author: Tom Glaze, Justice.

text:
    Ruben MILLER v. Timothy LEATHERS, Commissioner of Revenue, et al.
    92-390
    843 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered December 21, 1992

      Oscar Stilley, for appellant.

      Malcolm P. Bobo, for appellees.
   Tom Glaze, Justice.

This case involves art. 5, § 38 of the Arkansas Constitution as amended by Amendment 19, which became effective in 1934. That amendment provides as follows:

None of the rates for property, excise, privilege of personal taxes, now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of emergency, by the votes of three-fourths of the members elected to each House of the General Assembly.

As can be seen, Amendment 19 requires any rate increase in the taxes then levied and enumerated in it to be approved by a vote of the people or to be passed by a three-fourths vote of the General Assembly.

Arkansas’s original gross receipts tax was passed in 1941 and was not one of the taxes set out in the 1934 Amendment. The tax in issue in this lawsuit, Act 63 of 1983, increased Arkansas’s sales tax from three-to-four percent, and was passed only by a majority, not a three-fourths, vote of the General Assembly.

The state contends the vote requirement of Amendment 19 does not apply to Act 63 because it increased the sales tax which was not a tax enumerated in the Amendment of 1934. The taxpayer, Mr. Ruben Miller, brings this suit asking this court to apply the Amendment 19 vote requirements to Act 63 and hold that because Act 63 did not receive a three-fourths vote, it is a nullity. His reasoning will be discussed below. Granting summary judgment, the chancellor below rejected the taxpayer’s argument and upheld Act 63’s constitutionality. At the same time, the chancellor denied the state’s motion to impose Rule 11 sanctions against Mr. Miller. We affirm the chancellor’s rulings on both points.

In challenging Act 63’s validity, Mr. Miller asks us to limit our reading of Amendment 19 to say it prohibits a tax rate increase involving any tax without a vote of the people or a three-fourths vote of the General Assembly. In support of this contention, he argues the Amendment’s ballot title which he says omits reference to the enumerated taxes and “now levied” language contained in the text of the Amendment. In sum, Miller suggests Amendment 19 should be construed to read that all tax increases of any kind require a popular vote of the people or a three-fourths vote no matter when those increases are levied. As pointed out, Miller’s argument ignores the “now levied” and enumerated taxes language in the text of the Amendment and overlooks the fact that the ballot title of Amendment 19 is not a part of the measure and, therefore, in no way controls the meaning of the Amendment unless the Amendment itself is ambiguous. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). No ambiguity exists here.

This court has construed Amendment 19 and has done so consistent with the chancellor’s holding in this case. See Combs v. Glens Falls Insurance, 237 Ark. 745, 375 S.W.2d 809 (1964); Caldarera v. McCarroll, 198 Ark. 584, 129 S.W.2d 615 (1939). In Combs, for example, the General Assembly enacted by simply majority vote Act 527 of 1963, which increased the privilege taxes on foreign insurance companies. This court held the 1963 Act unconstitutional because Amendment 19, adopted in 1934, provided that none of the rates for privilege taxes then levied shall be increased without a three-fourths vote of the General Assembly. Such a privilege tax on foreign life insurance companies was in effect in 1934, and since Act 527 of 1963 involved the tax on life insurance companies, the court held the act violated Amendment 19.

Also, in the early case of Caldarera, wholesale dealers of intoxicating beer brought suit contending Act 310 of 1939 violated Amendment 19 because the Act did not receive a three-fourths vote which was required since Act 310 increased a preexisting privilege tax on such wholesalers imposed by law as early as 1933. This court, however, concluded Act 310 was a different and new privilege tax from the one imposed in 1933 and therefore was constitutional since it did not increase the tax previously levied on wholesalers in 1933. Two justices concurred, explaining Act 310 of 1939 levied a tax on a new product made saleable in the state after Amendment 19 was adopted and therefore the 1939 tax was not within the purview of the Amendment.

In accordance with the plain language of Amendment 19 and the cases construing it, we must conclude Act 63 of 1983 challenged here does not fall within the Amendment’s terms because the tax it increases is the sales tax, which is not one of the taxes enumerated in the 1934 Amendment. Further, since Act 63 increased the 1941 sales tax law which was not in effect at the time of Amendment 19’s passage, the General Assembly acted within its authority to pass such an increase by a majority vote. In short, we hold Act 63 constitutional.

On cross-appeal, the state claims Miller’s lawsuit was baseless and Rule 11 sanctions should have been imposed against him by the trial court. We disagree.

By the terms employed in the Federal and Arkansas Rules 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney made a reasonable inquiry into he facts supporting the document or pleading, (2) he or she made a reasonable inquiry into the law supporting that document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (3) the attorney did not interpose the document for any improper purpose, such as to harass or to cause unnecessary delay or needles increase int he cost of litigation. See also Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988); Smith Intern, Inc. v. Texas Commerce Bank, 844 F.2d 1193 (5th Cir. 1988); Wright & Miller, Federal Practice and Procedure: Civil 2d § 1335, p. 58 (1990); Note, Rule 11 in the Federal Courts Unanswered Questions in Arkansas, 43 Ark. L. Rev. 847, 852 (1990). When a violation of Rule 11 occurs, the Rule makes sanctions mandatory. Miles, 297 Ark. 274, 760 S.W.2d 868: Crookham v. Crookham, 914 F.2d 1027 (8th Cir. 1990); O’Connell v. Champion Intern. Corp., 812 F.2d 393 (8th Cir. 1987). Whether a violation occurred is a matter for the courts to determine, and this determination involves matters of judgment and degree, and in reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Miles v. Southerns, 297 Ark. 280-A, 763 S.W. 656 (1988) (supplemental opinion denying rehearing); Crookham, 914 F.2d 1027; O’Connell, 812 F.2d 393.

Here, the taxpayer, Miller, obviously made reasonable inquiry into the law, but in arguing that law below and on appeal, the courts thoroughly disagree with his construction of the applicable constitutional and statutory provisions and the precedents interpreting them. He specifically asked that this court reject the Caldarera decision, among other reasons, as being inconsistent with the purpose of Amendment 19; he certainly has a right to urge such a legal argument under Rule 11. Although we disagree with Miller’s arguments in these respects, our rejection does not suggest he failed to make a reasonable inquiry into the facts and law in this case. On these facts, we cannot say the trial court abused its discretion in denying the state’s motion for sanctions.

We affirm both on direct appeal and cross-appeal.

       Miller also cites the case of Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), where a group sponsored a propsoed consitutlonal amendment to change Amendment 19 and the ballot title of the proposed amendment referred to Amendment 19 omitting the “now levied” terminology contained it it.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Yvonne WHITENER v. STATE of Arkansas
    CR 92-556
    843 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered December 21, 1992

      Paul Petty and Robert Meurer, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Yvonne Whitener, raises three points for reversal of her six-year conviction for delivery of marijuana. None of the points has merit, and we affirm.

The circumstances of this case evolved out of an undercover drug operation where Whitener and undercover officer David Moore of the White County and Searcy Drug Task Force first met on July 11,1991, at Moore’s apartment. At that time, Moore received a sample bag of marijuana from Whitener. Later in the evening, he went to Whitener’s house where, according to his testimony, she sold him a quarter-ounce bag of marijuana for $30. That sale formed the basis of a charge for delivery of marijuana filed against her.

At trial, following testimony, Whitener requested a jury instruction on the lesser included offense of possession of marijuana, but the circuit court denied the request, giving as its reason the fact that there was no rational basis for the instruction. The jury then found Whitener guilty of delivery of a controlled substance and sentenced her to six years imprisonment. At a subsequent hearing, Whitener’s attorney urged the court to sentence his client under the Alternative Service Act, but the court refused.

Whitener first argues that the circuit court erred in not giving an instruction of possession of marijuana because the evidence at trial warranted an instruction on the lesser included offense. This court has held in the past that possession of a controlled substance is a lesser included offense of delivery of a controlled substance because one cannot deliver a controlled substance without exercising some degree of dominion, control, and management over it. See Glover v. State, 273 Ark. 376, 619 S.W.2d 629 (1981), citing Ark. Stat. Ann. § 41-115(15) (Repl. 1977), now codified as Ark. Code Ann. § 5-1-102(15) (1987); see also Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991).

