text:
    Sammy PARKER, Jr. v. STATE of Arkansas
    CR 90-56
    790 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Will Stocks, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of selling crack cocaine and sentenced to thirty-five (35) years in prison. There is no merit in either of his points of appeal and, accordingly, we affirm the judgment of conviction.

A confidential informant, who had known appellant since childhood, introduced an undercover officer to appellant. The informant told appellant that the undercover officer was a relative from out-of-state who was visiting in Magnolia and wanted to buy some drugs. Appellant, an admitted drug user, said he did not have any drugs, but knew where to get some. He drove the informant and the officer to the residence of another acquaintance. While still in the car the officer gave appellant either $20.00 or $30.00. The appellant then took the money into the residence and came out with a “rock” of cocaine. He gave it to the undercover officer. The officer gave him a piece of the rock and he smoked it.

Appellant had a prior conviction for selling marijuana and was charged as a second offender of the controlled substance statute. See Ark. Code Ann. § 5-64-408 (1987).

Appellant first argues that he was prejudiced by an erroneous jury instruction. The facts giving rise to the argument occurred in the following way. Appellant was charged with the violation of schedule II of the controlled substance act. Ark. Code Ann. § 5-64-401 (1987). The penalty for violation of that act is imprisonment “for not less than ten (10) years nor more than forty (40) years, or life,” and a fine. That penalty provision is modified, however, for a second or subsequent conviction. Ark. Code Ann. § 5-64-408 (1987) provides that upon second conviction the defendant “shall be imprisoned for a term up to twice the term otherwise authorized, . . . .” The trial court, without objection, instructed the jury, and gave it a verdict form, which authorized a sentence ranging from twenty (20) to eighty (80) years. After the jury had gone to the jury room to begin deliberating, the appellant’s attorney decided that the penalty enhancement statute only modified the maximum and not the minimum amount of time to be served. He requested that the verdict form be modified to authorize a sentence ranging from ten (10) to eighty (80) years, instead of twenty (20) to eighty (80) years. The trial court granted the request, and the verdict form was modified. Ultimately, the jury returned a verdict of thirty-five (35) years.

Appellant’s argument that the trial court committed reversible error is without merit for a number of reasons. First, there was no objection to the instruction or the verdict form either before or at the time they were given. We have consistently held that objections must be made either before or at the time jury instructions are given. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983). Second, the trial court granted the relief requested by appellant, and one cannot complain about a favorable ruling. Third, even if there had been error, appellant suffered no possible prejudice because his sentence of thirty-five (35) years was greater than the originally instructed minimum, twenty (20) years.

Next, appellant admits he was “technically” guilty of the charge, but, even so, argues that the trial court erred in refusing to grant a directed verdict. The trial court did not err. There was substantial evidence to show that appellant transferred, or handed over, rock cocaine, a controlled substance, to the undercover officer in exchange for $20.00 or $30.00 cash. Ark. Code Ann. § 5-64-101 (f) (1987) defines “delivery” as “the actual, constructive, or attempted transfer from one person to another of a controlled substance or counterfeit substance in exchange for money, or anything of value, whether or not there is an agency relationship.” The fact that an accused is the agent of a buyer or seller of drugs does not remove the transfer from the coverage of the statute. Parker v. State, 265 Ark. 315, 325, 578 S.W.2d 206, 212 (1979). The trial court did not err in denying the motion for a directed verdict.

Appellant also argues that the sentence is too harsh for the crime, and asks us, under equitable powers, to reduce it. We decline to do so. In the past this court did reduce sentences. Carson v. State, 206 Ark. 80, 173 S.W.2d 122 (1943). We later decided that such an action was wrong because it violated the separation of powers doctrine. Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963). There we decided that the power to exercise clemency is vested, not in the courts, but in the chief executive. Since then we have uniformly held that the sentence is to be fixed by the jury and not by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we think it unduly harsh. Id. at 7, 371 S.W.2d at 520.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Johnnie Vernon WOODS v. STATE of Arkansas
    CR 90-33
    790 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      William R. Simpson, Jr., Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Johnnie Vernon Woods, was found guilty of two counts of rape and one count of kidnapping. He was sentenced to life imprisonment on each count, but appeals only from the kidnapping conviction. We affirm.

The point raised on appeal does not require us to develop the facts of this case in great detail. On May 31, 1989, Meredith Coleman, a third grader, got off the school bus at her regular stop in southwest Little Rock. As she was walking home, she was abducted by the appellant. He forced her into his car even though she was kicking and screaming. He drove her to an alley behind the Arkansas School for the Blind where he raped her by sexual intercourse and also by deviate sexual activity.

The principal and a coach at the school approached appellant’s vehicle to investigate the driver’s purpose in being on the school grounds. As they approached the car, the coach heard a voice screaming, “Help. He’s raping me.” With the approach of the principal and coach, appellant let go of Meredith and began trying to start the car. When the coach reached the vehicle, he opened the door and Meredith, who was completely naked, scrambled out of the car and ran to the school. The coach observed appellant sitting on the driver’s side naked from the waist down.

As his sole point for reversal, appellant argues that the trial court erred in refusing to instruct the jury on the “lesser included offense” of a Class B felony kidnapping. We find no error.

Ark. Code Ann. § 5-11-102 (1987) provides in pertinent part:

(b) Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.

(Emphasis added.)

First, we note that a kidnapping which qualifies as a Class B felony is not a lesser-included offense of a kidnapping which constitutes a Class Y felony. See Ark. Code Ann. § 5-1-110(b) (1987) which defines included offenses. Rather, the offense is still kidnapping, even when there is a voluntary, safe release of the victim. The punishment for that offense, however, may be decreased if the conditions of Ark. Code Ann. § 5-11-102(b) (1987) are met.

The decreased penalty kidnapping statute, Ark. Code Ann. § 5-11-102(b) is similar, although in an opposite fashion, to our sentence enhancement statutes. That is, under our enhancement statutes, the committed offense does not change, but if, for example, the appellant has a record of prior convictions, then his punishment may be increased. See Ark. Code Ann. § 16-90-201 (1987). Similarly, the offense of kidnapping is committed once the elements of the offense are completed; however, under Ark. Code Ann. § 5-11- 102(b) (1987), the punishment for that offense may be decreased if certain conditions are met.

Here, the issue of a voluntary, safe release was not raised by the evidence; therefore, the trial court was correct in refusing to instruct on that basis. See Notes to AMCI 1702-P. Appellant argues that the trial court erred in refusing an instruction based on the voluntary, safe release of the victim because the evidence showed that appellant was no longer holding on to Meredith, and that she was able to get out of the car on her own. The argument has no merit. The reason appellant was not holding on to Meredith was because he was trying to start the car as the principal and coach were approaching the vehicle. Meredith was able to get out of the car on her own only after the coach opened the door, and she then ran, naked, to the school. These facts provide no basis for an instruction concerning the voluntary, safe release of a victim. See Clark v. State, 292 Ark. 69, 727 S.W.2d 853 (1987); Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1982).

In accordance with our Rule 11 (f) we have examined the record and determined that no other adverse rulings to the appellant involve prejudicial error.


author: David Newbern, Justice.

text:
    Curtis Jean WHITE v. STATE of Arkansas
    CR 90-52
    790 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Clifton Bond, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Curtis Jean White, appeals from a conviction of burglary, robbery, second degree battery, and two counts of rape. He states two points of appeal. The first questions the trial court’s denial of his directed verdict motion which he made at the conclusion of the state’s evidence. The second contends the circumstantial evidence against him was insufficient. We treat the points together and conclude the evidence was sufficient to support the conviction; even if it were not, White waived his right to question sufficiency of the evidence on appeal by failure to move for a directed verdict at the conclusion of all the evidence. We affirm the conviction.

The victims were an elderly married couple. Billy Carpenter testified he lived in the same apartment building as the victims and was in his apartment in the early morning August 28,1988. White came to Carpenter’s apartment at 4:00 a.m. and asked Carpenter to lend him $2.00 and engage in fellatio. Carpenter refused both requests. Carpenter testified that White “said he was going around to the other apartment, in front” meaning that of the victims. Carpenter then heard knocking and banging coming from “in the front part of the building.” Carpenter said White was wearing a straw hat and had it on as he left Carpenter’s apartment headed for the victims’ apartment.

