springdale. Following Dr. Jenkins’s examination, appellant, joined by the State, filed a motion for psychiatric evaluation at the Arkansas State Hospital. The trial court agreed and ordered appellant to undergo a thirty-day evaluation at the state hospital. The psychologist’s report from the state hospital considered mitigating factors, such as a long history of alcohol and substance abuse, learning disabilities, hyperactivity, and early childhood deprivation, that “do not appear to impair criminal responsibility.” After these two reports were obtained, appellant asked the court for funds to employ an independent psychiatric examiner, and the trial court denied this additional request. At trial, Dr. Jenkins was called by appellant as a witness during the sentencing phase.

Appellant argues that he was denied due process when the trial court denied his motion for funds to hire an independent psychiatrist. This argument merely repeats the arguments made in the trial court and direct appeal that have been previously decided in Davis I, supra, and is not appropriate for postconviction relief. Addressing this issue on direct appeal, we stated:

Davis received a psychiatric evaluation at state expense from the Ozark Guidance Center. The psychiatrist there concluded that there was a lack of psychosis but that Davis did have attention-deficit hyperactivity disorder residual [ADHD], which could have contributed to the commission of the offenses.
Subsequently, Davis, joined by the State, filed a motion for psychiatric evaluation at the Arkansas State Hospital, which was granted. The resulting medical report revealed no psychoses but did indicate a psychoactive substance abuse and antisocial personality disorder.
Next, Davis asked the court for funds to employ an independent psychiatric examiner, which the court refused to do. ... In light of these cases, we conclude that the trial court did not err in refusing to approve funding of a private psychiatric evaluation for Davis after approving two previous evaluations.

Davis I, supra.

Notwithstanding our consideration of this issue in the direct appeal, appellant now argues that our decision in that appeal did not reach the question of the employment of a private psychiatrist to assist in the sentencing phase. We disagree and hold that Davis I, supra, reflects the consideration at trial of evidence produced through two previous psychiatric examinations. Those examinations revealed, in addition to a lack of psychosis, a showing of psychological problems relating to the presence of mitigating circumstances, such as ADHD, psychoactive substance abuse, and antisocial personality disorder. This testimony was available for consideration by the jury in the sentencing phase, and the issue was reached on direct appeal. Therefore, we conclude that the trial court’s decision denying Rule 37 relief on this argument was not clearly erroneous.

II. Ineffective assistance of counsel

Appellant next argues that his trial counsel was ineffective for not sufficiently supporting his argument that he should have been provided funds to employ an independent psychiatrist to advise him on the mitigating factors in the sentencing phase. Appellant specifically argues that the failure of the trial counsel to cite and argue the effect of our decision in Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), constituted ineffective assistance of counsel, and violated the protections of the Sixth and Fourteenth Amendments of the United States Constitution.

Addressing this issue, we turn to the analysis provided in Strickland, supra. We recently restated the Strickland standard for assessing the effectiveness of trial counsel:

According to that standard, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.

Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999).

'.[11] Appellant argues that because his attorney failed to cite Coulter, supra, he should be afforded postconviction relief and that his counsel should have developed the issue further. However, Coulter, supra, did not resolve this issue, but rather left it undecided. We cannot say that counsel’s failure to cite Coulter, supra, was so serious ah error that it deprived appellant of a fair trial, or that he would have prevailed if trial counsel had cited this case. Strickland, supra.

The request for another independent expert was presented and denied during the trial. In Davis I, we concluded as a part of our Ark. Sup. Ct. R. 4-3 (h) review that the denial of this request did not constitute reversible error. We now hold that the trial court was not clearly erroneous in finding that ineffective assistance of counsel was not proven on this point.

III. Denial of funds to employ an independent psychiatrist witness

In our previous analysis of the first point raised in this appeal, we affirmed the trial court’s finding that Rule 37 relief is not appropriate to set aside the conviction on the basis of the denial of funds for the employment of an expert to further develop mitigation factors. Appellant now presents the argument that his Rule 37 hearing should have been used to reargue this point, and contends that the trial court abused its discretion in not approving funds for an expert to reargue this point during the Rule 37 hearing.

The purpose of Rule 37 was never intended to provide a means to add evidence to the record or refute evidence adduced at trial. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989). The standards previously articulated in this opinion, which relate to the purpose and scope of rule 37 proceedings, dispose of this' argument. Appellant presents no citation of authority to the contrary, and we do not grant relief without the citation of authority or clear and convincing arguments. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). We conclude that the trial court did not abuse its discretion in denying this request.

IV Recusal and continuance

Appellant argues that he was prejudiced by the trial court’s denial of his motion to recuse. Prior to the Rule 37 hearing, appellant requested that the trial judge recuse because of complaints filed against him and moved for a continuance to prepare for the Rule 37 hearing. The trial court denied both motions. The court addressed appellant’s motion to recuse, stating that he was not biased and that he would not let the complaints affect his consideration of the Rule 37 action.

There is a presumption of impartiality on the part of judges. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). The decision to recuse is within the trial court’s discretion and will not be reversed absent abuse. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999). The question of bias is usually confined to the conscience of the judge. Black, supra; Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). An abuse of discretion can be shown by proving bias or prejudice. Massongill v. County of Scott, 337 Ark. 281, 991 S.W.2d 105 (1999); Trimble, supra. To decide whether there was an abuse of discretion, we review the record to see if any prejudice or bias was exhibited. Black, supra; Dolphin v. Wilson, supra.

Although it was alleged that the trial judge was the target of a judicial ethics inquiry, appellant has not included these complaints in the record before us. Appellant has not alleged any specific instances of bias, nor has he shown any way that he was prejudiced by the judge’s denial of his motion to recuse. Moreover, this point does not address any of the fundamental issues appropriate for a Rule 37 proceeding. However, it challenges the conduct of the hearing itself, and upon examination of the conduct of the Rule 37 hearing, we conclude that there was no abuse of discretion.

Appellant also argues that the trial court erred in denying his Rule 37 motion for a continuance because he did not have adequate time to review all possible Rule 37 issues. The law is well established that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court’s decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). Appellant must show prejudice from the denial of the continuance, and when a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances; the burden of showing prejudice is on the appellant. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). Finally, the court has also held that a lack of diligence alone is sufficient cause to deny a continuance. Id.

