author: Steele Hays, Justice. Steele Hays, Justice.

text:
    W.L. SMITH v. STATE of Arkansas
    CR 93-758
    872 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994
    [Supplemental Opinion on Denial of Rehearing April 18, 1994.]

      The Law Offices of Greenhaw & Greenhaw, by: John F. Greenhaw, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.

      Corbin, J., not participating.

   Steele Hays, Justice.

Appellant W.L. Smith was found guilty by a jury of four counts of rape. He was sentenced to forty years imprisonment on each count. Two of the counts are to be served consecutively and the two remaining counts concurrently, for a total of eighty years in the Department of Correction. On appeal he raises three points for reversal: (1) the trial court erred in allowing evidence of prior offenses to be admitted, thus causing the defendant to suffer substantial prejudice; (2) the trial court erred when it deviated from established trial procedures by ordering counsel to make closing arguments prior to jury instructions being given; and (3) the trial court erred in allowing extrinsic evidence of prior misconduct, in the form of a police report, to be admitted into evidence. Finding no error, we affirm the judgment of conviction.

The appellant was charged by information with five counts of rape in violation of Ark. Code Ann. § 5-14-103 (Repl. 1993) for engaging in sexual intercourse or deviate sexual activity with his stepdaughter Amy Honey, who was less than fourteen years of age, on or about April 10, 11, 12, 13, and 14, 1990. At trial,' the state’s case was based principally upon the testimony of the thirteen-year-old victim.

Janet Smith, the victim’s mother, was in the hospital for approximately one week beginning on April 9, 1990. Her daughter testified she had been sexually penetrated by the appellant on four occasions during that period of time. In addition, Dr. Hoy Spear, a licensed physician, testified that he examined the victim on September 11, 1990. In his opinion, she had been subjected to vaginal and rectal intercourse. Ms. Tammy Bracewell, the victim’s aunt, and Dr. Spear both testified that the child had stated appellant had intercourse with her.

Since the child testified only to four incidents, the trial court directed a verdict in favor of the appellant on one count of rape. In his defense on the four remaining counts, the appellant denied the allegations, challenged the veracity of the victim and contended he was out of town at the time of one of the alleged incidents. The testimony indicated the appellant was a truck driver and he left for Moberly, Missouri on April 10, 1990. According to the testimony, the trip from the family home in Grubbs, Arkansas (Jackson County) to Moberly takes approximately 24 hours. The jury returned a verdict of guilty on four counts of rape.

I.

The appellant first contends the trial court erred in allowing evidence of prior offenses to be admitted. On direct examination of Leonard Pickel, a witness for the defense, the following exchange took place between counsel for the defense and the witness:

Q. Now, Mr. Pickel, you testified that you’ve known W.L. Smith for over ten years?
A. Yes, sir.
Q. Based on your knowledge of him, do you feel it is possible that he could’ve repeatedly raped his daughter, who you also know, the five nights that Janet was in the hospital in April of 1990.
A. In my opinion, I would say no, I don’t think he would have repeatedly raped her during that period of time based on knowing him.

Prior to cross-examining Mr. Pickel, the state submitted Mr. Pickel had testified regarding the character of the accused and requested they be allowed to cross-examine the witness accordingly. The appellant objected to questions concerning prior charges; however, the trial court overruled the objection. Consequently, during.cross-examination, the state asked Mr. Pickel the following questions:

Have you heard, Sir, that on August 29th, 1987, the defendant, W.L. Smith, did play with the breast and lower part of the body of a twelve year old girl named Jennifer Stinley and did continue playing with her until she was able to break away from him?
Have you heard, Sir, that on the 26th day of May, 1989, W.L. Smith raped a lady named Deanna Stinley [Stilley] by forcible compulsion in a semi-truck that was being, that Mr. Smith was driving?

Mr. Pickel acknowledged that he had heard of both accusations.

A.R.E. Rule 404(a) provides in pertinent part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; . . .

(Emphasis supplied.)

Once the admissibility of character evidence is established under Rule 404, Rule 405 establishes the methods of proof which may be utilized. A.R.E. Rule 405, Methods of proving character, provides in pertinent part:

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances' of conduct.