The brief for the state argues that the victim’s husband “testified that the appellant had used a flashlight and hit his wife with it over the head,” and “the appellant had sex with” the wife. That simply is not so. Neither of the victims identified White as the assailant. The victim wife testified she had seen White earlier cutting grass around their apartment building, but she and her husband both specifically stated they could not identify him as the assailant. The victims testified that their assailant beat the wife, raped her twice, and took $15.00 after breaking in to their apartment. The husband testified that the assailant had a hat and “looked like a colored man.” Curtis Jean White is black.

The victims both testified that their assailant was wearing a hat when he entered their apartment. White’s sister, with whom he lived, testified she had seen White earlier in the evening of the night and morning in question at a disco wearing his straw hat. Similar testimony was given by Jimmy Clary who had seen White at the disco and again around midnight, wearing a straw hat.

The evidence was sufficient to sustain the conviction, but that does not matter because no motion for directed verdict was made by White at the conclusion of all the evidence. The question of sufficiency of the evidence was not preserved for appeal. Ark. R. Crim. P. 36.21 (b); Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989).

Affirmed.


author: Tom Glaze, Justice.

text:
    Donald RIGGIN and Norma D. Riggin v. Donald H. and Eunice M. DIERDORFF, Husband and Wife; Savers Federal Savings and Loan Association; and the Internal Revenue Service
    90-38
    790 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Donald Riggin and Norma Riggin, for appellants.

      B. Frank Mackey, Jr., P.A., by: Rosanna Henry, for appellee Savers Federal Savings and Loan Association.
   Tom Glaze, Justice.

Appellees, Donald and Eunice Dierdorff, owned a lot in Fairfield Bay and appellee, Savers Federal Savings and Loan Association (Savers), held a promissory note and mortgage under which the Dierdorffs made payments for the land. Later, on October 17,1982, the Dierdorffs sold the lot to the appellants, Donald and Norma Riggin, for $67,000.00. Under the parties’ sale contract, the Riggins agreed to pay the Dierdorffs a $20,000.00 down payment plus $7,700.00 at 10% interest over a five-year period. They further agreed to pay the balance amount of $39,300.00 due Savers on a note and mortgage by assuming monthly installments of $348.00.

The Riggins discharged their $27,700.00 obligation to the Dierdorffs apparently sometime in 1987, but later defaulted in their payments to Savers in May of 1988. After learning of the Riggins’ default, the Dierdorffs assumed payments to Savers for a seven-month period, but in August 1989, they filed suit in equity against the Riggins to nullify the parties’ contract and to quiet and confirm title in the Dierdorffs. Donald Riggin did not answer the suit, but Norma filed a motion to dismiss and an answer. The Dierdorffs then amended their complaint to bring Savers into the suit and plead for the alternative relief of foreclosure. Savers entered the suit also seeking foreclosure, and after various counterclaims, cross-claims and answers were filed, the chancellor entered a foreclosure decree granting relief to Savers and the Dierdorffs. Appearing pro se, both Riggins appeal raising seven points for reversal, but we conclude none have merit. Therefore, we affirm.

In her first argument, Norma Riggin claims the chancery court had no jurisdiction because the Dierdorffs’ action was nothing more than a request by them to recover possession of their land or to establish legal title to it. See Cole v. Mette, 65 Ark. 503 (1898). Her contention simply is incorrect. Unlike in Cole, this case does not involve an ejectment action or adverse possession claim. In addition, both the Dierdorffs and Savers commenced their actions requesting equitable relief, which was not the situation in Cole. Here the Riggins contracted to purchase the disputed property subject to a note and mortgage held by Savers, and they breached their agreement by defaulting on their payments to Savers. The Dierdorffs sued to rescind the parties’ contract, to quiet title in themselves or, alternatively, to have the court enter a foreclosure decree. Savers joined in the request for foreclosure, which the chancellor properly granted.

We have stated that foreclosure proceedings are equitable proceedings. Colclasure v. Kansas City Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916 (1986). Here, the chancery court properly acquired jurisdiction of the parties’ claims and in applying the clean-up doctrine, it could, and did, decide law issues incidental or essential to the determinations of the equitable issues. Id. The Colclasure decision also answers Ms. Riggin’s second argument that she is entitled to a jury trial and the chancellor erred in denying her one. In Colclasure, we further held that the constitutional right to a jury trial did not extend to a foreclosure proceeding or equity case.

Ms. Riggin also argues the chancellor erred in denying her motion for summary judgment and in granting the foreclosure decree. Both arguments are largely based upon the fact that the Dierdorffs, after receiving their $27,700.00 from the Riggins, had furnished the Riggins with a warranty deed to the disputed property and a statement that the contract had been paid in full. Nonetheless, the parties’ contract still required the Riggins to pay Savers on the note and mortgage it held on the property. Obviously, the Dierdorffs’ statement was correct to the extent that the Riggins had discharged their $27,700.00 obligation to the Dierdorffs, but, even so, any title taken by the Riggins from the Dierdorffs was still subject to Savers’ note and mortgage. When the Riggins defaulted in their payments to Savers in May 1988, Savers was certainly entitled to foreclose on its mortgage. The Dierdorffs were also placed in the position that they had to protect their interests as set out in their contract with the Riggins and any obligations they had to Savers as a result of the Riggins’ default in payments.

Ms. Riggin finally urges the trial court erred in holding three ex parte hearings, but the only one to which she interposed an objection concerned a hearing held on November 14, 1988, when the chancellor granted the Dierdorffs the right to enter the house on the property to winterize it. Although Ms. Riggin claims she had no notice of the hearing and was denied an opportunity to respond to the Dierdorffs’ petition, the record reflects she formally replied to the petition. In any event, prior to the final trial, she was aware that, due to her default in payments, Savers had possession of the house and the locks had been changed. Nonetheless, she requested no hearing to correct any prejudice she may have suffered. Thus, Ms. Riggin had the opportunity to present her objections to the trial court, and in light of the court’s foreclosure decree, which we believe is supported by sufficient evidence, she has failed to show any prejudice.

In Donald Riggin’s two points for reversal, he, too, claims the chancery court lacked jurisdiction — an argument which we have already considered, discussed and rejected — but also he argues the trial court should have set aside the default judgment entered against him because he was never properly served with the complaint and summons filed in this matter. First, we note that while Mr. Riggin filed a motion to vacate the foreclosure decree entered in this case, the record reflects no hearing on his motion or a request by Mr. Riggin that the chancellor rule on it. The record does show that Savers had a process server attempt to serve Mr. Riggin in person on March 1, 1989, and that he refused to accept service. When Riggin refused, the process server, on his return and affidavit, noted that he left the complaint, summons and lis pendens on a stump under a rock outside the gate to the Riggin property. Such service comports with those requirements of Rule 4(d)(1) of the Arkansas Rules of Civil Procedure. Mr. Riggin never questioned the return and affidavit of the process server. Thus, even if Mr. Riggin had asked the trial court to rule on his motion to vacate, it appears he was correctly served with process.

For the reasons above, we affirm the trial court’s decision.

       The Internal Revenue Service was also made a party defendant because of a tax lien against Donald Riggin, but we make no further reference to the IRS since none of the issues raised affects its lien.

       The Dierdorffs also obtained service upon Mr. Riggin by warning order under ARCP Rule 4(f), but It is needless to discuss this additional service except to say that it, too, complied with the requirements of the law under the circumstances presented.


text:
    TAYLOR’S MARINE, INC.; and Kevin and Lori Taylor v. WACO MANUFACTURING, INC.
    90-75
    792 S.W.2d 286
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Dan McCraw, for appellant Taylor’s Marine, Inc.

      Crockett & Brown, P.A., by: Robert J. Brown, for appellants Kevin and Lori Taylor.

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellee.
   Tom Glaze, Justice.