In the present case, appellant has failed to demonstrate prejudice from the court’s denial of his continuance under Davis, supra. Appellant’s Rule 37 attorney was appointed to represent appellant on May 2, 1999, and the Rule 37 hearing was scheduled for June 29, 1999. Appellant’s attorney had approximately two months to familiarize himself with the case. Appellant merely argues that appellant’s counsel did not have enough time to review the record, and that they were forced to rely upon the work of his previous attorneys. The trial court exercised its discretion in finding that approximately two months is ample time to prepare for a Rule 37 hearing. We cannot say that the trial court abused its discretion. Dirickson, supra.

Appellant also argues that the trial court committed error in denying his motion for continuance on the grounds that his attorney, Mr. Huggins, was not allowed time to become certified by the Public Defender Commission to handle this death-penalty case, as required by Ark. R. Crim. P. 37.5. Arkansas Rule of Criminal Procedure 37.5(c)(5) specifies that “[a]t least one of the attorneys shall meet the standards of (c)(1) or (c)(4).” Id. We note that Mr. Huggins’s co-counsel, Charles Duell, was qualified to represent defendants in death-penalty cases. Therefore, we conclude that the trial court did not abuse its discretion on this point.

V. Withdrawal of counsel

Appellant argues that the court at the Rule 37 hearing committed error in allowing the public defender’s office to argue that appellant’s counsel at trial, provided by the public defender’s office, were ineffective. Appellant cannot prevail on this issue because he has not shown that any perceived conflict of interest adversely affected Mr. Duell’s representation of him. Prejudice is presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s performance. Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998). In the absence of a showing of prejudice, we find no abuse of discretion by the trial court.

VI. Alternate theories

Without citation to applicable authority, appellant argues that the State is precluded from charging the offense of capital murder under the alternate theories of felony-murder under Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1997) and premeditation and deliberation under Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1997). He further claims that the trial court did not submit proper verdict forms to the jury. Both of these issues should have been raised on direct appeal. Weaver, supra.

There is no showing that appellant objected to either the information or the verdict form at trial. During the Rule 37 proceeding, appellant contended that he was convicted of a nonexistent offense. Appellant cites Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987) and Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970) for his argument that the alternate charges were for two difference offenses. We disagree. Neither case holds that the State could not have charged the murders under the appropriate alternate theories. We have held that the duplication, or “double-counting,” of an element of a capital offense by one or more aggravating circumstances does not broaden the death-eligible class nor render our death-penalty statutes unconstitutional. Simpson v. State, 339 Ark. 467, 6 S.W.3d 104(1999); Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997). As we stated in Simpson, supra, we see no need to revisit or reconsider this issue yet again. We conclude that there was no merit to this argument. It follows that appellant’s counsel was not ineffective for failure to raise these arguments at the trial or on direct appeal.

VII. Dr. Jenkins’s testimony

Appellant called Dr. Jenkins to testify during the sentencing phase. Appellant now contends that his trial attorneys were ineffective because they did not object during the testimony of Dr. Jenkins when he responded to a question on cross-examination concerning his psychiatric interview with appellant. On direct examination, appellant’s counsel asked Dr. Jenkins if he had reviewed a report on appellant prepared by the Arkansas State Hospital. Dr. Jenkins replied that he had reviewed the report. On cross-examination, the State asked Dr. Jenkins if, in his opinion, appellant had “the ability to form the specific mental intent of premeditated and deliberated purpose in killing a person[.]” Dr. Jenkins responded by volunteering that “I did not have the opportunity to interview him around all of those events because of his Fifth Amendment rights, but — [.]” The State then restated its question, making it clear that the question was directed to Dr. Jenkins about his conclusion based on the report from the Arkansas State Hospital. On redirect examination, Dr. Jenkins confirmed that the Arkansas State Hospital had reached the same results that he had reached.

We have held that an inadvertent comment by a witness with respect to an accused’s post-arrest silence that was not responsive to the prosecutor’s question did not constitute a violation of Doyle v. Ohio, 426 U.S. 610 (1976), or warrant a mistrial. Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993). Where a comment on a defendant’s post-arrest silence is not an attempt to impeach the defendant, it is not the type of comment prohibited by the Court in Doyle, supra. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996).

Here, Dr. Jenkins’s testimony was during the sentencing phase of appellant’s trial after appellant had already been found guilty. We conclude that Dr. Jenkins’s inadvertent remark did not violate the principles of Doyle, supra. Accordingly, appellant’s counsel was not ineffective for failure to pursue this issue, and we affirm the trial court on this point.

VIII. Vagueness and overbreadth

In the sentencing phase at trial, the prosecutor presented as an aggravating factor that appellant committed the murder “for the purpose of avoiding or presenting an arrest or effecting an escape from custody.” Ark. Code Ann. § 5-4-604(5) (Repl 1997). Appellant claims that Ark. Code Ann. § 5-4-604(5) is unconstitutionally vague and overbroad, and that it violates due process and the Eighth Amendment protection against cruel and unusual punishment.

This issue is one that should have been presented to the trial court and raised on direct appeal. Weaver, supra. We have rejected this argument in the past. See Bowen v. State, 322 Ark. 483, 911 S.W.2d 55 (1995); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). Appellant has not advanced an argument that would require a different result in this case. Accordingly, we find no error. Any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.

IX. Overlapping statutes

Appellant argues that felony capital murder and premeditated and deliberated murder are identical to and overlap with first-degree felony murder and first-degree murder. Again, this issue is one that should have been presented to the trial court and raised on direct appeal. Weaver, supra. We have repeatedly rejected this contention. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

In Lee v. State, 321 Ark. 692, 942 S.W.2d 231 (1997), we stated simply that “[w]e have decided this issue adversely to Lee’s position on many occasions, and adhere to these previous holdings.” Id. Similarly, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we stated that we have discounted this argument on numerous occasions. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Similarly, on this occasion, we adhere to our previous decisions, and we reject this argument. Therefore, any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.

X. Mitigating factors

Appellant argues that the sentencing instructions and the jury verdict form did not inform the jury that each juror could consider mitigating factors at all times, in violation of Mills v. Maryland, 486 U.S. 367 (1988). Appellant has not abstracted the trial court’s instructions during the sentencing phase of his trial. Because the record on appeal is confined to that which is abstracted, the failure to abstract a critical document precludes us from considering issues concerning it on appeal. See Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Without the proffered instructions before us, we decline to address this argument.