(Emphasis supplied.)

Mr. Pickel was asked if, based upon his knowledge of the appellant, he thought he could have committed the crimes with which he was charged. The only purpose the questions could have had was to show the appellant was a person not disposed to commit the alleged crimes. Therefore, he was a character witness pursuant to Rule 404.

We have recognized that by producing a character witness the defendant opens the door to evidence which might otherwise have been inadmissible. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). Rule 405 clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’ knowledge of specific instances of conduct. Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989); Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986). Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion. Morris, supra. Further, Rule 405 places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross-examination may occur. Reel, supra; Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992).

We find the trial court did not commit error by allowing inquiry into relevant specific instances of conduct during cross-examination of Mr. Pickel. Whether Mr. Pickel was aware of the two prior incidents tested his knowledge of the defendant’s character and the weight to be given to his opinion.

Also, we have recognized that an instruction limiting the use of this evidence would assist the jury in placing the testimony in its proper light. Reel, supra. We noted the instruction informed the jury that they should consider the reference to the conviction during cross-examination as evidence going only to the extent of the witness’s knowledge of the appellant and the weight to be given to his opinion of the defendant’s character. Thus, the appellant would have been entitled to an instruction limiting the jury’s consideration of the testimony. However, he failed to request the instruction.

II.

Second, Smith contends the trial court erred when it deviated from established trial procedure by ordering counsel to make closing arguments prior to jury instructions being given. The appellant submits his defense counsel lost the opportunity to stress the options available to the jury concerning lesser included offenses because the closing arguments were presented prior to jury instructions being given. In fact, at the close of all of the evidence, the defense counsel had not prepared proposed instructions. Rather than taking additional time to allow for preparation of the lesser included offense instructions, the trial court suggested making closing'arguments and then waiting until the following morning to instruct the jury. Both the state and the counsel for the defense immediately agreed with the trial court. Subsequently, the appellant was questioned and agreed to make the closing arguments prior to instructing the jury.

It is well established that an appellant cannot complain when he agreed with the trial court’s ruling. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Further, we have repeatedly stated that we will not consider an issue raised for the first time on appeal. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993).

III.

Finally, the appellant submits the trial court erred in admitting extrinsic evidence of prior misconduct. During direct examination of Mr. Smith, the defense counsel inquired into an incident involving the alleged fondling of a twelve year old girl. The following exchange took place between the appellant and defense counsel:

Q. Did you ever have a trial?
A. No, sir, we didn’t.
Q. Is that because you didn’t do it?
A. That’s right.

During cross-examination of the appellant, the state introduced the incident report from the Craighead County Sheriff’s Department. The report indicated that the parents did not want to prosecute because the child refused to testify.

The appellant submits the evidence was offered to prove the accused was a man of bad character, addicted to crime. In support of his argument, he relies upon A.R.E. Rule 405 which only allows inquiry into specific instances of conduct during cross-examination. We disagree.

The Arkansas Rules of Evidence do not provide a rule on impeachment by contradiction. Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987). We have held that a witness could not be impeached by extrinsic evidence on collateral matters brought out in cross-examination. Id. That limitation, however, does not apply to answers given on direct examination. When a witness testifies on direct examination that he has not committed collateral acts of misconduct, he opens the door for impeachment by contradiction and his testimony may be contradicted by extrinsic evidence. See McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986); Hendrik v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992).

In McFadden, we cited Walder v. United States, 347 U.S. 62 (1954), where the Supreme Court held it was not error to admit evidence that an accused had committed another crime to rebut testimony in which the accused said he had not done it. In Walder, the other crime was one with which the accused had been charged, but the charge had been dropped when it was ruled that the search and seizure leading to the charge was illegal. We noted it would be a perversion of Rules 403 and 404(b) to say the state could not rebut testimony of an accused, given on direct examination, about his not having committed other crimes. McFadden, supra.

Greenhaw & Greenhaw, by: John Greenhaw, for appellant.

Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.