The circuit court in this case before us, while accepting that possession is an included offense, ruled that based on the proof presented, there was no rational basis for the possession instruction. In doing so, the court referred to the apposite statute:

(c) The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

Ark. Code Ann. § 5-1-110(c) (1987). The charge and proof by the state were for the actual delivery of marijuana, and Whitener did not testify. A jury, conceivably, could have disregarded this proof, acquitted Whitener of delivery, and found her guilty of the less serious charge of possession, but any rational basis for such a verdict is not readily apparent. Where no rational basis is present, we have affirmed the circuit court’s refusal to give the instruction. See e.g., Frazier, v. State, 309 Ark. 228, 828 S.W.2d 838 (1992). We cannot say that the circuit court erred in declining to instruct on mere possession.

We next turn ot Whitener’s contention that the circuit court was wrong not to consider probation or suspension under the Arkansas Criminal Code or the Uniform Controlled Substance Act. The argument is meritless. In 1991, the Arkansas General Assembly enacted Act 608 to eliminate confusion surrounding sentencing alternatives in drug-related cases under the Criminal Code and the UCSA. See Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991) (dictum). Act 608 amended two sections of the Criminal Code — Ark. Code Ann. §§ 5-4-104 and 5-4-301 — with regard to what sentences are authorized under the Code and when suspension or probation may be appropriate. In each section, Act 608 added the following category to a list of crimes for which suspension or probation was not appropriate.

(F) drug related offenses under the Uniform Controlled Substances Act, except to the extent that probation is otherwise permitted under that act.

Act 608 then added to this subsection: “In other cases, the court may suspend imposition of sentence or place the defendant on probation, except as otherwise specifically prohibited by statute.”

It is clear that the reference to “other cases” in Act 608 where suspension or probation might be appropriate does not include drug-related offenses, except where the UCSA expressly provides for it. The UCSA does provide for probation for mere possession of marijuana, but not for delivery. See Ark. Code Ann. § 5-64-407 (1987). Act 608 makes it obvious that delivery of marijuana is simply not a crime where either probation or suspension is available to the circuit court for consideration as an appropriate sentence. The court correctly rejected Whitener’s request.

In this same vein, Whitener argues that the circuit court found her eligible under the Alternative Service Act, now codified as Ark. Code Ann. § 16-93-501, et seq. (1987), but then erred in declining to follow the Act. “Eligible offender” is defined as:

any person convicted of a felony offense other than a capital felony offense, or murder in the first degree, murder in the second degree, first degree rape or kidnapping, or aggravated robbery, and who has never been previously convicted of a felony offense, and whose interests, and the interests of the state, in the opinion of the sentencing trial court, could be better served by diversion under the provisions of this subchapter than by sentencing under other applicable penalty provisions established by law.

Ark. Code Ann. § 16-93-502(6)(A) (Supp. 1991).

Though the circuit court did find Whitener to be “eligible” under the Alternative Service Act, it is clear from the court’s subsequent comments that it did not consider probation or suspension to be acceptable alternatives. The court noted that the jury has imposed the six-year sentence and that the sentence was commensurate with the crime. It added that alternative sentencing would not be “a proper disposition.”

Moreover, the court never made the corollary finding that the interests of the state would in fact be better served by diversion to alternative sentencing under § 16-93-502(6)(A). Indeed, the court concluded exactly the opposite and found that the six-year sentence was “not unduly lengthy.”

In sum, the court found that Whitener, though eligible, was not an appropriate candidate for alternative sentencing. Again, part of the reason for the court’s ruling was the fact that Act 608 excludes probation and suspension as sentences to be considered for delivery of marijuana. There was no abuse of discretion by the circuit court. The conviction and judgment are affirmed.


author: Per Curiam.

text:
    Brenda CHORN v. STATE of Arkasnas
    CR 92-1393
    841 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered December 21, 1992

      Kearney Law Offices, for appellant.
    No response.
   Per Curiam.

Brenda Chorn, by her attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Brenda Chorn will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.


author: Jack Holt, Jr., Justice.

text:
    Betty McKINLEY, d/b/a My Kids Day Care v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Family Services
    92-738
    844 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered January 11, 1993

      Jackson & Pace, by: J. Robin Pace, for appellant.

      Winston Bryant, Att’y Gen., by: J. Frank Wills, III, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Justice.

This appeal is from a decision of the Child Care Facility Review Board (a division of the Arkansas Department of Human Services, hereinafter “the Board”) revoking My Kids Day Care’s (“My Kids”) license for one year. My Kids appealed to the circuit court which affirmed the Board’s decision. Because this case involves the interpretation of an administrative agency’s rules and regulations, our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c). As we find no error, we affirm the actions of the Board and the circuit court.

FACTS

Betty McKinley is owner and operator of My Kids Day Care in Rogers, Arkansas. The Board initially granted My Kids a provisional start-up child care license on July 16, 1986; the facility received a regular license in February 1987. For the first two years of operation, My Kids was monitored by child care specialists with the Department of Human Services. Although My Kids was found out of compliance in areas such as staff to children ratios and overcapacity, Mrs. McKinley corrected the infractions in a timely manner.

On February 7, 1989, the day care facility was extensively damaged by a fire, allegedly started by arson. After the fire, My Kids was granted a six month provisional license.

Mrs. Elaine Jenkins, Child Care Licensing Specialist for the Department of Human Services, made regular visits to monitor the day care after the fire and to check on the status of the repairs. In August of 1989, My Kids again received a provisional license. This license was to be valid through February 28, 1990.

In October 1989, Mrs. Jenkins reviewed the facility and noted several areas of noncompliance with regulations. These infractions were conveyed to Mrs. McKinley so that she could correct them prior to the next visit.

Mrs. Jenkins made multiple monitoring visits to My Kids during the first few months of 1990 to determine if Mrs. McKinley had cured the problems. During that time, My Kids was cited ten times for not complying with the Board’s rules and regulations. The most flagrant violations were in the areas of child capacity and staff/child ratios. Mrs. Jenkins told Mrs. McKinley that she needed documentation in order for the Board to complete its evaluation. Information needed included the policy on hiring and discharge of staff, procedures for reporting child abuse, health cards on staff, written record of all tornado drills, and health inspection records. Additionally, Mrs. Jenkins informed Mrs. McKinley that the facility needed to provide at least ten hours of training for all staff, smoke detectors, eliminate physical punishment for children under age three, and post the hot line number for reporting child abuse. As well, the swing set needed to be reanchored, boards, pipes, etc., needed to be removed, and baby beds needed to be replaced.

As a result of these allegations, the Board conducted an informal administrative hearing, took testimony of interested parties, and revoked My Kids’ license. After this hearing, the Board made the following findings of fact:

1. Failure to maintain the required staff to child ratios and lack of supervision;
2. Use of physical punishment for children under three and the use of discipline which is not appropriate to the child’s level of understanding;
3. Failure to comply with child care discipline standards;
4. Failure to maintain current child records;
5. Failure to provide well-balanced meals and nutritious snacks;
6. Failure to insure a safe outdoor play area;
7. Failure to provide adequate and approved sleeping arrangements for children;
8. Failure to provide towels for hand washing;
9. Failure to practice emergency drills with all children;
10. Failure to properly store hazardous items;
11. Failure to comply with the limit on the number of children the facility may serve. Capacity placed on the center by the Child Care Facility Board as authorized by Ark. Code Ann. § 20-78-210 (1987).

My Kids appealed the Board’s decision to the circuit court which remanded this matter to the Board for additional evidence concerning the Department of Human Services’s investigation regarding the use of physical punishment and evidence concerning violations that had occurred prior to February 1990.

At both Board hearings, Mrs. Jenkins noted that the child/ staff ratio and child capacity were repeatedly out of compliance. She testified that she never received the information she requested and the infractions were not corrected. The facility was licensed for six infants and eighteen preschoolers. On virtually all of her visits since the fire, Mrs. Jenkins had found the facility out of compliance because of overcapacity and insufficient staff. According to Mrs. Jenkins’ testimony, the facility was also out of compliance in other areas. For example, there were never towels in the rest room. A child was found napping on the carpet with a playpen frame around him — there was no bottom in the play pen. Medicines were in an unlocked medicine cabinet in the bathroom. Ms. Ratha Turpin, child care licensing supervisor, had accompanied Ms. Jenkins on one of her visits to My Kids and confirmed Ms. Jenkins’ testimony. Mr. J. R. Davenport, Child Care Licensing Specialist with the Department of Human Services, also confirmed Ms. Jenkins’ testimony.