However, we note that appellant’s claim regarding the jury verdict form has been previously rejected by this court. This same argument was made in Pickens, supra, and we decided the argument lacked merit in that case. We wrote:

The second argument concerning AMCI 1509 is based on the recent United States Supreme Court case of Mills v. Maryland, 486 U.S. 367 (1988).
The appellant claims there is no meaningful difference between the Maryland and Arkansas sentencing forms, but they are, in fact, very different. Our Form 2, which accompanies AMCI 1509, expressly allows the jury to list mitigating circumstances which were found by some, though not ail, of its members. Form 3 then allows the jury to determine if the aggravating circumstances outweigh any mitigating circumstances. Nothing in the forms indicates to the jury that a mitigating circumstance must be found unanimously before it may be considered in the weighing process. The potential for misunderstanding is not present in the Arkansas forms as it is in the Maryland forms. Therefore, we reject the appellant’s argument.

Id. If we were to reach the merits on this point, appellant’s argument would have no merit.

Additionally, appellant claims that the sentencing scheme is unconstitutional because the word, “shall,” in Ark. Code Ann. § 5-4-603 (a) requires the jury to impose the death penalty on certain findings. We have previously held that Ark. Code Ann. § 5-4-603 does not result in a mandatory death sentence. See Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). We adhere to our previous holdings in the present appeal. Because appellant’s arguments on both claims are meritless, appellant’s further claim that counsel was ineffective fails, and we affirm.

XI. Proportionality review

For his last point on appeal, appellant argues that the Arkansas Death Penalty statute is unconstitutional because we do not conduct a proportionality review and have set forth no standards by which such reviews are conducted.

We are not required to conduct a proportionality review of death sentences. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). Although we conducted a proportionality review in the past, we no longer do so. Id. However, at the time of appellant’s direct appeal, we did conduct a proportionality review. In Davis I, supra, we reviewed the facts in appellant’s case with those in other robbery-murder cases where the death penalty had been imposed, and we decided that the death penalty was “not freakishly or arbitrarily applied” under these circumstances. Id. Moreover, appellant’s claim that his trial attorneys were ineffective for fading to raise this claim is meritless under Monts, supra.

Because we find no reversible error, we affirm the trial court.


author: Jim Hannah, Justice.

text:
    Timothy Delwin GIBBS; Terri Dawn Gibbs Behan; and Clayton Dustin Gibbs v. Roy Leo HENSLEY, Guardian; Alice Aileen Gibbs; The Estate of Alice Aileen Gibbs; Regions Bank; and the Estate of Vestal M. Gibbs, Deceased

    01-155
    44 S.W.3d 334
    Supreme Court of Arkansas
    Opinion delivered May 31, 2001

      Claude W. Jenkins, for appellants/cross-appellees.

      Phil Stratton, for appellee/cross-appellant Roy Leo Hensley.
   Jim Hannah, Justice.

Appellants Timothy Delwin Gibbs, Terri Dawn Gibbs, and Clayton Dustin Gibbs appeal the chancery court’s decision that their grandfather, Vestal M. Gibbs, entered into a valid contract to make a will and that Roy Leo Hensley was a proper party to a third-party action. Hensley cross-appeals asserting that the chancery court erred in failing to find that Vestal’s wife, Alice, ratified and joined in the contract to make a will as a party when she executed the will and other documents required by the contract between Hensley and Vestal.

Equity cases are tried de novo on the record. Arkansas Presbytery v. Husdon, 344 Ark. 332, 40 S.W.3d 301 (2001). Unfortunately, we are unable to reach the merits of this case due to a failure to bring up a sufficient record. Although this case began with the filing of a complaint in September 1998, the record provided commences with the filing of a petition for partition on June 26, 2000. The record is incomplete. The docket sheet does not track the record provided, but rather shows the first document filed was a petition to enforce a contract to make a will filed on January 19, 2000. This is not accurate because, as noted, the first document was filed in September 1998.

The missing pleadings, orders, and documents include several that are relevant to the issues presented by both the appellant and the cross-appellant. The July 12, 2000, order and the November 15, 2000, order are discussed by the parties in their arguments. While the orders appear in the record, the June 20, 2000, memorandum opinion setting out the chancellor’s ruling referenced in those orders is neither in the record nor is it abstracted. Additionally, the parties argue the issue of whether the trial court erred in its decision on the contract to make a will; however, the petition that raised this issue in the trial court is not in the record. This is the same situation with the third-party complaint. An initial review of the existing record reveals there are at least fourteen missing documents that can be easily identified.

We have stated time and time again that it is the appellant’s burden to produce a record on appeal sufficient for our review. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997); Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997). See also Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); SD Leasing Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). The record simply does not place the matters argued before this court. Issues outside the record will not be considered on appeal. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

For the above reasons, we affirm.


author: Per Curiam.

text:
    Carol ROSS v. STATE of Arkansas; Mark Singson v. State of Arkansas; Gil Landers d/b/a Big Daddy’s Pawn Shop, Linda Stewart v. Ken James; Quinton Lee Handy v. State of Arkansas; Deborah Rouse v. State of Arkansas; Alexander Davison v. State of Arkansas; Alexander Davison v. State of Arkansas
    CR 01-177; CR 01-268; CR 01-269; CR 00-1445; CR 01-336; CR 01-348; CR 01-342
    44 S.W.3d 336
    Supreme Court of Arkansas
    Opinion delivered May 31, 2001

      Jeff Rosenzweig, for appellant Carol Ross.

      Julia B. Jackson, Public Defender Conflicts, for appellant Mark Singson.

      Josh E. McHughes, for appellant Gil Landers et al.

      William R. Simpson, Jr., Public Defender, by: Deborah Sailings, Deputy Public Defender, for appellants Quinton Lee Handy, Deborah Rouse, and Alexander Davison.
    No response.
   Per Curiam.

On May 17, 2001, we issued an order for Madeline McClure, court reporter, to appear before this court at 9:00 a.m., Thursday, May 24, 2001, to show cause why she should not be held in contempt of court for failure to comply in a timely manner with the command of the Writs of Certiorari issued in the above-styled actions.

Madeline McClure appeared on May 24, 2001. At that time, she entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable John Lineberger as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Madeline McClure should be held in contempt.


author: Tom Glaze, Justice.

text:
    Bruce Edward LEAKS v. STATE of Arkansas
    CR 00-895
    45 S.W.3d 363
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Kent McLemore, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

A jury convicted appellant Bruce Edward Leaks of first-degree murder in the January 7, 1997, shooting death of William Earl Littlejohn, and sentenced him to forty-five years in prison. We take jurisdiction of this appeal pursuant to Ark. Sup. Ct. R. 1-2(a)(7), as this is Leaks’s second appeal. We reversed his earlier conviction in Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999), on the basis of the prosecutor’s improper and prejudicial closing argument. As his sole point for reversal in this appeal, Leaks contends that there was insufficient evidence to support the guilty verdict.