The appellee manufactures recreational boats, and during the period from April 6,1987, to July 28, 1988, the appellant Taylor’s Marine purchased twelve boats on an open account. The parties entered into twelve separate sales contracts, and all of these contracts, by agreement of the parties, provided for a deferred payment date after the date of delivery. On August 31, 1987, Taylor’s Marine became delinquent on six of the boats, and the parties agreed that Taylor’s Marine would pay interest of 1 % per month until payment could be made. As Taylor’s Marine also failed to pay on the other six boats, the appellee began charging 1 % interest per month on those contracts as well.

Eventually, Taylor’s Marine defaulted on all twelve sales contracts, and the appellee filed suit in the circuit court. The complaint was later amended, adding appellants, Kevin and Lori Taylor, as parties because they personally guaranteed some of the sales contracts. The appellants counterclaimed alleging that the appellee had charged usurious interest. In addition, Kevin and Lori Taylor answered alleging that a suit against them was premature and that the appellee had materially altered the terms and conditions after the execution of their collection guarantees. The Taylors also filed a motion to transfer the case to chancery court, which was denied.

The trial judge gave the appellee a judgment on the principal of the open account against Taylor’s Marine and Kevin and Lori Taylor, to the extent of their personal guarantees. But, the trial judge found in favor of the appellants on their counterclaim by awarding them $11,404.38 for past unlawful interest paid. The appellants appeal from this judgment alleging that the trial court made the following errors: (1) miscalculating the amount of their recovery for usurious interest paid to the appellee; (2) denying the Taylors’ motion to transfer the case to chancery court; and (3) setting off the usury judgment prior to the finding that the appellants’ lien for attorney’s fees had attached to the judgment for usury. We find no error and therefore affirm.

Under Ark. Const, art. 19, § 13, contracts having a rate of interest that exceeds 5 % per annum above the federal reserve discount rate at the time of the contract are void as to the unpaid interest, and the person who has paid the unlawful rate may recover twice the amount of the interest paid. Pursuant to this provision, the trial court found that the appellants paid $5,702.19 in usurious interest and awarded them $11,404.38. As their first point for reversal, appellants argue that they were entitled to recover $29,185.38. In reaching this figure, the appellants contend that they paid $6,744.00 in usurious interest and that $7,847.69 of interest paid because of cash differentials should have been included.

We do not set aside findings of fact by a circuit judge sitting as a jury unless they are clearly erroneous. ARCP Rule 52(a). In reviewing the evidence before the trial judge, we note that appellants’ exhibit number one, an affidavit from Tom Cox, appellee’s vice president, clearly states that $5,702.19 was paid in interest. Further, a handwritten statement, apparently from Taylor’s Marine, attached to appellants’ exhibit number two states that the total interest paid was $5,702.19. In arguing that $6,744.00 is the correct amount of interest paid, the appellants rely on their exhibit number five and Lori Taylor’s testimony. That exhibit is a confusing hodgepodge of appellee’s invoices and the appellants’ checks. Some of the copies are illegible, others are duplicated, and they are in no order of sequence. Appellants’ reliance on Lori Taylor’s testimony is also incorrect. Lori Taylor merely stated that she thought the amount of interest paid was $6,744 and some cents, but she stated that she was not sure.

Further, the appellants have not met their burden in showing that $7,847.69 of interest paid because of cash differentials should be included as usurious interest. See Medford v. Wholesale Elec. Supply Co., 286 Ark. 327, 691 S.W.2d 857 (1985). At the hearing, there was testimony to show that if Taylor’s Marine quickly sold a boat purchased from the appellee, the appellee would allow a cash price discount of 2 to 3 %. However, we are unable to discern from our study of the record that this discount had anything to do with the 1 % interest charged on the twelve (12) boats not paid for by the appellants. In sum, we cannot say that the trial court’s finding that the appellants were entitled to $11,404.38 for the interest paid was clearly erroneous.

In the second point, Kevin and Lori Taylor argue that the trial court erred in denying their motion to transfer the case to chancery court. In their motion, the Taylors gave the following three reasons for the transfer of the case to chancery court: (1) the appellee committed usury and equitable principles are necessary to settle the accounts; (2) by this usurious conduct, the appellee is equitably estopped by the general principles of unclean hands from proceeding against them; and (3) the appellee is equitably estopped from making a claim against them because it materially altered the undertaking of the parties after the execution of the guaranty contracts.

We have held that it is error to fail to transfer a case only when the defense is exclusively cognizable in equity. Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980). We do not have such a case here. Although the Taylors used such equitable terms as “equitably estopped” and “unclean hands,” they are merely referring to appellee’s unlawful conduct in charging usurious interest. As previously discussed, Taylor’s Marine and the Taylors received relief due to appellee’s unlawful interest charges and that relief was clearly cognizable in circuit court. Regárding the Taylors’ claim that their guarantees could not be enforced because of such usurious charges and material alterations of the parties’ agreement, that defense, too, can be asserted and granted in law. See generally Inter-Sport, Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983). We have often said that equity has no jurisdiction where there is a complete and adequate remedy at law. See, e.g., Herrick, 267 Ark. 576, 595 S.W.2d 637. Since the Taylors’ defenses were not exclusively cognizable in equity, we cannot say that the trial court erred in failing to transfer the case.

In the final point, the appellants contend that the trial court erred in setting off the usury judgment without allowing their attorney the chance to request that his lien for attorney’s fees be enforced. We summarily dismiss this issue because the appellants failed to raise it timely below and failed to get a ruling.

For the reasons stated above, we affirm.

Turner, J., not participating.

       We note the Taylors filed their motion to transfer on the same day of their answer.

       The Taylors raised this point in their answer, but, thinking perhaps that they would raise it in equity, they chose not to pursue it in this circuit court proceeding.

       While not abstracted, the transcript reflects that the appellants attempted to raise this issue in a post-judgment letter. The trial court’s reply reflects that the issue was not raised before and no ruling was made.


author: Otis H. Turner, Justice. Tom Glaze, Justice,

text:
    Antonio Demarion COLEY v. STATE of Arkansas
    CR 90-10
    790 S.W.2d 899
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      John Ogles, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

On February 2, 1989, Joyce Landgren’s 1986 model Cadillac automobile was stolen.

On February 9, 1989, Gloria Reeves, a cashier at a convenience store, was robbed at gunpoint by a black male described as being 5’3” and weighing about 130 pounds. After taking approximately $120 in cash from the register, the robber ran from the store and entered a waiting automobile driven by a second black male. The statement given to the investigating officers by Ms. Reeves described the auto as a gray 4-door Buick. At trial, Ms. Reeves was adamant in her testimony that the description she had given to the authorities at the time of the investigation was of a “silver Cadillac.” In any event, she was able to give the police the license number of the car which was the license that had been issued to Ms. Landgren for her Cadillac automobile.

The appellant was convicted by a Pulaski County jury of the crimes of aggravated robbery, theft by receiving, and theft of property and was sentenced as an habitual offender to terms totaling 60 years.

The appellant challenges his convictions, asserting that, the state failed to establish that the automobile had a value of over $2,500 — an element necessary to sustain the theft by receiving charge. Further, the appellant asserts that the evidence was insufficient to support the aggravated robbery and theft of property convictions. We find the appellant’s contentions to be without merit, and we therefore affirm.

Two days after the robbery of the convenience store, the police located Ms. Landgren’s stolen 1986 Cadillac at an apartment complex ■— still bearing the original license plate issued to Mrs. Landgren and identified by Ms. Reeves, the store clerk, as the license on the get-away car. The police established a continual surveillance and they ultimately observed the appellant approach the vehicle, open the door, and enter the car. At that time, the detectives moved from their position of surveillance and arrested the appellant.

The following day, Ms. Reeves identified the appellant from a physical lineup as the person who robbed her. At the trial she again identified the appellant, without hesitation, as the robber of the store. The arresting officers also made a positive identification of the appellant as the person they observed getting into the stolen automobile at the time of the arrest.

