author: Donald L. Corbin, Justice.

text:
    Ronald KUHN v. MAJESTIC HOTEL
    95-700
    918 S.W.2d 158
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Donald C. Pullen, for petitioner.

      Walter A. Murray, for respondent.
   Donald L. Corbin, Justice.

Petitioner, Ronald Kuhn, appealed a decision of the Arkansas Workers’ Compensation Commission to the Arkansas Court of Appeals, which affirmed the Commission’s decision by a tie vote. Kuhn v. Majestic Hotel, 50 Ark. App. 23, 899 S.W.2d 845 (1995). We granted this petition for review of the decision of the court of appeals pursuant to Ark. Sup. Ct. R. 1 — 2(f). We reverse and remand.

Petitioner contends that he sustained a compensable low-back injury when he slipped and fell on the job at the Majestic Hotel in Hot Springs on March 20, 1992, which resulted in back surgery on May 21, 1992. The Commission reversed the decision of the Administrative Law Judge and dismissed petitioner’s claim. The Commission found that petitioner failed to prove by the preponderance of the credible evidence that he was injured in the course and scope of his employment, and that there was any causal connection between the surgery and the alleged slip and fall.

In reviewing this case, we apply the following standard:

We review a decision of the Arkansas Court of Appeals under Ark. Sup. Ct. R. l-2(f), as though the case had been originally filed in this court. On appeal of a workers’ compensation case from the court of appeals to this court, we view the evidence in the light most favorable to the commission’s decision and affirm that decision if it is supported by substantial evidence. Substantial evidence exists if reasonable minds could have reached the same conclusion. Thus, before we reverse the commission’s decision, we must be convinced that fair-minded persons considering the same facts could not have reached the conclusion made by the commission.

Plante v. Tyson Foods, Inc., 319 Ark. 126, 127-28, 890 S.W.2d 253, 253-54 (1994) (citations omitted).

Three witnesses testified at the hearing on petitioner’s claim: petitioner; Russell Kinsey, his supervisor; and Penny Kuhn, his spouse. Documentary medical evidence in the form of hospital reports and physicians’ medical notes and correspondence was introduced, as well as the depositions of petitioner’s physicians, internist Gopakumar Maruther and neurosurgeon James M. Arthur.

Petitioner testified that, on March 20, 1992, he had been employed by respondent as a cook for two or three months. Petitioner stated that his right leg was stiff as a result of a total knee fusion that predated his employment with respondent, but that he was having no problems with the knee and was working an average of ten to fourteen hours per day, six days per week before the fall. Petitioner stated that a female co-worker asked him to retrieve a ham from the hotel’s walk-in cooler, that he walked to the cooler and had his hand on its door trying to open it when he slipped in water on the floor and hit a corner of the concrete wall six feet from the cooler with the lower-right part of his back. Petitioner stated that he fell to the floor screaming because his right leg was going numb and his back was hurting.

Mr. Kinsey testified that, as of March 20, 1992, he was the executive chef, that petitioner had been working under his supervision for a couple of months and was a good worker whose only physical complaint had been that his leg tired on the longer days. Mr. Kinsey stated that he arrived at the scene two or three minutes after petitioner’s fall, and that three other persons were there when he arrived. Mr. Kinsey stated that petitioner seemed to be in pain and that he did not move petitioner. Mr. Kinsey testified that petitioner lay on the floor about eighteen inches from the wall with his head toward the wall and his feet toward the door. Mr. Kinsey testified that if petitioner had fallen straight down, he could see that petitioner’s back could have hit the wall because “it is a tight little area back there.” Mr. Kinsey testified that petitioner told him that he had slipped in water, that Mr. Kinsey looked around and said: “Where is the water?” because he did not see any, and that petitioner replied: “Well, I guess my uniform mopped it up.” Mr. Kinsey testified that it did not look like petitioner’s uniform had water on it. Mr. Kinsey opined that, although it was not unusual for condensate to form on the tile floor outside the cooler, no water was there when petitioner fell. Mr. Kinsey stated that he was present when emergency-medical technicians picked up petitioner from the floor.

The record shows that petitioner was transported by ambulance to the emergency room of St. Joseph’s Regional Health Center where he was diagnosed with acute lumbar strain and released with directions for bed rest, heat, medication, and follow up with Dr. Maruther. Mrs. Kuhn testified that, when petitioner was brought home from the hospital on March 20, 1992, he was wearing his uniform, and the back was wet and had dirt all over it. Petitioner was subsequently examined by several physicians and, on May 21, 1992, underwent back surgery, which, he testified, eliminated the numbness in his right leg and alleviated his back pain.

The Commission’s stated reasons for its finding that petitioner failed to prove by the preponderance of the credible evidence that he was injured in the course and scope of his employment were that no one corroborated the existence of the water on the floor, petitioner did not persuade that he was thrown backward approximately six feet before hitting a wall and falling to the ground, and petitioner’s credibility was questionable. We defer to the Commission as regards the issue of petitioner’s credibility as a matter exclusively within the Commission’s province. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); Roberts-McNutt, Inc. v. Williams, 288 Ark. 587, 708 S.W.2d 87 (1986). Focusing exclusively on the other evidence, we do not find substantial evidence that petitioner failed to prove that he was injured in the course and scope of his employment.

The term “course of employment,” as applied to compensation for injuries, refers to the time, place, and circumstances under which the injury occurs. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Mr. Kinsey testified that he found petitioner in pain on the floor at petitioner’s workplace during petitioner’s work shift. The record reveals that petitioner is a large man, who measures six feet, four inches tall and, in March 1992, weighed approximately 280 pounds. Mr. Kinsey opined that, if petitioner had fallen straight down, his back could have hit the concrete wall six feet away. Regardless of whether water was on the floor, it is well established that even an unexplained fall or a so-called “idiopathic fall,” which originates with a risk that is personal to the employee, may result in compensable injuries. Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W.2d 496 (1987).

The Commission’s stated reasons for its finding that petitioner failed to prove that there was any causal connection between the May 1992 surgery, which was performed by Dr. Arthur on the right side of petitioner’s back at the fourth and fifth lumbar vertebrae (“L4-L5”), and the fall at the hotel were that petitioner had a history of back problems and that orthopedic surgeon Dr. John L. Wilson, to whom respondent referred petitioner, opined that surgery was not warranted. More specifically, the Commission noted that petitioner had been diagnosed with a congenital anomaly of the vertebrae known as spina bifida occulta, that medical notes from 1978 indicated that the space between petitioner’s fifth lumbar and first sacral vertebrae (“L5-S1”) was abnormal, and that petitioner underwent back surgery in 1990 at the L4-L5 level as a result of an injury suffered in an automobile accident.

On March 23, 1992, Dr. Maruther examined petitioner and ordered a CT scan of the lumbar spine. Dr. Maruther diagnosed petitioner with “low back pain due to a fall” and noted a prominent central bulging disc at the L4-L5 level. Dr. Maruther testified that the cause of the bulging disc and the back problems for which he treated petitioner in 1992 could have been petitioner’s fall at the hotel. Dr. Maruther testified further that he had treated petitioner for various medical problems, including, in 1978, spina bifida occulta, a condition that causes back pain in some adults, and that petitioner had a minimal joint space narrowing at the L5-S1 level at that time.

Dr. Arthur testified that, more than two years before, he performed surgery at petitioner’s L4-L5 level as a result of an automobile accident. Dr. Arthur testified further that petitioner had recovered fairly well from that surgery, that he had released petitioner to light duty in October 1990, and that he had not seen petitioner again until April 1992. Dr. Arthur testified that, consistent with his usual office practice, his secretary had established that petitioner was “a workmen’s comp case” before he saw petitioner by confirming with the workers’ compensation carrier that petitioner had had a back injury at work.

Dr. Wilson’s letter to the carrier regarding his examination of petitioner in April 1992 was introduced into evidence at the hearing. As to the cause of the injury, Dr. Wilson states that petitioner injured himself while gainfully employed by respondent on March 20, 1992, and that petitioner related that he fell, injuring his back. Dr. Wilson diagnosed petitioner with a lumbosacral strain with degenerative disc disease for which surgery was not indicated.

Finally, the record shows that, at the request of Dr. Arthur, petitioner was examined by orthopedic surgeon Dr. Stuart McCon-kie, whose consultation report, dated May 18, 1992, was introduced into evidence at the hearing. As to the cause of the injury, Dr. McConkie stated that petitioner slipped and fell at work, struck his back and developed back pain. Dr. McConkie stated that surgery was indicated.

On this record, we do not find substantial evidence that petitioner failed to prove that there was any causal connection between the fall at the hotel and the May 1992 surgery. Dr. Wilson’s opinion that surgery was not indicated for petitioner’s condition is not pertinent to the causation issue. The record contains no evidence that petitioner’s congenital back problem or earlier back surgery caused the May 1992 surgery. The record does reveal that petitioner was released by Dr. Arthur to return to work in October 1990 after the earlier back surgery and that petitioner worked thereafter, without problem, prior to his fall at the hotel.