At the close of the State’s case, Leaks moved for a directed verdict on the charge of first-degree murder, asserting that the State had not proven that he had the intent to kill Littlejohn or that he had committed an underlying felony which would give rise to a charge of felony murder. Leaks’s motion was denied at that time, but when he renewed it after resting his defense, the trial court granted the motion only with respect to felony murder.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal, we will review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support the verdict. Only evidence supporting the verdict will be considered. Id.; Copeland v. State, 343 Ark. 327, 37 S.W.3d 191 (2001).

On appeal, Leaks contends that the evidence adduced at trial was insufficient to convict him of first-degree murder; in particular, he asserts that the evidence of “purposeful conduct” was not substantial. Leaks argues that the proof came closer to that necessary to reach a conviction for second-degree murder. In support of his argument, he cites Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). There, David Spann argued that he should have been convicted of manslaughter, not first-degree murder, where the facts showed that he had been involved in a heated argument with the victim immediately prior to the killing. The court wrote that while “there was proof of intense anger on the part of Spann ...[,] [tjhere was no proof of provocation in the form of physical fighting, a threat, or a brandished weapon.” Id. at 515. Leaks points out that he believed Littlejohn was reaching for a weapon just prior to the shooting, and he urges the court to conclude that Littlejohn’s conduct rises above the threshold outlined in Spann, in that it constituted “physical fighting, a threat, or a brandished weapon.”

We do not consider this alleged “provocation,” however, as we need only consider the evidence which supports the guilty verdict. Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). A person commits first-degree murder if, “[wjith a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). According to Ark. Code Ann. § 5-2-202 (Repl. 1997), “[a] person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. See, e. g., Terrell, supra; Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000). Furthermore, the intent necessary for first-degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987).

The evidence introduced at trial showed the following sequence of events. William Earl Littlejohn had been living at the home of Sylvester Leaks, Bruce Leaks’s brother, for about a week or two before the shooting. On January 7, George Cheatham, a friend of Leaks, informed Leaks that Littlejohn was at Sylvester’s house letting some friends wash clothes there. Upon hearing this, Leaks took a revolver from the trunk of the car belonging to his girlfriend, Shirley Williams, loaded the gun, and went to Sylvester’s house to confront Littlejohn. When Leaks arrived at Sylvester’s house, he asked Litdejohn about the women doing laundry. After a short, hostile exchange, Littlejohn began to fasten the door, but Leaks grabbed his arm. According to Leaks, Litdejohn then slapped Leaks. At that point, standing about four feet away from Littlejohn, Leaks took out the pistol and shot him. Littlejohn ran to a back bedroom, clutching his chest, where he told Leaks’s nephew, James Leaks, “Bob shot me, go call the police.” Littlejohn then collapsed on James’s bed; he died before medical help could arrive.

After shooting Litdejohn, Leaks returned to his house, where he hid the gun in a drawer and put on his pajamas to pretend that he had been at home all the time because he did not want anyone to know he had left the house. The next day, he returned the gun to the trunk of his girlfriend’s car and threw the spent round away. Leaks initially denied any involvement in the shooting, telling both George Cheatham and the police that he did not know anything about the incident. However, in the statement he later gave to the police, he admitted to the shooting, but claimed it had not been his intention to shoot Littlejohn.

At trial, Dr. Frank Peretti, the associate medical examiner for the State, testified that the bullet that killed Littlejohn entered his chest between his ribs and pierced his heart and left lung. Littlejohn essentially bled to death internally from this wound, according to Dr. Peretti. Ronald Andrejack, a firearms tool mark examiner with the Arkansas State Crime Lab, testified that the bullet that killed Littlejohn was fired from the .38 revolver retrieved from the trunk of Shirley Williams’s car. We conclude that these facts were sufficient to support the conviction for first-degree murder.

In Williams, supra, the court held that it was reasonable to conclude that when Williams fired shots from a .45 caliber pistol into the victim’s abdomen and back, from a distance of a few feet, he possessed a purposeful intent to kill. Id. at 513. Similarly, the court affirmed a first-degree murder conviction in Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). There, Walker was shooting a gun in the victim’s home. When the victim, Johnny Jones, asked Walker to stop or to take the gun outside, Walker became angry and confronted Jones, firing one shot at close range into Jones’s forehead. This court held that this was “substantial evidence, both direct and circumstantial, for the jury to conclude that it was Walker’s conscious objective to engage in the conduct which resulted in the death of Jones.” Id. at 110.

It is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Walker, supra; Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994). Here, Leaks fired a .38 revolver into Littlejohn’s chest from a distance of only a few feet away. In addition, after shooting the victim, Leaks returned home, put on his pajamas and went to bed in an effort to conceal his crime; further, he Hed to friends and to the police about his involvement in the killing. This court has held that lying about a crime can indicate a consciousness of guilt, see Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), and a jury may properly consider an attempt to cover up one’s connection to a crime as proof of a purposeful mental state. See Terrell, 342 Ark. at 212; Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Terrell, 342 Ark. at 212 (citing Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000)). The facts set out above presented sufficient evidence from which the jury could have concluded that Leaks was guilty of first-degree murder. We therefore affirm.

       “A person commits murder in the second degree if: (1) [h]e knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or (2) [w]ith the purpose of causing serious physical injury to another person, he causes the death of any person.” Ark. Code Ann. § 5-10-103 (Repl. 1997).


author: Donald L. Corbin, Justice. Tom Glaze, Justice, concurring.

text:
    ST. PAUL REINSURANCE CO., Inc. v. Cheryl IRONS, Individually, and d/b/a Riverfront Phase II
    00-1478
    45 S.W.3d 366
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Matthews, Sanders & Sayes, by: Marci Talbot Liles and Roy Gene Sanders, for appellant.

      Bill R. Holloway, for appellee.
   Donald L. Corbin, Justice.

This case is before us on a petition for review from ,the Arkansas Court of Appeals. At issue, is whether an insurer is required to pay the full face value of an insurance policy, as provided, under Arkansas’s valued-policy statute, codified at Ark. Code. Ann. § 23-88-101 (Repl. 1999), where the insured obtained two separate insurance policies for one insurable interest. We agree with the court of appeals that this is an issue of first impression; as such, initial jurisdiction was proper in this court pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We affirm.