Testimony also indicated that My Kids had not followed other regulations regarding day care. For example, Thelva Bolen, a former employee of My Kids, testified that she had seen Mrs. McKinley punish the children, including the infants, with a fly swatter. Ms. Bolen also testified that the children did not get milk with their meals nor were they always served snacks. However, she did mention that she had on occasion seen the children served cookies and carrot sticks for snacks.

Another former employee, Ms. Lela Davis, echoed Ms. Bolen’s testimony. Ms. Davis mentioned that there was not a program of activities for the children other than regular television watching.

Nevertheless, Ms. Aileen Leo, a part-time employee of My Kids and a parent of a My Kids’ attendant, testified that her child was well cared for by the center. Stipulations were made that other parents would testify that their children had not been spanked and were well cared for by My Kids.

After the second hearing before the Board, My Kids’ license was again revoked for one year. On appeal, the circuit court affirmed the Board’s administrative decision.

Although presented as twelve separate issues, the appellant’s argument comes down to four concerns: did the Child Care Facility Review Board make its decision to revoke: (1) capriciously and arbitrarily; (2) without substantial evidence; (3) in reliance on an unconstitutionally vague administrative regulation; (4) without proper notice to My Kids in violation of due process? As we answer all these in the negative, the circuit court’s decision to affirm the Board’s decision is affirmed.

On appeal, My Kids asserts that we should reverse the Board’s decision because it was made arbitrarily and capriciously as to the center’s alleged failure to maintain required staff to child ratios, to properly store hazardous items, and to comply with the maximum limit on the number of children in the center.

An administrative decision should be reversed as arbitrary and capricious only when it is not supportable on any rational basis. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). An administrative decision is not to be deemed arbitrary or capricious simply because the reviewing court would have acted differently. See Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980). The appellant has the burden of proving that the proof before the administrative tribunal was so nearly undisputed that fairminded persons could not reach its conclusion. “The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.” Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983).

My Kids contends that the decision to revoke because of improper child/staff ratios and overcapacity is arbitrary and capricious because Ms. Jenkins had previously found the center out of compliance and had nevertheless always renewed the license. However, these arguments have no merit because on prior occasions, Mrs. Jenkins had informed Mrs. McKinley of the infractions, and they had been promptly corrected. My Kids’ infractions after the fire in 1989 were never corrected, according to Mrs. Jenkins.

My Kids contends that the Board acted capriciously and arbitrarily in revoking due to the center’s failure to properly store hazardous materials because Mrs. McKinley was allegedly told four years earlier that the center didn’t have to follow the regulation that stated that medicine must be kept under lock and key. Obviously the Board did not find this testimony persuasive; this does not render the decision arbitrary.

My Kids also contends that the decision to revoke was not based on substantial evidence. Substantial evidence means such valid, legal and persuasive evidence that a reasonable trier of fact might accept as adequate to support the conclusion reached by the agency. The appellant bears the burden of demonstrating that the proof before the agency was so clearly undisputed that fairminded individuals could not have reached the agency’s conclusion. Partlow v. Ark. State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). My Kids argues that there was not substantial evidence to support the Board’s finding that: physical punishment was used on children under three years, child records were not maintained, nutritious meals and snacks were not served, a safe outdoor play area was not provided, adequate and approved sleeping arrangements were not provided, towels for hand washing weren’t provided, and no emergency drills were performed.

However, there was substantial evidence to support these findings. Former employees testified that nutritious meals and snacks were not consistently served and that the children slept on the floor or on mats that were not cleaned regularly. The child care specialists testified that they consistently found a lack of child records on emergency drills, no towels for hand washing, and a dangerous swingset in the play area. Although My Kids argues that these witnesses were not credible, credibility is for the Board to determine. We will not substitute our judgment for that of the Board’s absent an abuse of discretion. See Beverly Enterprises v. Ark. Health Services, 308 Ark. 221, 824 S.W.2d 363 (1992).

Finally, My Kids argues that the Board’s decision should be reversed because it was based on an unconstitutionally vague regulation, and because the day care was denied due process of law because of insufficient notice of process.

Confusion on this issue arises, however, because My Kids complains of the vagueness of Minimum Licensing Requirement for Child Care Centers, Section 301, when in fact the argument contained in its brief concerns Section 102. My Kids quotes from Section 102 in its brief, yet neither Section 102 or 301 is abstracted. The state abstracted and defends Section 301 which does not appear to be in issue.

Normally, we will not consider arguments the bases of which are not abstracted. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985); Sup. Ct. R. 9(e)(2). However, this court can take judicial notice of regulations of state agencies which are published. Register v. Oaklawn Jockey Club, Inc., 306 Ark. 318, 811 S.W.2d 315. See also Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967). The Minimum Licensing Requirements for Child Care Centers are available to the public in the Secretary of State’s office. Although Section 102 was not abstracted by My Kids, we will, under the circumstances, take judicial notice of this regulation and consider its argument.

To avoid being vague under due process standards, a statute or regulation “must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Thompson v. Ark. Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984). My Kids contends that the regulation is vague because the language of the regulation does not clearly define “substantial compliance.” Section 102 states:

The following requirements contain references to two types of standards, using the words “shall” and “should.” The use of the word “shall” indicates that the terms of the statement are required for a facility to be in substantial compliance. The use of the word “should” indicates that the statement is recommended but not required for substantial compliance.
In determining the recommendation for a licensing or church-operated exemption, the facility shall be reviewed by a Child Care Licensing Specialist to determine that the facility is in substantial compliance with the requirements. Substantial Compliance means there is no omission of the essential standards necessary to protect the health, safety, and welfare of the children and that all standards will be met within a reasonable timeframe agreed upon by the Child Care Licensing Specialist and the facility. Those essential standards which shall be met 100% are those which relate to: fire, health, safety, nutrition, staff/child ratio, and space. Arkansas Stat. Ann. 83-921 states that licensing standards shall not include those of a religious or curriculum nature so long as the health, safety and welfare of the child is not endangered.
The Child Care Licensing Specialist shall review all areas of the requirements and consider noncompliance items based on the frequency, degree, severity, number and nature of noncompliance in making the licensing recommendation.

My Kids asserts that Section 102 is vague because it is not clear exactly which compliance requirements are to be governed by a 100% standard. Specifically, it claims that the substantial compliance section in Section 102 is indefinite as it relates to maintaining staff to child ratios at the day care center. Clearly, however, Section 102 of the Minimum Licensing Requirements for Day Care Facilities indicates that in the area of staff to child ratios, substantial compliance is deemed to be 100 % compliance. This is not vague. It seems that the confusion in this regulation arises when the term “substantial compliance” is applied to an area that is not defined as 100 %. However, My Kids has not raised that issue. Besides, appellant has standing only to challenge sections that directly affect it. See Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984).

Although My Kids complains of Section 301, it never indicates in its brief that this regulation is vague in any way, so we will not consider the constitutionality of this requirement.

My Kids also claims that it was not given adequate notice that one of its infractions included failure to comply with the Board’s discipline standards. However, examination of the Department of Human Services notice and attachments indicates that use of physical punishment for children is one of the indicated infractions. The notice is sufficient.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Sherman AVERY v. STATE of Arkansas
    92-760
    844 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered January 11, 1993

      William R. Simpson, Public Defender, by: Kent C. Krause, Dept’y Public Defender.

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

Appellant, a juvenile, was adjudged a delinquent and placed on probation. Subsequently, the trial court revoked appellant’s probation and imposed a fine as punishment. We reverse the revocation of probation and imposition of a fine for failure to comply with the juvenile code, and remand for further proceedings.

Appellant, a fifteen-year-old, was charged in April 1990 in the Juvenile Division of Chancery Court with burglary and reckless burning. An attorney was appointed and appellant was ordered to appear for an “adjudication (D)” on November 13, 1990. “Adjudication (D)” may mean an adjudication and disposition hearing. “ ‘Adjudication hearing’ means a hearing to determine whether the allegations in a petition are substantiated by proof.” Ark. Code Ann. § 9-27-303(5) (1991). “ ‘Disposition hearing’ means a hearing held following an adjudication hearing to determine what action will be taken in delinquency. . .cases.” Ark. Code Ann. § 9-27-303(15) (1991). At the “adjudication (D)” hearing the trial court found that appellant had committed the burglary, adjudicated him to be a delinquent, and placed him on probation for one year. The probation was subject to written conditions specified by the court. See Ark. Code Ann. § 9-27-330(3) (1991). The reckless burning charge was dismissed.