For the reasons stated above, we conclude that fair-minded persons considering the same facts could not have reached the conclusion made by the Commission. Thus, the case is reversed and remanded to the Commission for award of benefits.

Reversed and remanded.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    Bobby FORREST v. Milton FORD, Andrew Jefferies, and Andrew Jefferies Realty and Bail Bonding Company
    95-1204
    918 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Willard Proctor, Jr., for appellant.
    No response.
   DONALD L. Corbin, Justice.

Appellant, Bobby Forrest, appeals the judgment of the Pulaski County Circuit Court in favor of separate appellees, Milton Ford, Andrew Jefferies, and Andrew Jef-feries Realty and Bail Bonding Company, on appellant’s complaint for negligent, intentional, and reckless conduct. For reversal, appellant contends the trial court erred in instructing the jury on the defense of justification. This case presents a question about the law of torts. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(16).

Evidence presented at trial revealed the following facts. Appellant entered into a bail-bond agreement with appellees Milton Ford and Andrew Jefferies Realty and Bail Bonding Company under which bond was posted on appellant’s behalf with the Jacksonville Municipal Court. After receiving notice that appellant failed to appear in circuit court, appellee Ford, a licensed bail bondsman and agent of Andrew Jefferies Realty and Bail Bonding Company, began to search for appellant. Appellant ran from Ford, and a chase ensued through a residential neighborhood. Ford fired one or two warning shots into the air and then fired at appellant’s shoulder. While running from Ford, appellant felt pain in his shoulder from the gunshot and then fell and injured his ankle. Appellant sought recovery for medical expenses, pain and suffering, and punitive damages associated with the ankle and shoulder injuries he sustained in the chase.

The subject of this appeal is a jury instruction that appellant describes as stating the justification defense. The challenged instruction was given to the jury over appellant’s objection and stated as follows:

The defendant in this case claims his actions were justified and had the burden of proving each of four essential propositions:
First, that the defendant was a law enforcement officer;
Second, that the defendant reasonably believed that the use of such force was necessary to effect an arrest of the plaintiff or to prevent the escape from custody of the plaintiff;
Third, at the time the defendant used such force, he was making an arrest of the plaintiff or preventing the escape from custody of the plaintiff; and
Four, the defendant reasonably believed the plaintiff had committed or attempted to commit a felony.
A felony is a criminal offense which has been defined by law to be a felony.
A law enforcement officer is a person vested by law with duty to maintain public order or to make an arrest for an offense.
(Arkansas Code Annotated 5-2-610(b)(l), Arkansas Code Annotated 5-1-102(12) and (16)(b), Arkansas Code Annotated 5-l-106(a), A.R.Cr.P. 1.6(a), Ark. Attorney General Opinion Number 78-42)

Appellant does not challenge the content or the applicability of this instruction to this case. Rather, he argued below and now argues on appeal that, because Ford pleaded guilty to third-degree battery in the criminal proceeding that arose from the chase and shooting incident and did not raise the justification defense in the criminal proceeding, he is estopped from raising the justification defense in this subsequent civil proceeding. None of the appellees filed a brief in this appeal.

The premise of appellant’s argument is that Ford could have but did not raise the justification defense in a previous criminal proceeding. While the record indicates the trial court granted a motion in limine to exclude references to the fact that Ford was charged or convicted of a crime, and while the record also indicates there was a bench discussion during this civil trial about Ford’s guilty plea, the record also indicates that an order of expungement, which was entered of record in the criminal proceeding, was proffered by the defense at this civil trial and states that, under Act 346 of 1975, Ford was discharged without court adjudication of guilt and was exonerated of any criminal purpose. The order of expungement states further that Ford may reply in the negative to questions pertaining to past criminal convictions in instances wherein his civil right or liberty may be affected. Thus, it is not clear without further research, and appellant does not address, what effect, if any, the order of expungement entered pursuant to Act 346 of 1975 has on the premise of appellant’s argument. We will not do appellant’s research for him. Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).

We find no error on the argument presented and affirm the judgment.


author: ANDREE LAYTON Roaf, Justice.

text:
    PUBLIC EMPLOYEE CLAIMS DIVISION v. Richard CHITWOOD
    95-456
    918 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Richard S. Smith, for appellant.

      David E. Smith, for appellee.
   ANDREE LAYTON Roaf, Justice.

The issue in this appeal is whether the appellant Public Employee Claims Division of the Arkansas Insurance Department (PECD), the workers’ compensation carrier for state agencies, owes a one-third attorney fee as costs of collection from its subrogation claim against a personal injury judgment awarded to appellee Richard Chitwood, a state employee. We agree that the Circuit Court erred in finding that Chitwood’s attorneys were entided to recover one-third of PECD’s subrogation claim as costs of collection, and reverse.

Richard Chitwood, an employee of the Arkansas Department of Labor, was involved in a job-related automobile accident in January 6, 1988. Chitwood filed a workers’ compensation claim with PECD, and also filed suit against the negligent driver, the driver’s employer, and their respective insurance companies. PECD paid $8,096.80 in worker’s compensation benefits to Chitwood and advised Chitwood’s attorney of its subrogation lien.

PECD learned of Chitwood’s lawsuit a few days before the trial date, and filed a Motion to Intervene and Complaint in Intervention on the day of trial. The trial court granted the Motion to Intervene, and trial was held on the third-party tort claim. PECD’s only participation in the litigation was to provide Chitwood’s attorney with copies of medical bills. The jury awarded Chitwood $33,654.99. The trial court ordered the judgment paid into the registry of the court pending resolution of the subrogation claim, and allowed Chitwood to withdraw $25,549.14, leaving $8,096.80, or the amount of PECD’s claim. Chitwood’s attorney received one-third of the amount withdrawn as attorney’s fees plus court costs of $634.55, and the remainder was paid to Chitwood.

After a hearing, the trial court ruled that since attorney’s fees had not been taken from the entire amount of the judgment, one-third should be deducted from the $8,096.80 subrogation amount for attorney’s fees and costs. The trial court ordered $5,417.40 to be paid to PECD and the remainder paid to Chitwood and his attorney.

PECD argues that the trial court incorrectly interpreted and applied statutory law in finding that Chitwood’s attorneys were entitled to recover one-third of its subrogation claim as fees and costs. Arkansas Code Annotated § 11-9-410 (Supp. 1995) deals with third-party liability, and provides in pertinent part:

(a) LIABILITY UNAFFECTED.
(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action. If they, or either of them, join in the action, they shall be entitled to a first lien upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows:
(A) Reasonable costs of collection shall be deducted;
(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;
(C) The remainder, or so much as is necessary to discharge the actual amount of the liability of the employer and the carrier; and
(D) Any excess shall belong to the injured employee or his dependents. (Emphasis added).

The statute provides not only for the intervening carrier’s lien upon proceeds received in an action against a third party, but also spells out how the carrier’s entitlement shall be computed. Reasonable costs of collection are first deducted, and the employee is awarded outright the first one-third of the net proceeds. The insurance carrier is given a first lien on only two-thirds of the net proceeds. PECD submits the following distribution as the correct application of the statutory formula:

GROSS JUDGMENT SUM $33,645.99

COST OF COLLECTION (hypothetical) $ 1,000.00

AFTER COST AMOUNT $32,645.00

1/3 ATTORNEY FEE $10,882.00

NET AFTER FEE $21,763.00

1/3 TO CLAIMANT $ 7,254.34

BALANCE AVAILABLE FOR SUBROGATION $14,508.66

SUBROGATION TO PUBLIC EMPLOYEE CLAIMS DIVISION $ 8,096.80

BALANCE PAYABLE TO CLAIMANT AND RESERVED AS FUTURE CREDIT TO PUBLIC EMPLOYEE CLAIMS DIVISION $ 6411.86

Chitwood’s attorneys did not take a full one-third attorney’s fee of the gross amount of the judgment, in order to preserve their claim against PECD for one-third of the subrogation amount. However, the statute provides for the attorney’s entitlement to first be deducted from the gross amount, and their election not to collect their full fee does not affect the determination of PECD’s claim.

Chitwood asserts that Ark. Code Ann. § 11 — 9— 410(a)(2)(A) requires a compensation carrier in all instances to participate in the payment of reasonable costs of collection of a personal injury claim, including attorney’s fees. We do not agree. This section provides only that reasonable costs of collection shall first be deducted from the gross amount received, before the net amount is allocated between the claimant and subrogee. The statute clearly does not provide for splitting of the gross sum in order to make a pro rata allocation of the costs of collection from both the claimant and the insurance carrier, as Chitwood suggests.

