author: W.H. “Dub” Arnold, Chief Justice.

text:
    Michael PYLE v. Brian SAYERS
    01-32
    39 S.W.3d 774
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Michelle H. Cauley, for appellant.

      John D. Lightfoot, P.L.L.C., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This case involves a will contest, with issues concerning undue influence and mental capacity. Appellant Michael Pyle appeals the order of the Union County Probate Court, finding that the will of Mabel Hammond was valid. The Arkansas Court of Appeals affirmed the decision of the probate court on December 20, 2000. Pyle v. Sayers, 72 Ark. App. 207, 34 S.W.3d 786 (2000). This Court subsequently accepted appellant’s petition for review; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(e)(ii). We, likewise, affirm the decision of the probate court.

Mabel Hammond was seventy-five years old in the summer of 1998. On May 12, 1998, she was admitted to the hospital in El Dorado. She was seen by Dr. Barry Moore, who diagnosed her as suffering from (1) depression, (2) dementia, possibly Alzheimer’s disease, and (3) weight loss, possibly due to cancer. Dr. Moore determined by history that Mrs. Hammond had suffered several strokes in the past.

On May 18, 1998, Mrs. Hammond was admitted to Oak Ridge Nursing Home in El Dorado. On June 8, 1998, she executed the will in question at the nursing home. The will left her entire estate to her husband, W.A. Hammond. If her husband predeceased her, her jewelry was left to her great-niece Karen Sayers, and a great-grandniece, Sarah Sayers, with the residue of her estate to go to a great-nephew, Brian Sayers, and his wife, Rhonda Sayers, in equal shares. The following morning on June 9, 1998, Mrs. Hammond’s husband died.

Mrs. Hammond left Oak Ridge Nursing Home on June 15, 1998. She died at home on June 25, 1998. Brian Sayers, the appellee here, filed a petition in Union County Probate Court to probate Mrs. Hammond’s will. The petition was opposed by the appellant, Michael Pyle, on his own behalf as Mrs. Hammond’s nephew and heir at law, and as guardian for his mother, Mary Pyle, the testatrix’s sister.

Following a hearing, the probate judge issued an extensive letter opinion finding the will to be valid. On appeal, Mr. Pyle argues that the trial court erred in not requiring appellee, as the will’s proponent, to overcome the rebuttable presumption of undue influence and lack of mental capacity beyond a reasonable doubt and that the court’s decision on these issues was clearly erroneous. We disagree and affirm.

Standard of Review

On a petition for review, this court reviews the case as if the appeal had originally been filed in this court. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000); Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). Although probate cases are reviewed de novo on appeal, we will reverse a probate court’s determination on the questions of mental capacity and undue influence only if it is clearly erroneous, giving due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. See Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992); Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). While our review must take into consideration that the will’s proponent bore the burden of proof, or the burden of going forward with the evidence beyond a reasonable doubt, the question on appeal is not whether we have such a doubt; rather, the question on appeal is whether or not the trial court’s decision was clearly erroneous. Here, we hold that it was not and affirm.

Background Facts and Burden of Proof

In the spring of 1998, seventy-five-year-old Mabel Hammond and her husband, W A. Hammond, were in faffing health. W A. Hammond was dying of cancer. He had been caring for his wife and managing their household affairs for several years because Mabel Hammond had not been able to care for herself. She suffered from senile dementia, possibly Alzheimer’s disease, severe weight loss, depression, a bad cough (later diagnosed as related to her previously undiagnosed condition of lung cancer, which had metastasized to her liver and was terminal), and disorientation. On May 12, 1998, W.A. Hammond arranged for Mabel Hammond to be admitted to Union Medical Center in El Dorado, Arkansas, where she was treated by Dr. Barry L. Moore from May 12 to May 18, 1998. After she was discharged from the hospital, Mabel Hammond was admitted to Oak Ridge Nursing Home where she resided until discharged to her home on June 15, 1998.

On June 8, 1998, Mabel Hammond signed a will that left the majority of her estate to her great-nephew, appellee Brian Sayers, if her husband did not survive her. Her husband died the following day, June 9, 1998. Mabel Hammond died on June 25, 1998, two weeks later. She never had children, but was survived by a sister, Mary Pyle. Michael Pyle, appellant, is the guardian of the personal estate of Mary Pyle, his mother. After appellee presented the purported will to the Union County Probate Court on July 1, 1998, appellant objected to the will on three grounds: (1) that the will was procured by appellee; (2) that the will was the result of undue influence; and (3) that Mabel Hammond lacked the testamentary capacity to execute a will.

The probate court conducted a trial on May 5 and 6, 1999, concerning the will contest. On June 1, 1999, the probate judge entered an order admitting the will to probate. The' second paragraph of that order reads as follows:

This is a will contest, specifically whether the testatrix Mabel Hammond had the requisite mental capacity and was not acting under undue influence on June 8, 1998 when she executed a will. The issue here is mental capacity as the facts do not indicate any undue influence.

(Emphasis added.) The same opinion also contained the following statement:

The evidence is not controverted that Brian Sayers procured the will and benefits from its provisions. The law in Arkansas is clear that when a will is valid on its face an opponent of the will must prove by a preponderance of the evidence that the testator either lacked the mental capacity to execute a will or did so under undue influence. However, if the proponent of the will procured the will and benefits from the will then the burden of proving the will is on the proponent. The burden of proof is under those circumstances beyond a reasonable doubt.

It has long been the law in Arkansas that a party challenging the validity of a will must typically prove hy a preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed. See Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). However, it is equally setded that when the person benefitting' from the will also engages in drafting or procuring the will, a rebuttable presumption of undue influence arises and creates a burden for the proponent of the will to prove beyond a reasonable doubt that the testator had both the testamentary capacity as well as the freedom from undue influence to execute a valid will. See Smith v. Welch, et al., 268 Ark. 510, 597 S.W.2d 593 (1980); Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965); Orr v. Love, supra; McDaniel v. Crosby, 19 Ark. 533 (1858). This Court has often stated that the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together, for in one case where the mind of the testator is strong and alert, the facts constituting undue influence would be required to be felt stronger than in another case, where the mind of the testator was impaired either by some inherent defect or by the consequences of disease or advancing age. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Short v. Stephenson, supra.

It is true that every person of sound mind and disposing memory has the untrammeled right to dispose of his or her property by will as he or she pleases. See Puryear v. Puryear, 192 Ark. 692, 94 S.W.2d 695, 696 (1936). This means that if the maker of a will has sufficient mental capacity to retain in her memory, without prompting, the extent and condition of her property and to comprehend how she is disposing of it, to whom, and upon what consideration, then she possesses sufficient mental capacity to execute the will. Richard v. Smith, 235 Ark. 752, 361 S.W.2d 741 (1962). This court has frequently observed that the relevant inquiry is not the mental capacity of the testator before or after a challenged will is signed, but rather the level of capacity at the time the will was signed. See Noland v. Noland, supra; Daley v. Boroughs, supra; Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970).

As for undue influence, this Court stated in On v. Love, supra, as follows:

The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.

225 Ark at 510, 283 S.W.2d at 670. See also In re Estate of Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992).

The probate court correctly recognized that the burden of proving beyond a reasonable doubt that Mabel Hammond had the mental capacity to execute the will and that she was not acting under undue influence shifted to appellee, as proponent of the wifi under which he was a clear beneficiary. Once appellee overcame this presumption, the burden then shifted back to appellant as a contestant of the will to prove by & preponderance of the evidence that the testator lacked the requisite mental capacity or that the testator was the victim of undue influence when the will was executed. See Greenwood v. Wilson, supra; Sullivant v. Sullivant, supra; Orr v. Love, supra.

This Court has long held that, with respect to a will obtained by influence, it is not unlawful for a person, by honest intercession and persuasion, to procure a will in favor of himself, or another person. McDaniel v. Crosby, 19 Ark. 533 (1858). Whether the disposition was a natural one is a relevant inquiry. See Boggianna v. Anderson, 78 Ark. 420, 94 S.W. 51 (1906). The influence of children over parents is legitimate so long as they do not extend a positive dictation and control over the mind of the testator. Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). Cases involving undue influence will frequently depend on the credibility of witnesses and, as stated above, we give due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. See Daley v. Boroughs, supra; Reddoch v. Blair, supra.

From our review of this case, we find no evidence of error on the part of the trial court. The evidence offered by Brian Sayers in support of meeting his burden of proof was the following testimony. Karen Richards testified that she was Brian Sayers’ sister and Mabel Piammond’s great-niece. She testified that she and Brian moved in with Mrs. Hammond when she was twelve and Brian was eight or nine. She visited her in the nursing home two weeks before her death and testified that Mrs. Hammond recognized her. She also recognized Karen Richards’s son, Jace, although she had not seen him in five years.

Mrs. Richards testified that Mrs. Hammond was physically withered and had not been eating right. She testified that Mrs. Hammond’s mental capacity was about the same as it had been five years previously although she was very tired and did not speak as much. She testified that her great-aunt was closer to Brian than any of them because he had come to her house at a younger age than the rest. Mrs. Richards was a psychiatric registered nurse and testified that she thought Mrs. Hammond was of sound mind.

Edwin Gogo was a registered nurse at Oak Ridge Nursing Home. He testified that Mrs. Hammond was oriented to herself and some family members. He said that Mrs. Hammond always told him that Brian Sayers was her son. He testified that Mrs. Hammond was only disoriented at nighttime and described that as the “sundown syndrome.”

