text:
    Bryant M. FLORES v. STATE of Arkansas
    CR 01-1295
    69 S.W.3d 864
    Supreme Court of Arkansas
    Opinion delivered March 21, 2002

      Daniel D. Becker, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Bryant Flores

appealed his conviction of second-degree murder for

the murder of Victor Stephens, for which he received a sentence of twelve years, to the Court of Appeals. Fie raised one issue: the trial court erred in admitting a hearsay statement based on the medical-diagnosis exception to the hearsay rule. The Court of Appeals agreed with Flores and reversed the judgment of conviction and remanded for a new trial. See Flores v. State, 75 Ark. App. 397, 58 S.W.3d 417 (2001). The State petitioned this court for review, and we granted the same. We reverse the judgment of conviction and remand for a new trial.

In March of 2000, Flores was living with his girlfriend, Karen Stephens, in Hot Springs. The couple had been living together for about a year, and two children lived with them. One child was Victor Stephens, Karen Stephens’s child from a previous relationship, who at the time was three years old. The other child was Gohan Flores, Karen Stephens’s and Flores’s child, who was four months old at the time of the events giving rise to this appeal. During the time they were living together in Hot Springs, Flores was employed intermittently. Karen Stephens was unemployed during the entire period of time. In the early afternoon of March 26, 2000, Karen Stephens placed a 911 call requesting ambulance service to their residence. She placed the call from a pay phone at the convenience store across the street from where she and Flores lived. Paramedics were dispatched to the residence at 1:41 p.m. and arrived about six minutes later. Karen Stephens was standing in the front yard holding Victor. The paramedics found Victor to be unresponsive to pain and to their verbal inquiries, and his respiratory rate was severely depressed. The paramedics began treating Victor immediately. They noted bruises and abrasions all over the child’s body. They also noted his dilated and unresponsive pupils and a tightly clenched jaw, which indicated that he had suffered a severe head injury.

During this initial treatment, the paramedics questioned Karen Stephens about Victor’s medical history. She answered most of the questions by saying “I don’t know.” She also told them that Victor did not have a doctor and that he had never been to one. She added that she did not know if the child was taking any medication or had had any medical problems in the past. Hill testified that she seemed calmer than most parents in similar situations and that her responses seemed “inappropriate.” Flores emerged from the residence briefly during the on-the-scene treatment, and he too appeared calm to Hill. He did not talk with the paramedics or go to the hospital with Karen and Victor.

When Victor arrived at St. Joseph’s Hospital, he was in a coma. His treating physician was Dr. Karl Wagenhauser. Dr. Wagenhauser first intubated Victor and then noted his multiple injuries, which were in various stages of healing. Dr. Wagenhauser ordered a CAT scan to determine whether there was hemorrhaging in his brain or abdomen. As Victor was being scanned, Dr. Wagenhauser went to the waiting room to obtain more information from Victor’s family and to report the child’s status. He found Karen Stephens there and observed that she was calm and was not crying. During this first conversation with Karen, she said that she had been across the street while Victor was “exercising” at their residence. When she returned, she found him unresponsive. She placed Victor in the bathtub and ran water over him to wake him up.

Dr. Wagenhauser testified at trial that the information he gathered during this first encounter with Stephens did not change his treatment or his diagnosis of Victor’s condition. At the pretrial Denno hearing, he further stated that he did not consider this account from Karen Stephens to have been truthful. He returned to the radiology area to be on-hand in case Victor’s situation worsened during his CAT scan. The scan was completed and showed a traumatic brain injury. Specifically, Victor suffered a subdural hematoma — ruptured blood vessels in the brain causing blood clots and swelling. Dr. Wagenhauser decided to have Victor airlifted to Arkansas Children’s Hospital in Little Rock for specialized care.

At this point, Dr. Wagenhauser was notified by a social worker that Karen Stephens wanted to speak to him again. At trial, Dr. Wagenhauser testified to the following exchange between Karen Stephens and him:

Prosecutor: Did you later have occasion to speak with her?
Dr. Wagenhauser: Yes, I did.
Prosecutor: And what was the content of that discussion that you had with Karen Stephens?
Dr. Wagenhauser: I spoke with her just before Victor was airlifted to Little Rock. We let her come into the room to see him before he was sent by helicopter. The social worker was in there with her, or case manager, and had been speaking with her and Donna cabed me to the room and said that Victor’s mother had something to teb me.
Prosecutor: Okay. And did you speak with her at that time?
Dr. Wagenhauser: Yes, I did.
Prosecutor: And what did she communicate to you?
Dr. Wagenhauser: She told me that both she and the boyfriend had struck Victor and that the boyfriend had thrown Victor up against the wab.
Prosecutor: What did you do at that point in time, if anything?
Dr. Wagenhauser: That did not change my management of Victor at the time. I made a mental note of it.

Garland County Investigator Danny Wilson also spoke with Karen Stephens while Victor was being prepared for the airlift, though Wilson did not testify at trial regarding the content of their conversation. At the pretrial Denno hearing, Wilson indicated that Stephens told him that Flores and she had physicaby abused Victor for the past five months.

During this time period, Flores remained at home with Gohan. While Karen and Victor were at the hospital, Garland County sheriffs deputies and a representative from the Department of Human Services went to Flores’s house to remove Gohan. Flores initially thought that the sheriffs deputies had come there to give him a ride to the hospital. The DHS representative, however, took Gohan into custody, and the deputy sheriffs arrested Flores.

After Flores was transported to the Garland County Sheriff s Department, Investigator Wilson questioned him. In the resulting statement, Flores revealed that Victor had urinated on himself and on the bedroom floor. Flores stated he disciplined Victor by making him do jumping jacks. While Victor was doing jumping jacks, Flores left the bedroom. According to his statement, when he returned to the bedroom, he found Victor on the floor unconscious. Flores thought the child was dehydrated, and so he placed him in the bathtub. As for the head injury, Flores’s statement was that he did not know how it occurred, but offered that Victor may have fallen or Flores might have accidentally bumped Victor’s head against the bathtub when he placed him in the tub water.

Victor died at Children’s Flospital on March 27, 2000. The state charged both Flores and Karen Stephens with capital murder, and later waived the death penalty for Flores. As a result of the pending charges, Karen Stephens invoked her Fifth Amendment right against self-incrimination at all of the Flores proceedings.

On October 4, 2000, the State filed a Motion for Use of Co-Defendant’s Statements, in which it sought the admissibility of Karen Stephens’s hearsay statement to Dr. Wagenhauser tinder Arkansas Rule of Evidence 803(4), the medical-treatment exception. Before trial, the trial court held a Denno and motion hearing at which Dr. Wagenhauser testified about the circumstances surrounding Karen Stephens’s statement. At this hearing, Dr. Wagenhauser testified that it is his practice to speak with the parents of critically injured children to let them know their child’s medical status and to gather any information that may be pertinent to the diagnosis or treatment of the child. Dr. Wagenhauser testified that he spoke with Karen Stephen for both of those reasons. He described the first encounter with Stephens — in which she told him that she had been across the street — as unhelpful and not pertinent to Victor’s diagnosis or treatment.

At the pretrial hearing, the prosecutor and he engaged in the following colloquy regarding the second encounter:

Dr. Wagenhauser: At another time I was called back into the [waiting] room. [Stephens] had been speaking with one of the case managers I know and I spoke with her again there.
Prosecutor: Okay, and did she give you any information at that time?
Dr. Wagenhauser: At that time the case manager told me that the mother had something she wanted to tell me and I asked her what that was and at that time I was physically standing in the room, she was in the room and her son was there on the ventilator, and she told me that both she and the boyfriend had struck him at times and additionally that the boyfriend had thrown the child up against the wall.
Prosecutor: Okay, were you able to use what she conveyed to you to help treat Victor?
Dr. Wagenhauser: I think it basically confirmed a lot of what we’d already seen.
Prosecutor: Okay, so did it confirm your diagnosis in essence?
Dr. Wagenhauser: It helped substantiate it, it did, yes.
Prosecutor: And did it make any difference in any further treatment that you gave him, i.e., airlifting him, so forth and so on?
Dr. Wagenhauser: Did the statement of hers make a difference?
Prosecutor: Uh-hum.
Dr. Wagenhauser: Actually no, it did not. We would have sent him [to Arkansas Children’s Hospital] anyway.