Appellee Cheryl Irons owned a business that was a combination bar and grill and arcade in Arkansas City. She obtained insurance on her business from Appellant St. Paul Reinsurance Co., Inc., on June 26, 1995. The pohcy, which was to be in effect until June 26, 1996, provided $105,000 in insurance coverage for the building and $25,000 for its contents. On or about July 12, 1995, Appellee renewed her previous insurance coverage with General Star Indemnity Company (“General Star”) in the amount of $80,000 on the building. A fire completely destroyed Appellee’s business on October 25, 1995. After detecting the presence of diesel fuel in the building, investigators determined that the fire was the result of arson. No arrests were ever made in connection with the fire.

Following the fire, Appellee attempted to collect on both insurance policies. Appellant and General Star each agreed to pay a pro-rata share of the larger of the two policies, relying on identical provisions in each policy that governed in cases of other insurance. The clauses provided as follows:

1. You may have other insurance subject to the same plan, terms, conditions and provisions as the insurance under this Coverage Part. If you do, we will pay our share of the covered loss or damage. Our share is the proportion that the applicable Limit of Insurance under this Coverage Part bears to the Limits of Insurance of all insurance covering on the same basis.
2. If there is other insurance covering the same loss or damage, other than that described in 1. above, we will pay only for the amount of covered loss or damage in excess of the amount due from that other insurance, whether you can collect it or not. But we will not pay more than the applicable Limit of Insurance.

Appellant paid Appellee a total of $59,594.59, while General Star paid her $45,405.41, for a total payout of $105,000. After the insurance companies failed to pay the full policy values, Appellee filed suit against General Star in 1997, alleging that General Star owed her the remaining balance of the face value of its policy under the valued-policy statute. The trial court agreed and granted Appellee’s motion for summary judgment. General Star paid the remaining amount owed to Appellee, without appealing the trial court’s order.

Appellee then filed suit against Appellant on February 23, 1999, again alleging that the existence of other insurance did not prevent Appellant from being obligated for the full value of the insurance policy under Arkansas’s valued-policy statute. On December 20, 1999, the trial court granted Appellee’s motion for summary judgment, thus ordering Appellant to pay $45,405.41, the face amount of the policy, plus prejudgment interest at six percent per annum, in the amount of $10,897.30, and court costs of $125.00. In addition, the trial court ordered Appellant to pay a statutory twelve-percent penalty in the amount of $5,448.65 and attorney’s fees in the amount of $15,135.14. Appellant appealed this decision to the court of appeals, who affirmed the order of the trial court on December 13, 2000. This court granted Appellant’s petition for review on January 25, 2001.

This court recently set forth the standard of review appropriate in summary-judgment cases in Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000):

We have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, 327 Ark. 577, 940 S.W.2d 445. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Wallace v. Boyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. George, 337 Ark. 206, 987 S.W.2d 710.

Id. at 20, 14 S.W.3d at 475.

Section 23-88-101 (a) provides:

In case of a total loss by fire or natural disaster of the [real] property insured, a property insurance policy other than for flood and earthquake insurance shall be held and considered to be a liquidated demand against the company taking the risk for the full amount stated in the policy or the full amount upon which the company charges, collects, or receives a premium.

Appellant’s sole argument on appeal is that despite the language of the valued-policy statute, it would be against public pobcy to allow an insured to receive a double recovery by insuring property with multiple pobcies. Appebee counters that there is no authority in Arkansas to support the view that the valued-pohcy statute is suspended in cases of concurrent insurance pobcies covering the same insurable interest. We agree with Appellee.

There is no dispute that the underlying purpose of section 23-88-101 is to protect an insured faced with the total destruction of his or her property. In Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S.W.2d 89 (1955), this court stated:

Statutes of this sort are passed for the purpose of avoiding the uncertainty of determining the value after the fire. The manifest policy of the statute is to guard against over-insurance of the property. The agents of the company have the opportunity to inspect the property fully before taking the insurance and fixing the amount of the premiums. It is the valuation fixed in advance by the parties by way of liquidated damages in case of a total loss by fire of the property insured without the fault of the insurer.

Id. at 1049, 278 S.W.2d at 91 (quoting Farmers’ Home Mut. Fire Ass’n v. McAlister, 171 Ark. 574, 285 S.W.5 (1926)).

This court has held that the “valued pobcy statute ‘becomes a part of every pobcy of insurance on real property in this State, the same as if it were actually written in the pobcy.’ ” Id. at 1049, 278 S.W.2d at 90-91 (quoting E.O. Barnett Bros. v. Western Assur. Co., 143 Ark. 358, 220 S.W. 465 (1920)); Sphere Drake Ins. Co. v. Bank of Wilson, 312 Ark. 540, 851 S.W.2d 430 (1993). Our case law is clear that the provisions of our valued-pohcy statute may not be avoided by contrary pobcy stipulations. Tedford, 224 Ark. 1047, 278 S.W.2d 89; Thurston Nat’l Ins. Co. v. Dowling, 259 Ark. 597, 535 S.W.2d 63 (1976). In cases where a total loss is involved, a clause that diminishes recovery to less than the full amount stated in the pobcy is void. Id. More specifically, this court has held that a pobcy provision limiting an insurance company’s fiabihty to a prorata share of the insurance in force was void where the dwelbng was totally destroyed by fire. See Interstate Fire Ins. Co. v. James, 252 Ark. 638, 480 S.W.2d 341 (1972). Furthermore, an “insurer may not go behind the pobcy and show that the insured’s interest is worth less than the amount of the policy.” Tedford, 224 Ark. at 1050, 278 S.W.2d at 91 (citing 29 Am. JUR. Insurance § 1196). Thus, under the valued-policy statute, even an insured who has a limited interest in the insurable property is entitled to recover the full face value of a policy. Id.; see also Gravning v. American Druggists’ Ins. Co., 259 Ark. 523, 534 Ark. 754 (1976).