Donna Rainey was the social services director at Oak Ridge Nursing Home. She testified that Mrs. Hammond was very frail and weak. She said that Mrs. Hammond’s husband had been taking care of her at home and that they were both sick. She testified that Mrs. Hammond realized they were both terminally ill and said that she did not think she could stay at home and watch him die.

Mrs. Rainey testified that Mrs. Hammond knew what she wanted and that she was “very clear in those regards.” She testified that Brian was there everyday. She said, “I think Mrs. Hammond knew her own mind as far as what she wanted.” She testified that Mrs. Hammond called Brian Sayers her son.

Diane Beeson was a LPN at Oak Ridge Nursing Home. She testified that Mrs. Hammond was alert and knew herself and family. She said that Mrs. Hammond knew she was in the hospital and nursing home, but she did not know where.

Angela Oles was a supervising registered nurse at Oak Badge Nursing Home. She testified that Mrs. Hammond was a terminal-stage, medicare patient who had a poor appetite. She testified that at the time Mrs. Hammond signed a living will proxy, she knew what she was doing. She also testified that Mrs. Hammond always referred to Brian Sayers as her son. Charles L. Massey was a licensed practical nurse at Oak Ridge Nursing Home. He testified that Mrs. Hammond was a thin, frail little lady. He testified that when Brian Sayers would come into her room she would smile.

Jennifer Hughes was employed at Dr. Buck Brown’s office and was asked by Lily Gregory, a co-worker, to witness Mrs. Hammond’s will. She testified that she did not get the impression that anything was being forced upon Mrs. Hammond. She testified that Brian Sayers read the will aloud to her and that she asked certain questions about how the will was drafted. Mrs. Hughes testified that she was satisfied of Mrs. Hammond’s competence when she signed and witnessed the will and that, in her opinion, Mrs. Hammond understood what she was signing.

Lily Ann Gregory testified that she also worked for Dr. Brown in El Dorado and that she had known Mr. and Mrs. Hammond over a period of approximately twenty years. She testified that she had heard Mrs. Hammond refer to Brian as her child and she would not be surprised that if, in the nursing home, Mrs. Hammond referred to him that way. She testified that Mrs. Hammond recognized her when she came into the room although she had not seen her for a couple of years. She testified that she had no question as to Mrs. Hammond’s competence at the moment she initialed and signed the will.

Mary Breshears testified that she had known Mabel Hammond since 1982 and that she had referred to Brian Sayers as her son. She testified that she never detected anything that concerned her about the soundness of Mrs. Hammond’s mind during her stay in the nursing home.

Brian Sayers testified that Mabel Hammond was his great-aunt and that he had come to five with her in the fourth grade and had lived with her ever since. He believed he had been adopted by her. He testified that she said some things that caused him to ask her if she wanted a will, and she said that she did. He testified that there was no doubt in his mind that the will was understood by her and expressed her wishes. He testified:

I am not going to say that auntie wasn’t very frail, and not all of the time was she quite as sharp as she always was. But never at one time can I remember did auntie not know what was going on, what was being talked to her, or what we were discussing.

He testified that she had no other heirs who had made contact with her in the last ten or twenty years that he could remember.

To rebut this testimony, appellant Michael Pyle offered the testimony of Dr. Barry Moore. Dr. Moore testified that Brian Sayers was taking care of Mrs. Hammond daily. He expressed his opinion “to a reasonable degree of medical certainty” as to whether Mrs. Hammond would have had sufficient mental capacity on the day of the execution of the will to understand without prompting the natural “recipients” of her bounty. He said that she lacked such capacity. He testified that it was his understanding that a person must be “oriented to time, place and person.” It must be noted, however, that Dr. Moore only examined Mrs. Hammond one time between the date she entered the nursing home on May 18, 1998, and the day she died on June 25, 1998.

It seems apparent that what the nursing home personnel meant when they testified that Mrs. Hammond was “confused as to time and place” is clearly explained in Mr. Gogo’s testimony. He said, “If I were in front of Mrs. Hammond now and asked her the time and she said twelve noon and the time was actually 11:15 a.m., I would have entered that as confused as to exact time. If a family member had asked her if she knew where she was, and she said she is in the nursing home, I can say she is disoriented as to the exact place.”

The testimony offered by appellee, as the proponent of the will, and the other witnesses of the will is sufficient, if believed, to establish that Mrs. Hammond was competent to execute the will and that the will was not the product of undue influence. The trial court was entitled to credit the testimony of these witnesses in finding that Brian Sayers met his burden of proof beyond a reasonable doubt. Once the burden then shifted back to appellant, he offered no additional evidence other than the testimony of Dr. Moore, which failed to show Mrs. Hammond’s mental status when she executed the will, thus giving the trial court good reason to reject as being relevant. We, therefore, hold that the trial court was not clearly erroneous in finding that appellant failed to meet his burden of proof.

Affirmed.

       Mary Pyle did not testify at trial and there was evidence that it may have been as long as twenty years since she and Mabel Hammond had seen each other.


source: Caselaw Access Project

author: TOM Glaze, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Dexter Carl ROSS
    CR 00-1155
    39 S.W.3d 789
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001
    [Petition for rehearing denied May 3, 2001.]

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.

      Rosalyn A. Watts, for appellee.
   TOM Glaze, Justice.

On August 31, 1999, the State charged Dexter Ross in Faulkner County Circuit Court with being a felon in possession of a firearm (FIP) in violation of Ark. Code Ann. § 5-73-103 (Repl. 1997). The State’s FIP charge was based on Ross’s earlier Conway County Circuit Court 1994 felony judgment and disposition order that placed him on four years’ probation after he entered a plea of guilty to possession of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (1987). Subsequent to the State’s filing the August 1999 FIP charge, Ross went to the Conway County Circuit Court and obtained an order dated October 20, 1999, which found Ross had complied with its 1994 orders. Under Ark. Code Ann. § 16-93-301 (1987) (the First Offender statute), the Conway County Circuit Court sealed Ross’s case. Ross subsequently moved to dismiss the State’s FIP charge in Faulkner County, asserting his underlying 1994 felony could not be used by the State because that felony had been lawfully sealed and expunged. The Faulkner County Circuit Court agreed with Ross and dismissed the FIP count.

The State brings this appeal under Ark. R. App. P. — Crim. 3(b). It cites Act 595 of 1995 (still uncodified), and argues that the Act provides that an expunged felony conviction should be considered a felony conviction for purposes of being a felon in possession of a firearm. Act 595 was enacted after Ross was placed on probation in 1994, and our court has not considered or construed Act 595 until now.

Before addressing Act 595 and determining whether it is applicable to Ross’s situation, we look first to Ark. Code Ann. §§ 5-64-401 et seq., under which Ross was found guilty in 1994. Specifically, § 5-64-407, in pertinent part, reads:

Whenever any person who has not previously pleaded guilty or been found guilty, . . . pleads guilty to or is found guilty of possession of a controlled substance under § 5-64-401 . . . this court . . . may defer proceedings and place him on probation for a period of not less than one year .... Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualification or disabilities imposed by law upon conviction of a crime .... (Emphasis added.)

Act 998 of 1995 amended § 5-64-407, under which Ross was placed on probation. That Act readopted the same statute, except the Act added the last sentence: “A person against whom such proceedings are discharged or dismissed may seek to have the criminal records sealed, consistent with the procedures established in Ark. Code Ann. §§ 16-90-901 — 16-90-905.”

The State points to the emergency clause of Act 595 and submits that the General Assembly had intended to prevent even those felons whose records were expunged from possessing firearms. The State contends Act 595’s passage was made necessary in order to overturn this court’s decision in Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (1990). In that case, Irvin pled guilty to a felony under the Youthful Offender Alternative Service Act and was placed on immediate parole for five years. Irvin completed his sentence without incident, but after the five-year parole period ended, the State, using Irvin’s prior felony, charged and convicted him of being a convicted felon in possession of a firearm under Ark. Code Ann. § 5-73-103 (Supp. 1989). Our court reversed Irvin’s felon-in-possession conviction, holding that, even though Irvin’s record may not have been actually expunged, his prior conviction under the Youthful Offender Act could not be used as the underlying felony in a later prosecution for felon in possession of a firearm. The Irvin court reasoned that, under the language of the Youthful Offender Act, an offender does not have to petition for expungement because the expungement is a ministerial duty to be performed by the Commissioner of the Department of Correction.

We first note the well-established rule that a sentence must be in accordance with the statutes in effect on the date of the crime. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984); Hunter v State, 278 Ark. 928, 645 S.W.2d 954 (1983); Edwards v. State, 70 Ark. App. 127, 15 S.W.3d 358 (2000). As we have already mentioned, Ross pled guilty under § 5-64-401 of the First Offender Act, and under § 5-64-407 of that Act, the Conway County Circuit Court was mandated to discharge Ross and the proceedings against him upon Ross’s fulfillment of the terms and conditions of his probation. Following the dictates of § 5-64-407, the Conway County Circuit Court did just that. Also in effect when Ross was placed on probation in 1994, Ark. Code Ann. § 16-93-303 (b)(1) (1987), read as follows:

Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period there of, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order which shall effectively dismiss the case, discharge the defendant, and expunge the record. (Emphasis added.)

The Conway County Circuit Court’s action taken on October 20, 1999, on Ross’s 1994 probation judgment was consistent with § 16-93-303(b)(1).

While the State contends that Act 595 of 1995 overrules this court’s Irvin decision, and urges it should control the disposition of Ross’s case, Act 595 provides no language indicating the Act should be applied retroactively. See Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995) (sentencing is now controlled entirely by statute and only when the General Assembly expressly provides that an act should be applied retroactively will we do so).

