text:
    Kenneth Thomas TRIMBLE v. STATE of Arkansas
    CR 97-764
    986 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered February 18, 1999

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Kenneth Thomas Trimble was convicted of capital murder and sentenced to a term of life imprisonment without possibility of parole. We affirmed the conviction and sentence in Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Trimble subsequendy filed a petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. After a hearing, the Circuit Court of Saline County denied relief. Trimble now appeals the denial of postconviction relief as well as the denial of his motion for the recusal of the circuit judge from his postconviction hearing. We find no merit to the appeal and affirm.

Trimble’s arguments for postconviction relief rely substantially on the same facts as the issues he raised in his direct appeal. For that reason, we now reiterate those facts. Raymond Jacobs raised hunting dogs at his home in Benton. On April 28, 1992, Young delivered four or five dogs to Jacobs, and Jacobs’s records indicate that Young sold the dogs to him. On the evening of May 8, 1992, Jacobs’s body was found in his barn at his residence. He had been stabbed multiple times with a pitchfork and bludgeoned with a hammer. Several of his dogs were missing.

Deputies from the Saline County Sheriffs Department eventually developed Young and Trimble as suspects in the murder. Pursuant to a grant of immunity, Young gave a statement about events surrounding Jacobs’s murder and stated that it was Trimble who killed Jacobs. Afterwards, Young took investigators to various locations in North Central Arkansas to recover physical evidence which included the blood-stained clothing of Young and Trimble, the collars of the stolen dogs, and the hammer used in the slaying. Young told investigators that he and Trimble purchased new clothing at a Wal-Mart store in Clinton.

Following Young’s immunity grant and statement, Trimble was advised by his attorney to give his own statement. On June 23, 1992, Trimble gave a videotaped statement to Saline County Sheriff s deputies in which he admitted going to the Jacobs residence with Young and that Young intended to steal the dogs. He further admitted registering in a motel under a false name. He denied, though, that he participated in the murder of Jacobs and claimed that the murder was committed solely by Young. Trimble said that Young had been in the barn alone with Jacobs and came out with blood on his clothing. He also said that he got blood on his clothes after Young grabbed him. On the drive back to Missouri, Trimble told the deputies that Young threw the bloody clothes, dog collars, and hammer out the window. Trimble said he bought new clothes at a Wal-Mart store.

Following a hearing on August 24, 1992, Young’s immunity was revoked by the circuit judge for inconsistent statements to the prosecutor and for failure to cooperate. Trimble then filed a motion to suppress his statement, claiming that it had been coerced because he only gave it after Young had been granted immunity and had made a statement impheating him. In the motion to suppress, Trimble also raised the issue of ineffective assistance of counsel.

Also at that hearing, the circuit judge brought up the matter of the State’s revoking the grant of immunity to Young. The prosecutor stated that Young would not be called as a witness against Trimble and that the State would not use any physical evidence recovered from Young after he was granted immunity on June 4, 1992.

The circuit judge then heard Trimble’s motion to suppress his statement on grounds of coercion effected by Young’s grant of immunity and statement by ineffective assistance of counsel. Trimble testified that under these circumstances his attorney advised him that he had no choice but to give a statement. The circuit judge found no coercion and denied the motion.

On the direct appeal of the judgment, Trimble raised seven allegations of error. Among those was a challenge to the sufficiency of the evidence, an allegation that the trial judge should have recused from the case, an allegation that the grant of immunity to Young was illegal, and an argument that the evidence derived from that grant of immunity was improperly used against him. Trimble also argued that the Trial Court should have suppressed his statement on ineffective-assistance-of-counsel grounds. On the ineffective-assistance-of-counsel issue, we concluded that the advice that Trimble received from his attorney, to go ahead and state his own version of the events surrounding the murder after Young was granted immunity, was a matter of strategy that could not be the basis for a finding of ineffective assistance of counsel. Trimble v. State, 316 Ark. at 172.

In his petition for Rule 37 relief, Trimble reiterated the ineffective-assistance-of-counsel claim that he made in the motion to suppress his statement. He also alleged that his counsel was ineffective for failing to object when the State introduced witnesses whose identity was derived from the information relayed to police by Young pursuant to the grant of immunity. In his last claim, Trimble asserted that he was actually innocent of Jacobs’s murder.

Subsequent to the filing of his Rule 37 petition, Trimble filed a motion in which he requested that the circuit judge recuse from the postconviction hearing. The circuit judge was the same judge that presided over Trimble’s trial, where Trimble also sought a recusal on the basis that the judge’s son was employed as an errand boy by the prosecuting attorney’s office. Trimble sought the judge’s recusal from the postconviction proceeding because, in the period between Trimble’s trial and the filing of his Rule 37 petition, the judge had recused from unrelated criminal cases in which the former prosecutor for Saline County, Dan Harmon, was the defendant. Trimble argued that his petition, within the ineffective-assistance-of-counsel claim regarding the alleged failure to object to the State’s use of witnesses derived from the grant of immunity to Young, contains an allegation of misconduct by Dan Harmon, who prosecuted the case. Specifically, that the prosecutor broke his promise to refrain from using evidence derived from Young’s immunity, and that Trimble’s attorney should have objected when this promise was broken. In the motion to recuse, therefore, Trimble asserted that in order to resolve the ineffective-assistance-of-counsel claim, the circuit judge would have to judge Harmon’s credibility and make a threshold factual determination about whether there was prosecutorial misconduct. Trimble further argued that, since the judge recused from other cases involving alleged criminal misconduct by the prosecutor, recusal was also justified in the postconviction proceeding. The circuit judge denied the motion to recuse on the basis that his recusal from the unrelated criminal proceedings, without further evidence, was insufficient to justify his recusal from the postconviction matter.

For his first argument in this appeal, Trimble contends that it was error for the circuit judge to deny his motion to recuse. He only argues, however, that the circuit judge’s participation in this case had the appearance of impropriety. He has not pointed to, nor can we find, any exhibition of bias or prejudice by the circuit judge during the Rule 37 proceeding.

The Arkansas Constitution, Article 7, § 20, as well as the Arkansas Code of Judicial Conduct, Canon 3(c), provide that judges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). In addition, there exists a presumption of impartiality. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). The decision to recuse is within the trial court’s discretion, .and it will not be reversed absent abuse. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Id. at 244; Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994).

In Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996) , we stated that the party seeking the disqualification bears the burden of proving bias or prejudice on the part of the trial court. See also Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) . Applying that rule, Trimble has made no showing here that he was treated unfairly during his postconviction hearing. He has alleged no specific instances of bias or shown in what way he was prejudiced by the judge’s denial of his motion to recuse. Consequently, we must affirm.

Trimble next argues that the Circuit Court erred when it denied relief on his claim that his counsel was ineffective for failing to object when the State introduced the testimony of several witnesses whose identity was derived from the information that Young gave to the Saline County Sheriff after he was granted immunity. Trimble’s assertion that his counsel had a meritorious basis for the objection is two-pronged. First, he reiterates an argument that he made in the direct appeal — that the immunity granted to Young was illegal because its scope exceeded what was allowed by statute. The illegality of the immunity that was granted to Young, the argument goes, should have prevented the introduction of evidence against Trimble. Alternatively, he argues that prior to the beginning of his trial, the prosecutor announced that he was1 seeking a revocation of Young’s immunity because of Young’s failure to cooperate. According to Trimble, the prosecutor made a commitment at that time to refrain from using Young as a witness against Trimble as well as any other evidence that was derived from Young’s immunity. Trimble further asserts that but for his trial counsel’s failure to object to the witnesses on either of these bases, there is a reasonable probability that the result of the trial would have been different.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

In our opinion in the direct appeal, we held that Trimble did not have standing to contest the kind of immunity granted to Young. Trimble v. State, 316 Ark. at 169. While we recognized that there may be an issue regarding the use of evidence derived from Young’s immunity against Trimble, especially in light of the prosecutor’s commitment not to do so, we ultimately declined to reach that issue because Trimble did not preserve it for appeal with a contemporaneous objection when the evidence was introduced. Trimble v. State, 316 Ark. at 170.

Our conclusion regarding Trimble’s lack of standing to contest the kind of immunity granted to Young indicates that there would not have been any merit to a contemporaneous objection on this basis. Accordingly, Trimble’s counsel did not perform deficiently by failing to make an objection on those grounds.

We also conclude that there is no merit to the argument that Trimble’s attorney was ineffective for fading to object to the testimony of the witnesses because the prosecutor had made an earlier commitment not to use those witnesses. The Circuit Court, in its order, found that Trimble’s attorney did not fail to object, but made the tactical decision not to do so. The Circuit Court cited Trimble’s videotaped statement, and explained that the evidence, in the form, of the witnesses about whom Trimble complains, “was either directly or indirectly given to the State of Arkansas in the statement petitioner gave.” The Circuit Court also added that “the balance of the evidence was overwhelming in pointing toward the defendant’s guilt.”