In fact, the insurance carrier will bear none of the costs of collection where the gross-judgment amount is in excess of three times the subrogation claim, absent an agreement with the claimant’s attorney, as in Chitwood’s case. Although the carrier will receive less than the full amount of its claim where the judgment is less than three times the subrogation claim, in such a situation the carrier will always recover twice the amount that the claimant receives, no matter how small the judgment. It is debatable whether the carrier can ever be said to share in the costs of collection under this statutory scheme. However, we cannot say that the general assembly has been ambiguous in spelling out precisely how a gross judgment or settlement is to be divided. Where statutory language is clear and unambiguous, our task is to follow the statute, not interpret it. See Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995); Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).

PECD cites only one case as supportive of its interpretation of § 11-9-410. In Continental Casualty Co. v. Sharp, 312 Ark. 286, 849 S.W.2d 481 (1993), we reversed the trial court’s award to Sharp of an attorney’s fee from the insurance carrier’s subrogation claim, because Sharp’s attorney had already collected a full one-third attorney’s fee from the gross amount of the judgment. Chitwood submits that the holding in Sharp has left the door open for the allocation of collection costs between the claimant and insurance carrier where the attorney does not collect a full fee from the gross amount. However, in Sharp, we said that the carrier had “effectively paid its proportionate share of the attorney’s fees” pursuant to the statute, even though our holding resulted in the carrier receiving the full amount of its subrogation claim and paying none of the costs of collection.

Moreover, the several cases relied upon by Chitwood as supportive of the trial court’s ruling are also consistent with today’s holding. In Winfrey & Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W.2d 923 (1954) this court affirmed an award to the claimant’s attorney of a fifty-percent contingency fee from the gross judgment of $6,433.10; the carrier had resisted payment of any costs of collection because it had employed separate counsel.

In Burt v. Hartford Accident & Indem. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972), the claimant’s attorney was denied an attorney’s fee from the carrier’s share of the recovery; however, the claimant had resisted the carrier’s intervention and the carrier was required to retain counsel to assert its right to a lien. State Farm Mut. Auto. Ins. Co. v. Bing, 305 Ark. 280, 808 S.W.2d 204 (1991), involved a subrogation claim for medical payments made by the claimant’s automobile insurance carrier; such claims are governed by a different statute, and this case is not relevant to the interpretation of § 11-9-410.

Reversed and remanded for further proceedings consistent with this opinion.


author: Per Curiam.

text:
    Thomas James LOVELADY v. STATE of Arkansas
    CR 96-259
    917 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered March 25, 1996

      Christopher Carter, Baxter County Public Defender, for appellant.
    No response.
   Per Curiam.

This motion is filed by Christopher Carter of the Baxter County Public Defender’s Office. He was appointed to represent Thomas James Lovelady on a charge of rape. On September 18, 1995, Lovelady was convicted and sentenced to forty years imprisonment. A timely notice of appeal was filed.

On January 8, 1996, the Baxter County Circuit Court set Lovelady’s appeal bond at $50,000. The next day, Lovelady posted the bond, which he had obtained through First Arkansas Bail Bonds, Inc. On February 28, 1996, Christopher Carter filed a partial record with this court, and filed his motion asking to be relieved as counsel. He asserts that Lovelady’s posting of a $50,000 bond indicates that he is not indigent and therefore not entitled to the services of the public defender’s office.

Arkansas Code Annotated § 16-87-113(a)(l) (Supp. 1995) provides as follows:

Any person charged with a criminal offense desiring to obtain the services of a public defender shall affirm in writing that he is without funds or assets with which to employ private counsel and that he has not been released on money bail in an amount greater than fifteen thousand dollars ($15,000) pursuant to the execution of an unsecured or secured bond.

The movant contends that, because Lovelady has been released on bail in an amount greater than $15,000, he can no longer utilize the services of the public defender. Arkansas Code Annotated § 16-87-113(b) (Supp. 1995) contemplates the situation in which an accused posts a bond in an amount greater than $15,000 after the public defender has been appointed:

If a public defender is appointed and the indigent person is later released on money bail in an amount greater than fifteen thousand dollars ($15,000) pursuant to the execution of an unsecured or secured bond, then the court may hold a hearing to determine if the person is still eligible and entitled to the services of a public defender.
If the court determines that the person is ineligible and not entitled to the services of a public defender, then the court may release the public defender as attorney of record.

Pursuant to this statute, we remand the case to the trial court for a hearing to determine if Lovelady is still eligible and entitled to the services of the public defender.


author: BRADLEY D. Jesson, Chief Justice. ROBERT L. Brown, Justice, ANDREE LAYTON Roaf, Justice, Tom GLAZE, Justice,

text:
    Jerrold Anthony TANNER v. STATE of Arkansas
    CR 95-1064
    918 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson, Chief Justice.

The issue on appeal is whether the appellant was denied his right to a speedy trial under the Arkansas Rules of Criminal Procedure. We conclude that he was, and reverse and dismiss his convictions.

The appellant was arrested on January 12, 1994. No information was filed against him until August 17, 1994. In that information, and in an amended information filed December 22, 1994, he was charged with twelve drug-related counts. On March 21, 1995, he was tried and convicted on eleven of those counts: five counts of delivery of cocaine, three counts of delivery of marijuana, one count of possession of cocaine with intent to deliver, one count of possession of marijuana with intent to deliver, and one count of operating a “drug house” within 1,000 feet of a drug-free zone. His sentence was forty-seven years imprisonment.

Although the appellant was tried on March 21, 1995, he was originally scheduled to be tried on December 13, 1994, approximately eleven months after his arrest. However, at a December 12, 1994 pretrial hearing, the court, on its own motion, reset the appellant’s trial for February 15, 1995. There is nothing in the record to reflect that appellant or his counsel were present at the hearing. On December 14, 1994, the court filed an order which purported to exclude the period of December 13, 1994, to February 15, 1995, from speedy-trial computation. The court stated the following as the reason for the exclusion of time:

trial set for 12/13/94 had to be rescheduled due to commencement of capital murder trial of Frederick Jacobs, Drew [County] CR93-138-1 on 12/13-16/94.

The order indicated that the prosecutor and appellant’s counsel were notified of the continuance by mail.

On February 13, 1995, two days before trial was scheduled, the appellant appeared at a pretrial hearing and requested a continuance. The trial was rescheduled for March 21, 1995. On March 20, 1995, the day before trial, the appellant made an oral motion to dismiss, saying he had been denied his right to a speedy trial. He argued that the court had erred in excluding the period of December 13, 1994, to February 15, 1995, from speedy-trial computation because the law allows exclusion for “docket congestion” only in exceptional circumstances. He presented docket records from the Frederick Jacobs case — the case which had “bumped” his — showing that, although Jacobs had been arrested on October 16, 1993, approximately ten of the fourteen elapsed months had been properly excluded from speedy-trial computation. Therefore, he said, there was no pressing need to try Jacobs and no exceptional circumstances were present.

The court denied the motion to dismiss. The essence of the ruling was that the appellant had waited too long to contest the December 14, 1994 order.

It is undisputed that, under Ark. R. Crim. P. 28.1(c) and 28.2(a), the appellant is entitled to have the charges against him dismissed if he was not brought to trial within twelve months from January 12, 1994, excluding such periods allowed by Ark. R. Crim. P. 28.3. The appellant was tried one year and sixty-eight days after his arrest. There is no dispute that the forty-four days between February 15, 1995, and March 21, 1995, are properly excludable since they can be attributed to the appellant’s own motion for continuance. Ark. R. Crim. P. 28.3(c). It is the remaining twenty-four days, attributable to the court-ordered continuance of December 12, 1994, that we are concerned with in this appeal. The question we are faced with is twofold: 1) was the period from December 13, 1994, to February 15, 1995, excludable from speedy-trial computation, and 2) if it was not, did the appellant waive his right to challenge the excludability of that period?

Once it is shown that a trial is held outside the applicable speedy-trial period, the state has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). Ark. R. Crim. P. 28.3 contains two sections which could serve to justify the delay in this case:

The following periods shall be excluded in computing time for trial:
(b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.

(h) Other periods of delay for good cause.

In Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), the court, on its own motion, continued the appellant’s trial to a date which was outside the speedy-trial period. A docket entry read that, “due to the crowded court trial docket” it was necessary to move the appellant’s trial. At a later hearing, the court explained that the trial in another matter, State of Arkansas vs. Charles Moore, would be tried over a two day period, thus necessitating a continuance in Hicks’s case. We stated that “the law is well settled that congestion of the trial docket, alone, is not just cause for breaching the speedy trial rule.” We found that the circumstances set out in the docket entry were not exceptional:

No explanation was offered as to why the case could not have been tried during the week immediately following the Moore trial, and before the last week in the month when the trial court was required to travel to other counties.

In Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989), we also addressed the issue of what exceptional circumstances justify exclusion of time for a crowded trial docket. There, Stanley’s trial was scheduled for Monday, June 9, 1986. A capital murder trial had begun on June 2 in the only courtroom available for jury trials. On Friday, June 6, it appeared to the judge that the murder trial would run over until June 9. So, the judge entered an order continuing Stanley’s trial and explaining the circumstances. We held that “this constitutes the type of order contemplated by Rule 28.3(b).”