In conclusion, we hold that Act 595 is not applicable to Ross’s probation judgment and disposition order entered in 1994, and, as a consequence, the trial court’s dismissal of the State’s FIP count against Ross was correct.

       Section 5-73-103(a) and (b) in relevant part provide (a) No person shall possess or own any firearm who has been convicted of a felony; . . . (b) A determination by a jury or a court that a person committed a felony (1) shall constitute a conviction for purposes of subsection (a) of this section even though the court . . . placed this defendant on probation, ....

       While not in effect in 1994, Act 998 of 1995, codified at Ark. Code Ann. § 16-90-902, provides:
      (a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
      (b) Upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.


author: ROBERT L. Brown, Justice. DONALD L. Corbin, Justice,

text:
    Bob E. FEWELL and Holdingsco, Inc. v. Mike PICKENS, Receiver of American Investors Life Insurance Company
    00-1279 & 00-1272
    39 S.W.3d 447
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001
    [Petition for rehearing denied May 3, 2001.]

      Perroni & James Law Firm, by: Samuel A. Perroni and Patrick R. James, for appellants.

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for appellee.
   ROBERT L. Brown, Justice.

The appellants in this case, Bob E. Fewell and Holdingsco, Inc., appeal from an order by the Pulaski County Circuit Court appointing a receiver for American Investors Life Insurance Company (American Investors) and enjoining the appellants from transacting business for the company. They further appeal from an order denying their motion to vacate the appointment of the receiver and the injunction and from an order denying their motion to strike an affidavit of service. The appellee in this case is Mike Pickens, who is the Arkansas Insurance Commissioner and who was appointed receiver for American Investors. Fewell and Holdingsco raise multiple points in this appeal in which they contend that the circuit court erred in its various orders. We hold that the issues raised are without merit, and we affirm.

American Investors is a life insurance company domiciled in Arkansas. Its parent company is Holdingsco, although Fewell owns a fractional interest in the company. Fewell is the owner of Holdingsco. In 1999, following a review of American Investors’s financial solvency, Pickens found a $2,935,000 capital surplus deficiency in the company. As a result, on May 28, 1999, the Arkansas Insurance Department, American Investors, Holdingsco, and Fewell entered into an Agreement to cure the deficiency. The purpose of the Agreement was to enable American Investors to be considered solvent as of December 31, 1998. The Agreement provided that in consideration of the Insurance Department’s forbearance in putting American Investors into receivership, American Investors, Holdingsco, and Fewell would make up the $2,935,000 capital surplus deficiency with deposits and promissory notes. The Agreement also contained a personal guaranty by Fewell that American Investors would meet the minimum capital surplus requirement of $115,000 as of December 31, 1999. The Agreement further provided that upon the breach of any of its covenants, American Investors, Holdingsco, and Fewell consented to the immediate commencement of receivership proceedings, the entry of an order granting receivership, and waiver of prior notice to the entry of such an order.

On December 30, 1999, the same parties entered into a First Amended and Substituted Agreement. Under the First Amended Agreement, Fewell executed a promissory note dated the same day in the amount of $1,407,802.63, which was payable in full to American Investors on or before June 30, 2000. Additionally, Fewell reaffirmed his personal guaranty that American Investors would meet the minimum capital surplus requirement of $115,000 as of December 31, 1999. The First Amended Agreement included a provision that unless modified therein, all other portions of the prior, original agreement remained in effect and “[were] hereby ratified, and incorporated herein by reference.”

The First Amended Agreement also contained a provision that Fewell’s ultimate liability under the $1,407,802.63 promissory note and his personal liability for American Investors’s operations ending December 30, 1999, might be adjusted downward following the calculation of the “1999 Reserve True-Up,” which would determine the amount needed to pay incurred claims for 1999. Reserves on hand for 1999 claims totaled $7,713,920. A “Review of Claims Reserves for American Investors Life Insurance Company” was issued on June 28, 2000 by a consulting actuary, Martin F. Gibson. The Gibson Review calculated the total claims reserve for American Investors as of December 31, 1999, at $12,183,000, which exceeded the $7,713,920 figure by over $4 million. Correspondence between the parties followed, and Fewell failed to pay the amount owed under his promissory note by June 30, 2000. As a result, on July 11, 2000, Pickens, as Insurance Commissioner, commenced receivership proceedings against American Investors pursuant to the Uniform Insurers Liquidation Act, Ark. Code Ann. § 23-68-101 through 132 (Repl. 1994, Supp. 1999) (Uniform Act), by filing a petition for the appointment of receiver and injunctive relief.

On that same day, a hearing was held before the Pulaski County Circuit Court. At its conclusion, the court entered an order entitled Permanent Injunction and Order Appointing Receiver for Rehabilitation. On July 31, 2000, Fewell and Holdingsco moved to intervene in the action. On August 4, 2000, a hearing was held before the circuit court and appellants’ intervention motion was granted. The appellants also moved at this hearing that the order of receivership and the injunction be set aside and dismissed. The circuit court denied appellants’ petition. This appeal followed.

I. Motion to Dismiss

As a preliminary matter, we consider Pickens’s motion to dismiss, which is based on his allegation that the record in this appeal was untimely filed. On November 3, 2000, Pickens filed his motion to dismiss which was submitted with this case for resolution. In it, he urges that the Permanent Injunction and Order Appointing Receiver for Rehabilitation issued by the circuit court on July 11, 2000, “was an interlocutory order within the meaning of Rules 2(a)(6), 2(a)(7), and 5(a) of the Arkansas Rules of Appellate Procedure — Civil.” Thus, he maintains that Fewell and Holdingsco were required to lodge the record on appeal within thirty days of the order’s entry pursuant to Ark. R. App. P. — Civ. 5(a). This, he contends, the appellants failed to do. Furthermore, Pickens asserts that the order establishing the “permanent” injunction and receivership clearly contemplated additional actions by the circuit court and, thus, was interlocutory.

We disagree with Pickens’s characterization of the July 11, 2000 order in this case. The Uniform Act has this to say about the finality of orders:

An appeal shall he to the Supreme Court from an order granting or refusing rehabilitation, liquidation, or conservation, and from every other order in delinquency proceedings having the character of a final order as to the particular portion of the proceedings embraced therein.

Ark. Code Ann. § 23-68-103(d) (Supp. 1999). There are two aspects of § 23-68-103(d), which we believe are important. First, the section contemplates more than one final order in delinquency proceedings. Second, the order in question in this case is entitled Permanent Injunction and Order Appointing Receiver for Rehabilitation. We have no doubt that over the course of the delinquency proceedings, other orders might be entered by the circuit court which touch and concern this order. But on its face, the character of the order appointing the receiver and providing permanent relief is clearly that of finality. The motion to dismiss is denied.

II. Standing

Pickens further raises the question of the appellants’ standing to appeal. He advances the argument that they are non-parties to the order of receivership and injunction and, thus, should be precluded from taking this appeal unless pecuniarily affected. See In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990). Far from being pecuniarily affected, Pickens contends that any claim for relief by the appellants merely derives from the rights of American Investors.

We disagree with Pickens on this question. Holdingsco is the parent company of American Investors, and Fewell is the owner of Holdingsco. The pecuniary interest of the appellants is real and considerable. We conclude that the appellants have a pecuniary interest affected by the circuit judge’s action and, thus, have standing to bring this appeal. See In the Matter of $3,166,199, 337 Ark. 74, 987 S.W.2d 663 (1999); In the Matter of Allen, supra.

III. Validity of Permanent Injunction and Receivership Order

Fewell and Holdingsco mount four arguments contesting the validity of the Permanent Injunction and Order Appointing Receivership for Rehabilitation: (1) the order was invalid without a 1999 True Up Calculation; (2) the order was entered ex parte and violated their rights to due process; (3) Pickens did not follow the mandatory procedures of the Uniform Act; and (4) the circuit court erred in denying their motion to set aside the permanent injunction and receivership order.

a. Absence of True Up Calculation

The appellants’ initial argument is that there was no 1999 True Up Calculation done, as required by the First Amended Agreement. Hence, they claim that Fewell’s obligation to pay the $1,407,802.63 promissory note by June 30, 2000, was never triggered because the extent of incurred claims for 1999 was never actually calculated. Their argument continues that because the promissory note was not due and payable as of June 30, 2000, due to the lack of a True Up calculation, there was no breach of the Agreement and no consent to an immediate receivership.

We consider two provisions of the 1999 agreements entered into between the Arkansas Insurance Department, American Investors, Fewell, and Holdingsco to be critical. The first is the consent provision in the May 28, 1999 Agreement:

However, upon breach of any one of the aforesaid covenants, the Company, the Parent and Fewell hereby agree and consent to the immediate commencement and entry of an order granting receivership against the Company by the Department under Ark. Code Ann. § 23-68-101 through § 23-68-132 and waive prior notice of entry of an order of permanent receivership.

The second provision is in the First Amended Agreement entered into on December 30, 1999:

(b) The amounts due under the terms of the One Million Four Hundred Seven Thousand Eight Hundred Two Dollars and Sixty Three Cents ($1,407,802.63) Promissory Note, as provided for in subparagraph 2(a)(3) above, and attached hereto as Exhibit “H,” may be adjusted as follows:
(i) by reducing the principal amount due in an amount equal to the difference between the actual amount of claims reserves utilized to pay all just and valid claims incurred by the Company in 1999 and the claim reserve of Seven Million Seven Hundred Thirteen Thousand Nine Hundred Twenty Dollars ($7,713,920.00) posted by the Company on December 30, 1999 for 1999 incurred claims. This difference in reserve amount, if any, shall be calculated on or before June 30, 2000 (“1999 Reserve True Up”)[.]