The appellant, in challenging the sufficiency of the evidence for conviction, moved for a directed verdict on all three counts and alleges error by the trial court in denying his motion.

A motion for a directed verdict is a challenge to the sufficiency of the evidence, Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982); and, when reviewing the denial of the motion, we consider the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Only testimony in support of the verdict need be considered. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988).

Without restating all of the evidence, we find it overwhelmingly in support of the finding of guilt on the charges of aggravated robbery and theft of property. In her statement to the police, Ms. Reeves was somewhat inaccurate in her physical description of the appellant, but she had no hesitation in her identification both at the physical lineup and at the trial. Her statement also identified the automobile as a “gray Buick,” but she was able to give to the investigators the correct number of the license on the Landgren silver Cadillac, the stolen vehicle which the appellant was entering at the time of his arrest.

The appellant next alleges that the evidence was insufficient to establish that the Cadillac automobile had a value of over $2,500, proof of which is required by Ark. Code Ann. § 5-36-106(e)(1) (1987) in order to sustain the charge of theft by receiving as a Class B felony.

“Value” is defined in relevant part at Ark. Code Ann. § 5-36-101(1 l)(A)(i) (1987) as “[t]he market value of the property or services at the time and place of the offense. . . .”

There was no direct proof introduced which would establish the market value of the automobile at the time of the theft. However, Mrs. Landgren, though unable to recall the year model of her vehicle, testified that she and her husband bought the car new and paid $22,000; that it was in good condition and that only $400 had been spent on repairs since it was purchased. The arresting officer testified that the car was a 1986 model which proved it to be only three-years old at the time of the theft.

The state has the burden of establishing the value of the property, Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978), and the preferred method of establishing value is by expert testimony. See Terry v. State, 271 Ark. 715, 610 S.W.2d 272 (Ark. App. 1981). Value, however, may be sufficiently established by circumstances which clearly show a value in excess of the statutory requirement. In Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), we found that the purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value.

In a recent case, there was an absence of direct value testimony but the owner testified she had paid around $ 14,000 for her 1986 model Thunderbird automobile; that she still owed a part of the purchase price; and, that her car was three years old at the time of trial. Moreover, a photograph was introduced showing the car to be in excellent condition. In that case we held that the owner’s testimony was substantial evidence that the value of the car exceeded $2,500. Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990).

We find the convictions of the appellant are supported by substantial evidence and we affirm.

Affirmed.

Hays and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. I certainly agree with the holding reached by the majority. I strongly disagree with the majority’s decision not to mention the case of Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), in its opinion. The majority’s failure to cite Moore will not make that case go away; it is wrong, it will continue to cause confusion in the future, and it should be overruled.

This court now has decided three criminal theft cases in less than one year where the point in issue was, “Did the State present sufficient proof to show the car stolen by the defendant exceeded the amount of $2,500.00.” These cases and the proof in each are listed in chronological order as follows:

(1) Moore v. State—
Proof: The car owner testified without objection that she bought her car, a 1980 Oldsmobile 98, in 1985, the car was in reasonably good condition and the value of the car is what she paid for it, $3,600.00. No evidence was offered to discredit this value testimony.
Holding: In a 4-3 decision, this court reversed and dismissed theft charges against Moore because the state failed to prove that the value of the stolen car exceeded $2,500.00
(2) Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990)—
Proof: The car owner testified that she had purchased a 1986 Thunderbird automobile which was three years old when it was stolen. She said that she was not good at estimating the car’s value but offered an approximate value of $7,000.00 or $8,000.00. She had paid $ 14,000.00 for it, and it was three years old at the time of the theft. A photograph of the car was introduced showing the car to be in what this court, on review, found as being in “apparently excellent condition.”
Holding: This court unanimously upheld the defendant’s theft conviction, stating it could not say there was no substantial evidence of the value of the stolen car.
(3) Today’s decision, Coley v. State—
Proof: The car owner testified that she bought the car new for $22,000.00, but she could not recall the year model of the car. She said that it was in good condition and that only $400.00 had been spent on it for repairs. The officer, who arrested Coley, stated the car was a 1986 model. [No photograph of the car was introduced; nor was a car photograph offered in Moore.]
Holding: This court affirms the defendant’s theft conviction, by citing Stewart, v. State and Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), and stating “we find . . .substantial evidence.”

In Moore I dissented and in Stewart I concurred and offered my opinion that this court, in deciding these two cases, had rendered decisions that were in conflict. I need not reiterate those views here. However, by this concurring opinion, I merely point out that we have yet another decision which, in my opinion, has difficulty in being understood in light of the rationale and holding in Moore. I encourage interested readers to conduct their own studies of these cases to reach their own conclusions, since, with this concurrence, I am through writing on this subject.

In my view, the common denominator in these three cases lies with the manner in which the court reviewed the cases and its unspoken decision to find the value testimony to be credible in Stewart and Coley but not credible in Moore. Clearly, this court’s function does not include finding where credibility should lie. That duty lies either with a trial court or jury. This court erred in Moore, and we should correct the mistake now.

Hays, J., joins this concurrence.


author: Otis H. Turner, Justice.

text:
    Alvin Edward MORRIS a/k/a Eddie Morris v. STATE of Arkansas
    CR 89-144
    792 S.W.2d 288
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Murphy and Carlisle, by: John Wm. Murphy, for appellant.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

Alvin Edward Morris seeks reversal of a conviction of capital murder and a sentence of life imprisonment without parole. We find no error in the charging or in the trial and thus affirm.

The appellant’s companion, Kevin Burkhart, was convicted in a separate trial, and that conviction was recently affirmed in Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). A recitation of the facts may be found in Burkhart, we therefore limit a restatement only to the facts necessary to an understanding and a determination of the issues raised by the appellant for reversal.

The appellant was convicted for his participation in the robbery and death by beating.of an elderly couple, Mr. and Mrs. Victor Magnus, in their house at Mountain Home on June 29, 1988. He was arrested in Ozark, Alabama, on July 5, 1988, following a phone call to Mountain Home police from Dale Burkhart, brother of Kevin Burkhart. Dale Burkhart informed the police that the appellant and Kevin were in Ozark, Alabama, and that Kevin had told him about the robbery and beating of Mr. and Mrs. Magnus. Arkansas law enforcement officials then went to Alabama and, with the assistance of Alabama police, arrested and interrogated the appellant and Kevin Burkhart.

The first of six points of error asserted by the appellant alleges that his confession was involuntary and should have been suppressed. The appellant says he was awakened by the police, “dragged” from the house in handcuffs, threatened while on the way to the police station, placed in an 8’ x 14’ room and read his rights (which he later said he did not understand), and then subjected to interrogation. During the first period of interrogation, the appellant consistently denied any knowledge of the crime. Officers then brought in Dale Burkhart, who recited a conversation he had had with Kevin Burkhart in the presence of the appellant. The appellant then confessed his part in the crimes at length and in great detail.

At the suppression hearing, the officers denied having abused or coerced the appellant. Their testimony established that the appellant had been fully and completely advised of his rights and that he had initialed each affirmative response and had signed the rights form. The police recorded the interrogation with the appellant’s knowledge. The transcript of the recording further establishes that the appellant again acknowledged that he was aware of his rights and understood them.

Custodial statements are presumed to be involuntary. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The state must therefore make a prima facie showing that the accused knowingly, voluntarily, and intelligently waived his right to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966); Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). When the issue is raised on appeal, this court independently reviews the totality of the circumstances and will reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Fleming v. State; Williamson v. State; Hunes v. State.

The recorded statements given by the appellant, together with the record of the proceedings on the motion to suppress, clearly support the trial court’s refusal to grant the motion to suppress the admission of the confession.

The appellant next contends that the trial court erred in permitting the introduction into evidence of certain photographs of the victims. The admissibility of the photographs is a matter within the sound discretion of the trial court, and its decision will not be reversed without a showing of a clear abuse of discretion. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It matters not that the photographs are cumulative to other evidence. Fairchild v. State, 284 Ark. 282, 681 S.W.2d 308 (1984). Even inflammatory photographs are admissible if they tend to shed light on an issue, if they are useful to enable a witness to better describe the objects portrayed, or if they better enable the jury to understand the testimony. Gardner v. State; Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986); Fairchild v. State.