The case at bar falls somewhere in between the well-explained need for a continuance in Stanley and the simple, unsatisfactory notation of a “crowded court trial docket” in Hicks. In the order excluding time, the trial court expressed its desire to try the Drew County murder case of Frederick Jacobs on a date originally scheduled for Desha County trials, such as the appellant’s. However, the fact that a murder trial is pending in an adjacent county does not, without more, constitute an exceptional circumstance. This case is more like Hicks in that regard, because we are only told that the appellant’s trial has been rescheduled due to the trial of another matter.

We realize that trial courts may, for a variety of reasons, wish to give priority to pending murder cases. However, when that desire infringes on another defendant’s constitutional right to a speedy trial, and on our Rules of Criminal Procedure, it must yield, unless there are exceptional circumstances. In those situations, the trial court must note the exceptional circumstances in its order continuing the case. Ark. R. Crim. P. 28.3(b). We hold that the commencement of a capital murder trial on the appellant’s scheduled trial date, does not, standing alone, constitute an exceptional circumstance justifying exclusion of time for docket congestion. Likewise, in the absence of any explanation other than that the court preferred to try another case, we hold that the time period in question cannot be excluded for “good cause” pursuant to Rule 28.3(h). See generally Novak v. State, supra.

We now turn to the question of whether the appellant, by waiting until March 20, 1995, to question the court’s December 14, 1994 order, waived his right to a speedy trial. It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Novak v. State, supra. In Arkansas, the speedy-trial period commences to run “without demand by the defendant.” Ark. R. Crim. P. 28.2. Furthermore, the Rules of Criminal Procedure do not mention waiver of the right to a speedy trial unless the defendant fails to move for dismissal prior to a plea of guilty or a trial. Ark. R. Crim. P. 28.1(f).

With these considerations in mind, we hold that the appellant did not waive his right to move for dismissal based on a speedy-trial violation. In Hicks v. State, supra, the state argued that, by waiting until the day after the speedy-trial time ran to file his motion to dismiss, Hicks had waived his rights. We stated that Hicks’s motion was made in advance of trial and was, thus, timely. In Raglin v. State, 35 Ark. App. 181, 816 S.W.2d 618 (1991), the court of appeals held that a defendant need not affirmatively protest a court-ordered continuance at the time the continuance is granted because to do so would “place the burden on the accused to demand a speedy trial at every stage of the proceedings” in spite of the clear dictate of Rule 28.2. In this case, the appellant’s motion to dismiss was made before trial, and, under the circumstances of this case, he was not required to challenge the court-ordered exclusion of time immediately upon issuance of the court’s order. As we stated earlier, it is the burden of the prosecution and the courts to see that a defendant is brought to trial on time.

The state refers to our recent case of Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995), in support of its waiver argument. In Mack, we said that “the time to raise the issue” of whether a certain period was excludable was at the hearing where the excludability was discussed. The time at issue was the period needed for a second mental evaluation. There are substantial differences between Mack and this case. It is clear from the record in Mack that appellant’s counsel was actually in attendance at the hearing where the exclud-ability of time was discussed. That is not the case here. Additionally, appellant’s counsel in Mack took part in the request for the second mental evaluation. So, the continuance was attributed, in part, to Mack, unlike the situation here.

Based upon the foregoing, the appellant’s convictions are reversed and the case dismissed.

Reversed and dismissed.

Brown and Roaf, JJ., concur.

Glaze, J., dissents.

ROBERT L. Brown, Justice,

concurring. I concur in the majority opinion but write only to emphasize two points. Had this been a case where the prosecutor was leaving office and that person alone had prepared the capital murder case and was, therefore, indispensable to the trial of the matter, this would seem to be an exceptional circumstance. However, the record before us does not reflect those facts. Moreover, there appears to have been ample time remaining for the State to try the Frederick Jacobs capital murder case after Tanner’s original trial date on December 13, 1994, as the majority opinion emphasizes. But if the trial court’s choice had been either to try Tanner’s drug case or the Jacobs capital murder case because both were about to violate speedy-trial constraints, then this in my judgment would meet the requirement of an exceptional circumstance. Such, however, was not the case.

ANDREE LAYTON Roaf, Justice,

concurring. I concur with the result reached by the majority; however, I disagree with the basis for its holding. I would also reverse and dismiss this case, but only because the state has not shown that Tanner failed to object to the trial court’s ruling on excludability, and therefore waived his right to a speedy trial. The majority opinion also holds that a defendant is not required to challenge a trial court’s ruling excluding time for speedy-trial purposes immediately upon issuance of the trial court’s order. In doing so, the opinion seems to equate such a requirement as “placing the burden on the accused to demand a speedy trial at every stage of the proceedings.” I do not agree with this equation. More importandy, I do not agree that our decisions on speedy trial mandate or even suggest such a holding.

In fact, the cases relied upon by the majority suggest the contrary. Two of the cases cited by the majority do not require further discussion. The holdings in these cases are accurately stated and they have only general application to the issue we are called upon to resolve. See Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987) (State has the burden of showing that delay was the result of defendant’s conduct or was otherwise justified); Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989) (exceptional circumstances justified exclusion of time for a crowded trial docket).

However, the remaining cases discussed in the majority opinion bear closer scrutiny. In Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), the trial court, on its own motion and by letter to appellant’s attorney and the prosecutor, continued the appellant’s trial to a date outside the one-year speedy-trial period due to a “scheduling conflict.” There was no mention of excluding the time in the letter nor was an order entered or a docket entry made. Ten days later, and nine days prior to the running of the speedy-trial period, the state filed a motion requesting that the time from the original setting to the new trial date be excluded for speedy-trial purposes, due to a “congested trial calendar.” The trial court granted the motion four days later by docket entry. Ten days after the state’s motion to exclude the time, one day after the running of the speedy-trial period, and seven days prior to the new trial setting, the appellant made a timely response to the state’s motion, objecting to the exclusion of the time.

In Raglin v. State, 35 Ark. App. 181, 816 S.W.2d 618 (1991), the appellant’s trial was simply set outside the one-year speedy-trial period. There were no docket entries or written orders, or even an indication that a continuance was granted in the scheduling of the trial. Finally, in Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995), the appellant’s counsel was present when the trial court made a ruling that the speedy-trial time would be tolled pending a second mental evaluation. This court stated that Mack’s counsel did not contest the ruling in any form or fashion and that the time to raise the issue was when the trial court made the ruling.

Clearly, none of the cases cited by the majority purports to relieve a defendant of the obligation of objecting to a ruling of the trial court in a timely fashion. Today’s holding will do so. Speedy-trial objections must be raised in the trial court and prior to the trial date in order to preserve the issue for review. Ark. R. Crim. P. 28.1. This issue is not an exception to the contemporaneous-objection rule. See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

The reason for our contemporaneous-objection rule is that a trial court should be given an opportunity to know the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994). It is understandable that a defendant would not wish to call the trial court’s attention to an erroneous ruling on the excludability of time for purposes of speedy trial; however, Mack, supra, requires that a defendant do so, and it defies logic that a defendant should be required to object to an oral ruling and not to the identical written ruling.

The majority attempts to qualify its holding by limiting it to the “circumstances of this case.” The circumstances of this case are unfortunately not divulged by the abstract before this court. We do know that, in this instance, Tanner made an oral speedy-trial motion on the day before his trial. The hearing on the motion was conducted the following day. The prosecutor had not been involved in the case when the order excluding the time for speedy-trial purposes was entered, and the order had been entered by a judge other than the one presiding in Tanner’s trial. At the hearing, the following colloquy occurred:

[Prosecutor]: Judge, you and I are in a particularly unique position in that neither one of us was at the hearing December the 12.
[Tanner’s counsel]: And neither was I.
[Prosecutor]: Well, all three of us. None of us were present on December the 12th when this order was entered, although that was [the] specific disposition date set for the defendant to appear, the defense counsel to appear, and the state to appear. And unless there’s some showing we must assume that all counsel was present for that particular order to be entered. If there was an objection to that period of time, then the court — Judge Glover — overruled that objection and made the ruling at that time that he did.
f the defense was not did not object, then I would argue at this time that to wait for basically 90-days before objecting to that order is paramount to a waiver of that order. . . .

(Emphasis added.) It is understandable that under such short notice, the state did not present any evidence concerning the circumstances of the order. However, as it is the state’s burden to show that the delay in speedy trial is the result of the defendant’s conduct, it should also be the state’s burden to show that the defendant has clearly waived his right in this matter, and here the state has failed to do so.

I concur.

Tom GLAZE, Justice,

dissenting. The majority court holds trial courts to a standard different than the one it applies to itself. In this case, the trial judge rescheduled Jerrold Tanner’s drug-related case because the judge had a capital murder case set for the same date in a different county. Obviously, the judge could not be at both trials on the same day. Consequently, the judge chose to try the capital murder case first. That makes sense to me.