This testimony was repeated to a large degree on cross examination at the hearing, and Dr. Wagenhauser repeated that the hearsay statement regarding the abuse and Flores did not assist him in his diagnosis and that all decisions relevant to Victor’s treatment had been made by the time she implicated him in the child’s injuries.

On redirect examination, the prosecutor engaged Wagenhauser in the following line of questioning:

Prosecutor: Okay. After speaking with her were you able to make a diagnosis, though, regarding his condition of what had caused the injuries?
Dr. Wagenhauser: She — her statement to me did not affect the child’s treatment. We had our diagnosis made. What she told me was who caused the injuries at that time.
Prosecutor: Okay, so what she told you basically reaffirmed the diagnosis that . . .
Defense Counsel: Objection to leading, Your Honor.
The Court: Sustained.
Dr. Wagenhauser: The mother did not diagnose the child. We diagnosed the child.
Prosecutor: Correct, I understand.
Dr. Wagenhauser: We had a CAT scan, we saw the bleed, we saw the injuries. We knew that this child had been beaten. It is not my job to find out who' — -I don’t care who caused the injuries. My job is to take care of the child. I walked into the room, and without me asking, she said that she and her boyfriend had hit the child and that the boyfriend had thrown the child up against a wall. That’s what she told me without questioning from myself.

In its posthearing brief, the State argued Rule 803(4) again as well as the excited-utterance exception under Rule 803(2). The trial court granted the State’s motion and permitted it to use Karen Stephens’s hearsay statement to Dr. Wagenhauser. The trial court said:

The statement made by Karen Stephens to Dr. Karl Wagenhauser ... is admissible as offered.
The statement provided the treating emergency room doctor with information that was reasonably pertinent to the treatment and diagnosis of the child at that time. Specifically, the statement told the doctor that there was multiple traumas to the child and that the child’s body had been thrown against a hard surface.
This statement was provided not to merely identify the perpetrators but to provide the doctor with information as to the cause and extent of the injuries. The doctor testified that this information confirmed his diagnosis.

The case proceeded to a three-day jury trial which resulted in a verdict of guilty for second-degree murder. Flores was sentenced to twelve years in prison. The Court of Appeals reversed his conviction in a unanimous opinion, because that court concluded Karen Stephens’s hearsay statement constituted blame shifting and did not fall within the purview of the medical-diagnosis exception. See Flores v. State, 75 Ark. App. 397, 58 S.W.3d 417 (2001). The State petitioned for review, and we granted the State’s petition.

Flores urges as his sole point on appeal that the trial court erred in allowing Dr. Wagenhauser to tell the jury what Karen Stephens told him while Victor was being treated at St. Joseph’s Hospital. Specifically, he asserts that Karen Stephens’s statement that Flores threw Victor against a wall was inadmissible hearsay. The State responds that the statement is admissible under three provisions of the Arkansas Rules of Evidence: (1) under Rule 803(4) as a statement made in furtherance of medical treatment; (2) under Rule 803(2) as an excited utterance; and (3) under Rule 803(24), the residual hearsay exception.

When we grant a petition to review a decision of our court of appeals, we treat the matter as if the appeal had been originally filed in this court. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). The admission or rejection of evidence is within the discretion of the trial court, which this Court will not reverse in the absence of a manifest abuse of that discretion. Burmingham v. State, 342 Ark. 95, 27 S.W.2d 351 (2000); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). We have held that a trial court is accorded wide discretion in evidentiary rulings. Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000); Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Specifically, we have stated that we will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001); Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000); Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

a. Medical-diagnosis exception.

Flores first claims that the trial court erred in ruling that the statement fell within the medical-diagnosis or treatment exception to the hearsay exclusion set out in Rule 803(4). His argument focuses on the fact that her statement identified him as the perpetrator of the fatal blow. As such, it was not related to Dr. Wagenhauser’s treatment of Victor’s head wound but was, rather, an attempt to shift blame for the child’s death to Flores. The State responds that the fact that Victor’s abuser was a member of his household made the identification of that abuser relevant to treating his wounds and preventing future abuse.

Rule 803(4) provides in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Ark. R. Evid. 803(4).

In Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990), this court addressed Rule 803(4) extensively for the first time. In Carton, we reversed and remanded the plaintiff s slip-and-fall case for a new trial after the trial court granted a directed verdict in favor of the defendant. Although we reversed on other grounds, we addressed a Rule 803(4) issue due to the likelihood that the issue would recur in the new trial. The disputed point involved a statement made to a treating physician by the plaintiff that she fell and that her fall was caused by the sole of her boot being covered with diesel fuel. We stated for purposes of remand that the statement that she fell was admissible as made in furtherance of treatment under Rule 803(4), but we further stated that the statement regarding the diesel fuel as the reason for her fall was not admissible. We said:

The basis for this hearsay exception is the patient’s strong motivation to be truthful in giving statements for diagnosis and treatment. Cotchett and Elkind, Federal Courtroom Evidence 144 (1986). Also admissible under the rule are statements regarding the cause of the condition, if pertinent to the diagnosis or treatment. However, where such information is not relevant for diagnosis, but rather attempts to fix blame, it may be excluded. Id., citing federal cases. “Thus a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light.” Id. Similarly, plaintiff’s statement that her foot slipped and she fell was admissible, but not that she had “apparently accumulated some diesel fuel on her sole.” The latter phrase was not pertinent to diagnosis or treatment given by the physician, and, more importantly, the patient had no motivation to be truthful in the statement because she knew that it would not matter in her treatment whether she had snow or diesel fuel on her boot. Thus, there is no basis for the hearsay exception.

Carton, 303 Ark. at 575, 798 S.W.2d at 677 (emphasis in original).

We applied Rule 803(4) again in Benson v. Shuler Drilling Co., Inc., 316 Ark. 101, 871 S.W.2d 552 (1994). In Benson, we considered whether a statement from a person other than the patient seeking treatment was surrounded in the necessary indicia of reliability for purposes of Rule 803(4). There, the doctor had written on his discharge summary that the plaintiff had fallen from a cat walk, but the doctor could not remember whether the plaintiff or someone else had told him that. We held that the statement regarding cause was inadmissible under Rule 803(4), because the doctor was unable to recall who gave him the statement and, thus, a special relationship with the patient could not be established. We quoted from Weinsteins’s Evidence, p. 803-145 (vol. 4, 1993), as follows:

Statements relating to someone else’s symptoms, pains or sensations would be admissible, provided again, they were made for purposes of diagnosis or treatment. The relationship between the declarant and patient will usually determine admissibility ... As the relationship becomes less close, the statement becomes less reliable, both because the motive to tell the truth becomes less strong, and because even a stranger in good faith may not be able to describe another’s physical pain and suffering as infallibly as an intimate.

Benson, 316 Ark. at 109, 871 S.W.2d at 556 (ellipsis in original).