The Circuit Court’s decision to deny relief is not clearly erroneous. Catlett v. State, 331 Ark. 270, 962 S.W.2d 313 (1998). As the State points out in its brief, Trimble’s argument appears to broaden the scope of the prosecutor’s commitment, which was made during the following colloquy:

Prosecutor: The State does not intend to use Mr. Young as a witness in any proceeding. He has completely destroyed any credibility he may have by making so many inconsistent statements. The physical evidence that Mr. Young took us to, the hammer, the shirt, the shoes, raincoat, dog collars, and I believe there’s some shirts that belonged to the two defendants. The State had determined we could not introduce those in our case in chief and had no intention of doing so.
The Court: By stating that, are you stating to the Court that you’re not going to use any of that evidence or any of that testimony of Mr. Young regardless of the outcome of the hearing on the motion to revoke immunity?
Prosecutor: That’s correct.
The Court: Anything else, Mr. Hardin?
Defense Counsel: I’d like the record to reflect that and the State will be held to that.
The Court: Yes, sir, it’s a binding commitment on the part of the State in the case of Mr. Trimble.
Prosecutor: Your Honor, my understanding is, we will not use any of the evidence gathered from Mr. Young up to the point he was granted immunity on June 4, 1992.

As can be seen, the prosecutor appears to only commit to refrain from using Young as a witness against Trimble, as well as any physical evidence obtained as a result of Young’s immunity, and it is that exact commitment that defense counsel seeks to have entered in the record and that the Trial Court declares as binding.

In his testimony during the postconviction hearing, defense counsel stated that he understood that, because only Young had standing to contest the immunity issue and the use of evidence derived therefrom, the State was not obligated to make any commitment regarding the use of derivative evidence against Trimble. Defense counsel added that he understood the commitment to be that the State would refrain from introducing Young as a witness as well as the physical evidence that was listed. Defense counsel stated that, regarding the other witnesses, he did not want to “press too hard about keeping stuff out” because the State “might go ahead and use it all.” Clearly, counsel made a tactical decision to not object to the introduction of the witnesses on the basis of the prosecutor’s commitment. Matters of trial tactics and strategy are outside the purview of Rule 37. Catlett v. State, supra.

For his last argument in this appeal, Trimble contends that his trial counsel was ineffective for coercing him to make the videotaped statement, which was eventually used as evidence against him during the trial. This argument was raised on direct appeal, where we held that counsel’s advice to Trimble, which urged him to make his own statement after Young was granted immunity, was a matter of trial strategy that could not be the basis for a finding of ineffective assistance of counsel. Trimble v. State, 316 Ark. at 172. Rule 37 does not provide an opportunity to reargue points settled on direct appeal. Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994).

Trimble now contends, however, that he is entitled to raise this issue again because the counsel alleged to be ineffective in the petition, Trimble’s defense counsel during the trial, is the same attorney who raised the ineffective-assistance-of-counsel issue at the trial level. We are unconvinced by this argument. Trimble does not contend that his defense counsel was ineffective in the manner in which he raised the ineffective-assistance-of-counsel claim. Rather, we can perceive no difference between the ineffective-assistance-of-counsel claim that was raised in the Rule 37 petition and the one that we decided on direct appeal.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Wally GRUMMER v. Ellen CUMMINGS
    98-440
    986 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered February 25, 1999

      Callis L. Childs, for appellant.

      Matthews, Sanders & Sayes, by: Margaret M. Newton and Roy Gene Sanders, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

On October 27, 1994, the 1994, the appellant, Wally Grummer, was injured during a car wreck with the appellee, Ellen Cummings. Subsequently, Grummer filed a negligence action against Cummings seeking recovery for his damages. During the jury trial on August 5 and 6, 1997, Cummings sought to impeach Grummer’s credibility by introducing evidence of inconsistent statements made to the investigating police officer and to treating physicians regarding Grummer’s use of a seat belt at the time of the accident. Pursuant to Ark. Code Ann. section 27-37-703, Grummer objected to the introduction of any evidence indicating that he failed to use a seat belt. However, during an in-chambers hearing, the trial court reasoned that Grummer’s statements to his doctors for the purpose of treatment were important and, accordingly, denied Grummer’s oral motion in limine to exclude any evidence of seat-belt nonuse. The trial court noted that it would permit Cummings to elicit testimony and admit evidence of appellant’s conflicting statements solely for the purpose of challenging Grummer’s credibility. Following closing arguments, the trial court gave the jury a limiting instruction, based upon the 1993 enactment of section 27-37-703 that was in effect at the time of the accident, as follows:

The failure to use a seatbelt shall not be considered under any circumstances as evidence of comparative or contributory negligence or failure to mitigate damages, nor shall such failure be considered in the trial of any civil action with regard to negligence. Any evidence you may have received or has been provided to you regarding the failure to use a seatbelt is to be considered for the purpose of credibility of the witnesses only.

On appeal, Grummer challenges the trial court’s (1) denial of his oral motion in limine to exclude all evidence of seat-belt non-use, and (2) denial of his alleged motion for a mistrial based upon the admission of seat-belt-nonuse evidence and an improper jury instruction. We agree with appellant’s first point on appeal and hold that the trial court abused its discretion in admitting evidence of seat-belt nonuse. Accordingly, we reverse and remand.

Motion in limine

Following the in-chambers conference regarding the admissibility of seat-belt-nonuse evidence, Cummings cross-examined Grummer about his inconsistent statements to the police and his treating physicians. Grummer acknowledged that he told the emergency room personnel that he was an unrestrained driver but that he later told Dr. Clay Lamey, Jr., his chiropractor, that he was wearing a seat belt during the accident. Grummer attributed the discrepancies to a mistake on his part. During Grummer’s testimony, his attorney requested that the trial court grant him a “continuing objection” to Cummings’s fine of questioning. Next, Officer Alfred Hobby, the investigating police officer, testified that Grummer told him that he was not wearing any type of seat restraint. Then, during a videotaped deposition introduced as an exhibit, Dr. Steven Cathey, another of appellant’s treating physicians, recalled that Grummer reported wearing a seat belt at the time of the accident.

On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Edwards v. Stills, 335 Ark. 470, 503, 984 S.W.2d 366, 380 (1998) (citing Smith v. Galaz, 330 Ark. 222, 953 S.W.2d 576 (1997); Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S. Ct. 246 (1996)). Moreover, the balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993).

Applying the balancing test of Ark. R. Evid. 403, the trial court concluded that evidence of appellant’s statements to his physicians for the purpose of treatment were “important,” probative, and warranted admission. Additionally, the trial court admonished the jury that the evidence of seat-belt nonuse could be considered only for the purpose of evaluating appellant’s credibility and not with regard to any issue in the underlying negligence action against the appellee. In support of that position, the appellee cites Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996), for the holding that when evidence is admissible for one purpose but not admissible for another, the trial court shall restrict the evidence to its proper scope and instruct the jury accordingly. When the jury is given such a limiting instruction on evidence presented at trial, the instruction may remove the inflammatory effect of the evidence that might not be admissible otherwise. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995).

Here, however, the limiting instruction to the jury could not cure the highly prejudicial effect of the introduction of seat-beltnonuse evidence in a negligence action. Applying the Rule 403 balancing test, the prejudicial effect of the evidence far outweighed any probative value, particularly when the appellee admits that there was other relevant, admissible evidence regarding the issue of appellant’s credibility, specifically, the appellant’s alleged inconsistencies about how the accident occurred. Accordingly, we hold that the trial court abused its discretion in admitting any evidence regarding seat-belt nonuse. In light of the foregoing, we decline to reach the merits of appellant’s second point on appeal.

Reversed and remanded.

Imber, J., concurs; Glaze, J., joins.

Annabelle Clinton Imber, Justice,

concurring. I agree with agree with the majority’s conclusion that the prejudicial effect of introducing evidence of seat-belt nonuse in this negligence action far outweighed its probative value under the Rule 403 balancing test. However, I believe our holding in this case deserves a brief caveat. In this appeal we were not asked to address, nor do we address, the separation-of-powers doctrine as it may apply to the General Assembly’s authority to enact Ark. Code Ann. § 27-37-703 (1997 Supp.), which restricts the admissibility of seat-belt-nonuse evidence in civil actions. That issue remains for another day.

Glaze, J., joins this concurrence.

       We note that the 1993 enactment of Ark. Code Ann. section 27-37-703 was the only version of the statute raised by the parties and discussed by the trial court, although the statute was subsequently amended in 1995.