Our court makes this same type of decision almost every week, and in making docket decisions, this court accelerates capital murder cases over other criminal and civil cases. Obviously, cases that bear possible death and life without parole sentences should take precedence on all court dockets, and I am surprised the majority court disagrees. I believe this court’s “legal hypocrisy” is showing when it holds trial judges to a standard other than the one it follows. Here, when the judge placed on the docket as his reason, “trial set for 12/13/94 . . . rescheduled due to commencement of capital murder trial of Frederick Jacobs, Drew County, CR93-138-1 on 12/13-16/94,” good cause was clearly shown, in my view, for continuing Tanner’s drug case. Cf Ark. Code Ann. §§ 16-11-104105 (Repl. 1994). I would affirm.

       The appellant made the argument that the reason Jacobs was tried was so that the prosecutor, who was leaving office in January, would have “one last opportunity” to get the death penalty in a capital murder case. The prosecution responded that there was nothing in the record to reflect that the continuance was anything other than the court’s own decision.

       The state does not argue that the appellant’s request for a continuance after the speedy trial period expired amounts to waiver. Indeed, we said in Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987), that such a request does not constitute acquiescence in the delay.


author: DAVID Newbern, Justice.

text:
    Mark TAUBER v. STATE of Arkansas
    CR 95-1070
    919 S.W.2d 196
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Price Law Firm, by: Robert J. Price , for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Mark Tauber was stopped by State Trooper Cary Lovaas for driving 66 miles per hour in a 55-miles-per-hour zone. Trooper Lovaas smelled alcohol and administered field sobriety tests, all of which Mr. Tauber failed. He took Mr. Tauber to the Boone County Law Enforcement Center where Mr. Tauber registered .131 on the breathalyzer. Mr. Tauber was convicted by the Harrison Municipal Court of speeding and of driving while intoxicated (DWI), first offense, which is a misdemeanor. Ark. Code Ann. § 5-65-118(d)(2) (Repl. 1993).

Mr. Tauber appealed to Boone Circuit Court where he did not contest his speeding conviction and was again convicted of DWI, first offense, after a trial by jury. He was sentenced to one day in jail and given credit for one day served, fined $150.00 for DWI (to be added to a $55.00 fine for speeding), his driver’s license was suspended for 90 days, and he was “requested to attend DWI school.”

Mr. Tauber contends it was error for the Trial Court to have refused to bifurcate his trial into separate guilt-determination and sentencing phases. We hold he has demonstrated no prejudice as a result of that ruling. He also argues the Trial Court erred in refusing to admit the testimony of his expert witness with respect to field sobriety tests. We decline to consider the point as there was no proffer of the witness’s testimony. Lastly, he contends it was error not to require the jury to announce in its verdict whether he was guilty of DWI as a result of having more than .10% blood alcohol or as a result of other evidence that he was “intoxicated.” Again, we hold that, to the extent there may have been error, no prejudice has been demonstrated, thus we affirm.

1. Bifurcation

Mr. Tauber concedes there is no statutory authority requiring or authorizing the bifurcation of a trial of a misdemeanor. He contends, however, that his Fourteenth Amendment right to equal protection of the laws was violated because trials involving felony offenses are bifurcated in accordance with Ark. Code Ann. §16-97-101 (Supp. 1995), and those accused of misdemeanors constitute a class entitled to the same treatment.

We need only point out that Mr. Tauber has not identified any decision to introduce or withhold evidence he might have made differently had the trial been bifurcated. As the State points out, Mr. Tauber could have suffered no sentencing prejudice as he received only the required minimum sentence for DWI, first offense. Ark. Code Ann. §§ 5-65-112 through 5-65-115 (Repl. 1993). To have standing to attack the constitutionality of a statute, the appellant must show that the questioned statute had a prejudicial impact on him. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). If the Trial Court erred by failure to bifurcate the trial, it was harmless error beyond a reasonable doubt.

2. Expert testimony

Mr. Tauber presented Dr. Roger Hawk as an expert on infrared spectroscopy and on field sobriety tests. He was allowed to testify at length about his opinion as to the failings of the Datamaster 2000 breathalyzer machine which was ultimately used to determine Mr. Tauber’s blood-alcohol content. When it came, however, to offering his testimony on field sobriety testing, the Trial Court refused his qualification as an expert.

We have no way of knowing whether Mr. Tauber was prejudiced by this ruling because Dr. Hawk’s testimony with respect to field sobriety testing was not proffered. To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995).

3. Verdict form

Arkansas Code Ann. § 5-65-103 reads as follows:

Unlawful acts.
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.

The jury verdict was as follows:

We, the jury, find the defendant guilty and sentence him to one day in the Boone County Jail and to pay a fine of $150 dollars.

Mr. Tauber contends it was error for the Trial Court to refuse his request that the jury be instructed to return separate verdicts as to subsections (a) and (b) of § 5-65-103 and for refusing two verdict forms which he proffered. One of the forms he proffered could have been used by the jury to declare him guilty of § 5-65-103(a), and the other of § 5-65-103(b).

The State argues we should affirm on this point because Mr. Tauber’s abstract does not contain the form given to the jury by the Trial Court. While we cannot find any verdict form given to the jury, we assume the jury’s verdict, quoted above, followed the form, if any, given to it by the Trial Court.

In Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985), Yacono was charged with driving while intoxicated pursuant to § 5-65-103(a). Evidence of a breathalyzer test showing his blood alcohol content to have been more than .10% was introduced. The issue on appeal was relevancy of that evidence. We held that the breathalyzer evidence tended to prove intoxication and was thus relevant. In the course of reaching that decision, however, we uttered this obiter dictum:

When a person operates or controls a vehicle while intoxicated (as a result of the ingestion of alcohol or drugs or both) or with a blood alcohol content of 0.10% or more, he violates Act 549. The penalty is the same whether the act is violated by conduct described by (a) or (b). In other words, the two conditions are simply two different ways of proving a single violation.

We have followed that statement since, most recently in Stephen v. State, 320 Ark. 426, 898 S.W.2d 435 (1995), where we held a DWI conviction was not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication.

Mr. Tauber correctly cites Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), for the proposition that the State must prove each element of an offense, but his only argument that he was prejudiced by the Trial Court’s refosal to instruct the jury to announce whether he was found guilty pursuant to subsection (a) or subsection (b) of § 5-65-103 is as follows:

Since it is impossible to determine upon which count the Appellant was convicted, a retrial would put him twice in jeopardy of the same offense, in violation of Article 2, Section 8, of the Arkansas Constitution and the Fifth Amendment to the United States Constitution. Appellant therefore respectfully prays for a dismissal of both counts, and the Court should so order.

Mr. Tauber was not charged with separate “counts.” He was convicted in the Municipal Court of violation of § 5-65-103 without further specification. The record of that conviction was brought to the Circuit Court where it was tried de novo, and it was again tried as a general violation of § 5-65-103. Nor is there to be any retrial in this case; thus the former-jeopardy specter does not appear.

We have no doubt Mr. Tauber would not have been found guilty had 12 jurors not found that he violated either subsection (a) or subsection (b) of § 5-65-103. We have not been required to answer directly the question whether a jury must focus on one or the other or both of the subsections of § 5-65-103 and announce one or the other or both as the basis of a guilty verdict. In view of Mr. Tauber’s failure to demonstrate any prejudice resulting to him from the failure to submit the two verdict forms, we need not answer that question now.

Affirmed.


author: Tom Glaze, Justice.

text:
    Robert ANTHONY v. Phil KAPLAN and Kaplan, Brewer & Maxey, P.A.
    95-1270
    918 S.W.2d 174
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Ball & Mourton, Ltd., by; Kenneth R. Mourton and Rayburn W. Green and James S. Cox & Associates, by: James S. Cox and Russell

      Fowler, for appellant.

      Wright, Lindsey & Jennings, by: Bettina E. Brownstein, for appellees.
   Tom Glaze, Justice.

This is a legal malpractice action based on a question involving vacation of an arbitration decision. Following his termination as a partner at KPMG Peat Marwick (KPMG), appellant Robert Anthony employed the legal services of appellees Phil Kaplan and his firm, Kaplan, Brewer & Maxey, P.A. On Anthony’s behalf, Kaplan filed a complaint against KPMG in federal district court, alleging wrongful termination, and breach of contract based on a partnership agreement and a 1984 contract. The federal court dismissed Anthony’s complaint and ordered the parties to arbitrate their dispute. Subsequently, Anthony and KPMG entered an arbitration agreement wherein they agreed the arbitration was to be conducted under the law of New York state, but that the circuit court in Jackson County, Missouri, was to have exclusive jurisdiction.

An arbitration hearing was held in December, 1992, at which time, the arbitration panel, by a two-to-one vote, held in KPMG’s favor. Finding KPMG’s partners had complied with the partnership agreement in terminating Anthony by a two-thirds vote, the majority panel held the partnership vote was the deciding factor and the 1984 contract was irrelevant to that issue.