Other courts have considered Rule 803(4) statements in which the victim or someone else not only described the injuries, but also identified the perpetrator. In United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), the Eighth Circuit Court of Appeals dealt with a case where a doctor testified about a nine-year-old victim’s statements to him in an assault-with-intent-to-rape case. The doctor testified that the girl told him that she had been drug into bushes, her clothes had been removed, and the man had tried to force something into her vagina which hurt. There was no statement by the girl to the doctor identifying who did it. The Eighth Circuit looked to the Federal Rule of Evidence 803(4), which is identical to our Rule 803(4) and applied the hearsay exception. The court said:

The rationale behind the rule [803(4)] has often been stated. It focuses upon the patient’s strong motive to tell the truth because diagnosis or treatment will depend in part on what the patient says.
Thus, two independent rationales support the rule and are helpful in its application. A two-part test flows naturally from this dual rationale: first, is the declarant’s motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis or treatment.
There is nothing in the content of the statements to suggest that [the victim] was responding to the doctor’s questions for any reason other than promoting treatment. It is important to note that the statements concern what happened rather than who assaulted her. The former in most cases is pertinent to diagnosis and treatment while the latter ivould seldom, if ever, be sufficiently related.

Iron Shell, 633 F.2d at 83, 84 (emphasis added).

Our court of appeals has also dealt with the issue of a hearsay statement made in the course of medical treatment. See, e.g., Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989). In Huls, the court held that a statement by the victim, later murdered, to a dentist that the defendant had broken her teeth by throwing a lamp at her was inadmissible under Rule 803(4). Using the Iron Shell analysis which it adopted, the court concluded that the statement was made to identify the perpetrator and not to help the dentist diagnose or treat her. The court, nonetheless, affirmed the defendant’s conviction because the defendant did not preserve his hearsay argument for appeal. Likewise, the Kentucky Supreme Court, over hearsay objections, affirmed a man’s conviction for sexual abuse of a child where the trial court allowed a physician to testify to a “sanitized version” of the way the injuries were inflicted under that state’s Rule 803(4), without mentioning who caused the injuries. See Garrett v. Commonwealth, 48 S.W.3d 6 (Ky. 2001); see also United States v. Nick, 604 F.2d 1199 (9th Cir. 1979) (per curiam) (affirming conviction where doctor was allowed to testify to statements describing the injury under that state’s Rule 803(4), but was required to omit the identity of the assailant).

Only in the special situation of sexual or physical abuse of a child has the rule of excluding the identification of the perpetrator been modified. Again, it is the Eighth Circuit Court of Appeals that has outlined this child-abuse exception in the leading case on the matter. See United States v. Renville, 779 F.2d 430 (8th Cir. 1985). In Renville, the Eighth Circuit dealt with answers made by a child victim of sexual abuse who was living in a household with the abuser. The questions were asked by the treating physician, who explained to the victim that the questions were being asked to help in her treatment. The child identified her stepfather as the abuser, and the Eighth Circuit held that this statement of identification was admissible due to the fact that it was pertinent to a course of treatment, which was to remove the child from the abuser’s home. The Eighth Circuit limited its holding by stating that in order to meet the two-part test set out in United States v. Iron Shell, supra, the declarant’s statement must be made in response to a question where the identification of the perpetrator is important to diagnosis and treatment, and where the victim manifests an understanding of the importance of the statement given to medical diagnosis and treatment. Id. at 438. Shifting blame to another perpetrator was not part of the Renville analysis.

Our court of appeals has adopted the Renville approach. See Stallnacker v. State, 19 Ark. App. 9, 715 S.W.2d 883 (1986). In Stallnacker, that court allowed a physician’s testimony that a victim had identified her father as her sexual abuser in answer to the physician’s questions. The court of appeals has also extended the Renville analysis to physical abuse where the victim answered a doctor’s inquiry about what happened. See Clausen v. State, 50 Ark. App. 149, 901 S.W.2d 35 (1995). The child identified her stepfather as the beater. Again, neither the Stallnacker decision nor the Clausen decision involved a potentially culpable declarant who identified someone else as the perpetrator.

We conclude that the Renville analysis is not pertinent to the case before us. A child victim was not the declarant, and there was no questioning by the doctor which precipitated the hearsay statements. In fact, after the first encounter between Dr. Wagenhauser and Karen Stephens about Victor, the doctor concluded that she was unhelpful and untruthful. Only later did she return and admit to child abuse, while placing the blame squarely on Flores for throwing the child against the wall. Accordingly, there was no inquiry by a doctor pertaining to a future course of treatment, such as removing the child from the home. We further note as a critical distinction that blame-shifting was not an issue in Renville, while it is the centerpiece of the case at hand. In holding as we do, we do not intend in any way to diminish the obligation of physicians to report suspected abuse or neglect to the child-abuse hotline. Ark. Code Ann. § 12-12-507 (Supp. 2001). Nor do we intend to undercut the policy behind the Renville decision, which is to encourage child victims to identify perpetrators of child abuse for purposes of planning a future course of treatment and placement of the child. We simply conclude that Renville does not apply to the facts of this case, where the parent of the child admits to abuse and then shifts the blame for the fatal blow to another.

We are persuaded, however, that the two-part test set out by the Eighth Circuit Court of Appeals in United States v. Iron Shell, supra, has merit, even though this court is not bound by the decisions of that court. We will proceed in our analysis of the case at hand using the Iron Shell standard. The Iron Shell analysis requires us to look first at the motive of the declarant and determine whether her motivation was to assist in the diagnosis and treatment of her child. Karen Stephens was the mother of Victor. She was also facing the prospect of prosecution, together with Flores, for the abuse of her child. In the waiting room at St. Joseph’s Hospital,. she conversed with both a social worker and a law enforcement officer while her child was being treated. She made blame-shifting statements to the social worker before she ever made the unsolicited statement to the Dr. Wagenhauser. Because of this, Flores urges that the motive in talking to Dr. Wagenhauser was purely to point the finger at him.

At the same time, when talking to the doctor, Karen Stephens admitted to abusing the child herself. We are unwilling to conclude that, as Victor’s mother, she was completely without motivation to assist the doctor in her son’s treatment by telling him what had occurred. Without question, knowing what caused the injuries to Victor’s body as well as the blow to his head would, from the mother’s perspective, have been important information for the doctor to have had at his disposal. We hold that the first part of the Iron Shell test was met.

Under the second part of the test, we examine whether Karen Stephens’s statement was relied on by the treating physician. From his own testimony, it is clear that Dr. Wagenhauser had already decided to airlift Victor to Children’s Hospital when Karen Stephens told him the cause of Victor’s injury. It is also true that he had diagnosed Victor’s injuries as being the result of child abuse. Nevertheless, the doctor testified that Karen Stephens’s statement confirmed his diagnosis. As such, it lent some value to his diagnosis and treatment. We conclude that the second part of Iron Shell was also met. Accordingly, Karen Stephens’s statement to Wagenhauser to the extent she told him about the physical abuse to Victor falls within the medical-treatment exception set out in Rule 803(4).

We hold, however, that that part of Karen Stephens’s statement that identifies Flores as the culprit in throwing Victor against the wall has no pertinence to his diagnosis and treatment and is inadmissible hearsay. Identifying the perpetrator had nothing to do with medical treatment and could well have been blame-shifting by someone who was soon to be charged as a co-defendant. Other jurisdictions have made this distinction, just as this court did in Carton v. Missouri Pac. R.R. Co., supra. See, e.g., United States v. Iron Shell, supra; United States v. Nick, supra; Nash v. State, 754 N.E.2d 1021 (Ind. App. 2001) (“Hearsay statements admissible for the purpose of medical diagnosis or treatment typically do not involve statements of identity because identity of the person responsible for the injury is usually not necessary to provide effective medical care.”); Garrett v. Commonwealth, supra.

b. Excited-utterance exception.

The State’s alternative basis for admission of Karen Stephens’s statement is the excited-utterance exception to the hearsay exclusion under Rule 803(2). The State urges this court to affirm the trial court because it reached the right result, albeit for the wrong reason, which we clearly can do. Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999) (citing Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987); Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981)). The State further argues that Karen Stephens’s statement was made under stress because of the injury to her child and was, thus, an excited utterence. Flores responds in his reply brief that the statement was not made under the stress of the moment, because Stephens’s demeanor was, according to all present, unusually calm for a parent of a critically injured child.