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

text:
    Maudie BAKER v. FROZEN FOOD EXPRESS TRANSPORT
    98-1254
    987 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999

      Marc I. Baretz, for appellant.

      Rieves & Mayton, by: Eric Newkirk, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellant, Maudie Baker, an Alabama resident, challenges the Arkansas Workers’ Compensation Commission’s determination that it lacked jurisdiction to hear her claim against the appellee, Frozen Food Express Transport (“FFE”), a Texas Company. Baker filed her claim against FFE seeking benefits as a result of a June 24, 1995, injury that occurred at a truck stop in Earle, Arkansas. Baker also contends that the Commission erred in finding that FFE rebutted the statutory presumption of jurisdiction. We find no merit in appellant’s arguments, and we affirm.

FFE hired Baker in Atlanta, Georgia, in March of 1995, to work as an over-the-road truck driver throughout the forty-eight contiguous states and Canada. According to Baker, FFE had approximately five hundred drivers traveling across the United States and Canada. During her employment with FFE, Baker drove through Arkansas approximately twice a week from March until June. Baker testified that FFE had other trucks on the road in Arkansas and that FFE designated a specific fuel stop, not owned by FFE, in West Memphis, Arkansas. Baker estimated that four FFE drivers were stopped at the West Memphis fuel stop at one time. Pay stubs, offered into evidence, indicated that FFE paid Baker’s salary through its payroll account in Dallas, Texas, the location of the company’s headquarters.

At the time of the accident, Baker was taking a DOT mandated eight-hour break when another truck, attempting to park, hit her truck. Baker recalled that she was in Arkansas making a delivery, but could not remember where, and that FFE had a drop yard, foil of empty and loaded trailers, somewhere in Arkansas. However, she acknowledged that FFE maintained no supervisory personnel at the drop yard. Following the accident, Baker notified FFE, and a wrecker took her and her truck back to Texas, where she received medical care, indemnity, and medical benefits through August 23, 1996.

Texas provides employers an alternative to workers’ compensation payments, and FFE provided Baker’s benefits through such a plan, the Conwell Voluntary Employee Benefit Plan. FFE, via Conwell, paid Baker $6,636.57 in indemnity benefits and $20,145.32 in medical benefits. However, on August 26, 1996, Conwell denied Baker’s request for extended benefits and informed her that further medical treatment would require her health-insurance carrier’s approval. Following the denial of additional benefits, Baker sought workers’ compensation benefits in Arkansas.

On June 30, 1997, an administrative law judge determined that the Arkansas Workers’ Compensation Commission lacked jurisdiction over Baker’s claim and denied and dismissed the action. The full Commission affirmed and adopted the administrative law judge’s opinion. Subsequently, Baker appealed to the Arkansas Court of Appeals. In a substituted opinion upon denial of rehearing, the appellate court affirmed the Commission’s decision and held that the Commission lacked jurisdiction to entertain Baker’s claim. Baker v. Frozen Food Express Transport, 63 Ark. App. 100, 981 S.W.2d 101 (1998). Pursuant to Ark. Sup. Ct. Rule 2-4 (1998), we granted review of the Court of Appeals’ decision. Notably, when we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)).

Jurisdiction

The appellant contends that the Arkansas Workers’ Compensation Commission erred in finding that it lacked jurisdiction over her claim. Baker also argues that the Commission erred in finding that FFE rebutted the statutory presumption of jurisdiction. The jurisdictional question is a mixed one of fact and law. Whether a rebuttable presumption of jurisdiction is overcome by the evidence is a question of fact. See Ester v. National Home Ctrs., Inc., 335 Ark. 356, 364, 981 S.W.2d 91, 95 (1998). Accordingly, this court will view the evidence in the light most favorable to the Commission’s decision and affirm when that decision is supported by substantial evidence. Substantial evidence exists if reasonable minds could reach the same conclusion. We will not reverse the Commission’s decision unless fair-minded persons could not have reacged the same conclusion when considering the same facts. Ester, 335 Ark. at 361, 981 S.W.2d at 94.

Arkansas Code Annotated section 11-9-707 (Repl. 1996), provides that, in any proceeding for the enforcement of a compensation claim, a prima facie presumption shall exist that the Workers’ Compensation Commission has jurisdiction. In reaching its decision that it lacked jurisdiction in the instant case, the Commission considered the grounds outlined by this court in International Paper Co. v. Tidwell, 250 Ark. 623, 630, 466 S.W.2d 488, 492 (1971), including (1) the place where the injury occurred, (2) the place of making the contract, (3) the place where the employment relationship exists or is carried out, (4) the place where the industry is localized, (5) the place where the employee resides, or (6) the place whose statute the parties expressly adopted by contract. This court noted in Tidwell the State’s interest to have a remedial procedure available for its residents and to secure compensation for its resident physicians and hospitals. Tidwell, 250 Ark. at 633, 466 S.W.2d at 493-94.

Here, the Commission concluded that the exhibits offered into evidence and Baker’s own testimony overcame the statutory presumption. For example, the appellant’s sole connection with the State of Arkansas is the location of her injury, and appellee’s sole connections with the State are the existence of a designated fuel stop and an unsupervised drop yard in Arkansas. On the other hand, Baker and FFE entered into an employment relationship in Georgia, and FFE paid Baker from its Texas headquarters. FFE also administered the Conwell plan from Texas, and Baker received benefits in Texas. Baker carried out her duties throughout the United States and Canada. Moreover, Baker is a resident of Alabama.

Given the instant facts, we hold that the Commission had substantial evidence to determine that it lacked jurisdiction over Baker’s claim. The appellant’s final point, suggesting that this court make its own determination regarding the merits of her claim and the compensability of her injury, is not properly before us on appeal. Accordingly, we affirm.


text:
    D.B. GRIFFIN WAREHOUSE, INC. v. Margaret SANDERS
    97-1573
    986 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999

      Daggett, Van Dover, Donovan & Perry, PLLC, by: J. Shane Baker, for appellant.

      Wilson & Vhlley, by: E. Dion Wilson, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

On October 23, 1991, as an employee of Delta Hardware and Lumber Company (hereinafter “Delta”) of Elaine, Arkansas, Charles Sanders, deceased, along with two other Delta employees, was assigned the task of spray-painting the metal roof of a cotton warehouse located in West Helena, Arkansas, and owned and operated by Griffin, the appellant. In the process of undertaking this assignment, Charles Sanders fell to his death through a skylight located in the roof of the warehouse.

After Margaret Sanders, appellee and widow of Charles Sanders, had received workers’ compensation benefits from Delta’s workers’ compensation carrier, she brought an action against the appellant for wrongful death, alleging that appellant had breached specified duties of ordinary care, that it failed to warn of certain hidden defects in the warehouse roof, that it failed to provide certain safety devices that would have prevented his fall, and that it failed to provide him with a safe working environment.

Prior to trial, in its responsive pleadings and in motions for summary judgment, appellant had denied appellee’s allegations and any liability to appellee, alleging that because Sanders was an employee of an independent contractor (Delta) it had breached no duty to Sanders that proximately caused his fall, that it had no duty to provide safety devices, and that it had no duty to provide Sanders with a safe working environment. Appellant’s motions for summary judgment were denied.

Over the course of the four days of trial, the testimony of thirteen witnesses and numerous documentary exhibits were admitted into evidence. At the conclusion of Sanders’s proof, as well as at the close of all of the proof, appellant motioned the court for directed verdicts on the issues of Delta’s status as an independent contractor and liability, negligence, and proximate cause on behalf of appellant. These motions, as well as proffered jury instructions regarding these issues, were denied by the trial court.

On May 23, 1997, the jury returned a verdict for appellee in the amount of $488,958.00. The verdict form was signed by only nine of the jury’s twelve members. Pursuant to a timely motion for new trial filed by appellant, the court held a posttrial hearing, during which appellant contended that it was entitled to a new trial due to misconduct on the part of one of the nine jury members who had signed the verdict for appellee. Appellant’s motion for a new trial was denied by the court.

The appellant now asserts three points on appeal:

1) Refusing to properly apply Arkansas’s law on independent contractors to the evidence submitted below, the circuit court erred in denying appellant’s motions for directed verdict, in its instructions to the jury, and in refusing to give appellant’s proffered instructions:
A) The circuit court erred in denying appellant’s motion for a directed verdict on the issue of Delta’s status as an independent contractor;
B) The circuit court erred in denying appellant’s motion for a directed verdict on the issues of liability, negligence, and proximate cause;
C) The circuit court erred in its instructions to the jury and in failing to give appellant’s proffered instructions;
2) The circuit court erred in refusing to admit appellant’s rebuttal testimony;
3) The circuit court erred in denying appellant’s motion for a new trial based on juror misconduct.