Pickens first argues that American Investors was impaired in early 1999 and that the initial Agreement dated May 28, 1999, was an effort by the affected parties to cure the capital surplus deficiency with promised deposits and promissory notes. Failing that, American Investors consented to an immediate receivership and waived all notice. Apparently, there was some misunderstanding about the Agreement, and the First Amended Agreement represented additional forbearance by the Insurance Department if additional capital was provided to meet incurred claims for 1999. Part of that additional capital was in the form of Fewell’s promissory note in the amount of $1,407,802.63, due and payable to American Investors on June 30, 2000. The only potential for reducing that obligation was if the 1999 claims did not exceed the claim reserve of $7,713,920.

It is clear to this court that the 1999 incurred claims did exceed $7,713,920 based on an actuarial report prepared by consulting actuary Martin F. Gibson, which showed the needed claims reserves to be $12,183,000. This report was dated June 28, 2000, and was furnished to American Investors. In addition, the circuit court considered the True Up issue at the hearing on August 4, 2000. There was no recording or transcription of the hearing on that date, but Statements of Proceedings were prepared by both counsel for Fewell and Holdingsco and counsel for Pickens. First, there is the Statement by counsel for Fewell and Holdingsco:

3. Intervenors also argued that there was no basis for the entry of a permanent injunction since the Arkansas Insurance Department failed to conduct a “True-Up” i.e., the actual calculation, which was the basis for the alleged consent to the receivership.
4. Steve Uhrynowycz, counsel for the Petitioner, represented to the Court that a definite True-Up number was provided to American Investors Life Insurance Company on June 23, 2000, and that there was no breach of the agreement.
4. [sic] Counsel for the Petitioner contended that there was no basis to set aside the permanent injunction and opposed the relief requested by Intervenors.
5. After considering the arguments of counsel the Court denied the Motion to Dismiss and to Set Aside the Injunction.

Next, there is the Statement by Pickens’s counsel of what transpired:

3. Intervenor also argued that there was no basis for the entry of a permanent injunction because the figure in the actuarial report attached to the Petition for Appointment of Receiver was an estimate.
4. Steve Uhrynowycz, one of the counsel for Petitioner argued in response that a true-up number was provided to American Investors Life Insurance Company and that the true-up number was contained in the pleadings. Uhrynowycz further argued Intervenors argument failed to address the outstanding $1.4 million promissory note owed to American Investors Life Insurance Company.
5. After considering the arguments of counsel, the Court denied the Motion to Dismiss and to Set Aside the Injunction.

Based on these Statements, which reconstruct the events at the August 4, 2000 hearing, the appellants made their True Up argument to the circuit court in support of their motion to dismiss the receiver and set aside the permanent injunction, and their motion was denied. We agree with Pickens that the circuit judge considered the True Up argument of the appellants and rejected it.

Furthermore, a letter from the Insurance Department dated June 30, 2000, to counsel for appellants made it clear that Fewell’s promissory note was due. This letter was Exhibit A to Pickens’s petition for receivership and stated in part:

While I recognize you have only recently been retained to represent Mr. Fewell, Mr. Fewell and his previous counsel have been well aware of this obligation for six (6) months. As soon as the company paid out greater than $7.7 Million in 1999 incurred claims, management and, we trust ownership, knew the entire $1.4 Million obligation was payable in full. As evidenced by the Milliman & Robertson/Rex Durrington report dated June 15, 2000, which was communicated to the Company on June 16, 2000 and handed to the Company’s President, Randy Coleman, on June 19, 2000, the Company had previously paid out $9.9 Million in 1999 incurred claims.

The True Up calculation was a benefit to Fewell and a means to reduce his liability under his promissory note should the 1999 claims not exceed the $7.7 million claims reserve. It is obvious that the claims had exceeded this amount by June 30, 2000, and that the appellants were aware of this. Nevertheless, Fewell and Hollingsco, who at that time still controlled American Investors, took no steps to refute the calculations made by the consulting actuary or contained in the Milliman & Robertson/Rex Durrington report. We hold that the circuit judge correctly found that a breach of the 1999 Agreements occurred.

b. Ex parte Order and Mandatory Statutory Procedures

The appellants next contend that the circuit judge deprived them of their due process rights by entering the receivership order and injunction ex parte. We disagree. As an initial matter, Pickens argues that a due process claim was never made by the appellants. The appellants did, however, urge in their motion to set aside the permanent injunction that their property was being taken without a chance to be heard. That is enough to raise the issue in our judgment.

The Uniform Act discusses delinquency proceedings generally and provides that the Pulaski County Circuit Court shall have original jurisdiction over delinquency proceedings pursuant to the chapter. See Ark. Code Ann. § 23-68-103 (a) (Supp. 1999). Moreover, the Uniform Act provides that “[delinquency proceedings pursuant to this chapter shall constitute the sole and exclusive method of liquidating, rehabilitating, reorganizing, or conserving an insurer[.]” Ark. Code Ann. § 23-68-103(c) (Supp. 1999) (emphasis added). Accordingly, in order for the Insurance Commissioner to achieve his appointment as receiver of American Investors, and the granting of an injunction against the company, he was required to follow the procedures outlined in the Uniform Act. We initially conclude that the Uniform Act establishes a special statutory proceeding for receivership matters and associated injunctions and, as a consequence, the proceedings involved in this matter which are fixed by statute are not controlled by the Arkansas Rules of Civil Procedure. See Ark. R. Civ. P. 81(a).

Fewell and Holdingsco rely heavily on allegations that Pickens did not comply with the strict terms of § 23-68-104 of the Uniform Act, which provides:

The commissioner shall commence any such [receivership] proceedings by application to the court for an order directing the insurer to show cause why the commissioner should not have the relief prayed for. On the return of such order to show cause, and after a full hearing, the court shall either deny the application or grant the application, together with such other relief as the nature of the case and the interests of the policyholders, creditors, stockholders, members, subscribers, or the public may require.

Ark. Code Ann. § 23-68-104 (Repl. 1994). The statute clearly contemplates, according to the appellants, that in order for Pickens to begin the delinquency proceedings, he must apply to the Pulaski County Circuit Court for an order directing American Investors to show cause. This was not done, they claim. Nor was a “full hearing” held, as required by § 23-68-104.

Pickens’s retort is that Fewell and Holdingsco consented to the immediate entry of a receivership order in the event of a breach of the May 28, 1999 Agreement. Again, that Agreement contained this language:

However, upon breach of any one of the aforesaid covenants, the Company, the Parent and Fewell hereby agree and consent to the immediate commencement and entry of an order granting receivership against the Company by the Department under Ark. Code Ann. § 23-68-101 through § 23-68-132 and waive prior notice of entry of an order of permanent receivership.

Because Fewell breached the Agreement by not paying the promissory note by June 30, 2000, Pickens maintains that he was perfectly within his rights to ask for an immediate receivership and that the circuit judge had full authority to grant one ex parte. Pickens emphasizes that he had worked with the appellants to resolve American Investors capital surplus deficiencies for more than a year, that the deficiencies had not been resolved, and that the increased risk to the policyholders was great.

In light of the language contained in the 1999 Agreements between the parties, we conclude that the statutory requirements of § 23-68-104 do not control in this case. It is true that § 23-68-104 contemplates the commissioner’s petition for an order to show cause and a full hearing before granting that petition. But Fewell and Holdingsco waived those statutory requirements under the Uniform Act by consenting to an immediate receivership in the event of breach without prior notice. The standard definition of waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he will forever be deprived of its benefits. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999) (citing Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978)); Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). Fewell and Holdingsco clearly agreed in 1999 to waiver of their statutory rights under § 23-68-104, if Pickens would forbear placing them into receivership at that time.

The circuit court found that the appellants had consented to the entry of an order of receivership without prior notice. We agree with the court’s finding and hold that Fewell and Holdingsco waived their rights under § 23-68-104 by executing the 1999 Agreements. We hold, in addition, that the immediate entry of a receivership order on July 11, 2000, with the permanent injunction, albeit entered ex parte, did not violate due process protections. We further note that on August 4, 2000, the appellants did have the opportunity to be heard on the circuit judge’s order. Indeed, at that time they made their argument to the judge concerning the alleged lack of a 1999 True Up Calculation and moved that the July 11, 2000 order be set aside. This request was denied. The August 4, 2000 hearing, in our view, provided the appellants with an opportunity to be heard on the legitimacy of the receivership order.

c. Permanent Injunction

The same holds true for the permanent injunction issued as part of the July 11, 2000 order. The Uniform Act provides:

(1) Upon application by the commissioner for such an order to show cause, or at any time thereafter, the court may without notice issue an injunction restraining the insurer, its officers, directors, stockholders, members, subscribers, agents, and all other persons from the transaction of its business or the waste or disposition of its property until the further order of the court.

Ark. Code Ann. § 23-68-105(1) (Repl. 1994) (emphasis added). Because the appellants waived the statutory requirement under § 23-68-104 for a show-cause order, the circuit judge could at any time issue the injunction restricting the transaction of business without notice.

Fewell and Holdingsco urge that the injunction was invalid because there was no showing of irreparable harm and no showing of the likelihood of success on the merits as required under our common law and Ark. R. Civ. P. 65. The short answer to this point, as already stated in this opinion, is that the Uniform Act is a special statutory proceeding and applies rather than the Rules of Civil Procedure. See Ark. R. Civ. P. 81(a). Hence, § 23-68-105(1) applies and controls the grounds for issuing an injunction in delinquency proceedings.