Five months later, on April 17, 1991, the Prosecuting Attorney filed a petition to revoke probation. See Ark. Code Ann. § 9-27-339(b) (1991). As a result of the petition, the appellant was directed by a form order to appear for another “adjudication (D)” on September 26, 1991. He failed to appear and a warrant was issued for his arrest. He was quickly arrested and, on September 30,1991, was released into the custody of his mother. The revocation hearing was rescheduled for December 12,1991.

The applicable statute provides that at a revocation hearing, if the trial court finds beyond a reasonable doubt that the juvenile has violated the terms of probation, the court may: (1) extend probation; (2) impose additional conditions of probation; or (3) make any disposition that could have been made at the time probation was originally imposed. Ark. Code Ann. § 9-27-339(e) (1991). At the revocation hearing on December 12, the special judge apparently found beyond a reasonable doubt that the juvenile had violated the terms of probation, but the judge did not revoke probation and fine appellant as could have been done. See Ark. Code Ann. §§ 9-27-337(7), 9-2-339(e) (1991). Instead, the special judge extended probation for an additional year, ordered appellant to stay with his mother, undergo psychological, drug, and alcohol assessment, and continue to attend the Watershed project. In addition to the foregoing adjudication, the last sentence of the form order provides: “This matter is set for Disposition/Review on the_day of-, 19— at — A.M./P.M.” The date of March 18,1992, and time of 9:15 were filled in by handwriting. There were no strike marks on the strike-the-wrong-word form order indicating whether the subsequent hearing on March 18 was to be for disposition or review, but that is of no real significance since the applicable statutes do not provide for a different disposition of the same petition at another hearing three months later. The special judge signed another form order styled “Order to Appear,” which had a check mark in a box to notify appellant that the appellant was to appear on March 18, 1992, for “Review of compliance with Orders of this Court.” “ ‘Order to appear’ means an order issued by the court directing a person who may be subject to the court’s jurisdiction to appear before the court at a date and time as set forth in the order.” Ark. Code Ann. § 9-27-303(25) (1991).

The Prosecuting Attorney did not file another petition to revoke probation. No document was served on appellant indicating that a different disposition was to be considered. On March 18, appellant appeared with counsel pursuant to the “Order to appear” but, rather than having just a review, the trial court revoked probation and fined appellant.

Appellant appeals and argues that on December 12, 1991, the trial court made a “disposition” of the petition to revoke under Ark. Code. Ann. § 9-27-339(e)(l) — {2), and the trial court could not make a different disposition of the same petition three months later. The argument is meritorious.

The statute governing revocation proceedings in juvenile court is both clear and specific. Ark. Code Ann. § 9-27-339 (1991) provides that after an adjudication of delinquency, the court may place a juvenile on probation, and, after a juvenile is placed on probation, the prosecuting attorney may file a petition to revoke probation. It does not provide for revocation in any other manner. The petition for revocation must be served on the juvenile, and a revocation hearing must be set within a reasonable time. At that hearing, “if the trial court finds beyond a reasonable doubt that the juvenile violated the terms and conditions of probation, the court may:

(1) Extend probation;

(2) Impose additional conditions of probation; or

(3) Make any disposition that could have been made at the time probation was imposed.” Ark. Code Ann. § 9-27-339(e) (1991).

The trial court was authorized by the above-quoted statute to deny the petition to revoke and extend probation under subsection (1) above, as it did in this case, but it was not authorized to take that action and then, three months later, change its mind and grant the petition to revoke under subsection (3) above. After the first disposition denying revocation, the statute requires the prosecutor to file another petition for revocation and give notice to the delinquent that revocation is again being considered before probation can be revoked. If we were to construe the statute to authorize the procedure used in this case, it might well run afoul of the prohibition against double jeopardy, for it was settled by the Supreme Court in Breed v. Jones, 421 U.S. 519 (1975), that jeopardy does attach within the meaning of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, in an adjudicatory delinquency proceeding in juvenile court. Accordingly, we reverse and remand to the juvenile division of chancery court for proceedings consistent with this opinion.


text:
    X. DOTSON and Fern Dotson, Husband and Wife, and Dotson Land and Cattle Co., Inc. v. MADISON COUNTY, Arkansas
    92-701
    844 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered January 11, 1993
    [Rehearing denied February 15, 1993.]

      Phillip A. Moon, for appellants.

      Howard Cain, Jr., for appellee.

      Holt, C.J., not participating.

   Robert H. Dudley, Justice.

This is a condemnation case. In 1986, the Arkansas State Highway Commission petitioned the County Court of Madison County and asked the County Court to condemn some property adjacent to State Highway 295 in Madison County so that some of the curves in the road could be made safer. Section 27-67-212 of the Arkansas Code Annotated of 1987 provides that the Commission may request that the county condemn land for a change in a state highway. Section 27-67-212(b) provides that if a county refuses the Commission’s request, the Commission may either refuse to improve the road or file the condemnation action itself and force the county to pay for half of the cost of condemnation. Ark. Code Ann. §§ 27-67-212(b); 27-67-320 (1987). Madison County acceded to the Commission’s request and commenced condemnation proceedings against the appellants. The County Court of Madison County condemned a perpetual easement over some of appellants’ land for highway purposes. Appellants were given notice of the order after it was entered.

Appellants filed a petition in the County Court of Madison County in which they alleged: “That said statutes in that they allow petitioners’ rights to be decided without notice or hearing are unconstitutional on their face and as applied in this case, because they violate petitioners’ due process rights guaranteed under both the Arkansas and United States Constitution[,]” and alternatively asked for damages. The record does not reflect what was argued to the County Court. The record reflects only that the Judge of the County Court ruled, “That Ark. Stat. Ann. §§ 76-926 and 76-928 do not violate Petitioners’ due process rights under either the Arkansas or United States Constitutions.” The County Court ruled that the improvements to the highway benefitted appellants’ land to such an extent that no damages were due.

Appellants appealed to circuit court and apparently made a due process argument that is not in the record currently before us, and alternatively asked for damages. The trial court rejected the due process argument and set the case for trial. A jury awarded a judgment against the Commission. The Commission appealed. We held that the Commission was not the proper party defendant and reversed and remanded. Arkansas State Highway Comm’n v. Dotson, 301 Ark. 54, 781 S.W.2d 459 (1989). Upon remand, the case was again tried in circuit court. This time, a jury found that appellants were not entitled to any damages.

Appellants appeal and argue that their right to due process has been violated since the county judge, who presides over the county court and initially determines the value of the land condemned, is also the chief executive officer of the county, and accordingly, has an interest in not fully and fairly assessing the damages suffered by a landowner. In support of their argument they cite Tumey v. Ohio, 273 U.S. 510 (1920), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Gore v. Emerson, 262 Ark. 463, 557 S.W.2d 880 (1977). The argument might well have merit, but we do not reach it.

The record of the proceedings in the trial court reflects only that the appellants argued they were denied due process because they were not given notice before the condemnation proceeding was commenced. Similarly, the judgment reflects only that “issues pertaining to the constitutionality of Ark. Code Ann. § 27-67-212 and Ark. Code Ann. § 14-298-121 [are] being submitted herein to the court for proper adjudication and determination. . . .’’The judgment does not reflect that the trial court ruled on these “issues,” but the record discloses that the trial court ruled from the bench, “I’m going to deny your motion to declare those statutes unconstitutional again.”

The record does not reflect that an argument was presented to the court that the appellants were denied due process because of the dual capacities of the county judge, or that the trial court ruled on such an argument. Generally, an appellate court in this State reverses a trial court only when that trial court has committed some prejudicial error, and if an issue was never presented to the trial court, it could not have committed error on that issue. See Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). As a general rule, plain error is not recognized by our state appellate courts, Sturgis v. Lee Apparel Co., 304 Ark. 235, 800 S.W.2d 719 (1990), and, as we have so often said, appellate courts will not consider an argument presented for the first time on appeal. Moorman v. Lynch, 310 Ark. 525, 837 S.W.2d 886 (1992).