Appellant asserts that an application of the combined holdings of Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 868 S.W.2d 476 (1994) and Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606 S.W.2d 66 (1980), to the evidence in this case reveals that, at the time of Charles Sanders’s death, Sanders was, as a matter of law, an employee of an independent contractor (Delta) to whom the appellant, as the employer of the independent contractor, had breached no duty of care. This being the case, appellant asserts that the circuit court’s refusal to direct a verdict in favor of appellant on the issues of Delta’s status as an independent contractor and upon the issues of liability, negligence, and proximate cause at the close of all the proof constituted reversible error. Accordingly, appellant asserts that this case must be reversed and dismissed. Our jurisdiction of this case is pursuant to certification from the Arkansas Court of Appeals.

We agree with appellant that the trial court erred on the directed-verdict issue of Delta’s status as an independent contractor; however, we cannot agree with appellant that the trial court erred in failing to direct a verdict on the issues of liability, negligence, and proximate cause. However, because the trial court erred in failing to direct a verdict on Delta’s status as an independent contractor, this case must be reversed and remanded for a new trial on the additional issue of Griffin’s liability to its independent contractor’s employee, Mr. Sanders, as well. As a result of the case being reversed and remanded on these points, the remaining points asserted on appeal by the appellant are moot and will not be addressed.

I. Delta’s status as an independent contractor.

The standard of review of the denial of a motion for a directed verdict is whether the jury’s verdict is supported by substantial evidence; substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture; when determining the sufficiency of the evidence, the supreme court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

In the Dickens case, supra, property owners sued their insurer after the insurer had recommended a home repair contractor, whom the property owners later alleged had negligently repaired their home. After judgment was entered for the property owners, the matter was appealed — the only issue on appeal being the propriety of the trial court’s ruling that the contractor was, as a matter of law, the agent of the insurer and not an independent contractor. In this Court’s holding in Dickens that the repairman was an independent contractor, we reasoned that the following factors be considered, citing § 220 of the Restatement (Second) of Agency:

(1) the extent of control which, by the agreement, the master may exercise over the details of the work;
(2) whether or not the one employed is engaged in a distinct occupation or business;
(3) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(4) the skill required in the particular occupation;
(5) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(6) the length of time for which the person is employed;
(7) the method of payment, whether by the time or by the job;
(8) whether or not the work is a part of the regular business of the employer;
(9) whether or not the parties believe they are creating the relation of master and servant; and
(10) whether the principal is or is not in business.

Id. at 517. This Court reasoned that the “right of control” is the principal factor in determining whether the relationship is one of agency or independent contractor.

When the factors cited in Dickens are applied to the record in this case, it is clear that there was never any substantial evidence from which the trial court could have determined that the jury could find Delta to be an agent of appellant, and not an independent contractor. On the contrary, the evidence submitted to the jury leads to the conclusion that a finding of agency could have only been based on mere “suspicion or conjecture,” Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997), requiring a ruling on behalf of the trial court that Delta was, as a matter of law, an independent contractor.

At the trial of this matter, Gary Inman, appellant’s warehouse manager at the time of Sanders’s death, testified that the only business activity ever conducted at the warehouse was that of storing cotton, and that neither the warehouse nor any of its employees ever participated in the roofing business in any way. Inman testified that upon a decision being made to have the roof painted, three bids were collected from three different contractors. Delta, Sanders’s employer, was selected to do the work.

Gary Carpenter, owner of Delta, testified that Delta’s business activity regularly included carpentry work, roof repair, room additions, the construction of steel buildings, and “all phases [of] construction.” Carpenter testified that prior to submitting Delta’s bid to the appellant, he, unattended by any representative or employee of the appellant, visited the warehouse for the purpose of taking measurements and “walking all four sides of the budding.” Carpenter testified that upon Delta’s bid being accepted by the appellant, Carpenter again revisited the warehouse, unattended by any Griffin representative, and walked over the warehouse roof, making his calculations. He explained that he understood Delta was to “supply the material, the labor, the management, and the clean-up thereafter to complete the job.”

Carpenter further testified that appellant had paid an unitemized fee for the entire job. It played no role in deciding what materials Delta would use to complete the work; it played no role in deciding which of Delta’s employees would complete the work; it played no role in deciding when the work would begin or be completed; it played no role in deciding how the paint would be applied; and, it played no role in deciding how the warehouse roof surface would be prepared for painting.

Carpenter’s testimony was corroborated by the testimony of the Delta employees who actually completed the work on the warehouse, David Anderson and Odell Davis. Anderson testified that when he, along with Sanders and Davis, arrived at the Griffin warehouse to begin the work, there were no Griffin representatives present at the warehouse and that the Delta employees opened Griffin’s gates with a key they had been given. Further, he testified that the Delta employees were not given by appellant any of the supplies or equipment needed to complete the work and that no representative of appellant ever attempted to supervise the Delta employees. On the contrary, Anderson explained that the work at the Griffin warehouse occurred as would any normal subcontract work performed by Delta.

In short, pursuant to Dickens, the “right of control” in the case at bar clearly belonged to Delta, thereby classifying Delta as an independent contractor to the appellant. Sanders was clearly, as a matter of law, the employee of an independent contractor. The trial court erred in not directing a verdict in favor of appellant on this issue.

II. Duty owed by employer of independent contractor to independent contractor’s employees.

While it is our holding that this case must be reversed and remanded based upon the court’s failure to direct a verdict in favor of appellant on the first issue discussed above, we must address the trial court’s next obligation, which was to determine the question of the duty owed by the appellant to Sanders. The issue of duty is always one for the trial court and not the jury. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). If the court finds that no duty of care is owed, the negligence count is decided as a matter of law, and summary judgment (or a directed verdict, as in the case at bar) is appropriate. Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Smith v. Hansen, 323 Ark. 188, 196, 914 S.W.2d 285, 289 (1996). See also, First Commercial Trust Co. v. Lorcin Eng’g, Inc., 321 Ark. 210, 213, 900 S.W.2d 202, 203 (1995); Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983).

Appellant contends that the trial court’s error regarding Delta’s status as an independent contractor naturally progressed to its error in failing to apply the analogous Jackson case, supra, to the case at bar. We disagree. In Jackson, an electrical lineman brought a negligence action against the electrical co-op that had entered into a contract with the lineman’s employer, an independent electrical contractor, to build new transmission lines. The lineman was injured when he touched a “hot” wire, while participating in the construction of the new fines. As in the instant case, the lineman in Jackson recovered against his employer under workers’ compensation and then sought to recover in tort from the electrical co-op. Upon the trial court’s proper entry of summary judgment on behalf of the electrical co-op, the lineman appealed. This Court held that the entry of summary judgment by the trial court was correct and that the co-op’s only duty to the lineman was that of exercising “ordinary care” and to “warn against hidden dangers or unusually hazardous conditions.” Our reasoning in Jackson was as follows:

It is generally recognized that an employer of an independent contractor owes a common law duty to the contractor’s employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions. See Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969). Relying upon this general principle, Jackson alleges that Petit Jean breached its duty by failing to insulate or isolate its hot wires and failing to de-energize its lines during the work hours of the independent contractor. Under the facts that are entirely without dispute, and giving Jackson the benefit of every contested fact and all favorable inferences, we find no basis in the record for imposing any duty upon Petit Jean to isolate or de-energize its lines or to warn employees of an electrical contractor that the work as contracted for would be dangerous if not done properly. Certainly, it cannot be seriously contended that Petit Jean should isolate lines from the employees of an electrical contractor whose compensation and contractual obligations expressly contemplate working around energized lines. The duty of an employer of an independent contractor to use ordinary care or to warn of latent dangers does not contemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform.
Finally, irrespective of any negligence on the part of Petit Jean, petitioners contend that the negligence of Johnson Construction Company should be imputed to Petit Jean because of the inherently dangerous nature of the work. Although the general rule is that an employer is not responsible for the negligence of his independent contractor, petitioners rely upon a well-recognized exception which extends liability when the work which the employer delegates to an independent contractor is inherently dangerous. Southwestern Bell Telephone Co. v. Smith, 220 Ark. 223, 247 S.W.2d 16 (1952). The exception is grounded in a recognition that the possibility of harm to others is so great when the work activity is inherently dangerous that the law tolerates it only on terms of insuring the public against injury. We impose vicarious liability under these circumstances to insure that the public has legal access to a financially responsible party. The exception was obviously intended to protect those who have no direct involvement with the hazardous activity, are only incidentally exposed to its risks and have no direct means of insuring themselves against loss. Since employees of an independent contractor are directly involved in the hazardous activity, have knowledge of the risks and are insured against injury by worker’s compensation, we perceive no sound justification for expanding the exception to include persons it surely was not designed to protect. [Citations omitted.] (Emphasis added.)