IV Subject-Matter Jurisdiction

The appellants further claim that the circuit judge lacked subject-matter jurisdiction to issue an injunction in this matter. They claim that injunctive relief rests solely with courts of equity. Pickens responds that § 23-68-103 of the Uniform Act invests original jurisdiction over these delinquency proceedings in the Circuit Court of Pulaski County. He directs our attention to § 23-68-105, which specifically endows the circuit court with the authority to issue injunctions to halt the transaction of business by impaired insurance companies. The appellants reply that § 23-68-105 is unconstitutional under the Arkansas Constitution because it is at odds with the fact that equitable remedies have historically fallen within the bailiwick of chancery courts. Pickens counters that the appellants did not raise the constitutional argument before the circuit judge.

We agree with Pickens that the issue of the constitutionality of § 23-68-105 is raised for the first time on appeal. Accordingly, we will not consider it. Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000); SEECO, Inc. v. Hayes, 341 Ark. 972, 22 S.W.3d 157 (2000).

With respect to subject-matter jurisdiction, we have already remarked in this opinion that the Uniform Act establishes a special statutory proceeding, which includes the injunctive relief under § 23-68-105. Our caselaw makes this abundantly clear. See Bullion v. Pope, 192 Ark. 959, 96 S.W.2d 465 (1936); Franklin v. Mann, 185 Ark. 993, 50 S.W.2d 606 (1932). The General Assembly has endorsed this statutory scheme and invested the circuit courts with the power to issue injunctions under these limited circumstances. We hold that the Pulaski County Circuit Court has subject-matter jurisdiction to issue injunctions in delinquency proceedings under the Uniform Act.

V. Motion to Strike Affidavit of Service

On August 8, 2000, the appellants moved to strike an affidavit of service filed on August 3, 2000, by Steve Uhrynowycz, counsel for Pickens. The affidavit stated that Uhrynowycz had hand-delivered a copy of the Petition for the Appointment of Receiver and the Permanent Injunction and Order Appointing Receiver for Rehabilitation to officers of American Investors on July 11, 2000. The motion to strike asserted that the affidavit did not indicate that American Investors was served with a summons or that Uhrynowycz was authorized to effect service of process as required by Ark. R. Civ. P. 4. The circuit judge denied the motion to strike for the reasons stated in Pickens’s response.

We agree with the circuit judge and Pickens that the motion to strike has no merit. The. appellants consented to the immediate entry of a receivership order and waived notice of that order in the 1999 Agreements. As a result, there was no requirement that any service be perfected on American Investors or even that notice be given. After Pickens presented his petition on July 11, 2000, the circuit judge made a finding to that effect in his order:

3. In support thereof, the Court finds that Petitioner has made a prima facie case that Respondent’s financial condition is impaired such that its continued operation outside the supervision of Petitioner will be hazardous to the general public, and to Respondent’s insureds and creditors. The Court further finds that Respondent has consented to the entry of an order of permanent receivership without prior notice upon breach of covenants contained in May 28, 1999 Agreement and December 30, 1999 First Amended and Substituted Agreement, and that Petitioner has made a prima facie case of such breach of covenants.

We cannot say this finding is clearly erroneous.

Affirmed.

Arnold, C.J., Corbin and Thornton, JJ., dissent.

DONALD L. Corbin, Justice,

dissenting. I dissent from the majority’s conclusion that Appellants waived their rights to notice and a full hearing based on an alleged breach of their agreement with Appellee Insurance Commissioner. I am troubled by the majority’s conclusion that the Commissioner was not required to comply with the mandatory requirements of Ark. Code Ann. § 23-68-104 (Repl. 1994), despite the fact that the Uniform Act provides the “sole and exclusive method of liquidating, rehabilitating, reorganizing, or conserving an insurer[.]” See Ark. Code Ann. § 23-68-103(c) (Supp. 1999) (emphasis added). The Act plainly contemplates that a full hearing will be held before the trial court may grant the relief sought by the Commissioner in the delinquency proceedings. The reason for a full hearing is unmistakably to enable the trial court to make a learned ruling based on all the facts.

Receivership of an insurance company has far-reaching effects, beyond those felt by the company’s owners and directors. It has very real effects on the policyholders and any other persons who may have claims against the insurance company. Their interests must be protected. Section 23-68-104 advises the trial court to consider the interests of “the policyholders, creditors, stockholders, members, subscribers,” as well as the interests of the public, in granting or denying the appointment of a receiver. How the trial court can consider those interests without the benefit of a full hearing prior to the appointment of a receiver is beyond me. Given the other interests at stake, I do not believe that the Commissioner may skirt the notice requirements contained in the Uniform Act based solely on what he claims is a waiver of notice by the owners of the insurance company.

More significantly, I do not read the agreements between the Commissioner and Appellants as giving the Commissioner unilateral authority to determine when a breach of the agreements has occurred. That should have been an issue for the trial court to determine, after hearing evidence from both sides. The trial court’s determination that there was a prima facie breach of the agreement is of little or no value, as it was made ex parte. Moreover, I disagree with the majority that the “hearing” held on August 4, 2000, after the trial court had already made its ex parte ruling, was sufficient for purposes of due process. Appellants undoubtedly had a higher mountain to climb in attempting to convince the trial court that it had erred in making the initial determination that a breach had occurred. Furthermore, the “hearing” granted after the fact was, in reality, no hearing at all; no court reporter was present, and no evidence was heard.

Additionally, I disagree with the majority that the waiver contained in the agreements sufficed to allow the trial court to issue a permanent injunction and restraining order without notice to Appellants. Arkansas Code Annotated § 23-68-105 (Repl. 1994) only allows the trial court to issue an injunction or restraining order without prior notice to the insurer if the Commissioner has first sought a show-cause order. That was not done here.

It is evident from the steps statutorily required that the act of placing a corporation into receivership is serious business. The Commissioner is required to commence a receivership by applying to the trial court for an order directing the insurer to show cause why the receivership should not be granted. A “full hearing” must then be held, during which the trial court is to consider the interests of all potential affected parties, as well as the public. See section 23-68-104. Only after a full hearing may a receivership be granted. At a minimum, the statutory scheme contemplates that interested parties will be given an opportunity to be heard before a receiver is appointed and a permanent order is entered.

Under the facts of this case, even if it can be said that Appellants waived their statutory rights to notice, at a minimum, they should have been provided with notice to be heard on the issue of whether the agreement had, in fact, been breached. Constitutional notions of due process require at least that much. It stretches credulity to envision the Commissioner having such complete unchallengeable authority that he not only can avoid the notice requirements of the statutes, but that he can be judge and jury on the issue of whether a breach has occurred.

Finally, what is most troubling to me are the far-reaching effects this decision will have. I fear that the agreements employed by the Commissioner in this case will be used as a template to place other insurance companies into receivership. This “procedure” offends public policy and the very reasons behind the passage of the Uniform Act. As explained above, the Act clearly spells out the steps that the Commissioner must take before an insurer may be placed into receivership. The requirements are straightforward and simple, and, more importantly, they are the sole and exclusive means to place an insurer into receivership. It was thus error for the trial court to require anything less than compliance with the statutes.

Arnold, C.J., and Thornton, J., join in this dissent.

       This figure was determined as a result of operations ending December 31, 1998.

       The standing issue was also raised in Pickens’s Reply to the Appellants’ Response to the Motion to Dismiss Appeal. The appellants moved to strike the Reply because it raised a new issue to which die appellants had no opportunity to respond. We need not decide the appropriateness of the Motion to Strike because the standing issue was raised in Pickens’s brief on appeal, and the appellants responded to it in their Reply Brief.

       The circuit court adopted this Statement of the proceedings.


author: ANNABELLE Clinton Imber, Justice.

text:
    B.C. v. STATE of Arkansas
    00-1439
    40 S.W.3d 315
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      William R. Simpson, Jr., Public Defender, by: Stacy D. Fletcher, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

At issue in this case is whether a juvenile defendant has a right to assert the defense of insanity. It is undisputed that on January 5, 2000, the juvenile defendant below and the appellant herein, B.C., became disorderly in class and refused to leave the classroom at his high school when asked to do so by his teacher. The teacher called the school’s security personnel for assistance, but they were unable to remove Appellant from the classroom. Ultimately Officer Bruce Kimbrough of the Little Rock Police Department physically removed Appellant from the classroom. Throughout the incident, Appellant stated that he was God or Jehovah; that he was there to save the world; that he could kill Officer Kimbrough and bring him back to life; and that the people trying to remove him from the room were all devils. On the date of the incident, Appellant was fifteen years old. He was subsequently charged with disorderly conduct in the juvenile division of Pulaski County Chancery Court.

At the request of Appellant’s court-appointed attorney, the trial court ordered an “Act III” mental evaluation by the Arkansas State Hospital. According to that evaluation, Appellant was competent to stand trial, but he “was not responsible for his actions at the time of the alleged crime due to the influence of his delusional religious beliefs.” Other evidence introduced at trial indicated that Appellant suffered from Bipolar Disorder, and recurrent “Major [D]epressive Disorder” with “psychotic features[.]”

Subsequent to his evaluation by the Arkansas State Hospital, Appellant filed notice that he was pleading not guilty by reason of mental disease or defect. On September 6, 2000, the matter came to trial, and Appellant’s attorney entered a plea of not guilty by reason of mental disease or defect on behalf of her client. Based upon this court’s decision in Golden v. State, 341 Ark. 656, 20 S.W.3d 801 (2000), the trial court refused to accept Appellant’s plea and, therefore, entered a plea of not guilty on his behalf. Appellant’s attorney then objected to the trial court’s ruling by stating:

And, Your Honor, I would ask that my objection be noted for the record by not allowing him to enter an insanity defense. It’s a violation of both of his due process rights and his 14th Amendment equal protection rights. He’s being subject to just the same criminal code as adults, yet, he’s denied the same affirmative defenses as an adult would be.

