author: Jack Holt, Jr., Chief Justice.

text:
    Robert Neal HELTON, Jr. v. STATE of Arkansas
    CR 94-1363
    896 S.W.2d 887
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In this appeal from his conviction for rape, the appellant, Robert Neal Helton, Jr., raises two points for reversal. He contends that the trial court erred in (1) not granting a directed verdict because the State failed to produce sufficient evidence that would support a rape conviction; and (2) allowing the State, over the defense’s objection, to have rebuttal during the sentencing phase of the trial. Neither point has any merit whatsoever, and we affirm the judgment of the trial court.

Facts

The record reveals that, on March 30, 1994, at about 1:00 a.m., appellant Robert Neal Helton, Jr., went to a neighboring house trailer where the victim was living and asked her to drive him in his Ford Bronco to a used car lot, saying that he was intoxicated and didn’t want to be stopped by the police. After driving some distance, Helton directed the victim to turn down a dirt road.

When the vehicle stopped, Helton got out and urinated. Then he walked around to the driver’s side, opened the door, seized the victim by the neck, and pressed something that she believed to be a knife to her side. The victim screamed, and Helton said, “Shut up. I’ll kill you if you scream again.”

Helton then ordered the victim to pull her pants down and to take her panties off. When she complied, he grabbed her hands and performed oral sex on her, warning her afterward that “You’re not going to tell anybody about this. I’ll kill you if you say anything about this.” Next, Helton ordered the victim into the back seat of the vehicle, where he engaged in sexual intercourse with her and repeated his threat to kill her if she told anyone about the rape.

Subsequently, Helton and the victim returned to the trailer park, and the victim gave an account of the rape to the couple with whom she lived. Later in the day, she informed her boyfriend, who took her to the University of Arkansas for Medical Sciences in Little Rock for an examination. The crime was also reported to the Saline County Sheriff’s Office, which began an investigation. Helton was charged by information on April 11, 1994, with the Class Y felony of rape, pursuant to Ark. Code Ann. § 5-14-103 (Repl. 1993), and with being an habitual offender.

A jury trial was conducted in the Saline County Circuit Court on September 2, 1994. Testifying on behalf of Helton, his fiancee, Deborah Melson, stated that the accused had spent the entire night in question sleeping in her room in the house she shared with her parents, her children, and her brother. Ms. Melson’s mother, Mary Melson, also testified that Helton spent the night of the crime at her house. A guilty verdict was returned, and a life sentence was imposed. From that judgment, this appeal arises.

/. Directed verdict

Helton argues in his first point for reversal that the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to support a rape conviction. Neither motion, however, was made with the requisite degree of specificity to preserve this issue for appeal.

At the close of the State’s case, defense counsel made the following motion:

MR. HARDIN: Make a motion at this time for a directed verdict on the charge of rape in that there’s not been significant evidence which would lead to a conclusion by the jury that he’s guilty of rape.

The court denied the motion. Subsequently, at the close of all the evidence, the defense made the following statement:

MR. HARDIN: The defense renews its motion for a directed verdict on the grounds previously stated.

The court denied the attempted renewal.

In Walker v. State, 318 Ark. 107, 109, 883 S.W.2d 831, 832 (1994), this court declared that

We draw a bright line and hold that a motion for a directed verdict in a criminal case must state the specific ground of the motion. Rule 36.21 of the Arkansas Rules of Criminal Procedure is to be read in alignment with Rule 50 of the Arkansas Rules of Civil Procedure. If a motion for directed verdict is general and does not specify a basis for the motion, it will be insufficient to preserve a specific argument for appellate review.

The holding was reiterated in Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994), a rape case, where we held that a motion for acquittal “based on the insufficiency of the evidence on the State’s case” and a later renewal of “previous motions” constituted a waiver of the right to challenge the sufficiency of the evidence. The moving party must apprise the trial court of the specific basis on which a motion for a directed verdict is made. Id.

Because Helton failed to provide a specific basis for his directed verdict motion, the trial court did not err in denying it. The sufficiency issue having been waived, we need not consider it on the merits. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).

II. Rebuttal in sentencing phase

For his second point for reversal, Helton contends that the trial court erred in permitting the State to have rebuttal in the sentencing phase. While the jury was deliberating the question of guilt, the following exchange occurred between defense counsel and the trial court:

MR. HARDIN: If there is a second stage, the defendant will object to the prosecution getting the advantage of a rebuttal argument in the second stage since there is not a burden of proof of beyond a reasonable doubt connected with that stage. It is just a matter of sentencing for the jury and the jury finding, based on the aggravating and mitigating circumstances presented by both sides. Therefore the defense will object to the prosecution getting the added closing advantage.
THE COURT: And the court denies that motion, finding there is always a burden of proof on the moving party. In this case, the State, insofar as the evidence it presents, is the moving party and does have the burden of convincing the jury of the truth of those allegations at least by a preponderance of the evidence, and the State will therefore have an opening and a rebuttal in its closing argument.

During the sentencing phase, the State elected not to present a rebuttal argument. Consequently, Helton suffered no prejudice and therefore has no basis for reversal with respect to this point. The issue is moot.

III. Rule 4-3(h)

As this was a case in which the appellant was sentenced to life imprisonment, the record has been thoroughly examined. There are no points preserved for appeal that appear to constitute prejudicial error.

Affirmed.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    STATE of Arkansas v. CRITTENDEN COUNTY, et al.
    94-930, 94-931
    896 S.W.2d 881
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellant.

      Hale, Fogleman & Rogers, by: Joe M. Rogers, for appellee.
   Jack Holt, Jr., Chief Justice.

We have before us a consolidated appeal and cross-appeal which deals with the assignment of responsibility for payment of attorney’s fees, investigative, witness, and other expenses incurred during the course of certain criminal trials in the Second Judicial District of the State of Arkansas. A single point is raised on direct appeal: whether the trial court erred in interpreting the Arkansas Public Defender Commission Act (Act 1193 of 1993, Acts of Arkansas) to require the State of Arkansas, rather than Crittenden County, to be responsible for payment of attorney’s fees to appointed counsel for services rendered after July 1, 1993. On cross-appeal, issues have been raised concerning the sufficiency of the attorney’s fees; the reimbursement of out-of-pocket expenses; and the responsibility of the county, as opposed to the state, for payment of trial-related expenses.

The State of Arkansas, appellant and a cross-appellee, contends that the Act should be interpreted in a manner consistent with the interpretations given to similar legislative acts in other jurisdictions and that public policy requires that the Act be applied as of its effective date of July 1, 1993, the effect of which is to require the county to assume payment for attorney’s fees to appointed counsel. We hold otherwise. Under the circumstances of this case, the circuit court did not err in finding the State of Arkansas responsible for payment of attorneys’ fees after July 1, 1993.

Appellee and cross-appellant Crittenden County argues one issue in its cross-appeal: whether the trial court erred in requiring the county to pay expenses incurred on behalf of the indigent criminal defendants. We agree with Crittenden County that the trial court erred in this regard and accordingly order the trial court to enter a judgment consistent with our holding. The state is responsible for the payment of all related expenses.

Attorneys Daniel T. Stidham, Gregory L. Crow, Val P. Price, Scott Davidson, Paul N. Ford, and George R. Wadley, Jr., also filed a three-point cross-appeal, contending that the trial court erred in (1) establishing the amount of attorneys’ fees for Messrs. Stidham and Crow and for Messrs. Price and Davidson, as the amounts were inadequate under this court’s previous holdings; (2) establishing the amount of out-of-pocket costs due Messrs. Stidham and Crow; and (3) establishing the amounts of compensation for Messrs. Stidham and Crow’s experts and for Messrs. Stidham and Crow’s and Messrs. Price and Davidson’s investigator, as the amounts were unreasonably low. There being no merit in the attorneys’ argument, we hold that the trial court did not err under these circumstances.

Facts

Damien Echols, Charles Jason Baldwin, and Jessie Lloyd Misskelley, Jr., were charged with capital murder in the Crittenden County Circuit Court. Each defendant was found to be indigent, and two attorneys were appointed in June 1993 to serve jointly as trial counsel for each defendant. Because of a conflict, the Crittenden County public defender did not represent any of the defendants. Instead, trial counsel were called from private practice: Val Price and Scott Davidson were appointed to represent Echols; Paul Ford and George Wadley were appointed to represent Baldwin; and Daniel Stidham and Gregory Crow were appointed to represent Misskelley.

Meanwhile, on April 19, 1993, the General Assembly enacted Act 1193 of 1993, the Arkansas Public Defender Commission Act, codified at Ark. Code Ann. §§ 16-87-201 — 16-87-214 (Supp. 1993). The act became effective on July 1, 1993. Up to that point, the State of Arkansas, pursuant to this court’s holdings in State v. Independence County, 312 Ark. 472, 850 S.W.2d 842 (1993), and State v. Post, 311 Ark. 510, 845 S.W.2d 478 (1993), was held responsible for indigent defense fees. Under the new act, however, the responsibility for the payment of indigent defense fees was shifted to the counties.

On September 27, 1993, the Crittenden County Circuit Court held a hearing regarding the issue of whether, in the light of the new act, the State of Arkansas or Crittenden County should be responsible for attorneys’ fees and costs in the cases. After the hearing, the court, requesting that briefs be submitted on the issue, took the matter under advisement.

Granting motions for change of venue, the Crittenden County Circuit Court ordered the Echols and Baldwin cases transferred to Craighead County and the Misskelley case, which had been severed, transferred to Clay County. Echols and Baldwin were tried together. The Honorable David Burnett, Circuit Judge, presided over the trials of all three defendants.

After the separate criminal trials were concluded, the trial court held a consolidated hearing on April 22, 1994, on the issue of attorneys’ fees, expenses, and expert-witness fees. The circuit court found that the state was responsible for all attorneys’ fees and that Crittenden County was responsible for all expenses in connection with the trials.