Jackson, 270 Ark. 508-510, 606 S.W.2d at 68-69. See also, Davis v. Lingl Corp., 277 Ark. 303, 641 S.W.2d 27 (1982).

It was clear in the Jackson case that no duty was breached because under the undisputed facts in that case, there was no basis in the record for imposing any duty upon Petit Jean to isolate or de-energize its lines or to warn employees of an electrical contractor that the work as contracted for would be dangerous if not done properly. Certainly, the employees of an electrical contractor whose compensation and contractual obligations expressly contemplated working around energized lines need not be warned of the obvious dangers involved. The duty of an employer of an independent contractor to use ordinary care or to warn of latent dangers does not contemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform.

There is no doubt in the case at bar that Mr. Sanders knew not to step on the skylights. In fact, he told his fellow workers, Mr. Odell Davis and Mr. David Anderson, to “make sure you don’t get on one of those skylights.” Just as the electrical lineman in Jackson knew he would be working around energized fines, Delta’s employees knew not to step on the skylights — an obvious danger.

In the instant case, however, disputed facts exist regarding the hidden or latent dangers involved in the painting of appellant’s roof and whether or not those dangers were known or could have been discovered by appellant with reasonable care. It is true that evidence adduced at trial heavily supported a conclusion that no evidence of any defect or hazardous condition existed on the roof, such as testimony not only by the appellant’s own representatives, but by Delta’s owner, as well, that the roof was inspected before and after the accident; that the roof was simply rusting, needed painting, and “looked bad;” and, that neither the roof nor the skylights had ever leaked.

Robert Manning, appellant’s manager in charge of the day-to-day operation of the warehouse at the time of the accident in 1991, testified that the appellant had been storing cotton in the warehouse since 1988 or 1989 and that he had personally inspected the roof, upon hearing that appellant was considering having it painted, to determine whether or not it actually needed to be painted or simply to be washed. He testified that upon said inspection, he found no defects in the roof; he further testified that there had been no leaks in the roof or skylights, nor any broken skylights or other problems. Manning testified that he found all of the metal roofing, or “tin,” surrounding the skylight hole to be completely intact, with no dented edges indicating that Sanders’s fall was caused by the metal roofing giving way. Manning further testified that the roof supported his weight of 290 pounds.

Delta’s owner, Gary Carpenter, testified that he had been on the roof twice to inspect it prior to the accident and that he found it to be as sound as “any metal roof we have in this county.” In fact, Carpenter testified as follows:

I’ve had an occasion to work on buildings with skylights other than the Griffin’s building. I worked on my own building. I’ve had an occasion to see buildings across the community with skylights.
At no time while I was on the roof, before or after the accident, did I observe any type of defect in the metal itself, around the hole or anywhere on the roof. I did not at any time while I was on the roof before or after the accident, notice any defect in the skylights other than the one that was obviously broken when Mr. Sanders fell through. There were no other skylights broken out or cracked or anything like that. (Emphasis added.)

Still, the testimony of two other witnesses suggests a contrary conclusion. Mr. Edgar H. Reed, Jr., inspector for the Occupational Safety and Health Division of the Arkansas Department of Labor (OSHA), testified that “it was apparent that the skylights had dry rot.” Mr. Odell Davis testified that when he went back up on the roof to finish the job after the accident, he noticed an indention in the tin around the skylight. Specifically, he testified as follows:

Q Did you notice any — observe any conditions of the tin on the side?
A That is why I laid down on my stomach and put that — and spread the bisquene [sic] over it and put the tape around it laying flat down instead of putting all my weight in one particular spot.
Q Now why did you lay down on your stomach?
A It just looked like to me, it was an impression in the tin that maybe this might be where he stepped.
Q Okay.
A But it was right there at the skylight. The tin, looked like it might have been bent, it could have been bent prior to that, but didn’t have to be.
***
A .... We got the impression, when we went up there to repair the roof, that there was an indention in the tin that look like it might have been a give away or bend or something in it, like it [he] might have stepped on it, been too close to the edge of it. That is what I was trying to make that assertion.

Although Mr. Davis admitted that he did not tell the OSHA inspector about the “indention in the tin,” he suggested, when confronted on cross-examination, that his statement may have been given before he went back up on the roof after the accident. If that were the case, he would not have known about the roof s condition around the skylight at the time he gave a statement to the OSHA inspector. Finally, Mr. Davis admitted that he did not actually see the tin give way as Mr. Sanders fell through the skylight. However, he did not believe that Mr. Sanders would have stepped directly onto a skylight within a short time after telling Mr. Davis and Mr. Anderson not to step on the skylights.

When determining whether the jury’s verdict is supported by substantial evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf the judgment was entered. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). After reviewing the evidence and all reasonable inferences arising therefrom in the light most favorable to Mr. Sanders, we cannot say that there was no “evidence of the existence of any defect or hazardous condition.” It is well settled that the weight and value of testimony is a matter within the exclusive province of the jury. Esry, supra. We, therefore, defer to the jury’s ascertainment of the credibility of the witnesses who testified about the roof s condition at the time of the accident.

Based upon all of the evidence in this case, we cannot say that no substantial evidence existed to support the jury’s verdiet on the issue of Griffin’s liability. Still, for the sole reason that the trial court erred in failing to direct a verdict on Delta’s status as an independent contractor, this case must be reversed and remanded for a new trial on the additional issue of Griffin’s liability to its independent contractor’s employee, Mr. Sanders.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    John Alvin LEWIS v. STATE of Arkansas
    CR 98-693
    986 S.W.2d 95
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999
    [Petition for rehearing denied April 15, 1999.]

      Murphy & Carlisle, by: Marshall N. Carlisle, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appeEee.
   Tom Glaze, Justice.

This is a revocation-of-probation case in which the court is called upon to discern the intent of the trial court’s initial order placing appeEant John Alvin Lewis on probation. Lewis’s probation was revoked upon the State’s petition after it was determined by the trial court that Lewis had violated his conditions of probation. On May 27, 1998, the court of appeals reversed and dismissed Lewis’s judgment and commitment order after the court found that the trial court exceeded its authority in sentencing Lewis on his original charge to more than the time remaining on what the court considered to be Lewis’s original three-year fixed sentence. Lewis v. State, 62 Ark. App. 150, 970 S.W.2d 299 (1998). We subsequently granted the State’s petition for review in order to clarify and develop the law in the area of sentencing. When this court grants a petition for review, we review the judgment and proceedings before the trial court as if the appeal had been originaEy filed in this court. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). The facts of the case are undisputed.

Lewis was charged by felony information under Ark. Code Ann. § 5-64-401 (Repl. 1997) with one count of possession of a controEed substance with intent to deliver [methamphetamine], a Class Y felony. On September 20, 1993, Lewis pleaded guüty to a lesser charge, possession of methamphetamine, a Class C felony under § 5-64-401. The trial court accepted Lewis’s plea and entered a judgment which, in relevant part, provided as follows:

IT IS THEREFORE ORDERED AND ADJUDGED that the defendant, John Alvin Lewis, has hereby entered his plea of guilty pursuant to the provisions of Act 346 of 1975 . . . and upon recommendation of the Prosecuting Attorney, punishment is fixed at three (3) years in the Arkansas Department of Correction, with imposition of said sentence suspended upon the following:
❖ * *
(3) That the Defendant be placed on supervised probation for a period of three (3) years. During this period, the Defendant is to pay a probation fee of $20.00 per month and make monthly reports to the Adult Probation Department.
(6) That the Defendant remain on good behavior and commit no offense punishable by imprisonment.

The trial court imposed probation conditions on Lewis, stating as follows:

In accordance with authority conferred by the Washington County Circuit Court of the Fourth Judicial District, you have been placed on probation on this date, 20 September ‘93, for a period of three years by the Honorable William Storey, Fourth Judicial District Circuit Judge, sitting in and for this District Court at Fayetteville, Arkansas. It is the order of this court that you shall comply with the following conditions of probation:
(1) Report to your probation officer as directed and submit to search of any property by your probation officer.
(2) Refrain from the violation of any city, state, or federal laws.
(3) Do not use or possess any drug or controlled substance prohibited by the State of Arkansas. You must avoid injurious habits, as well as avoid persons or places of harmful character. Subject to drug testing at probation officer’s discretion.
(4) Maintain steady employment or provide proof of support and report any changes of employment or residence to your probation officer.
(5) Do not leave the State of Arkansas without permission of the probation officer.
(6) Produce written proof of attendance to counseling of any nature, or school, and comply with those facilities’ rules.
(7) Do not possess any FIREARM in violation of the Federal Firearms Control Act.
(8) Make restitution: Pay fines, court costs, etc.
(9) Pay restitution to County of $1,000.00 @ $100.00 month beginning 10/93.
(10) Pay court costs of $95.75.
* * *
(14) Act 346.
(15) Pay $20.00 per month probation fee, beginning 9/93.
(16) Pay $150.00 to the Public Defender Fund.