Once again, we note the appellant would have been entitled to an instruction limiting the jury’s consideration of the testimony in question to the issue of appellant’s veracity. McFadden, supra. However, he sought no such instruction.

Affirmed.

Corbin, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING APRIL 18, 1994

Steele Hays, Justice.

Appellant’s petition for rehearing insists that our opinion of March 21, 1994, affirming the judgment entered on his conviction of four counts of rape failed to address his contention that A.R.E. Rule 405 is governed by Rule 403 and, hence, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

We discussed the point at some length in part I, though our opinion may not have been explicit. Settled law dating well back in the common law (and now incorporated in A.R.E. Rules 404 and 405) provides that when an accused offers character evidence in his own behalf, the character witness is subject to cross-examination as to his or her knowledge of relevant specific instances of conduct by the accused. That is precisely what occurred in this trial, as our opinion recounts, and when that occurs, cross-examination as to specific instances of conduct is allowed irrespective of prejudice. Clark v. State, 292 Ark. 69, 727 S.W.2d 853 (1986); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978); Weaver v. State, 83 Ark. 119, 102 S.W. 713 (1907). In Michelson v. United States, 335 U.S. 469 (1948), the Supreme Court addressed the right of the prosecution to cross-examine a defendant’s character witness:

. . .the price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.

In United States v. Bright, 588 F.2d 504 (1979), cert denied, 440 U.S. 972 (1979), the Court of Appeals, Fifth Circuit, specifically rejected the argument that Rule 403 is applicable to the cross-examination of character witnesses. And see 1A Wigmore, Evidence § 58 (Tillers rev. 1983).

Rehearing denied.

Corbin, J., not participating.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Joseph Michael WYNN v. STATE of Arkansas
    CR 93-1263
    871 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Mary M. Rawlins, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Joseph Michael Wynn appeals from his convictions of felony battery and aggravated assault. He states as his first point for reversal the failure of the Trial Court to grant his motion for severance of the offenses. Due to his failure to renew the motion at the close of the evidence the point is not reviewable on appeal. Mr. Wynn also argues the Trial Court erred by denying his motion to suppress videotaped expert testimony. We are unable to review this point in light of Mr. Wynn’s failure to abstract the testimony. The conviction is affirmed.

On December 12, 1992, Mr. Wynn and his wife transported their infant son, Jonathan Wynn, to a hospital for treatment of a broken leg. Mr. Wynn was arrested and charged with one count of felony battery and one count of felony assault. After first saying he had fallen on the child while carrying him Mr. Wynn changed his story. In his written statement, Mr. Wynn said he broke Jonathan’s leg when it caught in the crib rails as he jerked the child out of the crib. In a later statement, however, he admitted he struck Jonathan on the leg and caused the fracture. He also admitted he had struck the infant on the face, head, and ribs on previous occasions, had tossed him in his (Wynn’s) bed from a distance of five or six feet, had pushed on his chest until he cried several times, and had struck Jonathan on the head with the edge of his bottle.

After medical evaluation confirmed that the infant had been battered on prior occasions, the information was amended to add two more counts of felony battery. The examining doctors found evidence of prior broken ribs, a broken bone in the child’s hand, and an excess amount of fluid on the child’s brain which indicated a concussion.

Prior to trial, Mr. Wynn moved that the charges be severed for trial on the ground that they were allegations of distinct and discrete offenses and had been joined solely because of their similarity to each other. The Trial Court denied the motion, pointing out that the same witnesses would testify, the offenses allegedly occurred in the same home, by the same defendant, to the same victim, and amounted to a continuing course of conduct and thus should be tried together.

Mr. Wynn also objected to videotaped expert testimony in which witnesses used the terms, “child abuse,” “battered child syndrome,” or “abuse of a child” on the ground that the probative value was substantially outweighed by its prejudicial effect. Ark. R. Evid. 403. The Trial Court overruled the objection.