Twenty-six photographs were admitted into evidence and, of those, only four depicted the victims. Only two of the photographs clearly showed the victim’s head and the injuries. One of those two photographs showed the imprint of a shoe sole on the throat of the victim indicating the type of assault. Further, this imprint was connected to other evidence uncovered by the police, such as the shoes worn by one of the perpetrators. There was no abuse of discretion by the trial court in permitting the introduction of the photographs.

As a third ground for reversal, the appellant argues that the trial court should have granted the appellant’s motion for a change of venue.

A criminal case may be removed to the circuit court of another county upon a showing that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had. Ark. Code Ann. § 16-88-201 (1987). The burden is on the defendant to show the general mindset of the populace and the concomitant impossibility of receiving a fair trial. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). In making a determination of the accused’s ability or inability to receive a fair trial, the trial court has an opportunity to observe witnesses and to make a determination as to whether or not a particular mindset or prejudice pervades the entire county. We will not disturb the finding of the trial court in the absence of an abuse of discretion. See Gardner v. State; Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).

No such abuse of discretion is shown here. Moreover, the appellant did not exercise all of his peremptory challenges to jurors chosen. We have held that an appellant, in order to prevail on this issue on appeal, must demonstrate that he was forced to accept a juror against his wishes after exhaustion of all peremptory challenges. See Gardner v. State.

The fourth assertion of error is directed to the admission of certain evidence as an “adoptive admission”. Arkansas Rules of Evidence Rule 801(d)(2)(ii) provides that a statement is not hearsay if it is an admission by a party-opponent and is “a statement of which he has manifested his adoption or belief in its truth.”

Stated another way, the admissibility is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue.

Dale Burkhart testified that when he met his brother and the appellant at the Ozark, Alabama, bus station, Kevin Burkhart said that they needed to go somewhere to talk. The three then drove to an all-night truck stop/restaurant. They sat in a booth with the Burkharts facing each other and the appellant sitting next to Kevin Burkhart. Kevin then told his brother all of the details of the crime, including even a description of the sensation of the victim’s bones crushing under the blows. At one point, both Kevin Burkhart and the appellant showed Dale Burkhart the cuts or scars on their hands resulting from the beating of the victims. Although the appellant apparently never spoke during Kevin Burkhart’s account of the beatings and robbery, neither did he deny his participation in the crimes.

The appellant contends that it must be conclusively shown that he heard the statements of Kevin Burkhart before he can be deemed to have adopted the admission. Though it appears that we have never directly ruled on this point, we adopt the interpretation reached under the identical federal rule. A trial court must find that sufficient foundational facts have been introduced so that the jury can reasonably infer that the accused heard and understood the statement and the statement was such that, under the circumstances, if the accused did not concur in the statement he would normally respond. Once such a foundation has been established, the question is left to the jury to determine whether the accused acquiesed in the statement. United States v. Fortes, 619 F.2d 108 (1st Cir. 1980); United States v. Moore, 522 F.2d 1068 (9th Cir. 1976), cert. denied, 423 U.S. 1049 (1976).

We find no error in the admissibility ruling by the trial court.

The fifth point for reversal deals with the jury voir dire. The appellant contends that voir dire was held in chambers in violation of his constitutionally-guaranteed right to a public trial.

The appellant’s contention in this regard is wholly without merit. Indeed, differing minds might construe the entire argument as an attempt to mislead this court. ■

The original record indicates that voir dire was conducted in the “law library” (not in the judge’s chambers as stated by the appellant). Because the record was not clear as to whether the “law library” was a part of the judge’s chambers and did not indicate whether the proceeding was open to the press and public, the state moved to “settle the record” pursuant to the provisions of Ark. R. App. P. 6(d). The motion was granted, and, upon the hearing, it was clearly established that the voir dire had been conducted in the law library, which is not a part of the judge’s chambers, in order to expedite the selection and to ensure that individual questioning would not taint or influence other panel members. The evidence at the hearing conclusively established that neither the press nor the public was excluded from the proceedings. Furthermore, counsel for the appellant offered no evidence at the hearing and made no objection to the evidence adduced by the state.

The sixth and last point for reversal asserted by the appellant is a claim that he was unduly surprised by the testimony of the witness from the State Crime Lab and that the court erred in admitting that testimony over the objections of the appellant.

Pursuant to a discovery request, the prosecuting attorney opened his file to counsel for the appellant and furnished as a potential witness the name of a representative from the Arkansas State Crime Lab, together with a report on trace evidence.

The evidence at trial indicated that the imprint of a shoe sole was found on the throat area of Mrs. Magnus, as well as an imprint on the back of Mr. Magnus’s white shirt. When testifying, the witness from the crime lab stated that, in analyzing the shoe patterns, he found that the prints came from different shoes. The appellant objected to this evidence because he had not received any information that the imprints were from different shoes. The witness testified that he had made no written report concerning the shoe prints because his efforts to match the prints with the shoes furnished for comparison proved inconclusive. Though request had been made, no written report had been furnished to the state. The prosecuting attorney learned only the day of the trial that the witness would testify that the prints came from different shoes.

The appellant moved to exclude the evidence, and the motion was overruled. We find that no prejudice was shown to result from the admission of this evidence. To the contrary, the evidence that both the appellant and Burkhart participated in the crimes was, as a whole, overwhelming. Further, the state had given to the defendants, in response to discovery requests, all of the information it had acquired up to the day of trial. Though the failure to inform the defense of the new evidence prior to the calling of the witness may be a violation of the discovery rules, this court has noted that a defendant in a criminal case cannot rely wholly upon discovery as a substitute for his own investigation. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981). The name of the witness was furnished to the appellant; counsel for the appellant could have interviewed him prior to his testifying. Nevertheless, the exclusion of such evidence is not mandatory, Brenneman v. State, 264 Ark. 460, 573 S.W.2d 47 (1978), and it is encumbent upon the appellant to actually demonstrate prejudice from a discovery violation. See Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982). No such pr ej udice is apparent in this instance.

Pursuant to Arkansas Supreme Court Rule 11(f), we have reviewed the entire record and find no prejudicial error warranting reversal.

Affirmed.


author: Dale Price, Justice. Steele Hays, Justice,

text:
    Birttie KING v. Jerry JACKSON et ux
    90-100
    790 S.W.2d 904
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Easley & Hicky, by: R. Alan Cline, for appellant.

      Butler, Hicky & Long, by: Fletcher Long, Jr., for appellant.
   Dale Price, Justice.

This is an appeal from an order granting summary judgment in favor of the appellees. We affirm.

The facts are that the appellant was interested in buying some land located behind the appellees’ home. Thinking that the appellees owned the land, she visited their home one evening after dark. She was invited in and inquired about the land. The appellees informed appellant that they did not own the land in question, and at that point, the appellant proceeded to leave the house. As she stepped through the doorway onto the front porch, she stumbled over some shoes, then tripped over some cane poles and fell, sustaining a back injury.

Some months later, the appellant sued the appellees, claiming she was an invitee on the land, and the appellees failed to use ordinary care in keeping their porch and doorway free from obstructions. In the alternative, she alleged that, even if she were a mere licensee, the appellees still owed a duty of ordinary care because they knew, or should have known, the appellant was in a position of danger.

The appellees filed a motion for summary judgment which was granted. The court found that the appellees owed the appellant only a duty not to cause her injury through willful or wanton conduct, and no such conduct occurred here. The court further determined that there was no support for the appellant’s claim that the appellees knew or should have known appellant was in a position of danger.

When summary judgment is requested, the moving party has the burden of proving there are no genuine issues of fact remaining. Smith v. Gray, 300 Ark. 401, 779 S.W.2d 173 (1989). On appeal, the evidence is viewed most favorably to the party resisting the motion, all doubts and inferences being resolved against the moving party. Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990).