Arkansas Rule of Evidence 803(2) provides in relevant part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Ark. R. Ev. 803(2). There are several factors to consider when determining if a statement falls under this exception: the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994) (adopting these factors from the Eighth Circuit’s decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980)). For the exception to apply, there must be an event which excites the declarant. Fudge v. State, supra; Moore v. State, supra. In addition, “[i]n order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.” Fudge v. State, supra (quoting Iron Shell, 633 F.2d at 85-86). The statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Fudge v. State, supra; Moore v. State, supra.

Here, in addition to Karen Stephens’s calm demeanor, she had time and reason to reflect on her statement to Dr. Wagenhauser and even revise it between her first encounter with him and her second. Her first statement to Dr. Wagenhauser was that she had been across the street and knew nothing about the incident. Her second, revised statement was that Flores threw the child against a wall. These circumstances do not suggest an excited utterance. Nothing about the second statement suggests spontaneity, excitement, or impulsivity. See Fudge v. State, supra. Indeed, the content of her statement cuts against the State’s argument, because Stephens was shifting the blame for her son’s head injury and resulting death to Flores. We hold that the requisite factors for determining an excited utterance are not met.

c. Residual exception.

For its final argument, the State argues that the statement made to Dr. Wagenhauser falls within the residual hearsay exception, which reads in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .
(24) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Ark. R. Ev. 803(24). The residual hearsay exception was intended to be used very rarely, and only in exceptional circumstances. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992); Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984).

As Flores points out, the requirement of this rule were not met. First, the State failed to give Flores advance notice that Rule 803(24) would be used at trial to admit Karen Stephens’s statement. The rule clearly requires this. Indeed, the issue of the residual hearsay exception was never raised to the trial Court but was first mounted as an alternative vehicle for admission of her statement on appeal. Nor did the trial court make the necessary findings that the hearsay statement (1) is material, (2) is more probative than other evidence, and (3) serves the interests of justice, as required by the rule. These criteria were all met in Martin v. State, supra. Flere, they were lacking. We decline to admit the statement under Rule 803(24).

We reverse the judgment of conviction and remand for further proceedings. In the event of a new trial, we direct that any reference to Flores as the person who threw Victor against the wall be omitted from Dr. Wagenhauser’s testimony. In all other respects, Karen Stephens’s hearsay statement to the doctor is admissible.

Reversed and remanded.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    ARKANSAS PROFESSIONAL BAIL BONDSMAN LICENSING BOARD v. Marc OUDIN, Jr., and Bail Bond Financing, Inc.
    01-782
    69 S.W.3d 855
    Supreme Court of Arkansas
    Opinion delivered March 21, 2002
    [Petition for rehearing denied April 25, 2002]

      Mark Pryor, Att’y Gen., by; Kim Evans, Ass’t Att’y Gen., for appellant.

      David A. Hodges, for appellees.
   Annabelle Clinton Imber, Justice.

Appellant Arkan- sas Professional Bail Bondsman Licensing Board challenges the Pulaski County Circuit Court’s reversal of its decision to sanction Appellees Marc Oudin, Jr., and Bail Bond Financing, Inc., for the dual ownership of a bail bond company and a fine-collection company that serve a common court. The Board concluded that Mr. Oudin’s dual ownership of the companies violated Section 17 B of Rule and Regulation 1 of the Arkansas Professional Bail Bondsman Licensing Board. We hold that substantial evidence supports the Board’s decision. Accordingly, we reverse the circuit court’s order and remand with directions to reinstate the Board’s decision.

Mr. Oudin is the owner and sole shareholder of a bail bond company, Bail Bond Financing, Inc., and the owner and sole shareholder of Court Services, Inc., a company that assists various courts in collecting outstanding fines and warrant forfeitures in return for fees and service charges. The Board held a disciplinary hearing on April 9, 1999, to determine whether Mr. Oudin’s conduct violated the Bail Bondsman Licensing Law at Ark. Code Ann. §§ 17-19-101 to 17-19-212 (Repl. 2001) or the rules and regulations governing the bail bond profession. The Board found that Bail Bond Financing provides bond services to the Pine Bluff Municipal Court and that Court Services has contracted to provide its fine-collection services to the Pine Bluff Municipal Court. The Board concluded that Mr. Oudin’s dual ownership of the companies was in violation of Section 17 B of Rule and Regulation 1 of the Arkansas Professional Bail Bondsman Licensing Board. That regulation prohibits an owner, partner, officer, or stockholder of a bail bond company from being “regularly or frequently employed by” a court of law. The Board sanctioned Appellees by suspending Marc Oudin, Jr.,’s professional bad bondsman license for six months and by fining Bail Bond Financing, Inc., in the amount of $5,000.

Following the Board’s decision, Appellees appealed to the Pulaski County Circuit Court pursuant to the Arkansas Administrative Procedure Act at Ark. Code Ann. § 25-15-201 to 25-15-214 (Repl. 1996 and Supp. 2001). The circuit court found that the Board was within its authority to take action, that the correct standard of review was substantial evidence, and that substantial evidence existed to support the Board’s finding of a contract between Court Services and the Pine Bluff Municipal Court. The court concluded that, due to apparently contradictory Attorney General’s opinions on the subject, the petitioners had not met their burden of showing there was no substantial evidence to support the Board’s finding that Court Services was “regularly or frequently employed by” Pine Bluff Municipal Court. The circuit court ultimately decided, however, that because Court Services is an independent contractor, rather than an employee, of the Pine Bluff Municipal Court, Appellees were not in violation of Rule and Regulation 1, Section 17 B. As a result, the court reversed the Board’s decision imposing sanctions. For its one point on appeal, the Board contends that its decision finding Appellees in violation of Section 17 B of Rule and Regulation 1 was based upon substantial evidence and was not arbitrary and capricious.

I. Standard of Review

This court’s review is limited in scope and is directed not to the decision of the circuit court but to the decision of the administrative agency. Arkansas Cont. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); Tomerlin v. Nickolich, 342 Ark. 325, 27 S.W.3d 746 (2000). “It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency’s decision.” Tomerlin v. Nickolich, 342 Ark. at 331, 27 S.W.3d at 749; Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). See also Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). We review the entire record in making that determination. Arkansas Bd. of Exam’rs v. Carlson, supra; Arkansas Alcoholic Beverage Control v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992).

This court has previously noted:

[A] dministrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Because decisions regarding the licensing of bond companies and their employees turn on executive wisdom, it is appropriate to limit the scope of the review on appeal.

Tomerlin v. Nickolich, 342 Ark. at 332-33, 27 S.W.3d at 750 (citations omitted). Thus, our review of administrative decisions is limited in scope. Administrative decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992). These standards are consistent with the provisions of the Administrative Procedure Act at Ark. Code Ann. §§ 25-15-201 to 25-15-214:

[R]eview is limited to ascertaining whether there is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h).

Arkansas Cont. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. at 326, 64 S.W.3d at 244-45; Arkansas State Racing Comm’n. v. Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001); Arkansas Bd. of Exam’rs v. Carlson, supra.

Arkansas Code Annotated § 25-15-212(h) provides that this court may reverse or modify the Board’s decision

if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212(h) (Supp. 2001). In making this determination, we review the entire record and give the evidence its strongest probative force in favor of the agency’s ruling. Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998). “[BJetween two fairly conflicting views, even if the reviewing court might have made a different choice, the board’s choice must not be displaced.” Arkansas Contr. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. at 327, 64 S.W.3d at 245; Jackson v. Arkansas Racing Comm’n, 343 Ark. 307, 34 S.W.3d 740 (2001).

Substantial evidence is defined as “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture.” Tomerlin v. Nickolich, 342 Ark. at 333, 27 S.W.3d at 751 (quoting Arkansas State Police Comm’n v. Smith, 338 Ark. 354, 362, 994 S.W.2d 456, 461 (1999)). The challenging party has the burden of proving an absence of substantial evidence. Id. To establish an absence of substantial evidence, the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Id. “The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.” Id.