The following attorneys’ fees were awarded, to be paid by the state: $30,500 to Val Price; $25,000 to Scott Davidson; $26,000 to Paul Ford; $20,000 to George Wadley; and a joint fee of $40,000 to Daniel Stidham and Gregory Crow. The court awarded the following reimbursements to be paid by Crittenden County for expenses incurred: $3,500 to Mr. Price; $5,500 to Messrs. Ford and Wadley; and $3,500 to Messrs. Stidham and Crow.

Fees were also provided, at county expense, for the various experts who assisted the defense teams: in the Echols case, $7,000 to Ron Lax of Inquisitor, Inc.; in the Baldwin case, $5,100 to Jim Rasicott of AB Communications, Inc., and $3,453.10 to Charles Lynch; and in the Misskelley case, $1,216 to Warren Holmes of Holmes Polygraph Services, Inc., $1,500 to Dr. Richard Ofshe, $750 to Dr. William Wilkins, $2,005.81 to Dr. Robert Berry of RMB Associates, and no fee for Ron Lax of Inquisitor, Inc.

The state has filed two separate appeals, from Craighead and Clay Counties, and the three defense teams have filed separate cross appeals. Cases No. 94-930 and No. 94-931 have been consolidated for purposes of this appeal.

I. Direct appeal (State) —Attorneys’ fees

The central question at the heart of this appeal is whether the State of Arkansas or Crittenden County was responsible for the payment of attorneys’ fees in the present matter after June 30, 1993. A survey of the relevant cases leads us to the conclusion that the state must bear the financial burden in this instance.

As mentioned earlier, Act 1193 of 1993 became effective through its emergency clause on July 1, 1993. In the period immediately prior to enactment of this section, this court held that the state was responsible for payment of defense counsel’s fees and expenses. State v. Independence County, supra; State v. Post, supra.

Act 1193 was a legislative response to a line of cases involving the payment of fees for appointed counsel. In Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), this court held that the statutory “fee caps” set forth in Ark. Code Ann. § 16-92-108(b) (1987) (repealed by Act 1193 of 1993) unconstitutional in their denial to appointed counsel of just compensation and equal protection of the laws. Subsequently, in State v. Post, supra, a plurality opinion, we declared the remainder of the statute unconstitutional and held that, because no statute delegated the duty of payment of indigents’ attorneys’ fees to the counties, the state bore responsibility. That holding was reiterated in State v. Independence County, supra. Within a few months, the General Assembly approved Act 1193, assigning counties the responsibility to pay, except for the costs of the Capital, Conflicts, and Appellate Office, which are to be borne by the state.

Section 8 of Act 1193 of 1993, codified at Ark. Code Ann. § 16-87-210(a) (Supp. 1993), provides that:

When private attorneys or trial public defenders from another area are appointed to represent an indigent person, the attorneys or trial public defenders shall be paid by the county wherein the crime was committed.

The state concedes its responsibility for paying attorneys’ fees through June 30, 1993, but insists that, as of July 1, 1993, the effective date of Act 1193, the payment of fees for services rendered by counsel for the indigent defendants in this matter became the duty of Crittenden County.

The circuit court, in its hearings in this regard and in its orders of May 10, 1994, and June 20, 1994, noted that the General Assembly, by enacting Act 1193, intended to provide assistance to the counties in capital murder cases through the creation of the Capital, Conflicts, and Appellate Office, which, however, “was not operational or functioning sufficiently” at the time private attorneys were appointed to represent Echols, Baldwin, and Misskelley. Because neither this service nor local public defenders were available due to circumstances, it was necessary to employ private attorneys, who, as the trial court stated, “received no assistance from said agencies” (/. e., the Capital, Conflicts and Appellate Office).

The Capital, Conflicts, and Appellate Office, created by Section 7 of Act 1193 of 1993, Ark. Code Ann. § 16-87-205 (Supp. 1993), is to be appointed by the trial court “[i]n capital murder cases in which the death penalty is sought, if a conflict of interest is determined by the court to exist between the trial public defender’s office and the indigent person, or if for any other reason the court determines that the trial public defender cannot or should not represent the indigent person.” Ark. Code Ann. § 16-87-205(c)(l)(A) (Supp. 1993). Provision is also made for the appointment, “as a last resort,” of “private attorneys whose names appear on the list of attorneys maintained by the commission.” Ark. Code Ann. § 16-87-205(c)(l)(D) (Supp. 1993). Appointed private attorneys, under Section 6 of Act 1193, are to be paid “reasonable fees and compensation for expenses by the county where the crime was committed.” Ark. Code Ann. § 16-87-209(f) (Supp. 1993).

The clear intent in the General Assembly’s creation of the Capital, Conflicts, and Appellate Office was to allocate to the state, if at all possible, the burdensome costs of defending capital murder cases. Implicit in the circuit court’s orders in this case was a recognition that the primary thrust of the legislation would be thwarted by placing the duty of payment after June 30, 1993, on Crittenden County because the Capital, Conflicts, and Appellate Office was not operational at the time the private attorneys were appointed.

We agree with the circuit court’s findings but are of the opinion that this issue may be resolved on a more fundamental level. The provisions of Ark. Code Ann. § 16-87-210(a) apply to instances “When private attorneys ... are appointed... .” Act 1193 became effective on July 1, 1993. As the appointments in this case were made before the effective date of the law, they are not governed by it.

II. Cross-appeal (County) Expenses

In its cross-appeal, Crittenden County argues that the circuit court erred when it held the county liable for payment of the defense costs, which amounted to $24,553.10 in the Echols and Baldwin case and $8,971.81 in the Misskelley case. The county points to this court’s decision in State v. Post, supra, which held the state “responsible for payment of [the attorney’s] fees and expenses.” 311 Ark. at 521, 845 S.W.2d at 492. Similarly, in State v. Campbell, supra, this court placed the duty of paying both fees and expenses on the state.

The state, in its brief, does not respond to Crittenden County’s citation of authorities supporting the contention that the state stands responsible for related expenses as stated in Post, supra, and Campbell, supra. During the period since these decisions were handed down, the legislature has created no statutory vehicle to provide for assessment of trial expenses against the county, and the state offers no compelling rationale for so inconsistent an application of the Post and Campbell holdings. Rather, the state, giving short shrift to the issue, claims that the same arguments concerning responsibility for attorney’s fees apply to the assessment of expenses that were previously discussed in its brief and that there was no need to readdress or reargue the issue.

We disagree for the reasons stated in Post — that because there was no longer a statute with reference to the assessment of fees, the state was responsible for the payment of both legal fees and expenses — and again in Campbell, where we declared that there was no statutory vehicle at the time for the assessment of fees and expenses against Newton County. Under the circumstances, the trial court erred in not ordering the expenses in question to be paid by the state.

Granted, as the dissent notes, Section 10 of Act 1193 of 1993, codified at Ark. Code Ann. § 16-87-212 (Supp. 1993), and effective July 1, 1993, provides that:

(a)(1) The commission [Arkansas Public Defender Commission] is authorized to pay expenses regarding the defense of indigents, other than salaries, attorney’s fees, and regular office expenses.
(2) The expenses shall include, but shall not necessarily be limited to, fees for expert witnesses, testing and travel.
(3) (A) Whenever, in a case involving an indigent person, a judge orders the payment of funds for the aforementioned expenses, the judge shall transmit a copy of the order to the commission, which is authorized in its discretion to pay the funds.
(B) If the commission declines to pay the funds, the funds shall be paid by the county wherein the crime was committed, provided that the Arkansas Supreme Court may promulgate rules for the stay of such orders in the event that they are contested.

It is unclear from the record whether, at any point in the proceedings, the Arkansas Public Defender Commission (which, unlike the Capital, Conflicts, and Appellate Office, was operational as of July 1, 1993) was requested to pay the specified funds. Yet, as we have stated, we do not apply Act 1193 to the case at hand. When the attorneys were appointed, the Post and Campbell cases governed the payment of not only attorney’s fees but also expenses, and the attorneys in the present case had a right to expect that they would receive compensation for their services and expenses from the state.

As the trial expenses constitute a separable element in the circuit court’s judgment, and as a new trial on the issue may thus be avoided, we direct that, upon remand to the trial court, an order be entered consistent with our holding and that a remittitur be entered in favor of Crittenden County against the State of Arkansas. See Jacuzzi Brothers, Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994).

III. Cross-appeal (Counsel) Amount of fees and expenses

Cross-appellants Stidham, Crow, Price, and Davidson raise three points for reversal in their cross-appeal. Each concerns the setting by the circuit court of the amount of fees, costs, or compensation for counsel or witnesses. None has merit.

a. Adequacy of attorneys ’ fees

The attorneys first contend that the circuit court erred in establishing the amount of attorneys’ fees because the amounts were inadequate under this court’s previous holdings. They assert that they do not seek full compensation but instead seek adequate and reasonable compensation.

Under the standards promulgated in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), the trial court should determine fees that are just, taking into consideration the experience and ability of the attorney, the time and labor required to perform the legal service properly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer.

In Price v. State, 313 Ark. 98-A, 856 S.W.2d 10 (1993), supp. op. on denial of reh’g, we held that there is no fixed formula for computing remuneration for attorneys and that the supreme court will defer to the superior perspective of the trial court to weigh and apply the factors set forth in Arnold v. Kemp, supra, based on an intimate familiarity with the proceedings and with the quality of services rendered. Further, we noted that the discretion of the trial court is not to be disturbed on appeal in the absence of abuse.

Here, the trial court had before it evidence of the hours devoted by counsel to the cases and the expenses incurred. Other attorneys testified concerning their hourly rates for comparable work. The fees awarded in the present case were significantly lower than those cited by other attorneys. Messrs. Stidham and Crow received approximately $21.73 per hour; Mr. Price received approximately $33.06 per hour; and Mr. Davidson received approximately $31.02 per hour.