AMI 1106 defines the difference between a licensee and an invitee. Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1983), also defines the terms in simple language. It is clear the appellant was a licensee, not an invitee. She was not invited onto the premises in the literal sense, nor did her visit bring any benefit to the appellees. Appellant, having gone onto the land for her own purposes, fits the definition of a licensee.

The next question posed is what duty was owed appellant by the appellees? Generally, a landowner owes no duty to a licensee other than to refrain from injuring her through willful or wanton conduct. Baldwin v. Moseley, 295 Ark. 285, 748 S.W.2d 146 (1988). It is not claimed the appellees engaged in willful or wanton conduct. However, the appellant does argue that if a landowner discovers a licensee is in peril, he has a duty of ordinary care to avoid injury to the licensee. Baldwin v. Moseley, supra; AMI 1106(B). This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of conditions or risks involved. See W. Keeton, Prosser and Keeton on Torts § 60, at 417 (5th ed. 1984).

The dangers in this case did not involve risks that the appellant might not have been expected to recognize. She admitted that,- prior to entering the house, she saw the shoes on the porch. The danger presented by the shoes cannot be said to have been hidden. Therefore, there is no fact question on whether the appellees had a duty to warn her about the obstructions on the porch.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. In granting summary judgment the trial court held, first, that the plaintiff, Mrs. King, was a licensee as a matter of law and, second, that under no conceivable set of circumstances could a jury find that the defendant, Jerry Jackson, breached a duty owed to Mrs. King. It is with the latter holding that I take exception.

The trial court declared that the only duty owed to a licensee by a licensor is “a duty not to cause his or her injury by willful or wanton conduct. . . .” (Order of Summary Judgment, p. 103). That assertion is, I submit, incomplete and thus inaccurate. Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988); Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968); Knight v. Farmers Merchants Gin Co., 159 Ark. 423, 252 S.W. 30 (1923) and Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62 (1935).

An owner owes no duty to licensees (as opposed to invitees or business visitors) to render the premises safe, nor any duty to warn them of dangers which should be obvious. But if the owner is aware of a danger on the premises which is latent, or one the licensee might not be expected to recognize or appreciate, the owner is under a duty to warn the licensee. W. Prosser & W. Keeton, The Law of Torts § 60, at 412 (5th ed. 1984); Restatement (Second) of Torts § 342 (1965). An annotation entitled Child. Licensee—Duty to Warn, 26 A.L.R.3d 317 (1969), while dealing primarily with children, summarizes the rule with respect to licensees in general as follows:

[B]ut that where there is a known dangerous condition on the premises and the occupier can reasonably anticipate that his licensee will not discover or realize the danger, the occupier may be held liable for bodily harm caused to the licensee by the condition if he invites or permits the licensee to enter or remain upon the premises without-exercising reasonable care either to give warning of the condition and the risk involved, or to make the condition reasonably safe, and the licensee does not know or have reason to know of the condition or risk involved.

The fallacy of stating merely that a licensor owes a licensee a duty not to cause the licensee’s injury by willful or wanton conduct is discussed in Annotation, Danger to Licensee—Warning, 55 A.L.R.2d 525, § 2 (1957):

While in a number of cases general language may be found which seems to restrict a licensor’s duty to a licensee to that of refraining from wilful or wanton misconduct, or, at most, active negligence, the cases which have explicitly considered the question have frequently recognized that a licensor-landowner may be under an obligation of exercising reasonable care to warn licensees of hidden dangers known to the licensor.

The annotation cites cases from twenty-five American jurisdictions and the foregoing rule is said to be the law “in most jurisdictions.” F. Harper, F. James & O. Gray, The Law of Torts, § 27.9 (2nd ed. 1986).

The proof which Mrs. King was prepared to present at trial was that it was a rule at the Jackson home that no one wore their shoes in the house, for the sake of the carpet, and thus there were an indeterminate number of shoes on the porch of this trailer home. Moreover, the Jackson children had been making twelve inch “nun-chucks” from bamboo poles and some of these were on the porch. Mrs. King was prepared to testify that on her arrival at about 8:00 p.m. on that stormy evening she noticed a pair of shoes, but nothing else. Upon leaving the trailer in the dark a few minutes later the wind blew the door as she opened it and as she tried to hold it she tripped over some shoes, sought to regain her balance, stepped on a bamboo pole on the first step below the porch and fell down the remaining steps. Mr. Jackson knew the shoes, including his own, and the “nun-chucks” were on the porch and yet he neither turned on the porch light, nor advised Mrs. King to be careful as she stepped onto the unlit porch. Mr. Jackson would have testified, according to his deposition, that he had forgotten the shoes and poles were on the porch and probably should have turned on the porch light. Moreover, as I read Mr. Jackson’s testimony, taken in the light most favorable to Mrs. King, it is clearly inferable that he admitted he was at fault:

Q. Okay. Now, Mr. Jackson, my client has told me, in a conversation.before, that you admitted to her that this was your fault.
A. Yeah, I told her —
Q. (Interposing) Did you do that? Did you make that admission to her?
A. Well, yeah, on account of, I mean, I own the land, and I shouldn’t — I guess I should have made a policy to put the shoes over to a different place, but I just didn’t do it. I mean, just like an old dog; you train him to do that, and he’s going to go to the same old place all the time, and that’s the way I did, and I’ve been guilty, too, of putting my own shoes there, and I’m trying to stop all that now.

Had Mrs. King’s fall occurred when she arrived I could agree no possible liability existed, as her visit was not expected. But, once Mrs. King arrived, Mr. Jackson was fully aware of her presence and whether he should have warned her about the objects lying on a darkened porch is, I believe, an issue over which reasonable minds could differ, and that produces a question for the jury. I respectfully disagree that the case should be affirmed.


author: Dale Price, Justice.

text:
    James E. WHITE, Individually and Ex Rel. State of Arkansas v. Tommy HOLMES, et al.
    90-32
    790 S.W.2d 902
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Henry S. Wilson, for appellant.

      Lohnes T. Tiner, for appellee.
   Dale Price, Justice.

This case involves an attempt by an unsuccessful school board candidate to force his opponent to comply with certain provisions of the Arkansas campaign financing statutes. The chancellor dismissed the action on its merits. We do not reach the merits, but affirm because we find the chancery court was without jurisdiction to hear the matter.

The facts are that appellant James White and appellee Tommy Holmes were candidates for the Trumann School Board. The election was held March 10, 1987, and White was declared the winner. Holmes contested the election on the ground that certain absentee ballots, which were cast for White, should not have been counted. The contest was successful, thereby making Holmes the winning candidate.

On March 21,1988, White filed a petition in chancery court claiming that (1) Holmes had failed to report certain financial contributions; and (2) Holmes received an anonymous contribution of $1,200 and, under state law, anonymous contributions of over $50 must be turned over to the state treasury. Holmes moved to dismiss the petition on several grounds, including lack of subject matter jurisdiction. He also answered affirmatively that the money mentioned in the petition was spent for attorney fees in the election contest and was not, therefore, a contribution.

■ Apparently, treating the motion to dismiss as a motion for summary judgment, the chancellor viewed interrogatories and affidavits in which Bob Maloney, a worker in Holmes’ campaign, said he received money several days after the election which was used only to defray legal expenses in the election contest. Maloney did not say who furnished the money. Holmes also signed an affidavit stating that Maloney had given him $1,200 14 days after the election to be used in paying attorney fees for the election contest. The appellant filed a response citing testimony given by Holmes and Maloney in another case in which they stated they either did not know or did not remember who contributed the $1,200.

After receipt of the interrogatories and affidavits, the chancellor ruled that the money received was not a contribution as defined by law and therefore dismissed the petition. It is from this ruling that White appeals.