Affirmed.

Holt, C. J., not participating.


text:
    Wilburn A. HENDERSON v. STATE of Arkansas
    CR 92-579
    844 S.W.2d 360
    Supreme Court of Arkansas
    Opinion delivered January 11, 1993

      Durrett & Coleman, by: Gerald A. Coleman and Therese H. Green, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant has been tried three times for the capital murder of Willa Dean O’Neal. Appellant’s first trial ended in a mistrial. In the second trial, he was convicted of capital murder and received the death penalty. We affirmed his conviction and death penalty sentence in Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). Appellant then sought and received a writ of habeas corpus from the federal court. Henderson v. Sargent, 926 F.2d 706 (8th Cir. 1991). The state retried the appellant, and he was again convicted of capital murder and received the death penalty. Appellant appeals to this court from his second conviction raising seven points of error. We affirm.

At approximately 2:00 p.m. on November 24, 1981, Willa O’Neal was found murdered in the furniture store she owned with her husband. The store’s cash register was found opened and money was missing. The police had the following evidence against the appellant. Appellant fled to Houston when he found out he was a murder suspect. While he was incarcerated in Houston, he gave a statement saying that, while he was in the store at the time of the shooting, Ollie Brown was the triggerman. At the crime scene, the police found a piece of paper which showed a floor plan of a rental property and the phone number for the real estate agent. Appellant had been seen with this piece of paper a few days prior to the murder and had contacted the real estate agent and set up an appointment to see the property. Further, a few days before the murder, appellant had removed a .22 caliber pistol from a pawn shop and repawned that same pistol a few days after the murder. A .22 caliber pistol was the murder weapon, but ballistic experts could not eliminate nor positively identify appellant’s pistol as the murder weapon.

In his first issue, the appellant argues that the trial court erred in denying his motion to suppress his in-custody statement. We first note that the state argues that we should dismiss this argument under the doctrine of law of the case because the appellant raised this issue in the first appeal. The doctrine of law of the case prevents an issue raised in the first appeal from being raised in the second appeal, unless the evidence materially varies between the two appeals. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). The law of the case doctrine is not applicable here, because the appellant argues for the first time that his statement should be suppressed because of mental illness.

Appellant introduced testimony from two psychiatrists that the appellant had a prior history of mental illness and was diagnosed in 1962 as being schizophrenic. The State Hospital examined the appellant in 1981, the year he gave his statement to the police, and found no indication of psychosis.

In considering a motion to suppress an in-custody statement, this court makes an independent determination of the voluntariness of a confession, but does not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. See Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). In determining whether a statement is voluntary, this court considers the following factors: age of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id.

Applying these factors to the facts of the present case, the appellant was thirty-eight at the time of the statement. He was incarcerated for two days in the Houston jail before the Fort Smith police officers arrived to question him. Captain Larry Hammond testified that the appellant signed the rights waiver, appeared to understand his rights and told the officers he would talk without a lawyer present. Further, appellant’s own witness, Dr. Showalter, testified that the appellant was not retarded and had a basic level of intelligence. Based on these factors, we cannot say that the appellant’s statement was not voluntary. While the appellant’s witnesses established that he had a prior history of mental illness in 1962, the State Hospital examined the appellant around the time of the murder and the giving of his statement in 1981 and found no evidence of psychosis. Appellant’s own witness admitted that, while the appellant was diagnosed as being schizophrenic in 1962, those symptoms could have “burned itself out” by the time the appellant was examined in 1981. Lastly, we note that the appellant argues that Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), is controlling on this case. In Mauppin, the appellant had a self-inflicted gunshot wound to his head and had undergone brain surgery. The State Hospital found that Mauppin was unaware of the charges and proceedings against him. Clearly, the facts in the present case are distinguishable from Mauppin.

In the second issue, the appellant argues that the trial court erred in allowing the state to introduce into evidence a prior consistent statement of a rebuttal witness. Appellant’s trial strategy was to point the finger at the victim’s husband, Bob O’Neal. Evidence was presented to the jury showing that Bob was the last person to see the victim alive when he returned to the store to eat lunch. The state called Clarence Wilson as a rebuttal witness. Mr. Wilson testified that he saw the victim after 1:00 p.m., and at that time the victim told him that her husband had just been there for lunch but had returned to the job site. On cross-examination, the appellant established that Mr. Wilson did not testify to this fact in the federal habeas corpus proceeding. On redirect, the trial court allowed the state to use a prior consistent statement that Mr. Wilson had told the police that when he last saw the victim she told him that her husband had just left.

Ordinarily, evidence of prior consistent statements is not admissible to bolster credibility because it is hearsay. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). However, A.R.E. Rule 801(d)(l)(ii) provides for the following exemption:

A statement is not hearsay if:
(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,

This court has stated that when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath, it is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). Such is the situation in the present case.

In the third issue, the appellant argues that the trial court erred in denying his motion for a continuance between the guilty and penalty phase of the trial. The jury returned with its verdict after 5:00 p.m., and the appellant’s attorney requested a continuance of the penalty phase of the trial until the next morning. Appellant’s attorney argued that his client was not in the frame of mind to get ready for the penalty phase of the trial. The prosecution strongly opposed the continuance noting that the alternate jurors had already been dismissed and the problem of possible juror contamination.

Appellant argues in his brief that he was prejudiced by the trial court’s denial of his motion for a continuance, because the appellant did not take the witness stand. Appellant’s attorney argues here that he was prejudiced because it was imperative for the jury to get an opportunity to meet him as a human being, and that if he had been given an overnight continuance he could have convinced the appellant to testify. Further, the appellant argues that when appellant’s mother took the stand, she criticized the jurors for their verdict because she was upset.

Whether to grant a continuance is addressed to the sound discretion of the trial court, and this court will not reverse unless the trial court’s discretion has been abused. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). The burden is on the appellant to show that there has been an abuse of the trial court’s discretion in denying the continuance. Id.

Under the facts of this case, we cannot say that the trial court abused its discretion. The appellant’s attorney had represented the appellant for two years. As the state argues, this is ample time to prepare for one’s strategy. Further, since the appellant had already once been convicted for this murder, we fail to see how he could be so shocked and surprised at the verdict that he could not cooperate with his attorney in his defense at the penalty phase. On the other hand, appellant’s choice not to testify and use that as the reason to request a continuance places him in the position to manipulate the court. This is especially true here since appellant’s attorney failed to proffer any testimony from the appellant, nor can we be sure that he would have taken the stand if he had been given a continuance.

Appellant attacks the constitutionality of the death penalty statute, Ark. Code Ann. § 5-4-603 (Supp. 1991), by arguing in his fourth point, that the statute requires a mandatory death sentence, is arbitrary and capricious and provides for no mandatory appeal. We summarily dismiss this argument by noting that this court has previously addressed and rejected these constitutional challenges to the death penalty statute. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991).

We can also summarily dismiss the appellant’s fifth and sixth points. In appellant’s fifth point, he argues that he must be charged by a grand jury instead of an information. This court has repeatedly rejected this argument. See, e.g., Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). Next, the appellant argues that the trial court erred in not granting his motion to argue first and last in the penalty phase. We have held that the prosecutor has the right to close argument in the penalty phase because the state has the burden of proof. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987).

In his final argument, the appellant argues that this court should set aside his death sentence upon comparative review. In conducting a comparative review of death penalty cases, this court considers the following things: 1) whether the sentence was the result of passion, prejudice, or any arbitrary factor; 2) whether the evidence supports the jury’s finding of any statutory aggravating circumstances; 3) whether the evidence supports the jury’s findings on the question of whether the mitigating circumstances outweigh aggravating ones; and 4) whether the sentence is excessive.

The jury found two aggravating circumstances in the present case: appellant previously committed another felony of which an element is a threat of violence to another person, created a substantial risk of death or serious physical injury to another person; and the capital murder was committed for pecuniary gain. The jury, unanimously, did not find any mitigating factors.

In applying the factors set out above, we do not find that the'jury’s verdict was the result of passion, prejudice or any other arbitrary factor. We find such a holding consistent with other death penalty cases, where the death penalty was given for murders committed during robberies. See Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

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


author: Donald L. Corbin, Justice.

text:
    CITY OF FORT SMITH et al. v. William TATE (Deceased)
    92-707
    844 S.W.2d 356
    Supreme Court of Arkansas
    Opinion delivered January 11, 1993

      Public Employee Claims Division, by: Frank Gobell, for appellants.