While our case law is clear in the above-enumerated respects, a case involving one insured obtaining multiple coverage on a single insurable interest has not previously been decided by our court. A federal court in this state has considered such an issue in Underwriters at Lloyd’s, London v. Pike, 812 F. Supp. 146 (W.D. Ark. 1993). In Pike, the insured obtained insurance coverage for two poultry houses and their contents in the amount of $60,000 from Farmers Mutual Insurance Company. One year later, the insured obtained a second policy for the same property in the amount of $102,000 from Lloyd’s of London. A month after the insured obtained the second policy, the covered property was totally destroyed by a fire. Each policy contained an escape clause avoiding liability for a loss if there was other insurance covering the poultry houses. The Eighth Circuit Court of Appeals determined that the escape clauses were mutually repugnant and remanded the matter to the district court, ordering it to prorate the loss between the two policies. The district court then determined the amount to be prorated was to be “no less than the greater of the face amounts of the two insurance policies in effect at the time of the loss.” Id. at 151.

Appellant now urges this court to adopt the reasoning of the court in Pike, wherein the district court distinguished state court cases interpreting the valued-policy statute:

In spite of what those cases say, the court notes from a careful reading of them that they are not on point because none of them involve the insuring with more than one policy one insurable interest by one insured. Instead, in each of those cases, the property owner or one of several property owners, had insured his or her insurable interest in the property and had obtained an insurance policy to cover that interest, and then another individual or entity with a separate insurable interest had also obtained a policy of insurance insuring that different interest. In spite of the all-inclusive language of those cases, this court doubts that the Arkansas Supreme Court, when squarely faced with this issue, would allow what is clearly and blatantly a double recovery of the loss of one insurable interest. To do so would be to allow something akin to a lottery or wager. One property owner with one insurable interest could obtain multiple policies insuring the property at its full value and then wait for (and perhaps hope for) a fire, with all of the attendant temptation to “help the odds.”

Id. at 150.

The district court specifically distinguished the cases of Mann v. Charter Oak Fire Ins. Co., 196 F. Supp. 604 (E.D. Ark. 1961), aff'd 304 F.2d 166 (8th Cir. 1962), and Hensley v. Farm Bur. Mut. Ins. Co., 243 Ark. 408, 420 S.W.2d 76 (1967). In Mann, the plaintiff homeowners insured their home for $15,000 and First Federal Savings and Loan, as mortgagee, obtained coverage of $8,000, the principal amount of the loan, from Charter Oak Insurance Company. When the plaintiffs’ house was destroyed by fire, they recovered the $15,000 in proceeds from their insurance policy, paid off their debt to First Federal, and then sued to recover the $8,000 policy amount from Charter Oak. In allowing the plaintiffs to recover under both policies, this court stated that Arkansas’s valued-policy statute was applicable, and the measure of the loss was the aggregate of the concurrent policies in force, with each insurer being liable for the frill amount of its policy.

Similarly, in Hensley, 243 Ark. 408, 420 S.W.2d 76, two different insurance policies covered the same insurable risk, a rent house. The owners of the home insured it with Farm Bureau Mutual Insurance Company in the amount of $2,000. They subsequently entered into a sales contract with a third party, agreeing to sell the house to him for $2,000. Thereafter, the buyer, without the knowledge of the sellers, obtained insurance on the home in the amount of $2,000 from Glen Falls Insurance Company. The house was then completely destroyed by fire. Glen Falls paid the $2,000 face amount of the policy to the buyer, who, in turn, paid the balance due on the sales contract to the sellers. The sellers then attempted to recover under their insurance policy with Farm Bureau, who denied payment on the basis that the property was covered by other insurance. This court held that Farm Bureau was required to pay the face value of its policy under Arkansas’s valued-policy statute. In reaching this conclusion, this court relied on the decision in Mann, noting that each insured had a separate insurable interest for the full amount of each poficy.

The court in Pike, 812 F. Supp. 146, found Mann and Hensley to be distinguishable because neither case involved one insured insuring one insurable interest with multiple policies. While this may be true, such a distinction fails to recognize that in each of those cases, as well as in the instant matter, there was a single piece of property insured by multiple policies. Under the valued-policy statute, it is irrelevant who applies for the coverage or who recovers under the policy in the event of a total loss. Any objections to the valued-policy statute should be taken up by the General Assembly, and not by the courts. Appellant’s attempt to go behind its policy and limit Appellee’s recovery to a pro-rata portion of that policy is in direct conflict with our valued-policy statute. Accordingly, we affirm the trial court’s order granting Appellee’s motion for summary judgment.

Glaze, J., concurs.

Tom Glaze, Justice, concurring.

St. Paul Reinsurance Co., Inc. argues the federal district court decision of Underwriters at Loyds, London v. Pike, 812 F. Supp. 146 (W.D. Ark. 1993), presents a situation identical to the one now before us, and our court should follow it. Here, as was the case in Pike, the insurer argues that the insured obtained two separate valued policies on the same property, and because the insurable interest is the same in both policies, the insured is able to receive a double recovery or “windfall,” which exceeds the total value of the insurable interest. St. Paul urges there is an inherent risk in overinsuring property, and further suggests that such added risk and possible double recovery can be removed if the insured’s recovery in these circumstances is limited to receiving a pro rata amount from each insurer. Cf. Underwriters at Lloyd’s, London v. Pike, 977 F.2d 1278 (8th Cir. 1992). The insured, Cheryl Irons, on the other hand, counters that she is in no way enriched by the receipt of monies to which she is entitled, and in paying premiums for the two valued policies, insurers St. Paul and Gold Star were being paid for the risk they underwrote.

There is no dispute in the instant case that the premiums being paid by the insured, Cheryl Irons, for the two fire insurance policies in issue were based on the policies’ valued amounts, $105,000 (St. Paul) and $80,000 (Gold Star). There is no issue or question raised concerning the value of Irons’s property; nor is there any suggestion that fraud played a part in Irons’s loss or claim. At this point, it also seems fair to say that valued policies, such as the ones held by Irons, are issued primarily to avoid potential disputes regarding the value of covered losses. Because Arkansas’ valued-policy statute authorizes a liquidated demand against the insurer who takes the risk for the full amount stated in the policy, I agree with the majority opinion that the statute requires full payment under both St. Paul’s and Gold Star’s policies. See 12 Lee R. Russ, Couch on Insurance § 175:106 (3d ed. 1995) (“[u]nder a ‘valued-policy law’ which is meant to fix the measure of damages in case of loss, the aggregate amount of insurance written is conclusive as to the value of the property and if there are multiple insurers, each is hable to the full amount of the policy”).