We decline to reach the issues presented, because the chancery court was without jurisdiction. In cases dating back to Hester v. Bourland, 80 Ark. 145, 95 S.W. 992 (1906), we have held that when the subject matter of a lawsuit is merely a political matter not involving any property rights or matters of public taxation, the chancery court has no power to interfere either by injunctive process or otherwise. When the issues pertain merely to the procedures to be followed in the conduct of a political election, a court of equity has no jurisdiction. Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967). Here, the issues involve procedures to be followed by candidates in an election. The matter is purely political and should not have been heard by the chancery court. See also Alcoholic Beverage Control Bd. v. Munson, 287 Ark. 53, 696 S.W.2d 720 (1985); City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978) (“vindication of one’s political, rights must be sought in a court of law”); Roper v. Rodgers, 249 Ark. 416, 459 S.W.2d 419 (9170) (suit seeking injunction to omit name from ballot not proper in chancery); Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002 (1926).

While we have the power to reverse and remand for transfer to circuit court, we decline to do so in this case. The appellant’s petition fails to state facts for which relief is available in circuit court. Therefore, the petition was properly dismissed. See Roper v. Rodgers, supra. Even though the chancellor did not use this reasoning in dismissing the case,,,we will affirm if the correct result is reached. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 769 (1984).

Affirmed.


text:
    Randy N. SMITH and Frankie J. Smith v. MRCC PARTNERSHIP and Morrison Family Partnership
    89-257
    792 S.W.2d 301
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Crockett & Brown, P.A., by: C. Richard Crockett and Melody L. Noble, for appellants.

      Gill Law Firm, by: Joe D. Calhoun, for appellees.
   Terry M. Poynter, Special Chief Justice.

Four individuals, the appellees, comprising MRCC Partnership (“MRCC”), owned 641.5 acres of unimproved land in Pulaski County, Arkansas. MRCC granted an option to purchase the land to Real Estate Central Development Corporation (“RECD”), which subsequently exercised its option by purchasing 240 acres of the land. RECD then re-sold numerous separate tracts of the 240 acres to individuals in smaller parcels, including a ten-acre tract to Randy N. Smith and Frankie J. Smith, the appellants.

RECD entered into two contracts with the Smiths, the first on September 18, 1981, reciting a purchase price of $19,000.00, and $1,900.00 downpayment and the balance of $17,100.00, interest at 9 '/i % per annum until due and at 10 % thereafter and monthly payments beginning November 1, 1981.

Following a five-year period of default, a second contract was executed between the Smiths and RECD. Both contracts were written on identical pre-printed forms and related to the same ten-acre tract. The second contract was executed on or about October 27, 1986. It recited a total purchase price of $27,526.00, a downpayment of $3,000.00, and balance of $24,526.00. The second agreement was backdated to September 21, 1981. The first agreement had been dated September 18, 1981. A special “typed in” paragraph on an otherwise preprinted form stated: “THIS CONTRACT VOIDS ALL PREVIOUS CONTRACTS AND IS THE ONLY OUTSTANDING CONTRACT ON LOT 10, FERNCLIFF HEIGHTS, PULASKI COUNTY, AR. CONTRACT DATED 9-18-81 IS A VOID CONTRACT.”

The Smiths had made no payments on the first contract after the downpayment. They had taken possession of the property in 1981 and learned that appellees’ partners, rather than RECD, appeared to be the record owners of the property.

MRCC then became involved in litigation with RECD. That litigation was settled. As part of the settlement, the Smiths’ contract was assigned, together with several others, from RECD to MRCC. MRCC had no knowledge of the facts surrounding the execution of the second contract.

MRCC initiated a lawsuit for unlawful detainer, seeking to establish its ownership and possessory rights in the property. The Smiths counterclaimed for an accounting, also pleading adverse possession, equitable conversion and usury, and moved to transfer to chancery. MRCC acquiesced in the transfer to chancery. In chancery, MRCC added an alternative prayer for foreclosure.

The chancellor held the contract to be a forfeitable executory land contract, forfeited the contract and gave MRCC judgment for $3,510.00, plus $9.00 per day after April 30,1989, for rent from the date of the default on the contract. The Smiths appeal from that determination. The trial court also found the second contract to be an extension of the first and usurious, that the downpayment on the second contract constituted a payment of interest, that all other payments on that contract represented payments of interest, and that, thus, the Smiths had paid total interest of $5,340.00. She applied the double interest penalty of Amendment 60 to the Constitution of Arkansas and rendered judgment for the Smiths against MRCC for $10,680.00. From that judgment, MRCC has cross-appealed.

I. DIRECT APPEAL

We think the result in the direct appeal is dictated by a line of cases represented by our decision in Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964), and White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950), cited by the Court of Appeals in Abshire v. Hyde, 13 Ark. App. 33, 679 S.W.2d 214 (1984).

In White, supra, this court said:

We have many cases recognizing that a purchaser’s rights under an executory contract affecting real estate may be forfeited pursuant to the contract without proceedings in law or in equity (citing cases).

The forfeiture language in the contract before us is virtually identical to that contained in the contract under consideration in Abshire, supra.

The Smiths do not challenge the rule of these cases. Instead, they offer a shopping list of reasons to avoid its application:

1. The Smiths argue that the document before the court is not an executory contract for the sale of land but a “bond for title.” That issue, having not been raised in the trial court, will not be considered here. B. C. Coney Co. v. Radford Petroleum Equipment Co., 287 Ark. 108, 696 S.W.2d 745 (1985).

2. The Smiths suggest that MRCC has accepted the note (on the reverse side of the contract) as full payment of the contract price; that, thus, they hold the note as the debt secured by a vendor’s lien on the property. The Smiths direct us to no proof of such intent in the MRCC. Moreover, the integration of the note and contract belies such intent. The express language of the note makes it a part of the contract. The terms of payment of the note cannot be determined without reference to the contract. Thus, we cannot say that the chancellor erred in refusing this argument.

3. The Smiths argue that MRCC did not properly deraign title at the trial. MRCC sought to prove title by the affidavit of a title company, which the Smiths insist was admitted over their objection. Actually, the objection was to the affiant’s failure to give “the book and page of the entire chain of title.” Faced with that objection, we believe that the trial court was correct in determining that the affidavit should be admitted and that the missing information should be considered. The admissibility of evidence is within the sound discretion of the trial court. Delta School of Commerce, Inc. v. Wood, 298 Ark. 195, 766 S.W.2d 424 (1989). We find no abuse of discretion.

4. Finally, the Smiths ask this court to apply the doctrine of equitable conversion by contract. Almost universally adopted by the courts, though criticized as a useless but harmless fiction, this doctrine permits a court of equity, in certain circumstances, to consider an interest in real property as having been converted into an interest in personal property and vice versa. See, generally, Comment, Equitable Conversion by Contract, 1 Ark. Law Rev. 45 (1952). The equitable rights and obligations of the parties to such a contract are generally summarized as follows: The entire interest of the vendor in the land is naked legal title, which he holds as security for the payment of the purchase price, subject, however, to an obligation to convey to the purchaser. His legal title is, of course, still real property, but his beneficial interest, including the security interest which equity attaches to the right to receive the purchase money, is personalty. The purchaser, on the other hand, has a beneficial interest in the land itself plus the obligation of the vendor to convey legal title to him. The rights of the vendor are, in equity, considered personal property, and the correlative rights of the purchaser are considered real property.

Typically, this device has been applied to aid in the determination of issues of risk of loss, the relative rights of the various parties involved in decedents’ estates, and the rights of creditors of the vendor and vendee in the property of each. The Smiths have cited us to no case, and indeed we find none, in which this otherwise handy fiction has been applied to construe a contract such as the one before the court. To do so would effectively delete the forfeiture clause and effectively rewrite the contract entered into between the parties. We have historically refused to rewrite contracts. See Three States Lumber Company v. Bowen, 95 Ark. 529, 129 S.W. 799 (1910).

Aside from these contentions, the appellants also argue that:

1. The trial court should have forced MRCC to elect between the remedy of determination of the contract and foreclosure. MRCC had first asserted the right to determine the contract by filing the unlawful detainer action and then by amendment, after the case was transferred to chancery, to seek foreclosure in the alternative. An essential element to an election of remedies argument is the availability of both remedies. Williams v. Westinghouse Credit, 250 Ark. 1065, 468 S.W.2d 761 (1971). It thus appears that the Smiths alternatively take inconsistent positions: i.e., that foreclosure is the only proper remedy, on the one hand, and that the chancellor should have required the appellees to elect between that remedy and a remedy they argue was not available, on the other. Under the circumstances, we cannot say the chancellor erred.