Anthony filed a motion to vacate the panel’s decision in the federal district court, and KPMG filed a motion to dismiss based on the forum selection clause in the arbitration agreement. On April 15, 1993, the district court dismissed Anthony’s motion to vacate. The dismissal order was entered after the time had lapsed preventing Anthony from filing a motion to vacate the arbitration decision in the correct forum, the Missouri circuit court.

After obtaining his file from Kaplan, Anthony filed suit in the Pulaski County Circuit Court against Kaplan and his firm, alleging (1) legal malpractice and (2) breach of an oral contract for legal services. Thereafter, Kaplan filed a motion for summary judgment, asserting Anthony had failed to show proximate cause by establishing that a timely and properly filed motion to vacate the decision of the arbitration panel would have been granted by the Missouri court. Following a hearing, the Pulaski County Circuit Court granted Kaplan’s summary-judgment motion.

On appeal, Anthony argues two points which we do not reach. First, Anthony contends Kaplan’s signature on the improperly filed motion is evidence of Kaplan’s belief that the motion to vacate was tenable pursuant to Ark. R. Civ. P. 11. Therefore, Anthony argues Kaplan is estopped from now taking a position inconsistent to the one expressed earlier in his motion before the federal district court. This estoppel argument, however, was not raised below, and we will not consider it for the first time on appeal. See Collins v. Heitman, 225 Ark. 666, 284 S.W.2d 628 (1955). Second, Anthony failed to cite any supporting legal authority for his contention that the trial court improperly dismissed his claim for breach of the oral contract for legal services. As this court has held many times, we will not consider unsupported arguments that require further research. Fayetteville Sch. Dist. v. Ark. State Bd. of Ed., 313 Ark. 1, 852 S.W.2d 122 (1993).

For his third and final point on appeal, Anthony argues the trial court erred in granting summary judgment on his malpractice claim because issues of fact remained as to whether the decision of the arbitration panel would have been vacated, even if a timely appeal in the proper court had been filed. For support, Anthony cites the dissenting panel member’s opinion as evidence that a properly filed motion to vacate the panel’s decision would have been granted. Additionally, Anthony points out that, under his 1984 contract with KPMG, he had a monetary claim for compensation and retirement benefits, and claims his continuation with KPMG was to depend on maintaining a satisfactory level of performance. In sum, Anthony argues that, because his claims pursuant to the 1984 contract were totally ignored by the panel, the panel exceeded its powers in violation of the Uniform Arbitration Act.

An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of the client. In order to prevail under a claim of legal malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately caused the plaintiff damages. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 843 (1995); Vanderford v. Penix, 39 F.3d 209 (8th Cir. 1994); Ronald E. Mallen et al., Legal Malpractice § 8.12, at 601-608 (4th ed. 1996). To show damages and proximate cause, the plaintiff must show that but for the alleged negligence of the attorney, the result in the underlying action would have been different. Callahan; Vanderford.

While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). To support his motion, Kaplan included a copy of the New York statute on vacating arbitration awards, the Uniform Arbitration Act on vacating awards, and case law from both New York and Missouri supporting his position. Once the moving party establishes a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Thus, for Anthony’s complaint against Kaplan to have survived summary judgment, Anthony was required to show that, as a matter of law, the Missouri court would have granted his motion to vacate had the motion been properly filed.

Though the parties differ on whether New York or Missouri law applies, both New York and Missouri have adopted the Uniform Arbitration Act with only slight variances in the wording of the statutes. The New York statute in relevant part provides that an arbitration award shall be vacated if the rights of the complaining party were prejudiced inter alia where “an arbitrator . . . exceeded his power[.]” N.Y. Civ. Prac. L. & R. 7511(b)(iii) (Consol. 1980). The Missouri statute lists the grounds for vacating an arbitration award to include where “[t]he arbitrators exceeded their powers[.]” Mo. Ann. Stat. § 435.405.1(3) (Vernon 1992). Neither statute defines the arbitrator’s power.

As a matter of public policy, arbitration is strongly favored, and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); Estate of Sandefur v. Greenway, 898 S.W.2d 667 (Mo. App. W.D. 1995). The party attempting to overturn an arbitration award, not the party attempting to sustain it, bears the burden of proof. Lancaster, R.L. Hulett & Co. v. Barth, 884 S.W.2d 309 (Mo. App. E.D. 1994). The scope of arbitration is defined by the contract between the parties, and a party challenging the award is not entitled to a resolution on the merits. Estate of Sandefur, 898 S.W.2d 667. Further, it is not for the courts to determine if the arbitrators decided the dispute correctly, only that the arbitrators acted within their jurisdiction. Id. The failure of the arbitration panel to follow the law as a court of law or equity would have done, without specific agreement to such in the arbitration agreement, does not afford relief through the courts. Id.; Stifel, Nicolaus & Co. v. Francis, 872 S.W.2d 484 (Mo. App. W.D. 1994); Maross Const. Inc. v. Central N.Y. Regional Transp. Authority, 488 N.E.2d 67 (N.Y. 1985).

On appeal, the judiciary’s review is limited to vacating an arbitration award only on the statutory grounds, unless the award is violative of a strong public policy. Stifel, Nicolaus & Co., 872 S.W.2d 484; Maross Const. Inc., 488 N.E.2d 67; Lieberman v. Lieberman, 566 N.Y.S.2d 490 (Sup. 1991). If there is no case law and no compelling policy on an issue, provisions of the Uniform Arbitration Act should be construed consistent with the decisional law of other states which have adopted the Act. Heineman v. Charno, 877 S.W.2d 224 (Mo. App. W.D. 1994).

Unlike Missouri, New York has had occasion to develop legal precedent for challenging an arbitration award based on an allegation the arbitrators exceeded their powers or authority. In Pavilion Central Sch. Dist. v. Pavilion, 380 N.Y.S.2d 387 (App. Div. 1976), the New York appellate court found the following two basic factors are to be considered in determining whether an arbitrator has acted in excess of his power: (1) whether the arbitrator construed the disputed contract in a completely irrational way; or (2) whether the arbitration agreement itself expressly limited the power of the arbitrator. In other words, the question is whether the arbitrator merely interpreted the disputed contract or did he, in fact, give it a completely irrational construction and, thereby, create a new contract for the parties. Id. See also Matter of Riverbay Corp. v. Local 32-E, 456 N.Y.S.2d 378 (App. Div. 1982).

Arkansas, too, has had occasion to decide whether an award exceeded the authority of the arbitrator. In McLeroy v. Waller, 21 Ark. App. 292, 731 S.W.2d 789 (1987), our court of appeals reduced an arbitration award where the panel awarded punitive damages in a dispute over a lease agreement. Finding the panel had exceeded its authority by making an award which was invalid on its face, and thus illegal, the appellate court modified the award by eliminating the punitive damages. By modifying rather than vacating the award, the McLeroy court recognized the general rules set out by this court where it was stated as follows:

The fact that parties agree to submit their disputes to arbitration implies an agreement to be bound by the arbitration board’s decision, and every reasonable intendment and presumption is in favor of the award; it should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or misfeasance or malfeasance. Unless the illegality of the decision appears on the face of the award, courts will not interfere merely because the arbitrators have mistaken the law, or decided contrary to the rule of established practice as observed by courts of law and equity.

Id.; Chrobak v. Edward D. Jones & Co., 46 Ark. App. 105, 878 S.W.2d 760 (1994) [citing Alexander v. Fletcher, 206 Ark. 906, 175 S.W.2d 196 (1943); Kirsten v. Spears, 44 Ark. 166 (1884)].

In the present case, all three arbitrators found the 1984 contract between Anthony and KPMG was irrelevant to the issue of whether Anthony was improperly terminated, and, instead, based their opinions solely on the partnership agreement. As demonstrated by the record, the only issue before the panel was whether Anthony was improperly terminated. Contrary to Anthony’s allegation, the panel did not ignore evidence or any claim in excess of their authority or power. At the end of the hearing, the panel asked if any claims remained and Kaplan offered no response. Thus, no evidence exists that Anthony’s monetary claim against KPMG was ever brought to the panel’s attention.

In conclusion, we note that Anthony’s complaint against Kaplan does not allege Kaplan mishandled his case at the arbitration hearing, but only that Kaplan was negligent in handling the appeal. Under either the law of Missouri or New York, no basis exists upon which the arbitration panel’s decision would have been vacated based on the panel exceeding its power. As the one challenging the arbitration award, the burden of proof was on Anthony and he failed to meet proof with proof. Therefore, as a matter of law, Anthony failed to show he would have prevailed in his underlying arbitration action, even if Kaplan had filed a timely and proper motion to vacate. Because Anthony failed to establish proximate cause, the trial court correctly granted summary judgment.

For the foregoing reasons, we affirm.