      Odom & Elliott, by: Don R. Elliott, Jr., for appellee.
   Donald L. Corbin, Justice.

In this worker’s compensation case, appellants appeal the decision of the Court of Appeals affirming the decision of the Workers’ Compensation Commission holding that appellants were responsible for the payment of the remarriage lump sum benefits under Ark. Code Ann. § 11-9-527(d)(1) (1987). City of Fort Smith v. Tate, 38 Ark. App. 172, 832 S.W.2d 262 (1992). Appellants filed a petition for review with this court on June 12, 1992, which was granted on June 29, 1992. On review, wé affirm the decision of the Court of Appeals. Since we find it difficult to improve on the well-reasoned opinion of the Court of Appeals, we adopt their opinion almost verbatim.

Appellee, William Tate, was killed in January of 1981 during the course of his employment with the Fort Smith Police Department. He was survived by his wife, Anita, and two minor children. The claim was accepted as compensable and appellants began paying death benefits. At the time of Tate’s death, the maximum liability of an employer or its carrier in weekly benefits was $50,000.00. Appellants reached payment of the maximum amount in August of 1988. The Death and Permanent Total Disability Trust Fund (Fund) then began making the weekly benefit payment, as required by Ark. Code Ann. § 11-9-502(b)(2) (1987). On June 8, 1990, Anita remarried and requested the 104-week lump sum award provided pursuant to section 1 l-9-527(d)(l). It is the availability of this lump sum award that is at issue in this case.

At the hearing before the administrative law judge, appellants contended that the Fund was liable for the lump sum payment. Relying on Death & Permanent Total Disability Trust Fund v. Tyson Foods, Inc., 304 Ark. 359, 801 S.W.2d 653 (1991), the administrative law judge concluded that appellants were responsible for payment of the lump sum benefit. In Tyson Foods, Inc., we addressed whether Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) (now codified at Ark. Code Ann. § 11-9-502(b)(1) and (2) (1987)), and Ark. Stat. Ann. § 81-1315(d) (Repl. 1976) (now codified at Ark. Code Ann. § 1 l-9-527(d)(l) (1987)), allowed an employer or its insurance carrier to credit the 104-week lump sum payment made pursuant to section 81-1315(d) against its statutory liability for “weekly benefits” pursuant to section 81-1310(c)(2). We said:

Section 81-1310(c)(2) clearly places a maximum amount upon “weekly benefits” for death and permanent total disability for which an employer or his insurance carrier is liable; significantly, however, the section does not provide for the inclusion of any other benefits in computing the maximum amount for which the employer or his insurance carrier is liable.
[A] dependent widow is entitled to weekly benefits until death or remarriage. Upon her remarriage, a widow’s weekly benefits terminate, and she receives a lump sum benefit equal to 104 weeks of the compensation to which she was entitled before marriage.
[T]he lump sum payment is not a weekly benefit. Therefore, [the employer or his insurance carrier] is not entitled to credit the lump sum payment against its maximum statutory liability.

Id. at 361-62, 801 S.W.2d at 655.

On appeal before the full Commission, appellants raised a new argument, contending that Anita was not qualified for the lump sum benefit because of the “limiting language” found in section 1 l-9-527(d)(l). That provision states:

In the event the widow remarries before full and complete payment to her of the benefits provided in subsection (c) of this section, there shall be paid to her a lump sum equal to compensation for one hundred four (104) weeks, subject to the limitation set out in §§ 11-9-501-11-9-506.

(Emphasis added.) Subsection (c), to which this provision refers, sets out the amounts the beneficiaries are entitled to receive. It refers back to Ark. Code Ann. §§ 11-9-501 to -506 (1987). Section 11-9-502 specifically provided at the time of Tate’s death that the employer’s liability for weekly benefits ceased at $50,000.00 and that the Fund thereafter became liable for benefits.

Appellants base their contention that the Commission erred in finding them responsible for the lump sum benefit on the “before full and complete payment” language in section 11-9-527(d)(1). Under section 11-9-502, a widow’s entitlement to benefits will never end unless she dies or remarries, but the employer’s liability does cease at $50,000.00. Appellants argue that since the only type of benefit that can be fully and completely paid is the employer’s maximum liability for weekly benefits, the widow must remarry before the employer or carrier pays the full $50,000.00 in order to qualify for the lump sum benefit.

In a well-reasoned opinion, the Commission observed that the “full and complete payment” phrase does create uncertainty when considered in light of the unlimited nature of the benefits provided in section 1 l-9-527(c), but rejected appellants’ contention that Anita was not qualified for the lump sum benefit. Based on the reasoning discussed below, the Commission determined Anita was entitled to receive the lump sum benefit and that appellants were responsible for payment of the benefit.

As did the Commission and the Court of Appeals, we find it helpful to review the history of this provision and related provisions. The provision containing the language in question was part of the original Workers’ Compensation law that was passed in 1939. See Act of 319 of 1939, §§ 15(b) and 15(d). Under this act, a widow’s weekly benefits were limited to a total sum of $7,000.00. Initiated Act No. 4 of 1948 increased this amount to $8,000.00. Initiated Act No. 1 of 1956 again increased the limit, setting it at $12,500.00. Therefore, as originally enacted, a widow’s entitlement to weekly benefits was limited and “full and complete payment” of a widow’s weekly benefits was possible prior to either her remarriage or death.

In 1968 the legislature eliminated the statutory limitation on the total amount of death benefits payable to the dependents of a deceased employee. In 1973, a new provision was added, limiting the employer’s liability to the first $50,000.00 in weekly benefits and making the Fund liable for the weekly benefits in excess of $50,000.00. Although these new provisions were enacted, changing the nature of a widow’s benefits from limited to unlimited, the “full and complete payment” language was left in the provision regarding the lump sum benefit.

The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled. Id. Provisions of our Workers’ Compensation Act are to be construed liberally in favor of the claimant. Id. In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter. Hanford Produce Co. v. Clemons, 242 Ark. 240, 412 S.W.2d 828 (1967).

As pointed out by the Commission, the statutory history of the provisions in question reflects an effort to balance the need to limit the total liability of employers and carriers against the need to adequately compensate employees and their dependents. The delimitation of benefits in 1968 and the establishment of the Fund in 1973 reflects the goal of adequately compensating the widow and dependents of a deceased employee. The obvious purpose of the lump sum benefit provision upon remarriage is to lessen the disincentive to remarry that would be inherent in a flat cutoff of dependency benefits. See 2 Arthur Larson, The Law of Workmen’s Compensation § 64.42 (1992). This disincentive for marriage does not cease to exist when the employer reaches his maximum liability in weekly benefits; it continues indefinitely because the widow continues to receive benefits from the Fund. Therefore, the need for the reduction of the disincentive, in the form of a lump sum payment, is still needed even after the employer reaches his maximum liability.

Significant also is the fact that the limit on an employer or its carrier’s liability under section 11-9-502 applies only to weekly benefits. The employer or its carrier is still responsible for any benefits in addition to weekly compensation to which the claimant is entitled. See, e.g., Tyson, 304 Ark. 359, 801 S.W.2d 653. It is therefore not inconsistent with the limitations on liability'found in section 11-9-502 to require the employer or its carrier to pay the lump sum benefit.

The Commission noted that although its interpretation of the statute does leave the “full and complete payment” language without meaning under the current statutory scheme, the interpretation proposed by appellants would create a ground for termination of a widow’s entitlement to receive the lump sum benefit upon remarriage that it is not evident from the language of the statute. Such a construction would be in favor of the employer and therefore violate the requirement that we liberally construe workers’ compensation law in favor of the claimant. See Ashby, 294 Ark. 412, 743 S.W.2d 798.

We agree with the Commission’s finding that allowing the widow to receive the lump sum payment at the time she is remarried, regardless of whether the employer or its carrier has reached its maximum liability in weekly benefits, is the only interpretation of the statute that is consistent with the plain language of the statute, the history of the provisions in question, and the purposes underlying these provisions. It appears that the “full and complete payment” language was inadvertently left in from a time when it had some relevance and, in light of the delimitation on a widow’s weekly benefits, it is now meaningless surplusage. Although a statute should be construed to give meaning and effect to every word therein if possible, Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968), unnecessary or contradictory clauses in acts will be deleted and disregarded in order to give effect to the clear legislative intent. See Cherry v. Leonard, 189 Ark. 869, 75 S.W.2d 401 (1934), and cases cited therein.