The record does not reveal that the circuit court arrived at its conclusions regarding the amounts due for attorneys’ fees in a cavalier manner. Opportunities were afforded counsel to make their case for higher fees. Moreover, the circuit court was not bound to accept the number of hours submitted by the attorneys. Given the circuit court’s mindfulness of the limited resources available from either the state or Crittenden County, it cannot be said that there was an abuse of discretion in the court’s decision.

b. Out-of-pocket expenses

The record indicates that Messrs. Stidham and Crow spent $4,049.11 of their own money in the defense of Misskelley. Of that amount, the circuit court reimbursed $3,500.

In Arnold v. Kemp, supra, as the cross-appellants note, this court quoted the following statement from State ex rel. Stephan v. Smith, 747 P.2d 816, 841 (Kan. 1987): “When the attorney is required to advance expense funds out-of-pocket for an indigent, without full reimbursement, the system violates the Fifth Amendment.” 306 Ark. at 302, 813 S.W.2d at 774. The quotation appeared in the context of a discussion of property rights in attorneys’ services subject to Fifth Amendment protection.

Unlike the situation in Arnold v. Kemp, supra, here there was no systematic limitation on the amount of expenses recoverable by the attorneys. Indeed, Arnold v. Kemp entrusts to the sound judgment of the trial court the approval of “such reasonable expenses as are plainly necessary for the defendant to have her day in Court and to permit counsel to fairly and adequately present her case.” 306 Ark. at 306, 813 S.W.2d at 777. In this instance, the trial court had before it accounts of services provided and expenses incurred by Messrs. Stidham and Crow. It was within the trial court’s discretion to determine the reasonableness of the expenses set forth by the attorneys. The record does not reveal a violation of the Fifth Amendment in the trial court’s decision.

c. Compensation for experts

By the time of trial, Ark. Code Ann. § 16-92-109 (Supp. 1993) governed the payment of experts and investigative expenses. No guidelines are given by the statute, but Arnold v. Kemp, supra, as noted above, vests the decision concerning the award of reasonable expenses to the sound discretion of the trial court. Nothing in the record indicates that the circuit court exceeded the bounds of its discretion in setting compensation amounts for the expert witnesses.

Affirmed on direct appeal.

Reversed and remanded for further proceedings consistent with this opinion on cross-appeal of Crittenden County.

Affirmed on cross-appeals of attorneys Stidham, Crow, Price, Davidson, Ford, and Wadley.

Brown, J., concurs in part and dissents in part.

Robert L. Brown, Justice,

concurring in part, dissenting in part. Act 1193 of 1993 which establishes the Trial Public Defender Offices was enacted April 19, 1993, with an effective date of July 1, 1993. Counsel for the three defendants in this case, all of whom were indigent, were appointed by the trial court the previous month in June 1993. Because the Capital, Conflicts, and Appellate Office created under Act 1193 had not been established at the time of the appointments and because the trial court found that that office rendered no assistance to counsel in the trials of these matters, I agree that the State should be responsible for the legal fees to private counsel. Act 1193 clearly contemplates the appointment of the Capital Office in the event of a conflict of interest in the public defender’s office. See Ark. Code Ann. § 16-87-205 (Supp. 1993).

I see no reason, though, not to follow Act 1193 with regard to other defense costs and expenses incurred after July 1, 1993. Act 1193 provides:

(a)(1) The commission [Arkansas Public Defender Commission] is authorized to pay expenses regarding the defense of indigents, other than salaries, attorney’s fees, and regular office expenses.
(2) The expenses shall include, but shall not necessarily be limited to, fees for expert witnesses, testing, and travel.
(3) (A) Whenever, in a case involving an indigent person, a judge orders the payment of funds for the aforementioned expenses, the judge shall transmit a copy of the order to the commission, which is authorized in its discretion to pay the funds.
(B) If the commission declines to pay the funds, the funds shall be paid by the county wherein the crime was committed, provided that the Arkansas Supreme Court may promulgate rules for the stay of such orders in the event that they are contested.

Ark. Code Ann. § 16-87-212(a) (Supp. 1993).

It is unclear from the record whether the Commission was requested to pay the specified expenses. I would apply Act 1193 and remand the matter of the expenses and costs to the trial court so that the statutory procedure might be followed.


author: Robert H. Dudley, Justice.

text:
    Alice MERTZ, et al. v. Gus PAPPAS, et al.
    94-1119
    896 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Hurst Law Office, by: Q. By rum Hurst, Jr., for appellants.

      Winston Bryant, Att’y Gen., by: Melissa K. Rust and William F. Knight, Asst. Att’y Gen.s, for appellees.
   Robert H. Dudley, Justice.

Appellants filed this suit in circuit court and alleged that the City of Hot Springs levied and collected a five mill ad valorem tax in violation of Amendment 59 to the Constitution of Arkansas. The circuit judge on assignment held that tax did not constitute an illegal exaction. Appellants file a direct appeal on the merits, and appellees cross-appeal and argue the circuit court was without jurisdiction. We affirm on direct appeal, albeit for a different reason, and do not reach the cross-appeal.

The facts necessary to decide this case were before the trial court on the cross-motions for summary judgment and are as follows: The tax was levied in the years 1986 and 1987. The tax was collected in the years 1987 and 1988. The tax has not been levied since 1988. Appellants did not plead, nor did they prove, that there are any uncollected delinquent taxes as a result of the tax levied in 1986 and 1987. Appellants did not file their complaint until February 22, 1990.

Appellants do not have a claim because the taxes were voluntarily paid before suit was filed. We have consistently followed the common law rule that prohibits the recovery of voluntarily paid taxes, except where a recovery is authorized by a statute without regard to whether the payment is voluntary or compulsory. See, e.g., City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982); Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968); Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953). We follow this rule even when an illegal exaction claim is based on constitutional grounds. Cash, 277 Ark. at 504-05, 644 S.W.2d at 233. When recovery is authorized by statute upon payment “under protest,” we literally require a payment “under protest.” Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). There is an exception for payment under coercion, see Cash, 277 Ark. at 505, 644 S.W.2d at 233; Chapman & Dewey Land Co. v. Board of Directors, 172 Ark. 414, 288 S.W. 910 (1926), but that exception is not applicable to the case at bar.

The reasoning underlying our cases is sound. When taxes are paid to a government they are deposited into that government’s general revenues and ordinarily are spent within that tax year. However, when the government is put on notice that it may be required to refund those taxes, it can make the appropriate allowance for a possible refund. See Hercules, Inc., 319 Ark. at 707, 894 S.W.2d at 578. If we were to allow refunds for taxes voluntarily paid in previous years, it would jeopardize current and future governmental operations because current and future funds might be necessary for the refund.

The trial court denied cross-motions for summary judgment and heard the case on its merits. The trial court then held that the tax was not levied in violation of Amendment 59. The trial court should have granted summary judgment in favor of appellees because appellants did not have a claim.

Summary judgment based upon a failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts which results in a party’s entitlement to the judgment as a matter of law. The first is a failure to state a claim, while the second is the failure to have a claim. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991). Summary judgment on the basis of failure to have a claim results in a dismissal with prejudice. Id. at 36, 806 S.W.2d at 610. The appellants do not have a claim for past taxes voluntarily paid. Thus, we affirm on direct appeal. Since appellants do not have a claim in any court, we need not decide the cross-appeal as it is a moot issue. See Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994).


author: David Newbern, Justice. David Newbern, Justice.

text:
    Jim PLEDGER, Director of the Department of Finance and Administration v. NORITSU AMERICA CORPORATION
    94-1289
    896 S.W.2d 595
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995
    [Rehearing denied June 12, 1995.]

      Beth B. Carson, Revenue Legal Counsel, for appellant.

      Friday, Eldredge & Clark, by: William Thomas Baxter and Barry E. Coplin, for appellee.

      Supplemental opinion issued June 12, 1995.

   David Newbern, Justice.

The Appellee, Noritsu America Corporation (Noritsu), sells automated equipment, or “minilabs,” purchased and used by businesses which process film. The Department of Finance and Administration (DF&A) assessed a use tax against Noritsu for its 1983 through 1988 Arkansas sales. The tax was paid under protest. The assessment was upheld in an administrative proceeding, and Noritsu sued to recover the tax and interest paid. The Chancellor agreed with Noritsu’s contention that the equipment falls within the manufacturing exemption from use tax found in Ark. Code Ann. § 26-53-114 (Supp. 1993). We reverse the decision because the equipment is not used to produce “articles of commerce.”

We review tax exemption cases de novo on the record, although we do not reverse the Chancellor’s factual findings unless they are clearly erroneous. Martin v. Riverside Furniture Corp., 292 Ark. 399, 730 S.W.2d 483 (1987). There is no factual dispute in this case. It was tried largely on stipulations. The question is whether, given the facts before the Chancellor, it was, as a matter of law, error to hold Noritsu entitled to the exemption. The taxpayer must establish an entitlement to an exemption from taxation beyond a reasonable doubt. Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994). Tax exemption provisions must be strictly construed against exemption, and if there is any doubt concerning its application, the exemption must be denied. Martin v. Riverside Furniture Corp., supra.

Section 26-53-114(a)(1)(A) exempts from use tax “Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce ...” Prior to 1983, Ark. Stat. Ann. § 84-1904(r)(2)(E), the predecessor of § 26-53-114(b), defined the words “manufacturing” and “processing” for purposes of the statute to mean, “those operations commonly understood within their ordinary meaning.” Following that general statutory guidance was a list of specific exemptions including items such as “mining, quarrying, refining, extracting oil and gas, cotton ginning,” etc., but nothing about photographs or printing.

In Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981), exemption was urged as to equipment used for commercial printing of stationery, wedding and business announcements, flyers, books, and business cards. We observed that, “in the ordinary use of the term we do not think of printing, photography, and binding as manufacturing.” We concluded our opinion as follows:

Commercial printing has certainly undergone technological changes over the years, but the final product remains the same — images on paper. The printer starts with manufactured paper and ink and through the use of manufactured machinery and equipment produces images on paper, a product which generally has no commercial market value other than to the individual for whom the commercial printer performed the service. “Ordinarily, we think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business.” Morely v. E.E. Barber Construction Co., 220 Ark. 485, 248 S.W.2d 689 (1952).