At the close of the State’s case, Appellant’s attorney made the following motion for a directed verdict:

Your Honor, I would move for a directed verdict. One of the elements the State has to prove is [B.C.’s] purpose for causing the public inconvenience. I know, of course, always in criminal law, intent is a fundamental element of any statute. I think that the Act III evaluation goes to that intent element. You know, the State Hospital didn’t feel like that he was responsible at the time for his actions, and that he was able to conform his actions to right or wrong. And I would just ask the Court to consider, you know, dismissing this case at that time — for that reason.

The trial court denied the motion, whereupon Appellant’s attorney stated:

Your Honor, I don’t have any testimony at this time. You know, I would just like to ask the record to reflect that I would like to renew my original objection to not being allowed to use the insanity defense at this time. Your Honor, I would move for a directed verdict for more time in the defense of my case. As a separate issue, I’m not trying to argue insanity as far as the motion for directed verdict as I’m trying to argue more of his intent.

The trial court again denied the motion for a directed verdict and overruled the objection to the court’s denial of the insanity defense. At the conclusion of the trial, Appellant was adjudicated delinquent on the disorderly conduct charge and placed on indefinite probation.

For his only point on appeal, Appellant argues that the trial court violated his right to equal protection when it refused to allow him to plead not guilty by reason of mental disease or defect. As the trial court noted in making its ruling, this court recently addressed this same issue in Golden v. State, supra, and we held that “neither due process nor equal protection affords a juvenile the right to an insanity defense.” 341 Ark. at 657, 20 S.W.3d at 801. We further stated:

Regarding the insanity defense, this court held in the case of K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998), that insanity is not a defense in juvenile proceedings because there is no statutory authority or case law for the defense. In K.M., we relied upon the U.S. Supreme Court holding in Medina v. California, 505 U.S. 437 (1992), that there is no constitutional right to an insanity defense; therefore, if one is not provided for by statute, then a defendant may not assert the defense.

Id., 341 Ark. at 660-61, 20 S.W.3d at 803. Because there was no Arkansas statutory provision conferring on juveniles the right to assert an insanity defense at the time of the trial court’s hearing in the case of Golden v. State, we affirmed the trial court’s finding that the juvenile defendant in that case was not entitled to raise the insanity defense. Id. Similarly, we hold that our decision in Golden v. State is dispositive of the case currently before us.

Appellant contends that Golden v. State is distinguishable for a single reason:

[Appellant’s] case is distinguished from Golden v. State, 341 Ark. 656, 20 S.W.3d 801 (2000), in that [Appellant] was actually found to be not responsible for his actions in his Act III evaluation performed by the Arkansas State Hospital. In Golden, supra, an Act III evaluation had not even been performed on that juvenile.

This argument, however, does nothing more than point out a difference with no real distinction. Our holding in Golden v. State did not depend on the fact that an Act III evaluation had not yet been performed on the juvenile defendant. Id.

In this appeal, Appellant takes exception to our reasoning in Golden v. State and asks us to overrule that decision. In Golden v. State, the juvenile defendant argued that the Equal Protection Clauses of the United States and Arkansas Constitutions were violated because there is no rational basis for affording the insanity defense to adult criminal defendants in circuit court pursuant to Ark. Code Ann. § 5-2-312 (Rep. 1999), while not providing the same defense to juvenile defendants. We disagreed and held that there was a rational basis for doing so because adult criminal defendants in circuit court face sentences such as death or life-imprisonment; juvenile proceedings are rehabilitative rather than punitive; juveniles are not provided a trial by jury and various other rights afforded adult criminal defendants; and the juvenile code provides for a number of alternatives with regard to disposition, such as treatment, commitment, transfer of legal custody, and placement in community-based programs. Id.

Here, Appellant also argues that it is a violation of equal protection to afford adult criminal defendants an insanity defense without affording the same defense to juveniles, and he contends that our reasoning in Golden v. State was flawed for three reasons. First, he avers that the rehabilitative-punitive distinction is meaningless in practice because, with limited funding in the juvenile system, rehabilitation is not always possible. Next, he argues that a juvenile can potentially receive a longer sentence for some crimes than an adult offender. Last, Appellant asserts that under Ark. Code Ann. § 9-27-309(a)(2), records of juvenile delinquency may be used at sentencing if the juvenile is subsequently tried as an adult.

We have repeatedly stated that this court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions. State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). Although we have the power to overrule previous decisions, we will uphold them unless great injury or injustice would result. Bharodia v. Pledger, 340 Ark. 546, 11 S.W.3d 540 (2000). The party asking us to overrule a prior decision has the burden of showing that our refusal to overrule the prior decision would result in injustice or great injury. McGhee v. State, supra. Appellant has made no such showing here. Accordingly, we decline to overrule Golden v. State.

Finally, our decisions in Golden v. State and K.M. v. State made it clear that the General Assembly may statutorily provide an insanity defense for juveniles. At the time of those decisions, the applicable juvenile code did not provide for such a defense. However, as Appellant points out on appeal, by Act 1192 of 1999, the General Assembly has provided some, but not all, juveniles with an insanity defense. Appellant argues that this Act violates equal protection by drawing a distinction between different classes of juveniles. Appellant failed to make this argument below. Thus, we are precluded from addressing it on appeal. More particularly, in his argument to the trial court, Appellant did not raise the provisions of Act 1192, and his only equal-protection argument was limited to the assertion that “he’s denied the same affirmative defenses as an adult....” Thus, Appellant’s equal-protection argument on appeal is materially different from the one he made below. In such a case, we will not consider an argument raised for the first time on appeal. K.M. v. State, supra. Even constitutional arguments are waived when they are not argued below. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997).

Affirmed.

       In his point on appeal, Appellant also asserts that the trial court violated his due process rights. However) he fails to develop that argument and cites no authority to support it. When a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000).

       We noted in Golden v. State that while the juvenile code applicable in that case contained no insanity defense, “the 1999 amendment had included an evaluation of the juvenile’s mental state and capacity with regard to mental disease or defect as part of the process of evaluating a juvenile under the age of thirteen who is charged with capital murder or murder in the first degree.” Golden v. State, 341 Ark. at 660, 20 S.W.2d at 803.


author: JIM HANNAH, Justice.

text:
    Gregory Charles BYNDOM v. STATE of Arkansas
    CR 00-59
    39 S.W.3d 781
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001
    [Petition for rehearing denied May 10, 2001.]

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.,

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Justice.

Appellant Gregory Charles Byndom appeals his rape conviction, arguing that the trial court erred in finding the victim, Shaneani Mason, competent to testify at trial. The State cross-appeals, asking this court to hold that the trial court erred in disallowing Mason to use a computerized augmentative communication device while she testified and further arguing that the trial court erred by concluding that Byndom’s prior Illinois voluntary manslaughter conviction did not subject him to second-strike status under Arkansas law. We affirm on direct appeal and dismiss on cross-appeal.

Facts

Mason is a twenty-five-year-old woman with cerebral palsy and mental retardation caused by suffering strokes as a child due to Sickle Cell disease. Mason lived with Byndom’s girlfriend, Rita Bealer, who was paid a stipend by the State to help care for Mason because Mason cannot care for herself, stand or move without assistance, or speak without the assistance of a Dynavox computer, an augmented speaking device.

On the night of July 20, 1998, Bealer and her children left the house to go to the store sometime in the evening after Mason had gone to bed. While they were gone, Byndom entered Mason’s room, removed his and her clothes, and had sexual intercourse with Mason while he was wearing a condom. According to Mason, she did not report this incident to Bealer because Mason feared Byndom, but two days later reported the attack to Tracy Ross, a registered nurse who met with Mason approximately once every two weeks to perform home-health assessments. Ross, who had cared for Mason for approximately two years, testified that Mason became distraught at the end of their visit on July 22, 1998, and Ross finally persuaded Mason to tell her what the problem was. Because Mason is unable to speak, Ross obtained the information from Mason through a series of yes/no questions, interpretation of Mason’s body language, and use of the Dynavox computer, which synthesizes speech for its users. Mason indicated that she knew her attacker and identified him that day by typing “Charles” on her Dynavox screen. Later it became clear to Ross that Mason meant the defendant, Charles Byndom. Ross immediately reported the attack to the police, who took Mason’s statement using the same questioning technique, and Mason was ultimately removed from Bealer’s home. A rape kit was performed immediately at Arkansas Children’s Hospital and, according to the physician who conducted the examination, Mason suffered from a three-centimeter traumatic tear in her vaginal area resulting from penetration of some object. The physician testified that due to Mason’s own physical disabilities, she could not have inflicted this injury on herself.

On October 16, 1998, and amended on November 3, 1998, the State filed a felony information against Byndom charging him with rape under Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997) for engaging in sexual intercourse with Mason by forcible compulsion or, in the alternative, by engaging in sexual intercourse with Mason when she was unable to consent because she was physically helpless as defined in Ark. Code Ann. § 5-14-103(a)(3). During pretrial proceedings, the defense filed a motion on February 12, 1999, for a hearing to determine whether Mason was competent to testify at trial. This hearing was held on March 10, 1999, at which Mason testified using her Dynavox computer to help her speak. The computer allows the user to touch icons on the computer screen or type in words on the keyboard, and the computer then “speaks” the phrase or word indicated. Words and phrases can be programmed into the computer’s memory, and they are then represented by icons on the screen. The icons can be grouped on different pages to allow the user to gather appropriate phrases or words for different situations.