2. It is inequitable for the court to give MRCC both determination of the contract and rent for holding the property after the breach of the contract. The short answer is that both remedies were provided by the contract. Again, we decline to rewrite the contract. Curry v. Commercial Loan and Trust Co., 241 Ark. 419, 407 S.W.2d 942 (1966).

Neither did the court err in refusing to award the Smiths damages for the improvements they allegedly made on the property. Arkansas Code Ann. § 18-60-213 (1987) requires one entitled to recover for such improvements to meet two tests: 1) he must believe himself to be the owner of the property and 2) he must hold under color of title. The Smiths cited Black’s Law Dictionary, 4th Edition, defining “color of title” as “the appearance, semblance or simalcrum of title; a writing on its face professing to pass title but which does not, either through want of title in the grantor or defective mode of conveyance.”

Neither test was met. Both Randy and Frankie Smith testified that they considered RECD to be the owner. The contract under which the Smiths were in possession did not purport to convey title. By it, the seller agreed to convey only after the Smiths fully performed the contract.

II. CROSS-APPEAL

The chancellor found that the second agreement was usurious. It is not usurious on its face.

Usury occurs when a lender charges more than the legally permissible maximum rate of interest, defined by Article 19, § 13, of the Arkansas Constitution (1874), as amended by Amendment 60. The trial court found that the “date of contracting” was October, 1986, after the adoption of Amendment 60. On the date of the second contract, the federal discount rate was 5l/a%, making the maximum allowable interest rate in Arkansas Wji%.

For an agreement to be usurious, it must be so at the time it was entered into. Hayes v. First National Bank of Memphis, 256 Ark. 238, 507 S.W.2d 701 (1974). Where the usury is not apparent on the face of the document, the borrower must show that the lender intended to exact a usurious rate of interest. Montgomery Ward & Company v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981). The party asserting usury has the burden of proof. Medford v. Wholesale Electric Supply Co., Inc., 286 Ark. 327, 691 S.W.2d 857 (1985). The proof must be sustained by clear and convincing evidence. Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W.2d 1009 (1951). The intention to charge a usurious rate of interest will never be presumed, imputed or inferred where the opposite result can be fairly and reasonably reached. See, for example, Rhode v. Kremer, 280 Ark. 136, 655 S.W.2d 410 (1983).

The linchpin of the chancellor’s decision is that the October, 1986, contract was not a new, separate and distinct transaction but an extension of the 1981 agreement. This conclusion is drawn from the following facts:

1. The second agreement was backdated to within three days of the first, a circumstance the trial court found not satisfactorily explained by the appellees’ witnesses.

2. The increased price contained in the second agreement “falls within about $120.00” of the accrued interest and selling price of the original agreement. The chancellor found this mathematical relationship to be an indicator of an intent to extend the former agreement, and that the failure of MRCC’s witnesses to explain the difference in the purchase price of the two agreements justifies the finding of usury. Parenthetically, it would appear that, where the issue is extension of a previous agreement, the more apt comparison would be that between the balance of the purchase price owing on the first agreement after the downpayment ($17,100.00) and the selling price under the second agreement ($27,526.00). That comparison produces a difference of $10,426.00, which has no particular relation to the amount of interest found to have been earned under the first agreement ($8,405.42).

3. The testimony of a CPA, who testified that if the second contract or note had been timely paid from the date approximate to its origination, (11/1/86) through March 1, 1989, at the maximum allowable interest rate of 10‘/2% per annum, the maximum allowable chargeable interest would have been $6,181.52. The CPA then assumed that the Smiths’ “downpayment” on the second agreement of $3,000.00 was interest. When he added that sum to the other payments made during the period (which he also attributed to interest), the total interest would . have been $8,595.05, clearly in excess of the maximum allowable, and a fortiori, usurious.

From this testimony and the circumstantial evidence, the trial court concludes that the second agreement was an extension of the first and that the “intent underlying the second, backdated agreement was to gain the uncollected, accrued interest under the original agreement by increasing the purchase price.”

Even assuming that the proper inferences were drawn from this evidence, the intent to capture the accrued interest on the first agreement does not amount to an intent to collect a usurious rate of interest. This court has held that it is not usury to add interest when it becomes due to the principal on an antecedent debt and to take a new note for the whole, with interest at the maximum legal rate from the date of the new instrument. Morgan v. Rogers, 166 Ark. 327, 266 S.W. 273 (1924).

Moreover, the requirement to explain the backdating of the document and the difference in the purchase prices in the two agreements seemed to require an unwarranted expansion of the doctrine set out in Riley v. Red River Marine, 281 Ark. 300, 664 S.W.2d 200 (1984), which is an expansion of that contained in Jones v. Jones, 227 Ark. 836, 301 S.W.2d 737 (1957).

The Jones case involved a loan which called for the repayment of principal, a specified amount of interest and premiums on a credit life policy. After the loan documents were executed, it was discovered that the credit life premiums were actually less than that set out in the loan documents. In that case, this court simply reaffirmed the principle that charges to a borrower, regardless of what they are called, will be considered interest unless the lender can attribute them to an articulable out-of-pocket expense. The Riley case was one in which a party contracted to buy a boat from a dealer on a “layaway” purchase. An agreement was entered setting out the purchase price, sales tax, downpayment and interest. When the purchaser returned to pick up the boat and complete the purchase, the dealer unilaterally raised the price $200.00. Citing the Jones case, this court said that the additional charge might be considered interest by the trier of fact until convinced otherwise.

The distinction between the case at bar and the Riley case is apparent. In that case, the seller unilaterally sought to increase the purchase price in a situation where he was bound by his prior agreement. In this case, the seller was not obligated to sell the property to the Smiths at any price.

While every fact of an agreement is important in determining the intent of the parties, the rationale underlying these two cases does not mandate a rule that lenders or sellers explain every term of lending or sales contracts (in a proper case) unrelated to charges for a loan or the elements of a purchase price.

Upon a complete review, of the record, the court concludes that neither the proof relied upon by the chancellor, either individually or collectively, nor the evidence as a whole rises to the level of clear and convincing proof of usury. The decision of the trial court as to usury is, therefore, reversed.

Having determined no usury was present, we dismiss the usury claim, and we do not discuss the pre-judgment interest sought by the Smiths.

Finally, we deal with the Smiths allegations of adverse possession and the sanction sought by MRCC under Rule 11 of the Arkansas Rules of Civil Procedure based on those allegations and the pursuit thereof before the trial court.

The Smiths’ allegations of adverse possession are at best incredible and at worst constitute bad faith. It is uncontroverted that the time from which the Smiths went into possession under their first contract to the date of the filing of the lawsuit did not span the requisite seven years. Arkansas Code Ann. § 18-61-101 (1987). Possession was commenced amicably. It does not appear that the Smiths ever thought of themselves as holding adversely or hostilely to MRCC, or their predecessors in interest, or that they gave them any notice of such an intent. Moreover, they negotiated a second agreement with MRCC’s predecessors in interest in 1986 and made payments both to MRCC and the predecessors in interest under that agreement. Such payments represent the antithesis of hostile possession. The trial court declined to impose sanctions, finding that de minimis trial time was spent on the issue.

We believe that where the requisite factual predicates are found, the sanctions provided in Rule 11, Ark. R. Civ. P., are mandatory. On the other hand, because of our holding in Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989), according substantial deference to the trial court’s discretion with regard to imposing or withholding sanctions, the chancellor’s failure to find facts constituting an offense to Rule 11, and our reluctance to remand this case on this issue alone, we decline to find the lower court’s decision clearly erroneous on this point and affirm.

On direct appeal, we affirm the trial court; on cross-appeal, we affirm in part and reverse and dismiss in part.

Special Justices Leon N. Jamison and Allen P. Roberts join in this opinion.

Holt, C.J., and Dudley and Hays, JJ., not participating.