Subsequent to the decision in the Western Paper Co. case, the General Assembly amended § 26-53-114(b) to include in the list of specific exemptions “the services of overprinting and photographic processes incidental to printing.” Noritsu contends the equipment it sells falls within the exemption because it is the same equipment as is used to process photographs “incidental to printing.” It does not contend photographs produced with the equipment sold by it are indeed processed “incidental to printing.”

In C & C Machinery, Inc. v. Ragland, 278 Ark. 629, 648 S.W.2d 61 (1983), we affirmed denial of exemption with respect to equipment purchased by a machine shop operator who used the equipment to convert unprocessed metal into finished products. We said:

While we are persuaded that appellant’s milling operation changes raw metal into a finished product, we are not persuaded that the finished product is an “article of commerce,” as required under the exemption provision of the act... . The Chancellor was justified in finding under the evidence that appellant does not maintain a stock or inventory of finished articles for sale to the general public, rather, it produces custom items prepared for specific customers in response to special orders. Its products are prepared to customer specifications and are not readily marketable to the general public.

In support of our conclusion, we cited the Western Paper Co. case and the language about “retail to the general public.” Although our focus in the Western Paper Co. case was on whether printing was manufacturing, the C & C Machinery, Inc. case has made it clear that our language in the Western Paper Co. case had implications with respect to whether custom printing products were “articles of commerce.”

While we might agree with Noritsu’s contention that its equipment is like that used “incidental to printing,” the General Assembly has done nothing to alter the requirement that, to be exempt, manufacturing or processing equipment, regardless how it is defined, must be used to manufacture or process “articles of commerce” as stated in subsection § 26-53-114(a). Just as it was not shown in the C & C Machinery, Inc., case or in the Western Paper Co. case, it has not been shown here that the products processed by the equipment in question are “placed on the market for retail to the general public in the usual course of business.”

Our de novo review leads us to conclude Noritsu has not shown beyond a reasonable doubt that it is entitled to the exemption and a return of the tax and interest it has paid. This case is remanded for an order consistent with this opinion.

Reversed and remanded.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING JUNE 12, 1995

1. Appeal & error — issue was raised on appeal — no waiver found. — Where the appellant abstracted testimony about the nature of the articles produced and then quoted language from cases making it clear that the items produced by photographic development equipment were not “articles of commerce,” the issue was raised on appeal, and was properly addressed by the court.

2. Appeal & error — challenge on the merits made — no evidence BEFORE COURT THAT THE WORK DONE BY THE MACHINES WAS ANYTHING OTHER THAN CUSTOM PHOTO FINISHING NOT RESULTING IN “ARTICLES of commerce” — rehearing denied. — The appellee’s argument that the abstract indued evidence that the appellee’s machines produced article of commerce was meritless where the deposition testimony revealed no evidence that the work done by the machines was anything other than a custom photo finishing not resulting in “articles of commerce”; rehearing was denied.

Petition for Rehearing; denied.

Department of Finance & Administration, by: Beth B. Carson, Acting Chief Counsel, for appellant.

Friday, Eldredge & Clark, by: Barry E. Coplin, Robert S. Shafer and Allison Graves, for appellee.

David Newbern, Justice.

Noritsu America Corporation has petitioned for rehearing contending we should not have considered whether the photographic development equipment produced “articles of commerce,” as that was not argued by Mr. Pledger on appeal. The rehearing petition must be denied as we conclude the argument was before us.

Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981), is a primary citation presented in Mr. Pledger’s initial brief. In his argument he quoted the Western Paper Co. case opinion, in part, as follows: ‘“Ordinarily, we think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business.’

Morely v. E.E. Barber Construction Co., 220 Ark. 485, 248 S.W.2d 689 (1952)....” The argument contending that the photo processing equipment was not manufacturing equipment also quoted the following from Riggs v. Hot Springs, 181 Ark. 377, 26 S.W.2d 70 (1930): “We think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business.”

Although, as Noritsu points out, Mr. Pledger’s brief did not cite Ark. Code Ann. § 26-53-114(a)(1)(A) which addresses the “articles of commerce” aspect of the manufacturing exemption, that concept was a subject of the Western Paper Co. case which, as noted above, was cited in the argument and relied upon. Section 26-53-114(a)(1)(A) provides the basic exemption for manufacturing equipment upon which Noritsu must rely. It must serve as the foundation of any argument for exemption for manufacturing equipment. Even if a fundamental part of that subsection had not been argued, we would have difficulty ignoring it in a case in which the issue is exemption pursuant to that law.

Noritsu cites Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967), and Ford v. Ford, 270 Ark. 349, 605 S.W.2d 756 (Ark. App. 1980), for the proposition that an argument not made on appeal is waived. We cannot say there was a waiver here. By abstracting testimony about the nature of the articles produced and then quoting language from cases making it clear that such items are not “articles of commerce” as we have defined that term, the issue was raised. Noritsu could have responded in its brief but chose not to do so.

Finally, Noritsu mounts a challenge on the merits of the argument pointing out abstracted evidence that “in addition to negatives and photo prints, the Appellee’s [Noritsu’s] machines produce baseball cards, business cards, greeting cards, enlargements and mini-posters” and that they could produce 1,200 prints per hour. The reference to business cards, greeting cards, enlargements and mini-posters gave us no reason to suspect that evidence that the equipment was producing articles of commerce. The reference to baseball cards gave us pause until we reviewed the cited portion of Mr. Pledger’s abstract. The deposition testimony to which reference is made on the “baseball cards” is as follows: “Equipment today is capable of producing baseball cards such as trading cards for little leaguers or photo business cards.” We have no evidence before us showing that the work done by the machines is anything other than custom photo finishing not resulting in “articles of commerce.”

Rehearing denied.


author: Tom Glaze, Justice.

text:
    Kenneth K. WATANABE and Jessica Watanabe v. Ed H. WEBB, Ellinor Webb, Dixon Realty, the Estate of Juanita Dixon, J.W. Williams, Pulaski Lenders Title Company, d/b/a Guaranty Title Company, and Gene Weston
    95-3
    896 S.W.2d 597
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Rose Law Firm, by: David L. Williams, for appellants.

      Charles R. Padgham, for appellees Ed H. Webb and Ellinor Webb.

      Kathy A. Cruz, for appellees Dixon Realty, Estate of Dixon and J.W. Williams.

      Anderson & Kilpatrick, by: Miriam T Hopkins, for appellees Pulaski Lenders Title Company and Gene Weston.
   Tom Glaze, Justice.

Appellees Ed and Ellinor Webb sold property to appellants Kenneth and Jessica Watanabe, and a dispute later arose concerning whether some springs were located on that property. Ultimately, the Webbs filed a foreclosure action against the Watanabes alleging the Watanabes were in default on their promissory note and mortgage. In addition to filing an answer and counterclaim against the Webbs, the Watanabes filed crossclaims against appellees Dixon Realty, Juanita Dixon, Guaranty Title Company and Gene Weston, alleging breach of contract, breach of fiduciary duties and misrepresentation.

A hearing was held in this matter, and on April 13, 1994, the trial court entered a decree of foreclosure against the Watanabes and dismissed the Watanabes’ claims against all appellees. Upon the Watanabes’ failure to satisfy the foreclosure decree, a commissioner’s sale was held, and on June 2, 1994, an order confirming the commissioner’s sale was entered. On July 5, 1994, the Watanabes filed a notice of appeal from the April 13 decree and June 2 order. On October 3, 1994, the Watanabes obtained an order to extend their time for filing the appeal record to January 2, 1995. Because January 2, 1995, was a legal holiday, the Watanabes tendered the record on January 3, 1995, and the supreme court’s clerk accepted it. After the record was filed, all appellees subsequently filed motions to dismiss the Watanabes’ appeal, contending the Watanabes’ notice of appeal was filed untimely and their lodging of the record was late as well.

Appellees argue that the Watanabes’ notice of appeal was untimely because their notice was not filed within thirty days from the entry of the foreclosure decree as required by Ark. R. App. P. 4(a). As mentioned above, the trial court entered its decree on April 13, 1994, but the Watanabes delayed filing their notice of appeal until July 5, 1994. In the recent case of Scherz v. Mundaca Investment Corp., 318 Ark. 595, 886 S.W.2d 631 (1994), this court held that a decree foreclosing a mortgage and a later decree confirming the foreclosure sale were both final and appealable orders. Citing Alberty v. Wideman, 312 Ark. 434, 850 S.W.2d 314 (1993), the court reaffirmed this court’s long-standing principle as follows:

Thus, a decree that orders a judicial sale of property and places the court’s directive into execution is a final order and appealable under Ark. R. App. P. 2(a)(1). When there is such an order, a certification under Rule 54(b), is not necessary ... If it were otherwise, and there were questions about the validity of the sale, prospective bidders might not bid a reasonable amount because there would be a cloud over the matter, and no one wants to buy a lawsuit. Those issues can be finally determined under our procedure. As a separate matter, any questions concerning the validity and adequacy of the bids might be heard on a later appeal from the order confirming title.

Id., at 437, 850 S.W.2d at 316. (Emphasis added.)

The Watanabes suggest that, in the present case, the foreclosure decree was not final because it failed to set a day and place for the sale. That suggestion is meritless. Like in Scherz, the trial court here appointed a commissioner and directed that, if the Watanabes failed to pay the judgment of foreclosure, including $202,690.41 at a daily rate of $49.31, attorneys’ fees of $10,000.00 and the maximum interest rate, the commissioner, after advertising the time, terms and place of sale for thirty days, shall by public auction sell the subject property at the Garland County Courthouse to the highest bidder.