At the hearing, the State called three witnesses. First, Kim Wallace, a speech pathologist and director of the preschool and therapy programs at United Cerebral Palsy (UCP), testified that she worked with Mason for several years through UCP. Wallace testified that Mason is a “nonverbal communicator,” meaning that she communicates with gestures, eye movement, and body posturing, although her abilities are limited due to the cerebral palsy. Wallace also testified that Mason used the Dynavox computer to synthesize speech, and that it allowed Mason to “speak” through different icons programmed into the computer by Wallace and others. Wallace testified that while someone other than Mason programs in different terms and phrases, use of those terms or phrases is strictly up to Mason who chooses the applicable icon from thousands found on the computer. Wallace testified that Mason’s memory and ability to understand are “wonderful,” her hearing is normal, and she is aware of her surroundings.

Next, the State called Paula Radar, director of adult rehabilitative services at UCP, who testified that she first met Mason in 1991 through UCP, and she has found Mason capable of communication through gestures and the Dynavox computer. Radar also explained that in anticipation for the trial, she discussed with Mason her upcoming testimony, and Mason directed her to have programmed into the Dynavox computer terms and phrases necessary to aid Mason in testifying. Radar testified that through a series of yes/no questions, Mason indicated the information she wanted in the computer, Radar wrote the information down, and Wallace programmed the information into the computer.

Finally, Mason testified using the Dynavox computer and by responding with gestures. She explained where and with whom she lived, her previous living arrangements with Bealer, and the fact that she understood what it meant to tell the truth. On cross-examination, Byndom’s defense attorney attempted to show that Mason was unable to speak herself, and that the Dynavox computer was slow.

Following the hearing, the judge entered an order on March 17, 1999, finding that Mason was competent to testify. In the order, the court also noted that it heard arguments regarding the State’s amendment of the felony information to allow a “second-strike” provision for punishment purposes based on Byndom’s previous criminal conviction of voluntary manslaughter in Illinois. The trial court ruled that the felony information could not contain the provision, and that it should be stricken.

During pretrial proceedings, the parties continuously debated how Mason would testify using the Dynavox computer because many terms and phrases had been programmed into the computer in anticipation of questions that might be asked at trial. The court limited the form of the questions to be asked, noting that the State could not ask leading questions, and that the State had to provide to the defense paper copies of the screens and terms that would be used by Mason at trial. On May 12, 1999, Byndom requested that the trial court reconsider its order finding Mason competent. On May 17, 1999, the State filed a motion in limine to direct the trial court to require defense counsel to only ask one question at a time of Mason during cross-examination to allow her time to answer the questions presented. On August 16, 1999, defense counsel filed a motion to exclude hearsay testimony from Mason. The defense argued that the pictures and statements contained on the Dynavox computer were hearsay, irrelevant, and highly prejudicial, and should be excluded.

The trial began on August 24, 1999. Prior to selecting the jury, the parties again debated how Mason would testify using the Dynavox computer. The defense renewed its motion to have Mason declared incompetent to testify, and the court again denied that motion. The defense then argued that the preprogrammed words and phrases on the Dynavox computer were hearsay and should be excluded. During trial, the State presented a number of witnesses who testified regarding Mason’s reporting of the rape to them and through them, as well as Mason’s physical and mental restrictions. During Wallace’s testimony, the parties again debated the admissibility of the words and phrases taken from the Dynavox computer. Wallace testified that while she created the pages and determined where to put each word or phrase and its related icon, Mason’s response to questions by choosing a word or icon was her own choice. On cross-examination, defense counsel presented Wallace printed pages of the screens from the computer, and the State objected to the admission of the pages as hearsay. Defense counsel agreed and further asked that all of the information from the computer be determined hearsay. The prosecution attempted to clarify that it meant that the printed pages as interpreted by defense counsel were hearsay, but the court apparently misunderstood the State’s objection on hearsay grounds, and ultimately ruled that Mason could not use the Dynavox computer because it was hearsay, and instead could only use the yes/no feature on the computer to answer questions. The defense and prosecution argued that this would limit their ability to question Mason, but the court found that they brought such a ruling upon themselves.

Mason testified after this exchange, and the State proceeded by asking yes/no questions. Mason testified that Byndom raped her, that she attempted to push him away but could not, and that she did not consent to have sexual intercourse with him. On cross-examination, defense counsel questioned Mason on why she waited to report the attack, to whom she reported it, and who attacked her. Through yes/no responses, Mason was able to identify the various people who helped her as well as indicate that Byndom was the person who attacked her. Again, during cross-examination, defense counsel argued that by only being able to ask yes/no questions, Byndom’s constitutional right to confrontation was being violated, and he again asked that Mason be declared incompetent to testify. The court denied the motion again. The State also objected again to the court’s ruling denying Mason the ability to use the computer, and argued that it was the paper copies of the computer screens to which the State objected, not the actual use of the computer. The trial court again denied the State’s request to use the computer. However, the trial court actually allowed Mason to return to using the Dynavox computer during cross-examination as long as the icons did not appear on the projection screen set up behind her for the jury to see. At the close of Mason’s testimony, the defense again asked that Mason be declared incompetent. The trial court again denied the motion.

At the close of trial, the jury found Byndom guilty of rape, and he was sentenced to twenty years in prison. The judgment and commitment order was entered on September 9, 1999, and the defense filed a motion for new trial on September 28, 1999. A hearing was held on this motion on October 4, 1999, and the trial court denied the motion in an order dated October 11, 1999. Byndom filed his notice of appeal on October 20, 1999, and the State cross-appealed on November 17, 1999.

I. Byndom’s Direct Appeal

Byndom raises one point on appeal. He argues that the trial court erred in finding Mason competent to testify at trial because she lacked the testimonial capacity of narration, and defense counsel was unable to effectively cross-examine her. The State counters by noting that the defense obtained a favorable ruling on the exclusion of the Dynavox computer to aid Mason’s testimony, so the defense now cannot claim error because it invited the error itself. Alternatively, the State argues that Byndom’s argument fails on the merits because Mason possessed narrative capacity as conceded by the defense and as evidenced by Mason’s ability to communicate through yes/no responses and other physical sounds, gestures, eye movement, and body movement.

The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The trial court must begin with the presumption that every person is competent to be a witness. Id.; Ark. R. Evid. 601. The party alleging a witness is incompetent has the burden of persuasion. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (1986). As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Hoggard v. State, 211 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).

Competency, as referred to in Ark. R. Evid. 601, is not to be confused with reliability. Hammon v State, 338 Ark. 733, 2 S.W.3d 50 (1999). Testimony by competent witnesses may be presented to the finder of fact. The jury then evaluates the evidence, considers the credibility of the witness, and arrives at its conclusion. The criteria for determining whether a witness is competent to testify are: (1) the ability to understand the obligation of an oath; (2) an understanding of consequences of false swearing; (3) the ability to receive and retain accurate impressions; and (4) the extent that the capacity exists to transmit to the fact-finder a reasonable statement of what was seen, felt or heard. Logan, supra; Chambers, supra. The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he or she is afforded to observe the witness and the testimony. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

The parties do not cite, and this court has not found, any Arkansas cases wherein a witness cannot speak due to a physical disability, but can communicate through other means besides a court interpreter. However, several other jurisdictions have considered similar issues. Illinois appellate courts have faced such a situation in at least two criminal cases. In People v. Spencer, 457 N.E.2d 473 (Ill. App. 1983), the Illinois Court of Appeals considered a case in which a thirty-one-year-old deaf-mute woman was raped. The mildly to moderately retarded woman could not speak, but instead communicated through gestures and references to picture symbols, numbers, colors, and the alphabet. The defense objected at trial to these methods of communication, arguing that they denied the defendant the right to confrontation because she could not verbally communicate. The trial court denied this objection, and the appellate court affirmed, stating:

[A] witness’s inability to speak does not render her incompetent to testify or violate the defendant’s right to cross-examine witnesses so long as she is able to communicate the facts by other methods and otherwise meets the tests of legal competency; i.e., that she can observe, recollect, and appreciate the moral duty to tell the truth. In the instant case, because Diane was able to communicate by other means and was otherwise competent, we reject defendant’s contention that his constitutional right to confront witnesses was violated.

Spencer, 457 N.E.2d at 485. The court also held that a witness suffering from mental impairment such as retardation is legally competent to testify so long as she has the capacity to observe, recollect and communicate, and that the defendant cannot rely merely on the fact that the witness is retarded to challenge her competency. Id., 457 N.E.2d at 483. Finally, the appellate court cited similar cases from other jurisdictions in which witnesses who could not speak and knew no form of sign language were found competent to testify. See Burgess v. State, 53 So.2d 568 (Ala. 1951); Hyman v. State, 338 So.2d 448 (Ala. App. 1976); and State v. Galloway, 284 S.E.2d 509 (N.C. 1981). The court in Galloway stated:

The general rule appears to be that deaf and mute persons are not incompetent as witnesses merely because they are deaf and mute if they are able to communicate the facts by a method which their infirmity leaves available to them and are of sufficient mental capacity to observe the matters as to which they will testify and to appreciate the obligation of an oath. 97 C.J.S. Witnesses §§ 61 (1957).
* * *
Society has recognized the necessity for a means of communication under such circumstances, and the method employed here was proper in every respect. Indeed, we know of no other practical method by which a trial could be conducted under these circumstances. This Court, like the trial court, is unable to bestow upon the prosecuting witness the ability to hear and to speak. The jury was made aware of the problems of interpreting. Any confusion arising from the use of sign language to communicate with a deaf and dumb witness goes to the weight, and not the admissibility, of the evidence. To hold otherwise would allow this defendant and others to commit crimes against persons born deaf and dumb with impunity.