As for our rule regarding the determination of whether an administrative action is arbitrary and capricious, this court said in Arkansas Cont. Lic. Bd. v. Pegasus Renovation Co.:

Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. To have an administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. We have stated that the requirement that administrative action not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. . . . [0]nce substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary.

347 Ark. at 332, 64 S.W.3d at 248 (citations omitted).

II. The Board’s Authority

The Board maintains that it acted within its authority in conducting a hearing and imposing sanctions against Appellees for a violation of Section 17 B of Rule and Regulation 1 of the Arkansas Professional Bail Bondsman Licensing Board. Rule and Regulation 1, Section 17, states:

A bail bond company license shall not be issued or renewed if any owner, partner, stockholder or officer:
B. Is regularly or frequently employed by:
(1) A court of law; . . .

The Board argues that, though the licenses of Appellees were not up for issuance or renewal at the time of the hearing, Ark. Code Ann. § 17-19-210(a)(1) authorizes the Board to take action against a license if it is determined, after notice and a hearing, that the licensee has “[violated any provision of, or any obligation imposed by, [ ] any lawful rule, regulation, or order of the board . . . .” The Board also relies on language from Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 684 (1991), indicating that “the bondsman retains his license with an annual renewal application, barring any violations of the provisions of Act 417 [of 1989]* or the rules and regulations of the commissioner.”

Appellees, on the other hand, contend that the Board went beyond the scope of its authority in sanctioning them because, according to the prefatory language of the regulation, the provision only applies when a license is being “issued or renewed.” Appellees’ licenses did not expire until December 31, 1999. The hearing was held by the Board on April 9, 1999, and its decision was issued on April 13, 1999. Therefore, Appellees argue that the provisions of Rule and Regulation 1, Section 17, were inapplicable to them because their licenses were not up for renewal at the time. Based upon this argument, they contend that Section 17 B is an insufficient basis upon which the Board could take action under section 17-19-210(a)(1).

Appellees further assert that we should follow our decision in Arkansas Contr. Lic. Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001), by holding that the clear language of the statute in question indicates that it should be utilized by the Board to decide only when to issue an original license or renew a license and not to determine whether misconduct has occurred. Reliance upon Pegasus, however, is fundamentally misplaced. In Pegasus, this court was interpreting two statutes pertaining to the Contractor’s Licensing Board. The list of acts deemed to be grounds for revocation of a license was contained in a specific statute, Ark. Code Ann. § 17-25-308, and was different from the factors listed in a separate statute, Ark. Code Ann. § 17-25-305, indicating the qualifications required for issuance or renewal of a contractor’s license. We concluded, interpreting those specific statutes, that the plain language of section 17-25-305 made it clear that the trial court erred in using the elements specifically applicable to issuance or renewal to determine whether “misconduct” had occurred under the separate provision of section 17-25-308. The two statutes interpreted in that case present a different scenario than does the regulation now before us.

The Board advances the policy argument that allowing Appellees to violate or transgress Section 17 B between renewal periods would completely undercut the legislative intent for having regulations in the first place. We agree. Section (a) (8) of Ark. Code Ann. § 17-19-210 clearly indicates the legislature’s intent that the licenses of professional bail bondsmen and bond companies may be suspended when the bondsman or company has failed to comply with the Board’s rules and regulations. By authority of that statute, the Board may

suspend for up to twelve (12) months or revoke or refuse to continue any license issued pursuant to the provisions of this chapter if, after notice and hearing, the board determines that the licensee or any member of a company which is so licensed has:
(8) Failed to comply with . . . rule, regulation, or order of the board for which issuance of the license could have been refused had it then existed and been known to the board.

Ark. Code Ann. § 17-19-210(a) (8) (Repl. 2001). In addition, Arkansas Code Annotated § 17-19-211 (Repl. 2001) provides for an alternative sanction of an administrative penalty not to exceed $5000 against a licensee where grounds exist for the suspension or revocation of the license. Accordingly, we conclude that the Board did not act outside its authority when it conducted a hearing and imposed sanctions upon Appellees for a violation of Section 17 B of Rule and Regulation 1.

III. Regular or Frequent Employment by a Court of Law

A. Parties to the Contract

The Board concluded that a violation of Section 17 B of Rule and Regulation 1 occurred based on its finding that “[Mr. Oudin] is the owner of a bail bond company and a company [Court Services] which is regularly or frequently employed by a court of law.” Though the introductory paragraph of Court Services’ contract for services states that the agreement is between Court Services and the City of Pine Bluff the Board points to substantial evidence that the contract is between Court Services and the Pine Bluff Municipal Court. The evidence in favor of the Board’s decision consists of the following: (1) the third recital of the contract states, “[w]hereas, A.C.A. section 16-17-217(a) (Repl. 1994) authorizes the Municipal Court, upon approval of the governing body of a municipality, to execute a contract with a person for the collection and enforcement of fines and costs;” (2) Paragraph No. 1 of the contract states, “Court Services is hereby retained by the Municipal Court to monitor and collect installment payments of fines and court costs;” (3) Paragraph No. 2 of the contract lists certain services that Court Services will provide “in cooperation with the Municipal Court;” and (4) the contract is signed by Mr. Oudin and both the Mayor of Pine Bluff and the Pine Bluff Municipal Judge.

In spite of the above-referenced language in the contract, Appellees maintain that the contract at issue was solely between Court Services and the City of Pine Bluff and that Court Services performs a service for the municipal court that is not prohibited by applicable statutes, rules, or regulations. In support of this argument, Appellees point out that the Pine Bluff City Council passed an ordinance on December 21, 1998, waiving competitive bidding and authorizing the mayor, municipal judge, and city clerk to execute the contract with Court Services for the collection of outstanding fines. They also emphasize Mr. Oudin’s testimony that Court Services provides a service for the court but actually contracts with the city and county governments and his testimony that employees of Court Services have no contact with the municipal judge.

Once again, our standard of review requires us to review the agency’s decision, giving the evidence its strongest probative force in favor of the agency’s decision, and to determine whether the Board’s decision is supported by substantial evidence. Pursuant to this standard of review, viewing the evidence in the Board’s favor, we conclude that there is substantial evidence to support the Board’s decision that the contract is between Court Services and the Pine Bluff Municipal Court.

B. Independent Contractor Status

We turn next to the Board’s argument that the status of Court Services as an independent contractor is irrelevant to the Board’s interpretation of Rule and Regulation 1, Section 17 B. There is no dispute that, according to the contract at issue, “Court Services acts as an independent contractor and is not an agent, employee or servant of the City.” The Pulaski County Circuit Court, in its order entered on March 26, 2001, reversed the Board and concluded that Rule and Regulation 1, Section 17 B, does not apply to independent contractors. We disagree and hold that the Board’s interpretation of the regulation is not clearly wrong.

The Board admittedly relied upon Attorney General’s Opinion No. 98-194 as to the relevance of Court Services’ status as an independent contractor. We need not address the effect of that opinion, however, other than to note that Attorney General’s opinions are not binding precedent. See, e.g., City of Fayetteville, 304 Ark. 179, 801 S.W.2d 275 (1990); Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987).

The first rule in considering statutory meaning is to construe the statute exactly as it reads, giving the words their ordinary and usually accepted meaning. See, e.g., Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 275 (1991). An administrative agency’s interpretation of its own regulation will not be overturned unless it is clearly wrong. Arkansas Dep’t of Human Servs. v. Hillsboro Manor Nursing Home, Inc., 304 Ark. 476, 803 S.W.2d 891 (1991). It is also important to note that, in considering the administrative intent behind a regulation, this court should not engage in interpretations that defy common sense and produce absurd results. See, e.g., Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999). Appellees assert that the phrase “regularly or frequently employed” does not ordinarily refer to independent contractors because the term “frequently employed” could apply to temporary workers and does not necessarily apply to independent contractors. They further claim, without citation to authority, that because independent contractors are not specifically mentioned within the regulation’s prohibition they are necessarily excluded.