The Watanabes also try to distinguish Scherz by arguing the trial court there made an A.R.C.P. Rule 54(b) certification, but none had been made in the present case. This argument, too, has no merit because a Rule 54(b) certification was unnecessary. First, this court held in Scherz that, when a foreclosure decree’s directives have been placed into execution, an appeal may be filed from that final decree without a Rule 54(b) determination. Second, Rule 54(b) provides that, when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the trial court may direct the entry of a final judgment as to one or more but fewer than all claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for entry of judgment. Here, the chancellor not only entered a detailed foreclosure decree in the Webbs’ favor setting the decree into execution, it also specifically and generally dismissed the Watanabes’ claims against the Webbs and all other parties to the lawsuit. In other words, no pending claims existed requiring a Rule 54(b) certification.

Although we hold the Watanabes’ appeal from the April 13, 1994 foreclosure decree was untimely, their appeal from the lower court’s final confirmation order entered on June 2, 1994, was timely. The Watanabes had thirty days within which to file their appeal from the June 2 order, and the filing deadline fell on Saturday, July 2, 1994. See Ark. R. App. P. 4(a). Under Ark. R. App. P. 9, whenever the last day for taking any action under the appellate rules or rules of the supreme court and court of appeals falls on a Saturday, Sunday, or legal holiday, the time for such action is extended to the next business day. Here, the Watanabes’ appeal deadline not only fell on a weekend, but was also followed by a legal holiday, Monday, July 4, 1994. As a consequence, the Watanabes’ notice of appeal was timely filed on the following business day, Tuesday, July 5, 1994.

Appellees argue that the Watanabes still filed the record late, since they waited until January 3, 1995, to lodge it with the supreme court clerk. Ark. R. App. P. 5(b) provides that in no event shall the time for filing the record on appeal be extended more than seven months from the date of the entry of the judgment, decree or order, or from the date on which a timely post-judgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later. Here, no post-judgment motions were filed. Instead, the Watanabes obtained a timely order permitting them to file their record on Monday, January 2, 1995, which turned out to be a legal holiday. Again, as was the case with their notice of appeal from the June 2, 1994 confirmation order, the Watanabes’ filing deadline for filing the record fell on a weekend and legal holiday, extending their deadline to the next business day — in this instance, Tuesday, January 3, 1995. In sum, the Watanabes filed their record timely and within the seven-month deadline provided under Rule 5(b).

For the foregoing reasons, we dismiss the Watanabes’ appeal from the April 13, 1994 foreclosure decree, but we deny appellees’ motion to dismiss the Watanabes’ appeal from the June 2, 1994 confirmation order.

      The decree, among other things, continued, setting interest rates from the sale date, establishing lien rights and bonds, allowing for the contingency if a successful bidder failed to perform, providing for commissioner’s report, requesting the Watanabes file an exemption schedule and distributing escrow funds upon confirmation of sale.


text:
    Joe Robert WESSON v. STATE of Arkansas
    CR 94-822
    896 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Lea Ellen Fowler O ’Kelley, for appellant.

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

Linda Rabal and appellant Joe Wesson had been dating over a year, but because of Wesson’s drinking, Rabal terminated the relationship with Wesson in the fall of 1992. Wesson made phone calls to Rabal both at her home and her office in a futile attempt to reconcile. During the early morning hours of November 15, 1992, Wesson damaged a car belonging to Rabal’s overnight guest, and broke the door down to Rabal’s apartment, confronting both Rabal and her guest. Wesson was arrested at the scene, and subsequently on April 7, 1993, plead guilty to misdemeanor charges of criminal trespass, criminal mischief, harassing communications and public intoxication. After-wards, Wesson still continued to call Rabal at her home and work, and was observed in Rabal’s apartment complex area.

On January 27, 1994, Wesson was charged with the felony of stalking Rabal during the period of April 20, 1993, through May 10, 1993. Wesson waived trial by jury, and was found guilty of stalking in the second degree. The trial court sentenced Wesson to five years imprisonment, and established conditions of probation for three years following his release. Wesson appeals from the trial court’s interpretation of the stalking statute and from the sufficiency of the evidence.

Acts 379 and 388 of 1993 [Ark. Code Ann. § 5-71-229 (Repl. 1993)] created the offenses of stalking in the first and second degree and also contained sections that amended the statutory offenses of harassment and terroristic threatening to make them Class A misdemeanors. Stalking in the second degree, a Class C felony, is defined in relevant part as follows:

[I]f [a person] purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury .... § 5-71-229(b)(l).

“Course of conduct” as used in § 5-71-229(b)(l) means a pattern of conduct composed of two or more acts separated by at least thirty-six hours but occurring within one year. In addition, the term “harasses” employed in § 5-7 l-229(b)(l) means acts of harassment as defined in Ark. Code Ann. § 5-71-208. Those parts of § 5-71-208 relevant here define harassment as follows:

(а) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he:
* * *
(5) Engages in conduct or repeatedly commits acts that alarm or seriously annoy another person and that serve no legitimate purpose; or
(б) Places the person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence; other than the residence of the defendant, for no purpose other than to harass, alarm, or annoy.

Here, Wesson concedes his acts fell within the definition of harassment as that term is defined and employed in the stalking statute. Nonetheless, he contends the stalking law also uses the term “terroristic threat” when defining the crime of stalking, and therefore, the state was required to show he made an “actual threat” of death or serious physical injury to Rabal as contemplated under the terroristic threatening statute, § 5-13-301. In this respect, we point out that, in construing § 5-13-301, the court of appeals held, with which we agree, that the statute does not require that it be shown that the accused has the immediate ability to carry out the threats. Knight v. State, 25 Ark. App. 353, 758 S.W.2d 12 (1988). In sum, Wesson argues an “actual threat” must be shown as an essential element of the crime of stalking, and the trial court erred in finding that the state proved that element.

First, we certainly agree that, under the plain terms of § 5-71-229(b)(l), stalking requires the perpetrator to make a threat with the intent of placing his victim in imminent fear of death or serious bodily injury. We disagree, however, with Wesson’s contention that he did not make such a threat. In fact, our review of the record reveals that the evidence thoroughly supports Wesson did, in fact, threaten Rabal with both death and serious bodily injury. The evidence, introduced without objection, showed that from the time Rabal began breaking up with Wesson in late 1992, through May 10, 1993, Wesson called Rabal repeatedly. During that time Rabal changed her telephone number four times, but Wesson was able to obtain her unlisted number twice. Rabal testified Wesson told her in early April 1993, that he had thoughts of killing her but did not know whether to do it at her apartment or at her place of employment. Further, Rabal testified that she saw Wesson sitting in a truck at her apartment complex on Mother’s Day weekend in 1993. Finally, Rabal testified that, during the evening of May 10, Wesson called her home eighteen times within a period of one and one-half hours before she finally disconnected her phone. She stated Wesson’s call to her that evening was different from the others in that Wesson told her he was coming over to her apartment “right away” and he was going to hurt her. Rabal testified she became so frightened she sat up with a bat and Mace, and later bought a gun. She stated she expected Wesson to come that night to hurt her, and perhaps kill her.

The tapes of telephone messages showed that Wesson threatened repeatedly to show up at Rabal’s place of employment, and said he would make her life miserable, ruin her, make it his business to destroy her, wreak havoc upon her, and hurt her badly. In one telephone call, Wesson left the following message: “You can go straight to hell, and I’m going to do everything that I can do in my power to hurt you, and I will do it.” Wesson later left the message, “I’m very sorry that I ever met you in my life. You better hope to God that I don’t turn where I want to hurt you, because I can. I really can, and I will.” Three days later, Wesson’s tape-recorded message provided the following:

For the last time, if you ever hang up on me again, will be absolutely the last time that you will ever [hang] up on [me] again, and I really appreciate the way that you’re feeling right now with your new little life. But no one will ever love you like I loved you. So, you go on with those guys, and I’ll come back, and I’ll do what I have to do.

And the same day, Wesson was recorded in a different message as stating:

Do it again [hang up on him], and then I’ll do my damnedest to hurt you. I really will. God damn it, if you won’t even speak to me after living with you for a year and a half, I’m going to set my path to hurt you.

Wesson argues the foregoing calls and messages were intended as threats to harm Rabal emotionally. Of course, a person’s state of mind at the time of a crime is seldom apparent. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). Since intent cannot be proven by direct evidence, the fact finder is allowed to draw upon his or her own common knowledge and experience to infer it from the circumstances. Id. Because of the difficulty in ascertaining a person’s intent, a presumption exists that a person intends the natural and probable consequences of his acts. Id.

Here, the trial judge, in hearing the evidence above, reasonably found that Wesson intended to terrorize Rabal with threats of harm. While Wesson argues those threats were of emotional harm, the fact remains that Rabal had ended her relationship with Wesson and from her view, no emotional link existed with which Wesson could hurt Rabal. Coupled with Wesson’s earlier repeated and threatening messages, Wesson’s pronouncement to Rabal on May 10 that he was coming over to her apartment “right away” to hurt her at the very least supports the finding that Wesson intended to cause Rabal serious physical injury. Based on the foregoing, we hold substantial evidence existed to support Wesson’s conviction for second degree stalking.

Affirmed.

      These acts made no changes in defining the harassment or terroristic threatening offenses.


author: Robert L. Brown, Justice.

text:
    Craig DRUMMOND v. STATE of Arkansas
    CR 94-1433
    897 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995
    [Rehearing denied May 30, 1995.]

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Craig Alan Drummond appeals from a judgment of conviction for the offense of underage driving while under the influence of alcoholic beverages. The legislation making underage DUI an offense was Act 863 of 1993 and is now codified at Ark. Code Ann. § 5-65-303 (Repl. 1993). Drummond raises three points on appeal, none of which has merit. We affirm the judgment of conviction.