Nearly two years later, upon the recommendation of the probation department, Lewis’s supervised probation was altered to unsupervised probation by order of the trial court.

On the last day of Lewis’s probationary period, September 19, 1996, the State filed a petition to revoke Lewis’s probation based on the allegation that Lewis had been stalking his ex-wife, and that such actions constituted a violation of Lewis’s conditions of probation. Lewis was arrested on September 23, 1996. The court conducted a hearing on the State’s petition, and after considering the evidence presented, revoked Lewis’s probation and sentenced him to ten years in the Arkansas Department of Correction. The court suspended seven years of the ten-year term. Lewis appeals from the judgment and commitment order, arguing first that the sentence imposed upon the revocation of his probation is illegal, and second, that the evidence supporting his revocation is insufficient.

Lewis premises his first point on the wording of the order set out above and argues that, when the trial court accepted Lewis’s guilty plea, it actually sentenced him to three years in the Arkansas Department of Correction, rather than placing him on probation. He further argues that the court then suspended the three-year sentence, and as a consequence, the trial court could not later revoke his suspended sentence and impose a new sentence. For this proposition, Lewis relies on Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980).

In Culpepper, Culpepper entered a guilty plea to burglary and was “sentenced” to five years suspended with three years’ probation. His probation was subsequently revoked, and the circuit court sentenced him to fifteen years’ imprisonment — the term that the circuit court could have originally imposed for the burglary offense under Ark. Stat. Ann. § 41-1208(6) [now Ark. Code Ann. § 5-4-309(f)]. The Culpepper court reduced the defendant’s sentence from fifteen years’ to five years’ imprisonment, stating the defendant was entitled to know the effect of his sentence. The court explained as follows:

There is a substantial difference between advising a defendant that he is sentenced to five-years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for five years conditioned on the same behavioral requirements.

268 Ark. at 268, 595 S.W.2d at 223. The Culpepper court added that, under a then newly enacted law, Culpepper could have been apprised of the effect of his sentence if he had been given a written statement explicitly setting forth the terms of the imposition of sentence or probation. No such statement had been given Culpepper.

The present case is far different than Culpepper. While Lewis’s court order included the language “punishment is fixed at three years in the Arkansas Department of Correction,” the order clearly provided that Lewis entered his guilty plea pursuant to the probation terms under Act 346 of 1975, the First Offenders Act [now Ark. Code Ann. § 16-93-303 (Supp. 1997)], and Lewis was given probation conditions that specifically referred to Act 346 under which no adjudication of guilt or sentence is imposed. Lewis’s original order also indicated that the three years “fixed” by the trial court was “with imposition of said sentence suspended” — not a suspension of the execution of sentence. This usage of terminology reflects, once again, that the circuit court intended that Lewis was to be placed on probation rather than suspending execution of his sentence. See Culpepper, 268 Ark. at 268-269, 595 S.W.2d at 223 (court stated that reference is made throughout the Criminal Code to suspending imposition of sentence or placing the defendant on probation, but in no instance do we find provisions for both; both terms . . . require that the defendant be released “by the court without pronouncement of sentence (in contradiction to the actions of the trial court in this case); the two cannot occur simultaneously, as the former is ‘without supervision’ and the latter requires ‘supervision of a probation officer’”) (emphasis provided).

In Dehart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993), the court stated that judgments are generally construed like other instruments and the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence. The court has also held that it is to be presumed that a defendant has been accorded a fair trial, and that the judgment of conviction is valid. Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978). Here, while the words “fixed at three years in the Arkansas Department of Correction” in the trial court’s order were errant, Lewis knowingly and deliberately sought and was permitted to enter his guilty plea and receive probation under the Arkansas First Offender Act, Act 346. Unlike in Culpepper, where the defendant was “sentenced to five years suspended with three years’ probation,” Lewis was not sentenced with execution of his sentence suspended, but instead was placed on probation as provided under Act 346. Also, the circuit court’s usage of the language “suspended imposition of sentence” avails Lewis no help because such language reveals once again that the trial court intended no sentence was to be entered, but showed only that Lewis was required to comply with probation conditions.

Once the State was able to show by a preponderance of the evidence that Lewis failed to comply with the conditions of his probation, the circuit court was authorized to impose any sentence on him that might have been imposed originally for the offense of which he was found guilty. See Ark. Code Ann. § 5-4-309(d) and (f) (Repl. 1997). Our court has made it clear that, if probation is entered and no sentence was actually imposed, the trial court may, upon revocation, sentence the defendant to a term of imprisonment larger than the term of probation. See Lee v. State, 299 Ark. 187, 772 S.W.2d 324 (1989); Williams v. State, 280 Ark. 43, 659 S.W.2d 948 (1983). Here, no sentence was imposed when Lewis entered his guilty plea, but instead he was placed on probation. Consequently, the trial court was authorized to sentence Lewis under § 5-4-309(f), and not Ark. Code Ann. § 16-93-402(e)(5) which applies to situations when a sentence was imposed, and upon revocation, would limit the defendant to serve only the sentence imposed or any lesser sentence which might have been originally imposed.

We next turn to Lewis’s second point that the trial court erred in finding that he violated the conditions of his suspended sentence. Chiefly, Lewis argues that there is no evidence of harm or even the threat of harm to his ex-wife. Lewis finds it important that his ex-wife, whom he considers to be the “necessary witness,” was not called to testify, and therefore, each violation in the State’s petition to revoke his suspended sentence was unsupported, since each violation was directly attributed to the conduct of Lewis against his ex-wife.

The trial court found that the State’s claim of unlawful interception and recording under Ark. Code Ann. § 5-60-120(a) (Repl. 1997) was supported by the testimony and evidence at the revocation hearing. In revocation proceedings, the burden is on the State to prove by a preponderance of the evidence that the defendant has violated a condition of his suspension. Greene v. State, 324 Ark. 465, 921 S.W.2d 951 (1996); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); Ark. Code Ann. § 5-4-309(d) (Repl. 1997). On appeal, an appellate court will not reverse the trial court’s decision unless it is clearly against the preponderance of the evidence. Lemons, 310 Ark. at 383, 836 S.W.2d at 862.

The State produced evidence showing Lewis and his ex-wife were married for nearly two years, and that, even after the divorce, they continued a relationship. However, their relationship was rife with problems. Charles Dahmm, Chief of Police of Elkins, Arkansas, testified that he and other officers were called to the ex-wife’s residence after the divorce due to disturbance reports. Alice Remington, a deputy circuit clerk, testified and identified certain documents filed in court by the ex-wife. Those documents included two separate protective orders against Lewis. Brad Williamson, an employee of the Fourth Judicial District Prosecuting Attorney’s Office, explained the contents of reports he had made showing the number of phone calls Lewis had made to his ex-wife after the protective orders were in effect. Lewis admitted during his testimony that he had been served with a protective order at his ex-wife’s residence on September 16, 1996. The receipt of the service of process of the order showed that service was made at 5:50 p.m. on September 16th. Williamson’s report showed a total of twenty-nine (29) telephone calls made to his former wife on September 16th, beginning at 6:10 p.m. and ending at 8:30 p.m. Lewis placed two more calls on September 18, 1996.

Lewis also admitted that he understood he was to have no contact with his ex-wife upon service of the protective orders, but that he did so anyway. Lewis additionally admitted to placing a recording device on the telephone box outside his ex-wife’s house in 1996 because he “wanted to know what was going on.” Lewis explained that the recorder was triggered whenever the phone rung. According to Lewis, anyone could go to his ex-wife’s home and see that the recorder was in place. Lewis justified his actions based on his fear that his ex-wife was cheating on him and that she had purportedly begun to lie to him. To discover to whom she was placing calls, Lewis also placed a “decoder” on his computer.

The revocation hearing was continued by the court, but during the continuance, Lewis was again arrested for violating the terms of the protection order. When the hearing resumed, Lewis told the court that “[i]t was totally clear to me that I was not to have any contact with [my ex-wife].” Based on the testimony at the hearings, the court found that Lewis had violated § 5-60-120(a), Arkansas’s interception and recording law, which reads as follows:

It shall be unlawful for a person to intercept a . . . telephonic communication, defined as communications that utilize the electromagnetic spectrum frequencies of forty-six to forty-nine megahertz (46-49 mghz.) generally used by cordless telephone technology and eight hundred forty to eight hundred eighty megahertz (840-880 mghz.) generally used by cellular telephone technology, and to record or possess a recording of such communication unless such person is a party to the communication or one (1) of the parties to the communication has given prior consent to such interception and recording.