       The dissenting panelist interpreted the partnership agreement to impose a duty of fairness on the partners in their dealings with each other, and found the partners’ decision as to Anthony was unconscionable.

       Except for references to other statute numbers, the Missouri statute on vacating arbitration awards is essentially identical to Ark. Code Ann. § 16-108-212(a) (1987).

       We note the exclusion of evidence in an arbitration proceeding, even though admissible under the rules of evidence, is not a statutory ground for vacating the arbitration award. Dean Witter Reynolds Inc. v. Deislinger, 289 Ark. 248, 711 S.W.2d 771 (1986).


text:
    Damon Kirk WILKINS v. STATE of Arkansas
    CR 95-1020
    918 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Hatfield & Lassiter, by: Jack T. Lassiter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Tom Glaze, Justice.

Appellant Damon Wilkins appeals from his conviction of capital felony murder and the underlying felony, attempted aggravated robbery, for which he was sentenced to life without parole. The state alleged that, on January 16, 1994, Wilkins, along with his co-defendants, Milton Terrance Anderson and Timothy Laplez Davis, committed or attempted to commit aggravated robbery, and in the course of and furtherance of this felony, caused the death of Detra Bolden, under circumstances manifesting extreme indifference to the value of human life. Wilkins raises four points for reversal, but we first review the pertinent facts.

On the evening of January 16, 1994, Wilkins, Anderson, Davis and friends were spending the night at the residence of Mary Howard. At trial, several of those spending the night at the Howard residence testified to hearing Wilkins, Anderson and Davis talking about robbing someone. The three left the residence together, but Wilkins returned to the house about an hour later, followed shortly thereafter by Anderson and Davis. Several witnesses testified that upon Wilkins’s return to the Howard residence, he stated that he had shot the victim, Detra Bolden. Furthermore, state testimony showed that after Anderson and Davis returned, they, too, stated that Wilkins had shot Detra.

Anderson testified on behalf of the state with the understanding that in exchange for his truthful testimony the state would recommend that he would be sentenced to twenty-five years in the Arkansas Department of Correction. His testimony was consistent with that of the other state witnesses. Anderson admitted that, while at the Howard residence he, Wilkins and Davis had discussed wanting to rob someone. At the suggestion of Wilkins, the three agreed and formed a plan to rob Joyce “Big Mama” Manee, who, it was believed, sold marijuana. When they arrived at Big Mama’s, Anderson entered the home alone where he asked Big Mama for some marijuana. She asked that he come back later. Anderson returned outside and told Wilkins that there was a lot of “weed” on the table, and Wilkins wanted to go get it, but Davis refused. At that time, Big Mama’s daughter, Detra Bolden, who had been inside, leaned out the door. Anderson testified that Wilkins pulled his gun and shot at her, though Anderson admitted that he did not actually see Detra shot. Anderson and Davis ran. The three met at Anderson’s house, “smoked a joint,” then made their way back to the Howard residence. Wilkins arrived first, having gotten a ride from a friend while Anderson and Davis were on foot.

Wilkins testified that he did not shoot Detra, nor did he go with Anderson and Davis to Big Mama’s house after they left the Howard residence. He admitted planning to rob someone, but asserted he refused to rob Big Mama. He denied admitting to anyone that he had shot Detra. He said that after leaving the Howard residence that evening, he went to Anderson’s house, and later caught a ride with Ardell Washington, who took Wilkins back to the Howard residence. Wilkins testified that he told the people there that he did not know where Anderson and Davis were, but that he had received a ride from Washington. Wilkins testified that he went to sleep sometime before Anderson and Davis had returned to the house.

After the state filed its charges against Wilkins, Wilkins raised the affirmative defense set forth at Ark. Code Ann. § 5-10-101 (b) that he was not the only participant and did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. He further raised the affirmative defense found in Ark. Code Ann. § 5-2-404(b), arguing that he terminated his complicity of effectiveness in the commission of the offense.

The day before the trial, Wilkins filed a motion for continuance, requesting he be given more time to locate Ardell Washington, whom Wilkins characterized as an alibi witness. Wilkins offered evidence that he had searched for weeks to determine Washington’s whereabouts, but to no avail. The court denied his motion, and that denial is the subject of his first point on appeal.

On review, it is well settled that a motion for continuance is addressed to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion. Hill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995). We cannot say that the trial court’s denial of the continuance was an abuse of discretion.

Motions for continuance are governed in part by Arkansas Rule of Criminal Procedure 27.3, which provides:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

This court has denoted the following factors to be considered by a trial court in deciding a continuance motion:

(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.

Hill, 321 Ark. 354, 902 S.W.2d 229; Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); French v. State, 217 Ark. 445, 609 S.W.2d 42 (1980).

Wilkins contended that Washington’s testimony became more important and the continuance necessary when he discovered a few days before trial that Anderson had agreed to be a state witness, and would testify he saw Wilkins pull the trigger. He claims this revelation should somehow justify more time to locate Washington. We see little merit in this argument as Washington’s alibi testimony was always relevant and needed in rebutting the several other witnesses’ testimony that Wilkins had admitted to killing Detra. Moreover, Wilkins admitted that Washington had given fictitious addresses, and he offered no evidence or likelihood Washington could be procured even if a continuance was given. In such circumstances, the trial court had the discretion to deny Wilkins’s request for postponement. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991); Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983).

Next, Wilkins argues that the trial court erred in denying his motion for a mistrial. The state’s witness, Detective Janice Jensen, testified on direct examination that, after Wilkins was arrested, Wilkins was transported to the North Little Rock Police Department, where Jensen advised him of his Miranda rights. At this point, Wilkins objected, stating that Jensen’s testimony, without more, suggested to the jury that Wilkins offered no response after his rights were given. Wilkins argued this suggestion was violative of Wilkins’s due process rights under Doyle v. Ohio, 426 U.S. 610 (1976), because it was an improper reference to Wilkins’s silence. The state, on the other hand, claimed it should have been permitted to proceed further to elicit Wilkins’s statement that when arrested, he admitted to guilt, by stating at the time of his arrest that the state could not prove a case against him. The trial court sustained Wilkins’s objection, holding his statement was not an admission. It then denied Wilkins’s mistrial motion, but ruled the state could go no further with its questions.

From Doyle, we learn that it is fundamentally unfair and a deprivation of due process to implicitly assure a suspect that his silence will not be used against him and then allow that silence to be used to impeach an explanation subsequently offered at trial. Id. Here, Jensen’s testimony showed Wilkins had been provided the implicit assurance of Miranda warnings, but the trial court disallowed any specific inquiry, argument or emphasis concerning Wilkins’s silence. This absence of the use of Wilkins’s silence for impeachment purposes precluded any Doyle violation. See Greer v. Miller, 483 U.S. 756 (1986); Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986). In sum, the court did not permit the type of inquiry forbidden by Doyle. Instead, it sustained Wilkins’s objection thereby preventing the state from asking further questions that might have eventually touched upon Wilkins’s silence.

Before leaving this issue, we also point out that a mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Bullock v. State, 317 Ark. 204, 876 S.W.2d 579 (1994). An admonition is the proper remedy where the assertion of prejudice is highly speculative. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). Again, the absence of prejudice becomes apparent here in light of the fact that there was neither direct testimony in reference to Wilkins’s silence, nor did Wilkins’s attorney attempt to cure any alleged prejudice with a request for an admonition. This court has held that the failure to request a cautionary instruction or admonition may not inure to the appellant’s benefit on appeal. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994).

Wilkins’s third point on appeal stems from a portion of the prosecutor’s remarks during closing argument when explaining the juror’s consideration of lesser included offenses. The prosecutor stated, “That’s what the lesser included instructions are about. It’s not until all twelve of you decide that he’s not guilty of capital murder and aggravated robbery that you can go any lower than what the state’s charged the defendant.” Wilkins’s attorney objected to the prosecutor’s remarks as being an improper characterization of the law. He argued that, if the jurors are unable to agree on a verdict as to the greater offense, then they can proceed to the lesser offense. Wilkins’s objection was overruled.

The instruction given by the trial court was AMCI 2d 302, Lesser Included Offenses: Transitional Instruction. Specifically, the instruction was Wilkins’s requested instruction No. 3, and the court’s instruction No. 14:

If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will then consider the charge of murder in the first degree.

Here, the jury unanimously found that Wilkins was guilty of the greater charge of capital murder. Therefore, it is a fair inference that no jury member had a reasonable doubt as to Wilkins’s guilt. Because no jury member had a reasonable doubt, even under Wilkins’s characterization of the instruction, the jury could not have proceeded to the next lower offense. Therefore, the argument cannot be made that Wilkins was prejudiced by the prosecutor’s characterization of the instruction, and this court does not reverse without a showing of unfair prejudice. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).