On December 27, 1993, at about 4:30 a.m., a patrolman for the City of Rogers, Scott Charles, watched Drummond cross the center line twice, while driving south on Dixieland Road. He then “paced” Drummond’s car at 45 miles per hour in a 30 mile per hour zone. At that point, Patrolman Charles stopped Drummond. When the police officer approached Drummond’s car, he smelled a “pretty strong” odor of alcoholic beverages emanating from the vehicle. He requested Drummond to take several field sobriety tests, and Drummond agreed. The walk-and-turn test involved nine heel-to-toe steps, a pivot, and nine more comparable steps. Drummond lost his balance, missed several steps, and generally failed this test. He was then asked to stand on one leg, and he passed this test. He was also given a portable breath test. Based on his observations and the results of the tests, Patrolman Charles arrested Drummond for DUI.

Drummond was transported to the local hospital where blood was drawn approximately an hour and ten minutes after arrest. That sample was later analyzed by the State Health Department, and the blood/alcohol content was shown to be .07 percent. He was charged in Rogers Municipal Court with speeding and with underage DUI. He was age 19 at the time. He pled guilty and was sentenced to a $500 fine with $400 suspended, community service work for two days, a 90-day suspension of his driver’s license, attendance at an alcohol safety course, and court costs of $69.25.

He next appealed to Benton County Circuit Court for a de novo trial. Prefatory to the bench trial, defense counsel asserted that one section of the underage DUI statute, § 5-65-306, which mandates public service work for a DUI conviction “of the type and for the duration as deemed appropriate by the court,” was unconstitutional. The Deputy City Attorney conceded that this punishment was “probably unconstitutional,” but argued that it was severable from Act 863. The trial court took the matter under advisement and heard testimony. It then found Drummond guilty of underage DUI but not guilty of speeding. The court further declared the public service section to be unconstitutional, though no evidence or argument was presented on this issue, but found the balance of Act 863 to be constitutional. The court suspended Drummond’s driver’s license for 90 days, fined him $150, and assessed court costs of $190.25.

We first consider Drummond’s argument that there was insufficient evidence to support his judgment of conviction for underage DUI. Our oft-stated test in determining the sufficiency of the evidence to sustain a judgment is whether the evidence is substantial, that is, forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). Our standard of review is to look at the evidence in the light most favorable to the appellee and to consider only that evidence . which tends to support the judgment. Tigue v. State, supra.

We turn then to the pertinent section of the underage DUI law:

(a) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle while under the influence of an alcoholic beverage or similar intoxicant.
(b) It is unlawful and punishable as provided in this subchapter for any underage person to operate or be in actual physical control of a motor vehicle if at that time there was one-fiftieth of one percent (0.02%) but less than one-tenth of one percent (0.10%) by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood or breath or other bodily substance.

Ark. Code Ann. § 5-65-303 (Repl. 1993).

The evidence in this case of driving under the influence easily qualifies as substantial. Drummond was driving erratically. Officer Charles detected an odor of alcoholic beverages in Drummond’s car. Drummond failed at least one field sobriety test and tested at .07 percent blood/alcohol a little more than an hour after his arrest, which is more than three times the level of the .02 percent statutory presumption. There was no opportunity for him to consume alcoholic beverages between time of arrest and time of testing. The total circumstances are enough to support a judgment of conviction for driving a car “while under the influence of an alcoholic beverage.” See Ark. Code Ann. § 6-65-303(a) (Repl. 1994).

Drummond contends, however, that there was no expert proof that his blood/alcohol level at time of testing (.07 percent) related back or was in any wise probative of his level at the time of his arrest. We disagree. The test was certainly probative of some alcohol in his blood at time of arrest though perhaps not of the exact percentage, and because of the high level, it raises a reasonable inference that the .02 percent content was exceeded. In addition, this court has recognized that blood/alcohol content generally dissipates over the passage of time. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Elam v. State, 286 Ark. 174, 690 S.W.2d 352 (1985); Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

We are aware that blood/alcohol levels may vary following consumption depending on absorption and metabolism rates. For discussion generally see McLean v. Moran, 963 F.2d 1306 (9th Cir. 1992). But in the case before us, unlike the Moran case, the trial court did not state that he was considering only the blood/alcohol test and was deeming that to be conclusive of guilt. What the trial court did do was acknowledge the fact that the .07 percent blood/alcohol content was “substantially above the amount that’s prescribed by the statute.” That is an entirely reasonable circumstance to consider, as already mentioned. The Ninth Circuit Court of Appeals’ decisions are not binding on this court, but, regardless, the facts of McLean v Moran, supra, are distinguishable.

For his next point, Drummond urges that the public service section of Act 863 is unconstitutional and that this defect vitiates the Act in its entirety. The State counters that the public service penalty is severable from the balance of the Act, which is what the trial court in essence ruled.

We expressly do not consider the constitutionality of the public service penalty — § 5-65-306 — in this appeal. The State Attorney General pointedly refused to concede that the section is unconstitutional in its brief on appeal. Furthermore, we will not strike down a legislative act on constitutional grounds without first having the benefit of a fully developed adversary case. Full development is lacking in this case, and we take no position on the constitutional question.

Turning to the severability point, we find no error in the trial court’s conclusion that the public service section was severable and the remainder of the Act was constitutional. Drummond cites us to U.S. Term Limits v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), in support of his position that the public service section is mutually connected and interwoven throughout Act 863. Yet, he gives us no reason or argument why § 5-65-306 jeopardizes the entire act. His mere conclusion that this is so is not sufficient or persuasive. As we said in Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), we decline the invitation to make Drummond’s case for him. Moreover, we have no doubt that this section is readily severable. Not only does Act 863 contain a severability clause, it also embraces other penalties, such as fines and drivers education, which are separate and apart from the public service component. This point presents no basis for reversal.

For his last point, Drummond contests the increase in the assessed court costs in circuit court from $69.25 to $190.25, but, again, he presents no argument or authority for why the court’s award is suspect. Drummond questions the amount of the costs and the fact that Benton County and not the City of Rogers will be the beneficiary. We are left in the dark, though, as to why this is inappropriate. We will not attempt to divine the basis for Drummond’s assertion. See Dixon v. State, supra.

Affirmed.

      The record does not reflect the results of the portable breath test.


author: Per Curiam.

text:
    Gus M. PANNELL v. STATE of Arkansas
    CR 94-452
    897 S.W.2d 552
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Karen R. Baker, for appellant.
    No response.
   Per Curiam.

Appellant was convicted of first degree battery. He appealed. We dismissed the appeal because no effective notice of appeal was filed. Pannell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995). Appellant’s attorney subsequently filed a motion styled “Motion For A Belated Appeal” and has filed a pleading admitting it was her error that resulted in the failure to give an effective notice of appeal. She asks that, because of her error, we grant a belated appeal.

Under authority of A.R.Cr.P. Rule 36.9, we grant belated appeals because of attorneys’ errors, but those are granted before the case has been submitted to an appellate court. See, e.g., Krein v. State, 318 Ark. 172, 883 S.W.2d 481 (1994). This case, however, has already been taken under submission and decided, and a signed opinion has been handed down. See Ark. Sup. Ct. R. 5-2(a). In a comparable case, one of the petitioners, Hogrobrooks, attempted to appeal from a criminal contempt order. No effective notice had been filed. We noted that under Rule 36.9 we could act upon and decide a case when a good reason was shown for the omission. However, because no good reason had been shown by the time the case was submitted, we dismissed the appeal with prejudice. Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994).

After the signed opinion was handed down in this case, the petitioner could have timely filed a petition for rehearing, but a petition for rehearing is limited to calling attention to specific errors of law or fact which the opinion is thought to contain. Ark. Sup. Ct. R. 2-3(g). A rehearing does not encompass a set of new facts, new briefs, and new arguments. Yet, that is precisely what would occur if we granted a motion for a belated appeal after an appellate opinion was handed down. If we were to allow such a practice there would be much less finality to appellate opinions.

Accordingly, the petition for a belated appeal is denied.


text:
    James Eldridge PHILLIPS v. STATE of Arkansas
    CR 95-379
    896 S.W.2d 890
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Robert Meurer, for appellant.
    No response.
   Per Curiam.

The appellant, James Eldridge Phillips, has filed a motion for rule on the clerk. His attorney, Robert Meurer, failed to give timely notice of appeal, and, as a result, the clerk has refused to file the transcript. We will treat this acknowledgment as a motion for belated appeal and grant the motion. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Benny REED v. STATE of Arkansas
    CR 95-392
    897 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      John D. Lightfoot, for appellant.
    No response.
   Per Curiam.

Appellant Benny Reed, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed, but neither appellant nor his current attorney, admit fault. As such, the motion for rule on the clerk does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If appellant’s current attorney, John D. Lightfoot, will concede by affidavit 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.


text:
    Carl Eugene WEBSTER v. STATE of Arkansas
    CR 95-373
    896 S.W.2d 890
    Supreme Court of Arkansas
    Opinion delivered May 1, 1995

      Paul Petty, for appellant.
    No response.
   Per Curiam.

Carl Eugene Webster was convicted of possession of a controlled substance, fleeing, resisting arrest, and disorderly conduct and was sentenced to a combined total of 6 years in the Arkansas Department of Correction and a $100 fine. Webster filed a motion for a new trial, but the motion was filed before the judgment and commitment order was entered. The motion was, therefore, untimely and ineffective. See Ark. R. Civ. P. 59; Ark. R. App. P. 4(b). Because the motion for new trial was ineffective and the notice of appeal filed by Webster’s attorney, Paul Petty, was based on the motion for new trial and filed more than 30 days after the judgment, the notice of appeal also was of no effect.

Mr. Petty assumes responsibility for not verifying that the judgment and commitment order had been filed prior to the filing of the motion for new trial. Because he has assumed responsibility, we treat the motion for rule on the clerk as a motion for belated appeal, and we grant it. We direct that a copy of this order be filed with the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Kathy June TAYLOR v. C. Michael RIDDELL, M.D.
    94-880
    896 S.W.2d 891
    Supreme Court of Arkansas
    Opinion delivered May 8, 1995

      Karr, Hutchinson & Stubblefield, by: Charles Karr, for appellant.