Under the plain language of this section, it was unlawful for Lewis to intercept his ex-wife’s telephone conversations or record or possess a recording of such communication, unless Lewis was a party to the communication or one of the parties to the communication gave prior consent. Although there are exceptions provided under the law, none of them apply in this case. See Ark. Code Ann. § 5-60-120(c)(1)-(3) (Repl. 1997). A violation of the provision is a Class A misdemeanor. Ark. Code Ann. § 5-60-120(b) (Repl. 1997).

In this case, Lewis admits he placed a recording device on his ex-wife’s telephone and recorded her incoming and outgoing calls. Lewis also kept some of the recordings in his home. Based on a preponderance of the evidence and the plain language contained in § 5-60-120(a), we cannot say that the trial court’s decision in finding Lewis guilty is clearly against the preponderance of the evidence. Therefore, we affirm.

       Lewis also cites Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1985); Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984); and Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). In each of those cases, the trial court imposed a sentence upon the defendant, either by suspended execution of sentence or imposition of a term of imprisonment with the term suspended. In short, our discussion of the Culpepper decision is sufficient to cover the same point for which these other cases were cited.

         Section 5-4-309(f) was partially repealed by implication to the extent subsection (f) dealt with the suspension of execution of sentence, a term that is no longer authorized. Culpepper, 268 Ark. at 267-268, 595 S.W.2d at 223.


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

text:
    Lillian YARBROUGH v. David WITTY, Boone County Clerk, and Bob Hankins, Herbert Kolb, and Don Bishop, Boone County Election Commissioners
    98-552
    987 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999
    [Petition for rehearing denied April 15, 1999.]

      Oscar Stilley, for appellant.

      Duncan & Rainwater, P.A., by: Michael R. Rainwater, for appellee David Witty.

      Gordon Webb, for appellee Boone County Election Commission.
   Tom Glaze, Justice.

This litigation was filed after the Boone County Quorum Court passed Ordinance 97-23, which authorized the issuance of hospital revenue construction bonds for the North Arkansas Regional Medical Center project. Appellant Lillian Yarbrough and other electors circulated a referendum petition to place the bond issue on a special-election ballot. On November 12, 1997, they filed a timely petition containing 433 names with appellee David Witty, the Boone County Clerk. By letter dated November 20, 1997, to Yarbrough, Witty found that only 410 of the names submitted were registered voters; he concluded, without explanation, that the electors’ petition was insufficient to call an election.

On December 3, 1997, Yarbrough filed this lawsuit in chancery court for declaratory and injunctive relief, requesting Witty and the Boone County Board of Election Commissioners to call an election so that the Boone County voters could vote on the bond ordinance. Witty answered Yarbrough’s allegations, and in doing so, he attached a second letter, dated December 16, 1997, to Yarbrough, wherein Witty explained that he had asked the Attorney General for an opinion concerning how many signatures Yarbrough and her supporters needed in order to make their referendum petition sufficient. The Attorney General’s opinion pointed out that Amendment 7 to the Arkansas Constitution and Ark. Code Ann. § 14-14-914 (Repl. 1998) required the calculation of the number of signatures to be based on the total votes cast in the last general election for circuit clerk, but because no votes had been tabulated for that office at the 1996 General Election, petitioners could not strictly comply with that requirement. Relying in part on the case of Czech v. Munson, 280 Ark. 219, 656 S.W.2d 696 (1983), the Attorney General concluded that, since it was impossible to use the 1996 General Election vote count for circuit clerk to determine the number of signatures needed for a referendum, the last Governor’s race would be reasonable to use in calculating the referendum signature count. The last vote count in the Governor’s race was in 1994 which totaled 10,341, making the required number of signatures to be 1,551. Based on the Attorney General’s opinion, Witty offered Yarbrough an additional ten-day period to obtain the number of signatures utilizing the Governor’s vote count as the measuring race. Yarbrough declined Witty’s offer.

At the chancery court’s hearing on this matter, Yarbrough argued that the 410 signatures she and her group had obtained was more than sufficient, because under the plain language of Amendment 7, the number of signatures required should be computed upon the total votes cast at the last preceding general election for the office of circuit clerk. In other words, because no votes were actually tabulated in the 1996 General Election circuit clerk race, petitioners asserted that they did not have to collect any signatures to compel a referendum election; thus, the 410 signatures were more than sufficient for such purpose. Alternatively, she submitted that, if any election other than the 1996 General Election was to be used to determine the number of signatures, then votes cast in the 1996 Primary Election for circuit clerk should be used. If the votes in that primary race had been used, Yarbrough’s group would have needed only 305 signatures.

The chancellor essentially rejected all of the parties’ arguments and refused to establish either a measuring race or a specific number of signatures required for a referendum. Instead, the chancellor in his judgment held as follows:

[That Witty’s initial] November 20, 1997 letter declaring an insufficiency of numbers — though lacking in specificity — did nonetheless create a statutory opportunity for the plaintiff to submit more signatures or offer proof of those rejected in light of the then insufficiency, and that her failure or refusal to take advantage of that statutory window deprives her of the right to prevail on this issue.

Yarbrough brings this appeal from the chancellor’s decision.

As she contended below, Yarbrough argues that Amendment No. 7 and its enabling statute, § 14-14-914, require a signature count for a county referendum election to be calculated only upon the total votes cast for the office of circuit clerk at the last preceding general election. Amendment 7 and § 14-14-914(c) respectively provide, in relevant part, as follows:

Amendment 7
General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. Fifteen per cent of the legal voters of any municipality or county may order the referendum, or invoke the initiative upon any local measures. In municipalities, the number of signatures required upon any petition shall be computed upon the total vote cast for the office of mayor at the last preceding general election; in counties, upon the office of the Circuit Clerk.
Section 14-14-9i4(c)
Petition by Electors. The qualified electors of each county may initiate and amend ordinances and require submission of existing ordinances to a vote of the people by petition if signed by not less than fifteen percent (15%) of the qualified electors voting in the last general election for the office of circuit clerk, or the office of Governor where the electors have abolished the office of circuit clerk.

Yarbrough cites Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), for the proposition that, when a constitutional amendment or a statute is plain and unambiguous, there is no room left for judicial construction, and neither the exigencies of a case nor a resort to extrinsic facts will be permitted to alter the meaning of the language used in the statute. Simply stated, she submits that, while the constitution and statutes require the signature vote count for county referendums to be calculated based on 15% of the total votes cast in the 1996 General Election for the office of circuit clerk, that measure or vote count was not abrogated by the election officials’ failure to count the votes cast in the circuit clerk’s race because the race was unopposed. As already noted, she contends that, since the 1996 circuit clerk’s general election race tabulated no votes, the vote count was 15% of zero; thus, no signature (or no more than one signature) was needed to call a referendum election. We cannot agree.

We certainly agree with Yarbrough’s recitation of the rule that, where the meaning of an act or constitutional amendment is clear and unambiguous, this court is primarily concerned with what the document says, rather than what its drafters may have intended. Bishop, 280 Ark. at 109-110, 655 S.W.2d at 428-429. However, we have also said that we will not adopt an interpretation of the law that leads to an absurd result. Citizens To Establish A Reform Party v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996). In Sturdy v. Hall, Secretary of State, 201 Ark. 38, 143 S.W.2d 547 (1940), the court dealt with a proposed state-wide initiated measure under Amendment 7. There the court recognized that only eight percent of the voters may propose (initiate) any law and only six percent of the legal voters may petition (order) a referendum on any measure passed by the General Assembly. Id. The Sturdy court stated that only a small percent of our population may initiate or refer a law to the vote of the people and that, if a power so great may be exercised by a number so small, a substantial compliance with the provisions of the constitution conferring these powers should be required. 201 Ark. at 42, 143 S.W.2d at 550. Obviously, the same rationale holds true for county and municipal initiative and referendum powers.

On the other hand, we are met with the settled rule that Amendment 7 necessarily must be construed with some degree of liberality in order that its purposes may be well effectuated. Leigh and Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S.W.2d 104 (1960). In construing Amendment 7, it is our duty to keep constantly in mind the purpose of its adoption and the object it sought to accomplish. Id. That object and purpose was to increase the sense of responsibility that the lawmaking powers should feel to the people by establishing a power to initiate proper, and to reject improper, legislation. Id.