These arguments assume that independent contractors are not “employed” by those for whom they work. Though Appellees are correct in asserting that there is a clear distinction between employees and independent contractors, it does not follow that independent contractors are not “employed.” The specific arguments made by Appellees elucidate the flaw in their logic. Appellees point out several indicia of an independent-contractor relationship. For example, they assert that “[c]haracteristic of an independent contractor relationship is that the employer does not possess the power of controlling the person as to the details of the stipulated work.” (Emphasis added). See Jackson v. Petit Jean Elec. Co-op, 268 Ark. 1076, 599 S.W.2d 402 (1980). Appellees also point out that circumstances to consider in determining whether a workman is an independent contractor include the time for which a workman is employed and the right to terminate employment without liability. See Arkansas Transit Homes v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545 (2000); Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W.2d 620 (1945). These specific arguments indicate that independent contractors, though clearly not employees within the legal definition, are still considered to be “employed” by those for whom they work. A holding by this court that the regulations preventing bail bondsmen and bail bond companies from engaging in employment with courts of law do not apply where the bondsmen or bond companies are independent contractors, rather than employees, of such courts would produce absurd results. Likewise, exempting independent contractors would defeat the purpose of the regulation, which is to prevent objectionable conflicts of interest. See Ark. Code Ann. § 17-19-105 (Repl. 2001) (prohibiting bondsmen or bond companies from giving or promising anything of value to a person who has power to hold in custody).

Appellees further their argument that Section 17 B of Rule and Regulation 1 does not apply to them by underscoring the fact that, in addition to being an independent contractor, Court Services, Inc., is a corporation. They maintain that Court Services and the bail bond company are separate corporate entities and the Board improperly pierced the corporate veil in order to find liability. This argument is without merit. The Board’s order simply states:

1. That Marc Oudin is a bail bondsman licensed by this Board. He owns and is President of Bailbond Financing, Inc., which is also licensed by this Board.
2. That Marc Oudin is the President and owner of Court Services, Inc., a corporation which has contracted with various cities to collect fees assessed by their Municipal Courts.
Respondent, Marc Oudin violated Section 17 of Rule and Regulation 1 in that he is the owner of a bail bond company and a company which is regularly or frequently employed by a court of law.

As demonstrated by its order, the inquiry before the Board under Section 17 B of Rule and Regulation 1 was whether any owner, partner, stockholder, or officer of a bail bond company was regularly or frequently employed by a court of law. Clearly, Marc Oudin, Jr., is the owner, sole shareholder, and contact person for a bail bond company, Bail Bond Financing, Inc. Marc Oudin, Jr., is also the owner, sole shareholder, and contact person for Court Services, which is regularly employed by the Pine Bluff Municipal Court. Pursuant to our standard of review, we cannot say that the Board’s interpretation of Rule and Regulation 1, Section 17 B, is clearly wrong.

Reversed and remanded with directions to reinstate the Board’s decision.

Corbin, J., not participating.

       Pursuant to Ark. Code Ann. § 17-19-106(b)(5) (Repl. 2001), the Board is authorized to adopt and enforce rules and regulations “to enable it to effectively and efficiently carry out its official duty of licensing and regulating professional bail bond companies and professional bail bondsmen.”

       Act 417 of 1989 was the original act governing the practice of bail bondsmen.

       Likewise, we need not consider the Board’s assertion that Attorney General’s Opinion No. 98-194 provided substantial evidence for its decision; nor must we consider Appellees’ assertion that the opinion does not constitute substantial evidence. As Attorney General’s opinions are not binding authority, such opinions cannot constitute substantial evidence nor show a lack thereof.


author: Wh. "Dub" Arnold, Chief Justice.

text:
    Makybe Shinda HARSHAW v. STATE of Arkansas
    CR 01-847
    71 S.W.3d 548
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      William R. Simpson, Jr., Public Defender, and Brent Qualls, Deputy Public Defender; by: Clint Miller, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Wh. "Dub" Arnold, Chief Justice.

Appellant Makybe Shinda Harshaw was previously before us in Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001), wherein Harshaw appealed the trial court’s refusal to instruct the jury on the lesser-included offense of manslaughter on a second-degree murder charge. On appeal, we held there was sufficient evidence presented which would support a finding that Harshaw formed his belief in the need for the use of deadly force too hastily and without due care, or recklessly. Accordingly, a manslaughter instruction was warranted, and the trial court committed reversible error by failing to allow the proffered manslaughter instruction. On remand and retrial for the second-degree murder charge, Harshaw was again found guilty of second-degree murder. Harshaw, now, brings this appeal, raising the point of whether the trial court erred in denying his motion for directed verdict. We hold that the trial court’s ruling was correct, and, therefore, affirm.

Background

On remand, Harshaw’s trial began on March 29, 2001, in Pulaski County Circuit Court and a jury sat as the trier of fact. The evidence presented revealed that on or about July 8, 1998, Harshaw was playing cards and drinking beer with friends at a house in southwest Little Rock. At some point during the night, Harshaw left the residence to drive a friend home. Upon returning to the house, he found that Cunningham had arrived at the residence and was standing in the driveway arguing with-a woman identified as “Chan.” She was the mother of Cunningham’s child. Harshaw took it upon himself to intervene in the argument between Cunningham and Chan. Cunningham apparendy took offense and told Harshaw that the matter was none of his business. According to Harshaw’s testimony and that of other eyewitnesses, Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun.

Thereafter, Harshaw testified that he and Cunningham both turned and went to their respective cars. Several eyewitnesses stated that Cunningham reached into his car through the window on the driver’s side of the car. At the same time, Harshaw went to the trunk of his car, opened it, and retrieved a shotgun. As Cunningham came back up from reaching into the car, Harshaw shot him in the chest. Harshaw testified that he was afraid Cunningham was about to pull a pistol from his car and shoot him. As it turned out, Cunningham did not have a gun. Actually, there was testimony from an eyewitness that Cunningham had his empty-hands raised in the air when Harhsaw fired his weapon.

At the conclusion of the State’s presentation of its case-in-chief, Harhsaw moved for a directed verdict on the second-degree murder charge on the basis that the State failed to prove Harshaw knowingly caused the victim’s death under circumstances manifesting extreme indifference to the value of human life. The trial court denied Harshaw’s motion for a directed verdict. Harshaw rested without presenting a case-in-chief. Thereafter, defense counsel renewed the directed-verdict motion, which the trial court did not rule on.

The jury was instructed on the “knowingly/extreme indifference to the value of human life” definition of second-degree murder and was instructed on the “recklessly” definition of manslaughter, which was consistent with this court’s previous findings. Harshaw was found guilty of second-degree murder, and after a brief sentencing hearing the jury imposed on Harshaw a sentence of nineteen years’ imprisonment. The trial court sentenced Harshaw accordingly. It is from this conviction and sentence this appeal arises.

Motion for Directed Verdict

Harshaw’s sole point on appeal is whether the trial court erred in denying Harshaw’s motion for directed verdict because the circumstantial proof of Harshaw’s culpable mental state was such that the jury was left to speculate whether Harshaw caused the victim’s death knowingly or recklessly.

The culpable mental state for second-degree murder is that the defendant knowingly caused the victim’s death under circumstances manifesting extreme indifference to the value of human life. Harshaw argues this court should reverse the conviction based upon circumstantial evidence that leaves the fact-finder only to speculation in choosing between two equally reasonable conclusions.