If an insurer is concerned that an insured’s recovery under two or more policies could lead to abuses where double recovery might result, nothing precludes an insurer from asking the applicant seeking fire insurance whether the insured has (or intends to obtain) other insurance coverage on the same insurable risk. Cf. Pike, 977 F.2d at 1279. Moreover, when such insurance is renewed, it is a simple matter to again inquire of the insured if he or she has obtained (or intends to obtain) other insurance. Obviously, if the insured answers yes, the insurer can then decide if it still wishes to underwrite the insured’s property risk. If an insured answers no, but later is shown to have acquired a second policy, the insurer can deny coverage and payment because of the insured’s misrepresentation.

In short, I fail to see the potential abuses foreseen by the federal district court in Pike and now forecast by the insurer St. Paul. As far as the interplay between the valued-policy law and a pro rata clause in a fire policy, the stated valuation in the policy controls in the absence of a showing of fraud, misrepresentation, collusion, mistake or criminal conduct on the insured’s part. See Tedford v. Security State Farm Ins. Co., 224 Ark. 1047, 278 S.W.2d 89 (1955); see also 12 Lee R. Russ, Couch on Insurance § 175:106 (3d ed. 1995) (“an exception to the valued-policy law applies, and the insurers are entitled to prorate payment under the policies’ ‘other insurance’ clauses, where the policies have been purchased from separate companies and the existence of such purchase was not disclosed to the insurers issuing such policies”). In any event, the remedy St. Paul now seeks from this court is clearly not one that may be extended and can only be authorized by the General Assembly. Id. at 1050-1051.

       Appellee only attempted to collect on the proceeds for the building itself. She never filed a claim to recover the $25,000 in proceeds for the budding’s contents.

       The record reflects an appraisal letter indicating the total loss amounted to $92,983.29.


author: Donald L. Corbin, Justice.

text:
    STATE of Arkansas v. Dean Marion OSBORN
    CR 01-21
    45 S.W.3d 373
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellant.

      Ernie Witt, for appellee.
   Donald L. Corbin, Justice.

The State of Arkansas appeals the order of the Franklin County Circuit Court dismissing the charge of hindering apprehension or prosecution against Appellee Dean Marion Osborn. The State argues that the trial court erred in finding that Franklin County lacked jurisdiction over Osborn’s charge. The State asserts that under Ark. Code Ann. § 16-88-108(c) (1987), jurisdiction was proper in either Crawford County, where the act was committed, or Franklin County, where the effects of the offense were felt. This court has not heretofore interpreted the “effects” clause of section 16-88-108(c) as it applies to the charge of hindering apprehension or prosecution. We thus have jurisdiction of the State’s appeal, as our holding will establish important precedent and is necessary for the correct and uniform administration of justice. See Ark. R. App. P. — Crim. 3(c); State v. Earl, 333 Ark. 489, 970 S.W.2d 789, cert. denied, 525 U.S. 971 (1998); State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997). For the reasons set out below, we conclude that the State’s argument has merit, and we reverse.

The facts of this case are not in dispute. Don Meador was shot to death in his home in Franklin County on or about January 14, 1998. On February 5, 1998, Investigator Richard Hoffman, of the Arkansas State Police, interviewed Osborn about the homicide at his home in Crawford County. Osborn told Hoffman that he had not seen the victim for a year and a half, and that he was at home in Van Burén on the date in question. About nine months later, in November 1998, Osborn contacted the victim’s son, Steve Meador, and told him that he had information about his father’s murder. Osborn later met with Steve and told him that he had been present in Meador’s home when three individuals, Jeremy Richison, Marshall White, and Gary Harvel, came to the house and attacked Meador at the door leading into the garage. Osborn stated that he fled the house through the back door, but then stopped and watched through the kitchen window, as a struggle ensued between Meador and the three assailants. Osborn then heard five shots and ran toward the front of the house, where he heard one of the assailants call out “Jeremy, let’s go!” Osborn stated that one of the assailants had a small-caliber revolver.

Steve Meador reported Osborn’s story to the police, who, in turn, arrested Osborn for hindering apprehension or prosecution, pursuant to Ark. Code Ann. § 5-54-105 (Repl. 1997). The charge was based on the State’s theory that Osborn had provided false information to the police in his February interview. Osborn was charged in Franklin County, where the murder occurred and where the investigation was ongoing. Osborn subsequently challenged Franklin County’s authority to charge and try him. He contended that the proper venue for the charge was Crawford County, where he gave the interview. The State countered that Franklin County had jurisdiction because the effects of his actions were felt there. The State relied on section 16-88-108(c).

The trial court agreed with Osborn and dismissed the charge. Viewing the issue as one of venue, rather than jurisdiction, the trial court found that venue was in Crawford County. It is evident from the trial court’s bench ruling and the subsequent written order that the trial court focused almost entirely on the situs of Osborn’s allegedly unlawful acts, with little regard for where the effects of his acts occurred. Moreover, the order of dismissal evinces the trial court’s conclusion that Crawford County was the only county in which Osborn could be charged and tried. In other words, the trial court did not interpret section 16-88-108(c) as providing concurrent jurisdiction over Osborn’s offense. We conclude that the trial court’s interpretation of the law was erroneous.

Before reaching the merits of this appeal, however, we first address the State’s contention that this issue is one of jurisdiction, not venue. The terms “venue” and “jurisdiction” are often used interchangeably. See Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). Ordinarily, venue refers to the geographic area, like a county, where an action is brought to trial. In contrast, jurisdiction is generally thought of as the power of a court to decide cases, and it presupposes control over the subject matter and the parties. Id. One type of jurisdiction is known as local jurisdiction. According to Professor LaFave, local jurisdiction “deals only with where the offense is to be tried, not with whether the state lacks the basic authority to apply its criminal law to the events in question.” Wayne R. LaFave, Criminal Procedure § 16.1(a), at 461 (2d ed. 1999). In Arkansas, local jurisdiction is statutorily provided for in Ark. Code Ann. § 16-88-105 (1987). Subsection (b) of that statute provides that the local jurisdiction of circuit courts “shall be of offenses committed within the respective counties in which they are held.” Section 16-88-108(c) provides for local jurisdiction over those offenses that occur in more than one county. In this respect, section 16-88-108(c) is an extension of the local jurisdiction provided for in section 16-88-105. We thus agree with the State that this appeal is properly viewed as presenting an issue of local jurisdiction, not venue. That being said, we turn now to the substance of the State’s appeal.