The decision of the Commission that appellee’s widow is entitled to lump sum remarriage benefit and that appellants are liable for payment of that benefit and the Court of Appeals’ decision are affirmed.

Affirmed.


text:
    Stacy Lavelle BOGARD v. STATE of Arkansas
    CR 92-960
    844 S.W.2d 347
    Supreme Court of Arkansas
    Opinion delivered January 11, 1993

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

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

Appellant Stacy Lavelle Bogard, age sixteen at the time, was charged with capital murder for the death by shooting of Jessie Faulkner. Fie was convicted of first-degree murder and sentenced to life imprisonment. On appeal, he urges that the circuit court erred in failing to suppress oral custodial statements made by him because he was unaware that unrecorded statements could be used against him as evidence. This issue has no merit, and we affirm.

On June 6, 1991, Jessie Faulkner called the North Little Rock police and reported that Bogard was harassing people in the neighborhood. Bogard was arrested but released that same night at about 8:00 p.m., and he returned to Faulkner’s area. He accosted Faulkner, and, according to one witness, said that Faulkner had “snitched” on him and then shot at him with a pistol three or four times. One shot hit Faulkner in the head and a second shot struck him in the upper left back. Faulkner was found by the North Little Rock Police dead on the ground with a pocketknife in his hand.

At 4:00 a.m. the following morning, the police arrested Bogard. He was taken to the police station, accompanied by his mother, where he was read his Miranda rights. Both Bogard and his mother initialed each right. In addition, North Little Rock Police Detective William Kovach asked Bogard if he understood his rights, and he said that he did. Bogard and his mother then signed the waiver of rights form. Following that, he agreed to talk to police officers but would not permit the interview to be recorded. Instead, Detective Kovach and a second North Little Rock detective, Donnie Smith, took notes. He told the detectives that he shot Faulkner but did so in self-defense. A month later, Bogard told Dr. Michael J. Simon, supervising forensic psychologist at the State Hospital where he was committed for evaluation, that the state would have a difficult time proving its case because “I didn’t give them no statement.”

Prior to trial, Bogard moved to suppress his oral statements, contending that he did not fully understand what rights he had waived prefatory to making the statements. A hearing was held, and after the hearing the circuit court denied the motion. The trial followed, and Bogard’s oral statements were introduced into evidence. The jury found him guilty of first-degree murder, and he was sentenced to life imprisonment.

The crux of Bogard’s argument is that he believed that unrecorded comments to police officers could not be used against him. This, he contends, is evidence that he did not fully understand the Miranda warnings that what he said would be used against him. Thus, he argues that his waiver was not effective and that his oral statement should have been suppressed. The state contests this and contends that the record is clear that Bogard was fully apprised of his rights and understood them. He chose, however, to submit to a police interview.

Statements made to law enforcement officers during custodial interrogations are admissible only after the state establishes that a defendant voluntarily, knowingly, and intelligently waived his right to counsel. Miranda v. Arizona, 384 U.S. 436 (1966). At issue in the case before us is not whether Bogard’s statements or waiver were involuntarily made, that is, coerced in some form or fashion, but rather whether the waiver was given without full comprehension of the nature of the right abandoned and the consequences of that abandonment. See Moran v. Burbine, 475 U.S. 412 (1986). Whether the defendant knowingly and intelligently waived his rights must be determined by the totality of the circumstances. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Our standard of review is whether the circuit court’s finding that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Mauppin v. State, supra; Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990).

We are not convinced that Bogard’s stated confusion invalidates a knowing and intelligent waiver of his right to remain silent. Both Bogard and the state rely on the case of Connecticut v. Barrett, 479 U.S. 523 (1987) for their respective positions, and the facts in Barrett do approximate the facts in this appeal. In Barrett, the defendant was arrested for sexual assault and advised of his Miranda rights. He told police officers that he understood his rights and would not give a written statement without counsel being present. He did not object, however, to talking to officers about the incident. In his comments which followed, he admitted complicity in the crime. The trial court allowed the officers to testify about his statements, but the Connecticut Supreme Court reversed on the basis that Barrett had requested counsel and that served as an invocation of that right for all purposes.

The United States Supreme Court reversed the Connecticut Supreme Court and held that Barrett made clear to police that he was willing to talk about the crime in the face of the Miranda warnings. The Court stated: "Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.” 523 U.S. at 529. The Court then addressed whether the distinction that Barrett drew between oral and written statements exhibited a lack of understanding about his rights. The Court concluded that it did not:

We also reject the contention that the distinction drawn by Barrett between oral and written statements indicates an understanding of the consequences so incomplete that we should deem his limited invocation of the right.to counsel effective for all purposes. This suggestion ignores Barrett’s testimony — and the finding of the trial court not questioned by the Connecticut Supreme Court — that respondent fully understood the Miranda warnings. These warnings, of course, made clear to Barrett that “[i]f you talk to any police officers, anything you say can and will be used against you-in court.” (Citing to record.) The fact that some might find Barrett’s decision illogical is irrelevant, for we have never “embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness.” (Citing authority.)

479 U.S. at 530.

In this case, Bogard was fully apprised of his rights as evidenced by his initials and his mother’s initials on the rights form and his signed waiver form. Police officers also testified that they believed that he understood his rights. Bogard was sixteen years old at the time and had a ninth-grade education. Moreover, he was not a newcomer to the criminal justice system, having been arrested previously and convicted of two burglaries. At some point, he did draw in his own mind a distinction between recorded and unrecorded statements and their effectiveness. This may have been illogical but, as Connecticut v. Barrett, supra, illustrates, the point is irrelevant to the issue of whether Bogard chose to speak freely or not. He clearly did, and his statement was appropriately entered into evidence.

Because life imprisonment is the sentence, Rule 11 (f) of our Supreme Court Rules comes into play. That rule provides that the appellant must abstract all objections decided adversely to him, together with parts of.the record necessary for understanding, and that the Attorney General shall assure that this occurs and brief all points that involve error. We note that both parties failed to comply sufficiently with Rule 11 (f) with regard to motions and objections made by the appellant. The record in this case, however, has been examined in accordance with Rule 11 (f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


text:
    IN RE ADOPTION OF K.F.H. and K.F.H.
    92-183
    844 S.W.2d 343
    Supreme Court of Arkansas
    Substituted opinion delivered February 8, 1993

      MacDonald & Goren, by: Lisa J. Vogler, and Snellgrove, Laser, Langley & Lovett, by: Todd Williams, for appellant.

      Kathleen C. Boyle, and Friday, Eldredge & Clark, by: Robert S. Shafer, for appellee.

      Original opinion delivered January 11, 1993.

   Robert L. Brown, Justice.

This case involves the adoption of two children, K.F.H. and K.F.H., without the consent of their natural mother the appellant. The probate judge granted the adoption and terminated the parental rights of the appellant. The appellant raises three points on appeal. The points raised are without merit, and we affirm the judgment of the probate judge.

There are two appellees, the natural father and his wife, the adoptive mother. The natural father, who lives in Jonesboro, hired a Michigan lawyer to locate a surrogate mother to bear him a child. He was then put in contact with the appellant. On February 17, 1986, the appellant contracted with the natural father to be artificially inseminated with his sperm and to bear him a child whom he and his wife would subsequently adopt. In June of 1986, the appellant became pregnant but miscarried. Afterwards, she was artificially inseminated numerous times in December 1986 and January 1987 with the appellee’s sperm and became pregnant again in January of 1987, this time with twins.

During the pregnancy, the appellant decided that she wanted to keep the children she was carrying and filed a complaint in Michigan on August 19,1989, to void the surrogate parenting contract as contrary to public policy. The appellees then filed a complaint, also in Michigan, asserting that one of the appellees was the natural father of the children and praying for their adoption by the other appellee in accordance with the agreement. Twins, K.F.H. and K.F.H., were born to the appellant on September 4, 1987, in Michigan.

On April 21, 1988, an order was entered by the Michigan circuit court voiding the surrogate parenting contract on public policy grounds. A second order was entered, also on April 21, 1988, stating that the natural father would have legal and physical custody of the twins, that the appellant would be permitted visitation, that the appellant must pay $28.00 per week for child support which the court abated in light of her anticipated visitation expenses, and that the appellees must send the appellant periodic reports on the children.