The standard of review we apply when reviewing a defendant’s contention that the State failed, at trial, to prove his or her guilt is well established. In a jury trial, a defendant challenges the sufficiency of the State’s proof of his guilt by moving for a directed verdict at the close of the State’s presentation of its casein-chief and again at the close of the presentation of all the evidence. Ark. R. Crim. P. 33.1(a). A motion for directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). A directed-verdict motion should be granted when there is no evidence from which the finder of fact could have found, without resorting to surmise and conjecture, the guilt of the defendant. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). When a defendant challenged the sufficiency of the evidence, this court considers only the evidence that supports the guilty verdict. Britt v. State, supra. The court also views the evidence in light most favorable to the State. Britt, supra.

Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Phillips, supra. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Philips, supra. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Phillips, supra. Additionally, the longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).

During retrial, Harshaw moved for a directed verdict at the closing of the State’s case and the motion was then renewed after the defense rested without presenting a case-in-chief. The trial court denied the motions. Harshaw argues to this court that the State did not present circumstantial evidence that, when he shot the victim at point-blank range with a shotgun, he “knowingly” caused death “under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-10-103(a)(1) (Repl. 1997). The trial court instructed the jury with the “recklessly” definition of manslaughter as a lesser-included offense of second-degree murder. This definition of manslaughter, a Class C felony, states that “a person commits manslaughter if: he recklessly causes the death of another person.” Ark. Code Ann. § 5-10-104(a)(4) (Repl. 1997).

Harshaw further argues to this court that when the trial court instructed the jury on the definitions of the culpable mental states of both knowingly and recklessly, it left the jury to speculate whether Harshaw caused the victim’s death knowingly or recklessly. Harshaw contends this is so because the jury could reasonably conclude that Harshaw caused the victim’s death either knowingly under circumstances manifesting extreme indifference to the value of human life or recklessly in that Harhsaw consciously disregarded a substantial and unjustified risk that the victim’s death would result from Harshaw’s conduct.

However, a person’s intent or state of mind at the time of the offense is seldom apparent. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). But, the intent can be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the trauma suffered by the victim. Stanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998).

In this case, Harshaw used a shotgun to murder an unarmed man at point-blank range despite the victim’s obvious signal that he posed no threat. The trial court followed this court’s findings in Harshaw v. State, 344 Ark. 129, and instructed the jury on second-degree murder and manslaughter. Under these facts, the jury could, and did, infer that Harshaw knowingly killed his victim with extreme indifference to the value of human life.

The jury heard testimony from witnesses presented by the State and determined that Harshaw should be convicted of second-degree murder because he knowingly caused Cunningham’s death under circumstances manifesting extreme indifference to the value of human life. The jury obviously determined the credibility of the witnesses and resolved any questions of conflicting testimony in favor of the State. The jury was not left to speculate on whether Harshaw caused Cunningham’s death knowingly or recklessly. The jury chose to convict on the second-degree murder charge. Therefore, this court should not disturb the jury’s conviction and sentence. It is reasonable that Harshaw “knew” he would cause death to Cunningham when he pulled a shotgun out of the trunk of his car and shot Cunningham at point-blank range. The jury was not left to speculation that Harshaw either knowingly acted with extreme indifference to the value of human life or recklessly and consciously disregarded a substantial and unjustified risk that Cunningham’s death would result from Harshaw’s conduct.

Therefore, we affirm the trial court’s order denying Harshaw’s motion for directed verdict.

Affirmed.


author: Tom Glaze, Justice.

text:
    Juan GOMEZ, Individually and on Behalf of the Estate of Herminia Espinoza Gomez, Deceased, and Juan Castorena, Jesus Castorena, Valentin Castorena, and Gilberto Castorena v. ITT EDUCATIONAL SERVICES, INC., d/b/a ITT Technical Institute
    01-1089
    71 S.W.3d 542
    Supreme Court of Arkansas
    Opinion delivered April 4, 2002

      Henry & Cullen LLP, by: Tim Cullen; and Law Offices of Bruce Flint, P.C., by: Bruce Flint, for appellants.

      Rose Law Firm, by: Richard T. Donovan, for appellee.
   Tom Glaze, Justice.

Herminia Gomez, the wife of appellant Juan Gomez, was murdered in Dallas County, Texas, on March 11, 1998, by Bobby Turner, a recruiter employed by ITT Educational Services, Inc., d/b/a ITT Technical Institute (“ITT Technical”). On February 18, 2000, Mrs. Gomez’s family filed a wrongful-death lawsuit in Dallas County, Texas, purporting to name ITT Technical as defendant, and alleging that ITT Technical had negligently hired Turner without discovering his extensive criminal record. However, the Gomez suit named the wrong defendant, and actually sued a company called “ITT Teleco,” which is unrelated to ITT Technical. On July 7, 2000, more than two years after the murder, the Gomezes amended the original complaint to add ITT Technical as a defendant and dismiss ITT Teleco; ITT Technical moved for summary judgment on the grounds that Texas’ two-year statute of limitations for wrongful-death actions had already expired. The Gomezes took a voluntary nonsuit in the Dallas County case before an adverse judgment could be entered.

ITT Technical operates schools in 27 states, including Arkansas. On February 15, 2001, within three years of Flerminia’s murder, the Gomez family filed a wrongful-death action in Pulaski County Circuit Court, again alleging ITT Technical’s negligent hiring of Turner. ITT Technical answered and admitted jurisdiction and venue. ITT Technical then filed a motion for summary judgment, arguing that, applying conflict-of-law considerations, Texas’ shorter two-year statute of limitations should apply to bar the action. After a hearing on June 26, 2001, the Pulaski County court granted ITT Technical’s motion for summary judgment. From the order granting that motion, the Gomezes bring the instant appeal, arguing that the trial court erred in applying the shorter, two-year statute of limitations instead of Arkansas’ three-year statute of limitations.

The facts in this case are undisputed; every relevant action took place in the State of Texas, and every party is a resident of that state. The sole question on appeal is whether Texas’ or Arkansas’ statute of limitations should apply. Arkansas’s wrongful death act is codified at Ark. Code Ann. § 16-62-102 (Supp. 2001); this statute provides that “[e]very action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed.” § 16-62-102(c)(1). In Texas, the statutory provision allowing a cause of action for wrongful death is Tex. Civ. Prac. & Rem. Code Ann. § 17.002 (1997), and § 16.003(b) states that “[a] person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death.”

The Gomezes contend that statutes of limitation are procedural in nature, and as such, the Arkansas court should have applied Arkansas’s own procedural law. Further, he argues that Arkansas has abandoned the rule of lex loci delicti, or the law of the place where the wrong took place, and has instead adopted a modified rule, as set out in Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977). With respect to his first argument, we note that statutes of limitations are indeed generally considered to be procedural in nature. See, e.g., Bodiford v. Bess, 330 Ark. 713, 956 S.W.2d 861 (1997). However, this court has also held that statutes of limitations are to be distinguished from statutes which create a right of action not existing at common law and restrict the time within which action may be brought to enforce the right. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988). Although the general rule is that a true statute of limitations extinguishes only the right to enforce the remedy and not the substantive right itself, the limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only of the remedy but of the right also; the right to recover depends upon the commencement of the action within the time limit set by the statute, and if that period of time is allowed to elapse without the institution of the action, the right of action is gone forever. Id. at 424 (citing 51 Am. Jur. 2d Limitation of Actions 15). Thus, time limitations which are set out in a statute creating a right — such as the statute of limitations contained within the wrongful-death act — are substantive, not procedural in nature.

A leading author on the subject of conflicts of laws has similarly set forth the following well-settled exception to the traditional rule that forum law governs statutes of limitations:

When a statute which creates a right specifies that the existence of its new creation shall continue only for a limited length of time, there is no existent right beyond what the statute has created, and no other state, even though its statute would allow a longer period for such suits, will entertain an action on a right which has ceased to exist. Death acts are characteristic in this respect, since the action for wrongful death is in the states wholly statutory, and the death acts often state specifically that actions thereunder must be brought within a named time after the death. Thus a forum state will refuse to entertain an action for wrongful death brought later than the one-year period allowed for the bringing of such actions in the state where the tort occurred, even though the two-year period set by the forum’s wrongful death act has not yet passed.