The last point on appeal is that the trial court erred in denying Wilkins’s pretrial motion to transfer his case to juvenile court. Wilkins was fifteen years of age at the time of Detra’s murder and sixteen years old at the time of the hearing. Under Ark. Code Ann. § 9-27-318(b)(l) (Repl. 1993), the state had the discretion to file capital murder charges against Wilkins in circuit court. When the state files such charges against a defendant who was fifteen years old at the time he or she committed the alleged capital murder at issue, the circuit court is to hold a hearing in order to determine whether to retain jurisdiction over the case or transfer it to juvenile court. Ark. Code Ann. § 9-27-318(b)(2) (Repl. 1993).

The circuit court, in deciding whether to transfer a case to juvenile court, must consider the following requirements:

(1) the seriousness of the .offense and whether the juvenile employed violence in the commission of the crime; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Repl. 1993). Macon v. State, 323 Ark. 498, 915 S.W.2d 273 (1996). As the party seeking the transfer, Wilkins had the burden of proof to show a transfer was warranted. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). Proof need not be introduced against the juvenile on each factor. Macon, 323 Ark. 498, 915 S.W.2d 273. In making its decision, the trial court is not required to give equal weight to each of the statutory factors. Id. The serious and violent nature of an offense is a sufficient basis for trying a juvenile as an adult. Id. If a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Repl. 1993). Ring, 320 Ark. 128, 894 S.W.2d 944. This court will not reverse a circuit court’s denial of a juvenile transfer unless the denial was clearly erroneous. Id.

Both the state’s charges and testimony reflect Wilkins was involved in the serious offense of capital felony murder, and he employed a gun in committing the offense. The record clearly supports the trial court’s decision, denying Wilkins’s motion to transfer his case to juvenile court.

As required by Ark. Sup. Ct. R. 4-3 (h), the record has been reviewed for other reversible error, and none is found. For this and the reasons stated above, we affirm.


text:
    Sandra Colleen ROBERTS v. STATE of Arkansas
    CR 95-647
    919 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant, Sandra Colleen Roberts, appeals the order of the Washington County Circuit Court finding her guilty of driving without a license, of violating Arkansas Code Annotated § 5-65-303 (Repl. 1993) of the “Underage Driving Under the Influence Law” codified at Arkansas Code Annotated §§ 5-65-301 to -311 (Repl. 1993 & Supp. 1995) (“Underage DUI Law”), and of direct contempt of court. Appellant raises four arguments for reversal. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (3). We affirm the trial court’s judgment as modified.

The parties stipulated below to the following facts. On September 25, 1993, appellant was arrested at a roadblock for driving under the influence and having no driver’s license. At that time, appellant was aged sixteen years, unemployed, and a high-school student. Approximately fifty-six minutes after the traffic stop, appellant registered 0.05% blood alcohol after taking a certified BAC DataMaster test. Appellant does not contest the legality of the traffic stop or the results of the blood-alcohol test.

1. Public-service work

Appellant’s first argument assails the constitutionality of section 5-65-306, the public-service work provision of the Underage DUI Law. Section 5-65-306 provides as follows:

Any underage person who pleads guilty or nolo con-tendere or is found guilty of violating § 5-65-303 shall be ordered by the court to perform public service work of the type and for the duration as deemed appropriate by the court.

Appellant summarily argues, without citation to authority, that section 5-65-306 violates our state constitutional due-process guarantee, Ark. Const, art. 2, § 8, because it authorizes a trial court to pronounce a penalty of indefinite duration, and violates our state constitutional equal-protection guarantee, Ark. Const, art. 2, § 18, because it applies only to underage persons. The trial court sentenced appellant to perform thirty hours of public service for the substance-abuse program of the Salvation Army in Fayetteville.

We do not reach the merits of this argument. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support and it is not apparent without further research that the argument is well taken. E.g., Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). This rule is consistent with the well-established principle that statutes are presumed to be constitutional and the burden of proving otherwise rests with the party challenging the statute. E.g., Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995); Cook, 321 Ark. 641, 906 S.W.2d 681. Appellant does not explain how the General Assembly’s failure to express a statutory maximum duration for community service pursuant to section 5-65-306 offends her due-process right, or how the statute’s underage classification offends her equal-protection right. We do not consider such deficient contentions on appeal. Cook, 321 Ark. 641, 906 S.W.2d 681; Stevens, 319 Ark. 640, 893 S.W.2d 773.

2. Blood-alcohol test

Without reference to any statute, appellant’s second argument is that she refused a second blood-alcohol test due to indigence, and that the state should have paid for the additional test and later taxed its cost to her because it is a violation of Arkansas Constitution, Article 2, section 18, and the United States Constitution, Amendment 14, to allow “people of means to get a second test, but to deny that right to an indigent person[.]” We are aware that the implied-consent provision of the Underage DUI Law, section 5-65-309(a), provides that an underage driver shall be deemed to have consented, subject to the provisions of Arkansas Code Annotated § 5-65-203 (Repl. 1993), to a chemical test or tests of her blood, breath, or urine for the purpose of determining its alcohol or controlled-substance content. Section 5-65-203 (b)(1), in turn, provides that, if a person whose blood alcohol is tested by a law enforcement officer requests an additional test, the cost of the second test shall be borne by the person tested.

We do not reach the merits of this argument. First, the record does not establish that appellant refused an additional test because she lacked the funds to pay for it. As appellant’s counsel conceded in oral argument before this court, appellant did not tell anyone at the time of her arrest that she wanted an additional blood-alcohol test or that she could not afford to pay for one. Further, the record fails to establish that appellant was indigent at the time of her arrest. Appellant contends that she was at least “temporarily indigent” on the basis of the stipulated fact that she was an unemployed minor student at the time of the arrest. This contention is not persuasive. Indigent status is a mixed question of fact and law to be determined upon consideration of such factors as the individual’s total income, including income from unemployment benefits, total assets, total indebtedness, able-bodiedness, and level of education. Hill v. State, 305 Ark. 193, 805 S.W.2d 651 (1991). No finding of indigence was made by the trial court in this case, nor did the parties stipulate that appellant was indigent at the time of the arrest.

Second, appellant fails to establish that she was prejudiced by the absence of an additional test. Appellant stipulated that her blood alcohol registered 0.05% as a result of the test that was administered by the law enforcement officer after the traffic stop. The Underage DUI Law proscribes the operation or actual physical control of a motor vehicle by an underage person if, at that time, there was 0.02% but less than 0.10% by weight of alcohol in the person’s blood as determined by chemical test. Section 5-65-303(b). Below, appellant stipulated that she did not contest the legality of the 0.05% blood-alcohol test result or the traffic stop, and raised no argument demonstrating that a second test was necessary to an adequate defense.

Appellant also argues that the state’s failure to pay for an additional test violated her state and federal constitutional rights to gather exculpatory evidence. Ark. Const, art. 2, § 10; U.S. Const, amend. 6. This argument is without merit on the facts of this case in which, as we have noted, appellant stipulated to the accuracy of the 0.05% blood-alcohol test result and raised no argument demonstrating the necessity of a second test to an adequate defense. Appellant’s counsel contended in oral argument before this court, that had a higher second-test result been obtained, it would have shown that appellant’s blood-alcohol level was rising with the passage of time and therefore was less than 0.02% at the time she was operating her vehicle. The record, however, fails to reveal that this speculative contention was raised before the trial court, thus, we do not consider it for the first time on appeal. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).

Finally, appellant contends that due to the aforementioned alleged constitutional violations, her consent to take the test that was administered by the law enforcement officer was involuntarily given. This argument, which is based upon a false premise, is without merit. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).

3. Contempt

Appellant’s third argument is that the trial court erred in finding her in contempt of court for her refusal to attend a presentencing screening at Ozark Guidance Center. Appellant argues that the contempt ruling was erroneous because her participation in the screening would violate her constitutional right against self-incrimination and because she did not waive her right to a jury trial on the contempt charge. We have recently considered and rejected both of these arguments in Watson v. City of Fayetteville, 322 Ark. 324, 909 S.W.2d 637 (1995), which controls this case.

4. Jail sentence

The trial court sentenced appellant to a suspended sentence of thirty days in jail, with credit for one day served. Appellant’s fourth argument is that a jail sentence for violating section 5-65-303 is illegal on its face because the trial court lacked authority to impose it. See sections 5-65-304 (suspension of driver’s license), -305 (monetary fine), -306 (public-service work), -307 (alcohol and driving-education program), and -311 (relationship to other laws). Although appellant did not raise this issue below, she is not precluded from raising it on appeal because we treat an allegation of an illegal sentence as a problem of subject-matter jurisdiction that we may review whether or not an objection was made in the trial court. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).

The state concedes the jail sentence was not authorized by statute and we agree. The jail sentence is illegal on its face because the trial court lacked authority to impose it. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). Where the trial court’s error has nothing to do with the issue of culpability and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Richards, 309 Ark. 133, 827 S.W.2d 155. Thus we modify appellant’s sentence for violating section 5-65-303 by deleting the suspended sentence of thirty days in jail with credit for one day served.

The trial court’s judgment of conviction and sentence is affirmed as modified.