Galloway, 284 S.E.2d at 514-515. In Burgess, the Alabama Supreme Court allowed a deaf-mute woman to testify about her father’s murder using her brother as her interpreter. The woman did not know sign language, but instead communicated through yes/no signaled responses and gestures that her brother understood and interpreted for the court. In permitting this form of testimony, the court stated:

It is well settled by modern authority that it is permissible for such a witness to testify as against the objection that the party against whom such testimony is given will be put to great disadvantage in cross-examination to test the witness’s credibility. [Citations omitted.] And it is observed by Professor Chamberlayne ... that: “And though a [deaf mute] person may not be educated in the use of signs and can only express assent or dissent by a nod or shake of the head, thus rendering cross-examination diffrcult, he may nevertheless be permitted to testify, but it is said that his disability may be considered by the jury, as bearing upon the weight of his testimony. That difficulty attends the examination of a deaf-mute is no reason why his testimony should be excluded....” [Citations omitted.]

Burgess, 53 So.2d at 571.

Illinois again faced a competency challenge in People v. Vandiver, 468 N.E.2d 454 (Ill. App. 1984), wherein the court affirmed the trial court’s ruling that the defendant’s Sixth Amendment right to confront his accuser was not violated where the deaf and mute witness testified through the use of two sign language interpreters. The defense objected, arguing that the witness’s testimony was twice removed, thus opening it up to greater interpretation and error. The appellate court, however, determined that “testimony of a deaf witness may be secured by whatever means are necessary and best adapted to the case....” Vandiver, 468 N.E.2d at 458.

These persuasive authorities indicate that Mason’s inability to speak did not render her incompetent. Rather, the focus in such a case is on the witness’s ability to communicate thoughts, impressions, feelings, and beliefs, and here Mason was able to do all of that by virtue of her gestures, facial expressions, ability to sign “yes” and “no,” and by the limited use of the yes/no function key on her Dynavox computer. To hold otherwise would render a segment of society incompetent merely because they cannot communicate as effectively and in the same manner as those who can speak through oral, written, or signed language. Furthermore, as the State notes in its response brief and as indicated in the record, the trial court actually allowed Mason to return to using the Dynavox computer during cross-examination as long as the icons did not appear on the projection screen set up behind her for the jury to see. This ruling properly recognized that the Dynavox computer did not constitute hearsay evidence where the user, Mason, could directly answer a question with an answer only she could choose from thousands of words and phrases programmed into the computer. As such, the defendant’s assertion that Mason could not communicate effectively suffers a devastating blow when it is apparent that the defense had the opportunity to elicit more detailed responses from Mason through the Dynavox computer. However, the defense continued to mostly ask yes/no questions of Mason even after the trial court allowed Mason to utilize her computer to render more thorough responses.

Finally, any difficulty Byndom had in cross-examining Mason was of his own making. The record at trial indicates that the defense objected at every turn to Mason’s use of the Dynavox computer, arguing that the computer’s screens and programmed icons and responses constituted hearsay because they were prepared by another person. The trial court granted Byndom’s request to limit Mason’s use of the Dynavox computer, and Byndom cannot now complain of error he invited. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Because Byndom received a favorable ruling to his motions to prevent the use of the Dynavox computer based on hearsay, he cannot now complain of his inability to effectively question Mason without it. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). Therefore, because Byndom’s objections to the use of the Dynavox computer caused its exclusion at trial, and because even without the use of the computer Mason was still competent to testify, we affirm the conviction.

II. State’s Cross-Appeal

The State cross-appealed in this case, arguing two separate points on appeal. First, the State argues that this court should declare error in the trial court’s restriction of Mason’s use of her Dynavox computer to testify at trial. The State argues that the computer was not hearsay, but merely a different form of communication allowing Mason to testify on her own through preprogrammed words and phrases. Second, the State argues that the trial court erred by concluding that Byndom’s prior Illinois voluntary manslaughter conviction did not subject him to “second-strike” status under Ark. Code Ann. § 5-4-501(c)(l) and (2)(B). The State argues that Illinois’s voluntary manslaughter statute is comparable to Arkansas’s second-degree murder statute, and that this similarity would allow the voluntary manslaughter conviction to be used in Arkansas for heightened punishment.

Byndom responds by arguing that the State’s cross-appeal was untimely under Rule 3 of the Arkansas Rules of Appellate Procedure — Criminal or any other rule allowing appeals in criminal or civil cases. As such, this court should not entertain the cross-appeal. On the merits, Byndom first argues that the first issue raised by the State is not one that bears on the correct and uniform administration of the criminal law, and that this court would be issuing an advisory opinion because the State cannot show prejudice since it prevailed below. Second, Byndom argues that as applied to this case, when Byndom was convicted in Illinois, voluntary manslaughter was defined as the unintentional killing of a person in a reckless manner. This is more like Arkansas’s crime of manslaughter than second-degree murder.

This court cannot reach the issues in the State’s cross-appeal because it was not timely filed. The State’s right to file a criminal appeal arises under Ark. R. App. R — Crim. 3, which states in pertinent part:

(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.

This rule does not state “Where a direct appeal...” but instead states “Where an appeal....” Although the State attempts to argue that Rule 3 does not apply to cross-appeals, there is no other authority under which the State could cross-appeal in a criminal case. This court, in a concurring opinion in Osborne v. State, 340 Ark. 444, 11 S.W.3d 528 (2000), said:

“[W]hile our Rules of Appellate Procedure — Criminal do not specifically mention cross-appeal, as such, our Rules of Appellate Procedure — Civil clearly do (see Ark. R. App. P. — Civ. 3(d)), and these civil appellate rules have commonly been referred to and applied when necessary in criminal appeals.”

The time line in this case indicates that after Byndom was convicted, the judgment and commitment order was entered on September 9, 1999. The defense filed a motion for new trial on September 28, 1999. A hearing was held on this motion on October 4, 1999, and the trial court denied the motion in an order dated October 11, 1999. Byndom filed his notice of appeal on October 20, 1999, and the State filed its notice of cross-appeal on November 17, 1999.

As noted in Rule 3(b), the State must file its appeal within thirty days after the entry of a final order by the trial judge. Here, the State did not file its notice of cross-appeal thirty days after the entry of the judgment and commitment order on September 9, 1999. Even if this court considers the trial court’s denial of the motion for new trial on October 11, 1999, as the trial court’s final order, the State did not file the notice of cross-appeal within thirty days of the entry of that order as required by either Rule 3(b) for appeals by the State or by Ark. R. App. P. — Crim. 2(a)(2), which applies to appeals by all other parties besides the State in criminal cases.

As a final note, the State argues on this issue that the Arkansas Rules of Appellate Procedure — Criminal do not provide for a time limit for the State to file a cross-appeal, so there can be no timeliness violation. The State is correct that the rules do not specifically set out a time for the State to file a cross-appeal. However, this court has referred to and applied the Rules of Appellate Procedure — Civil when necessary in criminal appeals. Under Ark. R. App. P. — Civ. 4(a), a party cross-appealing must file within ten days after receipt of the other party’s direct appeal. However, even under that rule, the State still did not comply because it filed its cross-appeal twenty-seven days after Byndom filed his appeal, and made no showing that it did not receive Byndom’s notice of appeal within ten days of filing its cross-appeal. Therefore, the State’s cross-appeal was untimely, and this court will not consider it.

We affirm on direct appeal and dismiss the cross appeal.

       The issue of whether the State can file a cross-appeal pursuant to the Arkansas Rules of Appellant Procedure - Civil is not before the court, and the court is not ruling on that issue.


author: PER CURIAM.

text:
    Deborah (Debbie) L. JACKS v. STATE of Arkansas
    CR 01-291
    39 S.W.3d 459
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      Mark S. Frasier, for appellant.
    No response.
   PER CURIAM.

Appellant, Deborah L. Jacks, by and through her attorney, has filed a motion to file belated appeal. Her attorney, Mark S. Frasier, accepts responsibility for the untimeliness in filing a notice of appeal and states in his affidavit that the notice of appeal was tendered late due to a mistake on his part. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

Therefore, the motion is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Deborah (Debbie) L. JACKS v. STATE of Arkansas
    CR 01-291
    39 S.W.3d 798
    Supreme Court of Arkansas
    Opinion delivered April 5, 2001

      Ann C. Hill and Mark S. Frasier, for appellant.
    No response.
   PER CURIAM.

Mark S. Frasier, a state-salaried, full-time public defender for the Eighteenth Judicial District, was appointed by the trial court to represent appellant Deborah L. Jacks, an indigent defendant, in this probation-revocation case. Appellant’s probation was revoked, and she was convicted of the offense of Violation of the Arkansas Hot Check Law, a Class C felony, and sentenced to seven years in the Arkansas Department of Correction with four years suspended. A notice of appeal was filed by Mr. Frasier, and a partial record has been lodged with our clerk.

Mr. Frasier now asks that we relieve him as counsel for appellant in this criminal appeal. As a state-salaried, full-time public defender for the Eighteenth Judicial District East, Mr. Frasier is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Frasier’s motion to be relieved for good cause shown. Steven R. Davis will be substituted as attorney for appellant Deborah L. Jacks in this matter.