      Friday, Eldredge & Clark, by: Calvin J. Hall and Tonia P. Jones, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a medical malpractice case in which the appellant, Kathy June Taylor, contended that the appellee, Dr. C. Michael Riddell, was negligent in causing and failing to diagnose a vesicovaginal fistula that developed following her abdominal hysterectomy. Ms. Taylor raises three points for reversal of a jury verdict in favor of Dr. Riddell, asserting that the trial court erred in (1) refusing to give her requested instruction on res ipsa loquitur, (2) giving the second paragraph of AMI Civil 3d 1501 (duty of physician, etc.) relating to expert witnesses because that paragraph is a comment on the evidence in violation of the Arkansas Constitution; (3) giving AMI Civil 3d 603 (no presumption of fault from happening of injury) because it is a comment on the evidence in violation of the Arkansas Constitution. None of these arguments has merit, and we affirm the judgment of the trial court.

Facts

Dr. Riddell is a board-certified obstetrician and gynecologist at the Millard-Henry Clinic in Russellville. Ms. Taylor, though not a regular patient of his, went to Dr. Riddell when she was having problems with her menstrual periods. After two office visits and an examination, Dr. Riddell scheduled Ms. Taylor for surgery. On August 30, 1991, he performed an abdominal hysterectomy on her at St. Mary’s Hospital in Russellville.

Ms. Taylor was discharged from the hospital by Dr. Riddell on September 4, 1991. She returned to the Millard-Henry Clinic on September 6, 1991, to have her staples removed. She did not see Dr. Riddell at that time or subsequently. Ms. Taylor stated that she experienced nausea and pain during this period. On September 13, 1991, she returned to the clinic for some lab work but did not see a physician. Her efforts to contact Dr. Riddell at various times were unavailing. According to Ms. Taylor, the pain persisted, and, on September 15, 1991, she went to the St. Mary’s Hospital emergency room, where she was seen by another physician, who diagnosed her as suffering from a urinary tract infection and noted that she was incontinent. This was the first occasion of record on which Ms. Taylor reported her problem.

It is Ms. Taylor’s assertion that urine flowed continuously through her vagina while she was recovering in the hospital and after she had returned to her home. On October 9, 1991, she saw Dr. Paul Kradel, a Fort Smith obstetrician and gynecologist, at the Johnson County Regional Hospital in Clarksville. Dr. Kradel discovered that Ms. Taylor had a vesicovaginal fistula, Le., a small opening in the walls of the bladder and the vagina through which urine leaks from the bladder into the vagina and is discharged in an uncontrolled manner.

Dr. Kradel referred Ms. Taylor back to the Millard-Henry Clinic, and, while she refused to see Dr. Riddell, she agreed to make an appointment with his partner, Dr. Jody C. Calloway. On October 14, 1991, Ms. Taylor saw Dr. Calloway, who confirmed the diagnosis of vesicovaginal fistula and referred her to Dr. David Barclay, a Little Rock gynecologist. Ms. Taylor saw Dr. Barclay on October 24, 1991. Dr. Barclay also confirmed the diagnosis of vesicovaginal fistula and scheduled Ms. Taylor for surgery to repair the condition. On November 6, 1991, Ms. Taylor was successfully operated upon. Since that time, she has had no further urinary problems.

Ms. Taylor filed a complaint in the Johnson County Circuit Court on April 16, 1992, alleging, among other things, that Dr. Riddell negligently punctured her bladder during surgery and failed to discover the puncture or to repair it before the incision was closed. She further pleaded that “Subsequent examinations revealed a vasico-vaginal fistula just above the vaginal cuff anteriorly.” Ms. Taylor also asserted that “[t]he doctrine of res ipsa loquitur applies.”

A three-day trial was conducted in January 1994. The jury returned a unanimous verdict in favor of Dr. Riddell, and the circuit court dismissed the complaint with prejudice. From that judgment, this appeal arises.

I. Res ipsa loquitur

In her first argument for reversal, Ms. Taylor contends that the trial court erred in refusing to give her requested instruction on the applicability of the doctrine of res ipsa loquitur. At the conclusion of the testimony, Ms. Taylor tendered Plaintiff’s Requested Instruction No. 1, based on AMI Civil 3d 610:

With respect to the question of whether Defendant was negligent, Plaintiff has the burden of proving each of the following two propositions:
First: That the injury was attributable to the surgery while the operative site or field was under the exclusive control of defendant.
Second: That in the normal course of events, no injury would have occurred if Defendant had used ordinary care while the operative site or field was under his exclusive control.
If you find that each of these two propositions has been proved by Plaintiff, then you are permitted, but not required, to infer that Defendant was negligent.

The trial court ruled that the proffered instruction was “not proper in this case pursuant to the Supreme Court’s holding in Schmidt v. Gibbs.”

In Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991), a wrongful-death medical malpractice case, we set forth those circumstances in which the doctrine of res ipsa loquitur may be invoked:

1. The defendant owes a duty to the plaintiff to use due care;
2. The accident is caused by the thing or instrumentality under the control of the defendant;
3. The accident which caused the injury is one that, in the ordinary course of thingsf,] would not occur if those having control and management of the instrumentality used proper care;
4. There is an absence of evidence to the contrary. [Citations omitted.]
If each of the elements for the application of the doctrine of res ipsa loquitur is present, then “the accident from which the injury results is prima facie evidence of negligence and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part.” [Citation omitted.]

305 Ark. at 387, 807 S.W.2d at 931.

We went on, in Schmidt, to survey the “confusing and unclear” history of the application of the doctrine of res ipsa loquitur in Arkansas, noting that from Routen v. McGee, 208 Ark. 501, 186 S.W.2d 779 (1945), onward, cases and treatise writers had concluded that Arkansas did not recognize the doctrine’s applicability to the practice of medicine and surgery. Clarifying the case of Brown v. Dark, 196 Ark. 724, 119 S.W.2d 529 (1938), which had been misconstrued in Routen, we expressly held that “the doctrine of res ipsa loquitur may apply in cases of medical malpractice on the part of any and all medical care providers as defined by the Medical Malpractice Act if the essential elements for application of the doctrine exist.” 305 Ark. at 389, 807 S.W.2d at 932.

The Schmidt opinion is directly on point and requires a close reading. There, the appellant, acting as administrator of his wife’s estate, sought to hold the appellees (a surgeon, an anesthesiologist, attending nurses, a hospital, and its carrier) liable under res ipsa loquitur for the death of his wife nearly two weeks after an operation in which a six-inch flame shot from her throat as she was undergoing a tracheostomy procedure. This court held that the appellant was not entitled to the application of the doctrine of res ipsa loquitur against the anesthesiologist and his nurse because, with respect to the fourth requirement, there was “evidence to the contrary” that indicated the use of “proper care”:

The expert witness selected by the appellant has testified in clear and unequivocal terms that the care and treatment offered by Dr. Browning and Nurse Ray was not below the standard of care required. In addition, the appellees’ expert witness, Dr. Robert G. Valentine, corroborates Dr. Jeffries’ opinion that Dr. Browning and Nurse Ray had met the requisite standard of care.
Appellant attempts to maintain the potential liability of Dr. Browning and Nurse Ray by submitting Dr. Jeffries’ affidavits opining that the type of fire which occurred in this case could not happen absent negligence on behalf of someone on the surgical team. . . . However, this evidence is insufficient to overcome Dr. Jeffries’ testimony that the actions of Dr. Browning and Nurse Ray were not below the standard of care required. This testimony constitutes “evidence to the contrary” thereby preventing the application of the doctrine of res ipsa loquitur.

Id.

On the other hand, we held that, with respect to the hospital’s insurance carrier, the second element of res ipsa loquitur had been established because “[t]he operating room, equipment, and nurses were all things or instrumentalities under the control or management of Baptist Medical Center.” 305 Ark. at 390, 807 S.W.2d at 932. Further, we declared that expert testimony had set forth facts that, “if believed, would satisfy each of the remaining elements necessary for the application of the doctrine of res ipsa loquitur.” Id.

The difference in the respective situations of the anesthesiologist and nurse and the insurance carrier was explained thus:

[T]here was clear and unequivocal testimony that Dr. Browning and Nurse Ray had met the standard of care. The testimony concerning the care provided by nurses who were employees of Baptist Medical Center is not so clear and unequivocal.
The evidence before the trial court concerning the care provided by the nurses and Baptist Medical Center consisted of the deposition and two affidavits of plaintiff’s expert witness, Dr. Mervyn Jeffries. In his deposition, Dr. Jeffries stated that he was not “in any way critical of the nurses in the care they provided during the tracheostomy procedure.” This testimony is not an unequivocal statement that the nurses met the requisite standard of care. In Dr. Jeffries’ affidavits he opines that the type of fire that occurred in this case could not happen absent negligence on the part of someone on the surgical team comprised of Dr. Gibbs, Dr. Browning, Nurse Ray, and the nursing team. If believed, these facts, in our view, would warrant the application of the doctrine of res ipsa loquitur.

305 Ark. at 390, 807 S.W.2d at 932-933.

In the present case, only the first necessary element of res ipsa loquitur was present. A physician-patient relationship existed between Dr. Riddell and Ms. Taylor, and it is undisputed that the former owed a duty to the latter to use due care.

According to Ms. Taylor, the operative site and the surgical instruments were under the exclusive control of Dr. Riddell and his assistant, Linda Bolte, a certified operating-room technician. Yet testimony differed on whether the “accident” (as the Schmidt phrasing has it) was caused by the “thing or instrumentality” under the control of Dr. Riddell and his assistant.

The “accident” at issue was the formation of the vesicovaginal fistula. Ms. Taylor presented the videotaped testimony of Dr. Bernard Nathanson of New York, who surmised that a misplaced suture caused the opening. No proof was adduced to support this view. Indeed, Dr. Nathanson’s speculation was explicitly refuted by Dr. Calloway, who stated that there was no evidence of a misplaced suture and that blood would have been present in the urine had the bladder been punctured during surgery. Dr. Calloway also noted that, prior to the hysterectomy, Ms. Taylor had undergone three Caesarean sections and “already had a lot of scar tissue present.” Consequently, there was a decreased blood flow to the area around the bladder and vaginal cuff. Dr. Calloway suggested the likelihood that when Dr. Riddell operated on Ms. Taylor, “he probably further compromised that tissue,” thereby decreasing the blood flow and leading to the necrosis, or death, of the tissue and its sloughing off.