Robert A. Leflar, American Conflicts Law § 127, at 254 (3d ed. 1977) (emphasis added).

Other authorities offer similar instructions. The Restatement (Second) of Conflict of Laws § 143, dealing with foreign statutes of limitations barring a right, provides that “[a]n action will not be entertained in another state if it is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy.” The commentary to this section states that “it is for the forum courts to determine whether a foreign statute of limitations bars the right and not merely the remedy. The almost invariable prerequisite is that the liability sought to be enforced must have been created by statute. Once this requirement has been met, the usual test is whether, in the opinion of the forum, the limitation provision was directed to the right ‘so specifically as to warrant saying that it qualified the right.’” Section 143, cmt. c (citing Davis v. Mills, 194 U.S. 451 (1904)). The most common situation where this occurs, comment c goes on to read, “is when a statute creates but a single right of action and also contains a provision limiting the time in which actions under the statute may be brought. Wrongful death statutes are typical examples of statutes of this sort.” Id.

Thus, Arkansas must determine whether Texas’s wrongful-death statute of limitations bars the right and not merely the remedy. The Texas Court of Appeals has held that, “with statutorily created actions, time limits are not procedural statutes of limitations, but are substantive qualifications and conditions restricting the right to bring wrongful death actions.” Trunkhill Capital, Inc. v. Jansma, 905 S.W.2d 464 (Tex. App. — Waco 1995); Franco v. Allstate Ins. Co., 505 S.W.2d 789 (Tex. 1974). Clearly, then, the trial court here did not err in determining that Texas law should apply to bar Gomez’s action.

Gomez offers an additional argument, however, and suggests that this court should apply the five “choice influencing considerations” we utilized in Wallis, supra. These five factors are as follows: 1) predictability of results; 2) maintenance of interstate and international order; 3) simplification of the judicial task; 4) advancement of the forum’s governmental interests; and 5) application of the better rule of law. Wallis, 261 Ark. at 629.; see also Leflar, §§ 103-107, at 205-15. Gomez further contends that the Wallis court impliedly overruled and abandoned the lex loci delicti rule that this court had consistently applied up until the Wallis case. See McGinty v. Ballentine, 241 Ark. 533, 408 S.W.2d 891 (1966); Wheeler v. Southwestern Greyhound Lines, Inc. 207 Ark. 601, 128 S.W.2d 214 (1944); Earnest v. St. Louis, Memphis, & S.E. Railway Co., 87 Ark. 65, 112 S.W. 141 (1908).

In Schlemmer v. Fireman’s Ins. Co., 292 Ark. 344, 730 S.W.2d 217 (1987), this court noted that it had adopted the Leflar choice-influencing approach in Wallis and had continued to use the approach. Schlemmer, 292 Ark. at 346 (citing Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978)). However, neither Schlemmer nor Wallis explicitly overruled McGinty and the other earlier cases applying the more mechanical lex loci delicti rule. Nor do we find it necessary to overrule McGinty and its progeny here. Instead, the adoption of the Leflar factors in Wallis and subsequent cases appears to be merely a softening of what previously had been a rigid formulaic application of the former rule of law.

This conclusion is consistent with Leflar’s commentary on the issue. In American Conflicts Laws, Leflar states that these five considerations “do not furnish rules of thumb for the decision of every conflicts case. The considerations tie in with the common law as it has already developed, and they assume that the mass of developed common law on choice of law will continue to serve its precedential function.” Leflar, § 108, at 215 (emphasis added). Leflar continues as follows:

The function of the considerations should be to assure a continuing reexamination of precedents, a readiness to lay aside old mechanical rules that turn out to be without support in the considerations or that contradict them, yet at the same time to promise a reaffirmation of old rules, or at least of old results, that conform to and implement the considerations.

Id. at 216 (emphasis added).

However, even applying these five considerations to the case before us, we would still reach the same conclusion. The first factor is predictability of results. Leflar noted that this consideration “includes the . . . ideal that the decision in litigation on a given set of facts should be the same regardless of where the litigation occurs, so that forum-shopping will benefit neither party.” Leflar, § 103, at 205. It cannot be denied that the Gomez family engaged in forum-shopping in this case, as they chose a nearby state with a wrongful death act that essentially differed from Texas’ only in the amount of time in which a suit could be brought. Otherwise, however, the issue of predictability of results is not necessarily a paramount concern in this case, as the wrongful-death statutes provide a similar remedy for plaintiffs (but for the statute of limitations).

The second factor, maintenance of interstate and international order, is similarly not of great concern here, because residents of Texas are not likely to venture to Arkansas to engage in tortious conduct, nor are potential Arkansas defendants generally going to go to Texas to cause a wrongful death in order to avail themselves of the shorter statute of limitations. However, Leflar notes that “[djeference to sister state law in situations in which the sister state’s substantial concern with a problem gives it a real interest in having its law applied, even though the forum state also has an identifiable interest, will at times usefully further this part of the law’s total task.” Leflar, § 104, at 208. Applying this consideration further militates in favor of applying Texas law, because that is the state with the more “substantial concern with [the] problem,” as every actor and event is situated in that state.

The third consideration, simplification of the judicial task, is ordinarily not a paramount consideration, because the “law does not exist for the convenience of the court that administers it, but for society and its members.” Leflar, § 105, at 208. Dr. Leflar further observed that, where the out-of-state rule is outcome-determinative and easy to apply, “there is no good reason why the possibility of importing it as part of the out-of-state law governing the case should not be seriously considered.” Id. at 209. Here, of course, the application of Texas law is outcome-determinative and easy to apply.

The fourth factor, however, is the advancement of the forum’s governmental interests. This consideration weighs heavily in our analysis, because of the tangential nature of the parties’ connections with this state. Simply put, Arkansas has few, if any, governmental interests in this case. As pointed out repeatedly above, every party to this action is a resident of Texas. The decedent lived in Texas; her assailant lived in Texas; her family lives in Texas; and the murder occurred in Texas. Applying Arkansas law to this case would do little or nothing to advance Arkansas’s governmental interests, as no citizen of Arkansas is involved.

The final consideration is the “better rule of law.” The Arkansas wrongful-death statute and the Texas wrongful-death statute both provide that a person is liable for actual damages arising from an injury that causes an individual’s death. See Ark. Code Ann. § 16-62-102; Tex. Civ. Proc. & Rem. Code 71.002. Neither offers a “better” remedy than the other, as they both provide the same redress for the same wrong; the only difference is in the time period in which such a cause of action must be brought. The Gomez family, of course, argues that the longer statute of limitations makes Arkansas’s the better rule of law. However, Arkansas simply does not have a sufficient relationship to the parties or to the injury that would cause this final consideration to be the controlling factor. The Restatement provides that “[i]n an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship ... to the occurrence and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflicts of Law § 175 (emphasis added). Clearly, Texas has a more significant relationship with the parties and with the issues, and Texas law should be applied in this case.

We conclude that the trial court in this matter correctly applied Texas law and determined that the two-year statute of limitations in that state barred the Gomezes’ action. The trial court’s grant of summary judgment to ITT Technical is, therefore, affirmed.

       Leflar noted that not every case will involve a consideration of each of the five factors, citing Clark v. Clark, 107 N.H. 851, 222 A.2d 205 (1966) (wherein the New Hampshire Supreme Court commented that several of the factors were “largely irrelevant”). Leflar, § 108, at 217. Likewise, in Wallis, our court relied on a Mississippi case that looked only to the last two factors. Wallis, 261 Ark. at 629 (citing Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968)).