The State contends that the trial court erred in its interpretation of section 16-88-108(c), which provides: “Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.” (Emphasis added.) This statute is remedial in nature, intended to prevent miscarriages of justice by extending the lines of jurisdiction beyond the limits prescribed by the common law, and is to be liberally construed. Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972). It is presumed that an offense charged was committed within the jurisdiction of the court where the charge was filed, unless the evidence affirmatively shows otherwise. Id. See also Ark. Code Ann. § 16-88-104 (1987). The State argues that all of the evidence in this case supports jurisdiction in either Crawford County, where Osborn acted, or Franklin County, where the effects of Osborn’s actions manifested themselves and hindered the murder investigation.

The State relies on this court’s holdings in Hill and Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999). In Blackwell, this court held that jurisdiction over a charge of Medicaid fraud was proper in Pulaski County, where the effects of the defendant’s acts were felt. Blackwell argued that there was an insufficient nexus to bring charges against him in Pulaski County. This court disagreed:

While Blackwell’s dental practice was located in Pine Bluff and he treated patients there, his offense was consummated by submitting fraudulent billings to Arkansas’s State Medicaid Agency (Department of Human Services) located in Little Rock. Moreover, it was in Little Rock where the state agency denied or authorized Blackwell’s Medicaid claims. Clearly, Blackwell’s acts took effect in Pulaski County where the Medicaid agency received and processed Blackwell’s fraudulent bills. For these reasons, we affirm the trial court’s ruling that it had jurisdiction to try the State’s Medicaid charges against Blackwell.

Id. at 675-76, 1 S.W.3d at 401 (emphasis added).

Similarly, in Hill, 253 Ark. 512, 487 S.W.2d 624, the appellant was convicted in Howard County of selling cattle that were subject to a Hen. The evidence showed that all negotiations for the sale of the cattle took place in Sevier County, that both the appellant and the buyer were residents of Sevier County, and that the buyer delivered the check for payment of the purchase price in Sevier County. The only connection between Howard County and the transaction was the fact that the cattle were located on a farm in that county. This court concluded, however, that it was not error to charge the appellant in Howard County:

In this case, the acts of Hill with reference to the sale may well have taken place in Sevier County, but the intention essential to his conviction must have been to defeat the holder of the “lien” in the collection of the debt. If the cattle were in Howard County, the “hen” was there and its enforcement could be expected to be conducted or at least initiated in that county. The effect of the sale was to transfer title to the cattle located in Howard County to Powell, who would certainly take them into his possession there. Clearly, acts or their effects requisite to the consummation of the alleged offense would occur in Howard County. The venue was not improperly laid there, even though it might have been properly laid in Sevier County.

Id. at 527-28, 487 S.W.2d at 634 (footnote omitted) (emphasis added). In reaching this conclusion, this court relied on several cases from foreign jurisdictions and held:

If the acts committed by the accused were intended to take effect in a county other than that in which all were actually committed, venue may be laid in the former county, even though all of the acts of the accused were done before the actual effect of the unlawful purpose has materialized there.

Id. at 524, 487 S.W.2d at 632 (emphasis added) (citing People v. Wallace, 78 Cal. App. 2d 726, 178 P.2d 771 (1947); People v. Quill, 149 N.Y.S.2d 566 (Kings County Ct. 1956); People v. Vario, 2 N.Y.S.2d 611 (Queens County Ct. 1938)).

Two of the cases relied upon by this court in Hill, Wallace, 78 Cal. App. 2d 726, 178 P.2d 771; and Quill, 149 N.Y.S.2d 566, rely on language from the case of People v. Megladdery, 40 Cal. App. 2d 748, 106 P.2d 84 (1940). In Megladdery, the California court was presented with a question of local jurisdiction over charges stemming from the bribery of a public official. The defendant argued that because the acts that formed the basis of his criminal charges were committed outside of Alameda County, that county had no jurisdiction to try him. The applicable California statute, section 781 of the California Penal Code, is very similar to section 16-88-108(c). Section 781 provided: “When a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” Id. at 774, 106 P.2d at 98. The defendant argued that under section 781, a particular county cannot have jurisdiction over an offense unless some act that is a necessary element of the offense is committed in that county, or unless some effect of such an act, which effect is an essential or necessary element of such offense, occurs within the county. The appellate court disagreed:

The interpretation contended by respondent would completely disregard the phrase “or the acts or effects thereof constituting or requisite to the consummation of the offense” contained in the section. Obviously, the phrase, “or requisite to the consummation of the offense,” means requisite to the completion of the offense — to the achievement of the unlawful purpose • — • to the ends of the unlawful enterprise. By the use of the word “consummation” the legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense — that is, to the achievement of the unlawful purpose of the person committing the offense.

Id. at 774-75, 106 P.2d at 98. We believe that this reasoning is applicable to the present case.

Here, Osborn is charged with hindering apprehension or prosecution, in violation of section 5-54-105. Although this offense may be violated in a number of ways, Osborn was charged pursuant to subsection (a)(6), which prohibits a person from volunteering false information to a law enforcement officer while acting “with purpose to hinder the apprehension, prosecution, conviction, or punishment of another for an offense[.]” The unlawful act is volunteering false information to the police. There is no dispute that the act alleged to have been committed by Osborn was committed entirely within the boundaries of Crawford County, where Osborn gave the interview. However, the effects requisite to the consummation of the offense, i.e., the achievement of the unlawful purpose of hindering the apprehension or prosecution of the three murder suspects, occurred in Franklin County, where the murder occurred and the investigation was ongoing. Indeed, were it not for the murder in Franklin County, Osborn would not have been interviewed by police and there would have been no investigation or prosecution for him to hinder. Thus, under section 16-88-108(c), jurisdiction was proper in either county. Accordingly, the trial court erred in dismissing the charge against Osborn in Franklin County.

We thus reverse the trial court’s order and remand with instructions to reinstate the charge of hindering apprehension or prosecution against Osborn. We agree with the State that no double-jeopardy violation will result from reinstating the charge against Osborn. This court recently stated in State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999), that where the charge is dismissed on a pretrial motion made by the defendant’s counsel and is not the result of the State’s failure to prove its case, the State should be permitted to refile the charge. “Permitting retrial in this instance is not the sort of oppression at which the Double Jeopardy Clause is directed[.]” Id. at 168, 987 S.W.2d at 690 (citing State v. Zatvodniak, 329 Ark. 179, 946 S.W.2d 936 (1997), cert. denied, 522 U.S. 1125 (1998)).

Reversed and remanded.