Dr. Barclay, who repaired the fistula, also testified that, based on “the sequence of events,” it was his opinion that “there was a thinned area of the bladder. It underwent necrosis over a period of seven to ten days after which [Ms. Taylor] began noticing leakage.” Moreover, he disagreed with Dr. Nathanson’s assessment that the presence of a fistula of itself indicates negligence on the part of the physician, pointing out that “any surgeon who has done a lot of pelvic surgery, particularly on women who have had sections or have other complications of the pelvis, eventually there is going to be a vesicovaginal fistula; and that’s just the way it is no matter how good he might be.”

In his own testimony, Dr. Riddell described the Caesarean-section scar tissue connecting Ms. Taylor’s bladder and vaginal cuff as having been “glued down like cement.” He explained that, if he had entered the bladder during surgery, he would have seen urine spilling out immediately, and blood would have been detected in the urine. Ms. Taylor’s urine, however, “was clear through the case.” Dr. Riddell stated that the fistula occurred because Ms. Taylor “had a decreased blood supply to a small area of the bladder that allowed it to basically dissolve away, and it took time for this to occur, and subsequently the urine found a way to escape from the bladder and go through — erode into the vagina.”

Dr..John David McClanahan, a obstetrician and gynecologist from Fort Smith, testifed as an independent witness for Dr. Riddell that the normal course of fistula formation following surgery is two weeks or later. Given the description of clear urine in the post-operative nurses’ notes, Dr. McClanahan concluded that “there would have been no puncture to the bladder as this would have manifested itself in some blood noticed in the urine, and there was no evidence of any significant urinary leakage post-operatively according to the hospital records.” He suggested that the fistula formed after Ms. Taylor visited the hospital emergency room on September 15, 1991. Dr. McClanahan opined that the fistula resulted from “a development of tissue necrosis and sloughing with the bladder tissue eroding through the vaginal wall.” He characterized the presence of the fistula as a “maloccurrence” rather than as a result of negligence because the physician “was working with tissue that had already been operated on three times previously, and there had been considerable dissection and difficult dissection required in the operation just prior to the operation he performed.” Contradicting Dr. Nathanson, Dr. McClanahan found no objective evidence of a misplaced suture.

The record reveals an imposing volume of testimony pointing to a cause of Ms. Taylor’s vesicovaginal fistula other than a “thing or instrumentality” under the control of Dr. Riddell. The trial court was thus able to determine, as a matter of law, that the second prong of the Schmidt test had not been met.

Regarding the third element of the Schmidt requirements, Ms. Taylor failed to establish that the “accident” that caused the injury was one that, in the ordinary course of things, would not have occurred if those having control and management of the instrumentality had used proper care. As in Schmidt v. Gibbs, supra, there was clear and unequivocal testimony that Dr. Rid-dell had met the requisite standard of care.

It was Ms. Taylor’s expert witness, Dr. Nathanson, who in essence established the context for considering the standard of proper care. In his videotaped deposition, he explained that Dr. Riddell, although practicing in Russellville, Arkansas, was subject to the same standard of care that applies to all board-certified obstetricians and gynecologists nationwide: “the local standard is a national standard. . . . [T]he physicians here are all Board certified; Dr. Riddell, Dr. Calloway, Dr. Barclay, and so on. . . . There is no such thing as a local standard, when one speaks of being Board certified.”

In light of that “national standard,” the testimony of the witnesses indicates that the complication of a vesicovaginal fistula is, as Dr. Barclay put it, “a recognized risk of hysterectomy in the best hands.” Even Dr. Nathanson acknowledged that Ms. Taylor was at increased risk for such a complication due to scarring from her three Caesarean sections. Dr. Barclay stated that Dr. Riddell did not deviate from the standard of care in performing the surgery. Dr. McClanahan emphasized that the presence of a genital urinary fistula is “not necessarily a result of negligence” and that Dr. Riddell “exercised the standard of care appropriate to this area.” Hence, the third element of the Schmidt test was not present.

Finally, the fourth part of the res ipsa loquitur requirements,. an “absence of evidence to the contrary,” was not satisfied. The foregoing summary of testimony from Drs. Calloway, Barclay, Riddell, and McClanahan illustrates the abundance of credible evidence placed before the trial court to counter the assertions of Ms. Taylor and Dr. Nathanson. Further, apart from Ms. Taylor’s diary entries (the earliest of which she acknowledged had been written “after a few days”) that noted a problem with leakage during the period of her hospitalization, the nurses’ records of bedlinen changes and other evidence indicated nothing of the kind.

It cannot be said that the trial court erred as a matter of law in denying the requested res ipsa loquitur instruction.

II. AMI 1501

For her second point for reversal, Ms. Taylor argues that the trial court’s inclusion of the second paragraph of AMI Civil 3d 1501 in Instruction No. 8 amounted to a comment on the evidence in violation of the Arkansas Constitution. The disputed language reads as follows:

Now, in deciding whether Doctor Michael Riddell applied the degree of skill and learning which the law required of him, you may consider only the evidence presented by the surgeons called as expert witnesses.

Ms. Taylor contends that this portion of the instruction unconstitutionally comments on the evidence by calling particular attention to the testimony of the physicians appearing as expert witnesses. However, the authorities on which she relies — all of them criminal cases — are inapposite to the circumstances of the present case.

The second paragraph of AMI 1501 should be used only when the plaintiff asserts that the doctor failed to apply the requisite degree of skill and learning. See “Note on Use,” AMI Civil 3d 1501. Ms. Taylor’s claim, grounded in her expert’s supposition that the fistula was formed during surgery by a misplaced suture, is certainly an attack on Dr. Riddell’s skill, necessitating the introduction of and reliance upon expert testimony. This court has held that, while expert testimony is not required when the asserted negligence lies within the comprehension of a lay jury, such as a surgeon’s failure to sterilize instruments or to remove a sponge before closing an incision, when the applicable standard of care is not a matter of common knowledge, the jury must have the assistance of expert witnesses in coming to a conclusion on the issue of negligence. Napier v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978); Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970). Here, the occurrence of a vesicovaginal fistula clearly lies outside the bounds of common knowledge.

An instruction that merely sets out the law applicable to the issue is not an improper comment on the evidence. Dawson v. Pay Less Shoes #904 Co., 269 Ark. 23, 598 S.W.2d 83 (1980). The second paragraph of AMI 1501 does not provide for the testimony of any particular expert witness to be given greater weight; rather, it simply instructs the jury that, when a physician’s skill or learning has been challenged, the applicable standard of care is to be determined exclusively through the assistance of expert testimony. When a model instruction is applicable in a case, it shall be used unless it does not accurately state the law. Boyd v. Reddick, 264 Ark. 671, 573 S.W.2d 634 (1978). The trial court did not err in giving the second paragraph of AMI 1501.

Ms. Taylor also contends that the trial court erred in refusing to give her requested Instruction No. 3, based on AMI Civil 3d 102, pertaining to the jury’s personal observations and experiences. This instruction, however, may not be used when AMI 1501 is given, except in conjunction with an issue that does not require expert testimony. See “Note on Use,” AMI Civil 3d 102; Duke v. Lovell, 262 Ark. 290, 556 S.W.2d 416 (1977). As the circumstances of the present case with reference to the standard of care imposed on board-certifiied obstetricians and gynecologists required the introduction of expert testimony from those with similar qualifications, the trial court correctly rejected the instruction based on AMI 102.

III. AMI 603

Ms. Taylor’s third and final point on appeal is that the trial court erred in giving Instruction No. 7, based on AMI Civil 3d 603:

Now, the fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.

She asserts that the instruction violates the ban in Ark. Const. Art. 7, § 23, on the charging of juries with regard to matters of fact, reasoning that an injury is a fact, and, as such, it is impermissible for the trial court to comment upon it.

To support her position, Ms. Taylor cites a Georgia tort case, Tolbert v. Duckworth, 423 S.E.2d 229 (1992), in which the supreme court of that state held that the Georgia pattern jury charge on accident should be eliminated in civil cases. That instruction, however, defined the word “accident” and bears no resemblance to AMI 603. Moreover, the Tolbert case did not involve the issue of whether such an instruction was an unconstitutional comment on the evidence.

In any event, AMI 603 has been declared a correct statement of the law. Pilkington v. Riley Paving Co., 271 Ark. 746, 610 S.W.2d 570 (1981). It was, therefore, not error for the trial court to give the instruction.

Affirmed.

      The doctrine of res ipsa loquitur (Latin for “the thing speaks for itself’) had its origins in a 19th-century English case, Byrne v. Boadle, 159 Eng. Rep. 299 (1863), in which a barrel of flour rolled out of a warehouse window and fell upon a pedestrian beneath. The classic statement of the doctrine was formulated in Scott v. London & St. Katherine Docks Co., 159 Eng. Rep. 665 (1865): “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” See Keeton, Prosser and Keeton on the Law of Torts 243-244 (5th ed. 1984).

      Arkansas has not been singular in that regard. Professor Prosser noted that “the use of the phrase itself has become a definite obstacle to any clear thought, and it might better be discarded entirely.” Prosser, Handbook of the Law of Torts 213 (4th ed. 1971). It has also been noted that “there is nothing distinctive about the doctrine” and that “[i]n a formal sense, ... the logic used in res ipsa loquitur cases is the same as that in all cases of circumstantial evidence.” Harper, James, & Gray, 4 The Law of Torts 27 (2d ed. 1986).

        Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965); Bing v. State, 52 Ark. 263, 12 S.W. 559 (1889); Keith v. State, 49 Ark. 439, 5 S.W. 880 (1887).