As our above cases reflect, our court has acknowledged that, because a small percent of the population may by petition exercise great power when initiating or referring a law to the vote of the people, those petitioners must at least substantially comply with the constitutional provisions conferring those powers. By the same token, we must also give the Amendment 7 provisions a liberal construction so the petitioners’ acts will not be thwarted by a strict or technical interpretation.

If we were to accept Yarbrough’s argument in the circumstances before us, petitioners could initiate or refer laws to the vote of the people without having to obtain any signatures of the electors. That undoubtedly was not contemplated under the Amendment 7 provisions. Nor can we agree with Yarbrough’s alternate theory that votes cast for the circuit clerk in the 1996 primary election is proper, since primary elections are not mentioned in Amendment 7.

In Czech, supra, petitioners had obtained signatures to refer an ordinance intended to regulate taxicab companies, and petitioners challenged the constitutionality of Ark. Stat. Ann. § 19-717 (Repl. 1980) [now Ark. Code Ann. § 14-47-124 (Repl. 1998)] which provided that the required minimum number of signatures is based on 15% of the highest vote cast at the last preceding general election for any position on the city’s board of directors. The city had a city manager form of government, and did not elect a mayor as contemplated under Amendment 7. This court upheld § 19-717’s constitutionality, stating that the statute did no violence to the overall intent of Amendment 7. 280 Ark. at 221, 656 S.W.2d at 698. The court’s decision was the first to recognize a measuring race different from the one specified in the Amendment.

In the present case, County Clerk Witty, relying on the Attorney General’s opinion, decided that the votes cast in the 1994 General Election race for Governor should be the basis for determining the required minimum number of signatures under Amendment 7. As mentioned earlier, that vote count would have required Yarbrough’s petition to gather 1,551 signatures. However, a more liberal interpretation of Amendment 7 would allow the petitioners to have used the total votes cast in the last general election for the circuit clerk which was in 1990. That vote count would have required Yarbrough’s circulators to obtain only 848 signatures. As can be readily seen, such a minimum number would be a large enough segment of the population to justify the calling of a referendum, but the number is not so onerous that it would thwart the petitioners’ acts under the Amendment.

Of course, Yarbrough’s petition and 410 signatures fall far short of the signatures as computed under the Governor’s race in the 1994 General Election or the circuit clerk’s race in 1990. To qualify as an initiative or referendum petition under Amendment 7, the petition must, prima facie, contain at the time of filing the required number of signatures. Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994). Using either the governor’s or circuit clerk’s votes noted above, Yarbrough, under the rule in Walker, would be precluded from submitting further signatures in an attempt to make their petition sufficient.

Appellees Witty and the Boone County Board of Election Commissioners strenuously argue that Yarbrough adopted an all or nothing strategy when she steadfastly contended that only the 1996 General Election votes cast for circuit clerk could be used to compute the minimum number of signatures required under Amendment 7. In doing so, Yarbrough never asked the chancellor to declare what the threshold number of signatures should be under Amendment 7, but instead proceeded on her theory that, in the circumstances, no signatures (or only one signature) was needed. Accordingly, not too different from the chancellor’s holding, appellees assert that Yarbrough effectively waived other theories because she never pursued them. The record tends to support appellees’ argument.

Unquestionably, Yarbrough firmly believes in her “zero-vote theory,” and adds that, if our court upholds the chancellor’s decision, the practical effect will be to allow a county clerk, like Witty, by disobedience of the law, to “raise the bar” and create uncertainty for all persons who might wish to use the initiative or referendum process. It is difficult to understand this part of Yarbrough’s argument, especially when Witty had nothing to do with the 1996 General Election election officials’ failure to place the circuit clerk’s unopposed race on the ballot so that votes cast for that office could be counted for Amendment 7 purposes. Nor would Witty have had control over the election judges and clerks whose responsibility it was to count such votes if the unopposed circuit clerk’s office had appropriately appeared on the 1996 ballot. Witty’s only mistake, if any, was his failure to give any reason [as provided under § 14-14-915(e)] for finding Yarbrough’s petition insufficient. However, based on the record and argument before us, the only insufficiency attributed to the Yarbrough group’s petition had to do with not mentioning the number of signatures needed for the referendum — which is a number Yarbrough, herself, choose not to inquire about.

In short, we fail to see how Witty or any county clerk would be in a position to manipulate events to raise the Amendment 7 minimum-signature requirement. For a county clerk to achieve “raising the bar” (signature count), officials such as county boards of election commissioners and precinct election officials would need to cooperate either to omit the circuit clerk’s office on the general election ballot or to refuse to count the circuit clerk’s office. Only in these and similar circumstances would the county clerk be permitted (or forced) to compute the signature number using the last general election vote count tabulated for that office. Yarbrough does not allege or contend such events occurred here. We also note that, if election officials erred by somehow faffing to put the correct Amendment 7 “measuring race” on the general election ballot, the result likely would end with a smaller signature requirement since the number of registered voters have increased over the past years. While Yarbrough further suggests the circuit clerk vote count would vary depending upon whether or not that office is contested, Yarbrough also does not contend that Witty had or would inject himself into a circuit clerk’s race in order to affect the initiative or referendum process.

In conclusion, based on the reasons above, we affirm the result reached by the chancellor in denying Yarbrough’s complaint. The chancellor correctly rejected Yarbrough’s “zero-count theory.” In addition, the 410 signatures she and her supporters filed in this referendum matter failed badly to meet the minimum-signature numbers that would result when using either the 1994 Governor’s or the 1990 circuit clerk’s race. The relief sought by Yarbrough must also be denied since she never asked the chancellor to declare a minimum-signature number, but instead relied on her belief that no signatures were required in the circumstances. For these reasons, we affirm.

Arnold, C.J., and Smith, J., dissent.

W.H. “Dub” Arnold, Chief Justice,

dissenting. I disagree gree with the majority opinion. majority opinion. The provision provision under Arkansas Code Annotated § 14-14-914 (Repl. 1998), authorized by Amendment 7 to the Arkansas Constitution, which addresses the number of signatures required on referendum petitions, is unambiguous; we are, therefore, required to follow it. This Court has recognized the rule of statutory or constitutional construction. In the case of Bishop v. Linkway Stores, Inc., 280 Ark. 106, 644 AS.W.2d 426 (1983), this Court stated:

It is well-setded that when a constitutional amendment or a statute is plain an unambiguous, there is no room left for judicial construction, and neither the exigencies of a case, nor a resort to extrinsic facts will be permitted to alter the meaning of the language used in the statute.

Id. at 109. The majority acknowledged the Bishop case as the rule where the meaning of an act or constitutional amendment is clear and unambiguous.

From the facts in this case, we know that a circuit clerk, David Witty, was elected in the 1996 Primary Election. We also know that a general election followed the 1996 Primary Election and that David Witty was unopposed in his race for Boone County Clerk. The ballots, however, were not counted in the 1996 General Election for the office of circuit clerk. The majority would lead you to believe that a general election did not occur because the ballots were not counted. This is, however, a false premise, as general elections always follow primary elections, even when candidates are unopposed. This is how we elect our county officials in Arkansas.

What occurred in this case is very simple; the election officials did not do their job. They failed to place the circuit clerk’s unopposed race on the ballot so that votes cast for that office could be counted for Amendment 7 purposes. Arkansas Code Annotated § 7-5-315 (Repl. 1997) states in pertinent part as follows:

In counting ballots at the polling site, the following procedures shall be followed:
(1) The votes received by an unopposed candidate in any election held in this state shall not be counted or tabulated by the election officials. The word “UNOPPOSED” shall be sufficient to insert on the tally sheet to indicate that the candidate has received a majority of the votes cast in the election. However, the votes received by an unopposed candidate for the office of major or circuit clerk shall be counted and tabulated by the election officiak[.] (Emphasis added.)

Abraham Lincoln reminds us that the government is “of the people, by the people, for the people. ...” A. Lincoln, Selected Speeches and Writings 405 (Vintage Books/Library of America, 1992). In the case before us, over 400 voters filed their petition for a referendum of the county ordinance; however, they are denied this right because of the elections officials’s failure to do their job.

The majority would suggest that we excuse this failure and look to other general elections for a tabulation in a circuit clerk’s race. Tabulations in other general elections would not be the same as the tabulation for the last general election; to look to other general elections would suggest that we are changing the rules or the law to assist the government in its failures. This is not democracy in action. If we do this, Lincoln’s statement should be changed to a government of the people, by the people, and for the government. I don’t think so. We cannot deny the people their right. This matter should be reversed and remanded to allow the referendum.

Smith, J., joins this dissent.

       The Secretary of State records reflect that in Boone County, the number of registered voters increased from 16,027 in 1990 to 19,646 in 1996. See Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989).