The appellant moved from Michigan to Ohio sometime in April of 1990. On September 18,1990, jurisdiction of this matter was transferred from the Michigan circuit court to the Craighead County Chancery Court. On November 1, 1990, the appellees filed a petition in the Craighead County Probate Court for the wife of the natural father to adopt the twins. In that petition, they contended that one of the appellees was the biological father and that the appellant’s consent was not required because she had failed, without justifiable cause, to communicate with the children for at least a year. On July 19, 1991, the probate judge granted the petition for adoption and found that the appellant’s consent was not required due to failure to communicate with her children as alleged. He further found that it was in the children’s best interest that the natural father’s wife adopt them.

I. CHOICE OF LAW

Under Arkansas law, parental consent is not required of the non-custodial parent if that parent fails significantly and without justifiable cause to communicate with the child for a period of at least one year. Ark. Code Ann. § 9-9-207(a)(2) (1987).

The appellant first contends that because this case originated in Michigan that state’s laws applied up to the point when jurisdiction of the case was transferred to Arkansas on September 18,1990. Michigan statutory law provided at the time that the consent of a non-custodial parent could be waived if the non-custodial parent had failed or neglected to provide regular and substantial support for a period of two years, or had the ability to but failed to regularly or substantially communicate with the child for a period of two years. According to the appellant, Arkansas’s one-year requirement could only apply for the period accruing after the case was transferred to this state on September 18, 1990.

The focal point for this issue is the date when the adoption petition was filed — November 1, 1990. By that date, the Craighead County Probate Court clearly had jurisdiction of the cause. We have held that the one-year period after which a parent may lose the right to consent must accrue before filing the adoption petition and that the filing of the petition is the cutoff date. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We have further held that the one-year requirement applies to any one-year period between the date of birth and date the petition for adoption was filed and is not limited to the year immediately preceding the filing of the adoption petition. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). And we have applied the one-year period against a nonresident parent who failed to support his child significantly for a year and thereby lost the right to consent. Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981).

Here, we are presented with a novel circumstance in that jurisdiction of the case was transferred to Arkansas shortly before the adoption petition was filed. The probate judge, however, was presented with no clear and cogent reason not to apply Arkansas law to this cause other than the fact that the case had only been in Arkansas for a month and a half. It is elementary that the laws of the forum state typically are applied to its cases and controversies. We hold that there was no error in the application of Arkansas law to circumstances occurring prior to the transfer of jurisdiction.

The appellant contends for the first time on appeal that her due process rights were violated because of lack of notice that she stood to lose her parental rights by the retrospective application of Arkansas law to a time when the Michigan circuit court still had jurisdiction. It does not appear, though, that the appellant raised this constitutional argument before the probate judge. Merely arguing that Arkansas law should not apply until after the court obtained jurisdiction, as the appellant did before the probate judge, did not alert the judge to the constitutional arguments now presented. This court will not consider any argument raised for the first time on appeal, even a constitutional argument. Arkansas County v. Burris, 308 Ark. 490, 825 S.W.2d 590 (1992).

II. WAIVER OF CONSENT

For her second point, the appellant urges that she did not fail to communicate with her children for a year, and even if this court concludes that she did, this lapse was justifiable under § 9-9-207(a)(2).

Statutes for the adoption of children are strictly construed and applied. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). We have placed a heavy burden of proof on one wishing to adopt a child without the consent of a parent and that burden is by clear and convincing evidence. In the Matter of the Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986); Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). The question we must now answer on appeal is whether the probate judge’s finding of lack of parental contact without justification was clearly erroneous. See Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).

The record reveals that the appellant’s last visit with her children was on March 20,1989, and no contact was had with them until she mailed birthday cards on September 27, 1990. That represents a period of a year and one-half when there was no communication between the appellant and the twins. The appellant insists that a letter she wrote dated March 8, 1990, to Ms. Evelyn Green, the appointed friend of the Michigan court, requesting visitation of the children, and a progress report sent from the appellees to her concerning the children made in April 1990 qualify as communication with the children. The argument though is specious. Communication with Ms. Green or the appellees did not constitute communication with the children. The fact of the matter is there was no contact with the children for more than a year.

We are left then with the pivotal question of whether the failure to communicate was without justifiable cause under the statute. We do not believe that the probate judge clearly erred in finding no justification. Failure to communicate without justifiable cause means a failure that is voluntary, willful, arbitrary, and without adequate excuse. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980).

The appellant presents several reasons why her lack of communication with the twins was justified. She points to her relationship with the appellees, which, she stated, had been adversarial since the birth of the twins, and to the age of the twins, which made it impossible for her to communicate with them without the cooperation of the appellees. She also states that she sent letters and cards to the twins which they never received. And, she maintains that she tried to arrange for a visit with the children in March of 1990. Lastly, she claims that financial problems and her pregnancy prevented her from traveling.

In his findings, the probate judge highlighted the frustration that Evelyn Green had in maintaining contact with the appellant and in arranging her visits with the children:

Ms. Green continued trying to arrange visits for respondent (appellant) and was unable to make any arrangements. In fact, during part of this time respondent refused to give her her home address and when she finally met with Ms. Green she informed her she was pregnant.
It must be noted that during all of the time Ms. Green was seeking to arrange visitation with these children, the appellees cooperated fully and completely in order to facilitate respondent’s court ordered visitation with the children. It appears to this Court that Ms. Green complied fully and completely with the Michigan Court Orders and did everything within her power to help respondent in arranging these periods of visitation with the children. It appears that she was frustrated in her attempts to carry out the Orders of the Court due to respondent’s actions and not due to any reluctance on the part of petitioners (the appellees) to assist with the visitation or any refusal on the part of Ms. Green to comply with the Orders of the Court. Respondent testified that she was unable to exercise some visitation periods scheduled by Ms. Green due to lack of finances required for travel. She also admitted, however, that during the period of time from the entry of the Order in 1988 until her last visitation with these children in March, 1989, she had engaged in relationships with at least two men, one relationship resulting in the birth of three children and her later marriage to that man just prior to the hearing in this case. At one point she candidly admitted that she did not furnish Ms. Green her address because the man she was living with did not want his address given to third parties. During the time in question respondent made no effort to communicate with these children in any manner other than the visitations which have already been discussed.

The record supports the probate judge’s findings. In addition, though the appellant argues on appeal that she sent cards and presents to the children during the relevant eighteen-month period, this is not reflected in the record. What the record does reflect is that during this time period the appellant had a job, received money from a student grant and loan to attend college, and was paid for an article on surrogate motherhood. She also made several trips out of state, including a trip to Florida in May 1990 with her other children.

We view the issue of justifiable cause as factual but one that largely is determined on the basis of the credibility of the witnesses. This court gives great weight to a trial judge’s personal observations when the welfare of young children is involved. In re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); see also In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). The probate judge found that proof of the appellant’s disregard of the children for more than a year was clear and convincing. We cannot say that the evidence is to the contrary.

III. RELEVANCY OF WITNESSES

For her last point, the appellant argues that it was error to admit the testimony of Evelyn Green and Mr. Emmett Presley, a teacher at Arkansas State University in the field of social work who was asked to oversee the appellant’s visits with the twins in Jonesboro. Ms. Green testified to communication problems with the appellant, her indecisiveness, and her move from Michigan to Ohio without notice. Mr. Presley testified that a male friend accompanied the appellant on one visitation. According to the appellant, both witnesses’ testimony was prejudicial and irrelevant.

We disagree. First, their testimony was especially relevant to the question of arranging the appellant’s visits with the twins and to how the visits actually transpired since both people were directly involved in that process. A trial court’s ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). Here, we discern no such abuse.

Secondly, we note that while the probate judge conceded that all of the Green/Presley testimony might not be relevant, he added that he could separate any chaff from the wheat. Even if some chaff was admitted into evidence, we have held that in a bench trial the trial judge is capable of evaluating the evidence, and the judgment will stand unless all of the competent evidence is insufficient to support the judgment or the incompetent evidence induced as essential finding that would not otherwise have been made. See Rich Mountain Elec. Coop. v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992); Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991). We hold that neither circumstance exists in this case.

Affirmed.