During the trial, Mr. Wynn specifically renewed his objection to the videotaped expert testimony prior to its being shown to the jury. The record contains the following reporter’s insertion:

(AT THE CLOSE OF THE CASE, MRS. RAWLINS [Mr. Wynn’s counsel] RENEWS HER MOTION FOR ACQUITTAL AND RENEWS ALL OBIECTIONS AND MADE THROUGHOUT THE COURSE OF THE CASE____)

The word “AND” indicates either an inadvertent insertion or perhaps an ellipsis; we cannot tell which.

1. Failure to renew motion for severance

According to Ark. R. Crim. R 22.1(b), “[i]f a defendant’s pretrial motion for severance was overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.” Failure to renew a motion for severance in accordance with the Rule constitutes a waiver of the objection. See Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994).

Even if a general renewal of all “objections” could be said to constitute renewal of all motions, it does not make clear to the court the grounds for severance. At the outset of a criminal trial, the Trial Court has before it only allegations. It is possible in some instances to determine at that juncture that a severance is required. At the close of all the evidence, however, the Trial Court knows the extent to which the evidence demonstrates the reason for joinder of the charges for trial. The Trial Court is then in a far better position to know if the charges should have been severed for trial because they were joined “solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan.” Ark. R. Crim. R 22.2(a). It is for that reason that the Rule requires renewal of the motion at the close of all the evidence. Absent renewal of the motion for severance, the objection to joining the charges for trial is waived. Ark. R. Crim. R 22.1(b); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). As the appellant, it is Mr. Wynn’s duty to see to it that the record supports his point of appeal. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). We find in the record no renewal of the motion to sever.

2. Failure to abstract testimony

The appellant in a felony criminal appeal has “the duty. . .to abstract such parts of the record. . .as are material to the points to be argued in the appellant’s brief.” Ark. Sup. Ct. R. 4-3(g). Mr. Wynn has not abstracted any expert testimony containing the terms “child abuse,” “child abuse syndrome,” or “abuse of a child,” although he refers to such testimony in the argument portion of his brief.

The record on appeal is confined to the abstract and can not be contradicted or supplemented by statements made in the argument portions of the briefs. See Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). Further, scattered transcript references throughout an argument are not a substitute for a proper abstract. See Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). This Court will not explore the record for prejudicial error except in death or life imprisonment cases. Id. We decline to address the argument on this point.

Affirmed.

Corbin, J., not participating.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    Ledora BLACK v. WAL-MART STORES, INC. d/b/a Sam’s Wholesale Club
    93-1121
    872 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Page & Thrailkill, P.A., by: Patricia A. Page, for appellant.

      Kenneth Breckenridge, P.A., by: Kenneth Breckenridge, for appellee.
   Tom Glaze, Justice.

This is a slip and fall case. On February 21, 1992, the appellant, Ledora Black, was a customer in a Wal-Mart store, Sam’s Wholesale Club #8143 located in Fort Smith, when she slipped and fell necessitating surgery to her knee. Mrs. Black filed suit against Wal-Mart claiming her fall and resulting injury were due to Sam’s negligence in allowing “a slick and slippery” area of the floor to remain.

Following Mrs. Black’s deposition, Wal-Mart filed a motion for summary judgment citing the fact that Mrs. Black could produce no evidence that there was any substance on the floor which would have caused her fall or that the floor was slick or that WalMart was negligent in any manner. On August 2, 1993, the trial court granted the motion for summary judgment, finding no genuine issues of material fact. Mrs. Black appeals from that order.

A property owner has a general duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. In order to prevail in a slip and fall case, a plaintiff must show either (1) the presence of a substance on the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. And the mere fact a person slips and falls does not give rise to an inference of negligence. House v. Wal-Mart Stores, Inc., 316 Ark. 221, 872 S.W.2d 52 (1994); Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987).

Here, Mrs. Black does not allege that a foreign substance was on the floor, but only that the floor was slippery. In her deposition, Mrs. Black stated the following:

I did not see any water, coke or substance on the floor because I was hurting so bad. I never thought it would be on the floor, all I know it was real slick. I think they had just waxed it. It was just real shiny and slick. They had just waxed it and there was no traffic, no walking on it yet. I know they had just waxed it because you could tell,, it was real shiny. I’m not contending there was any water or substance on the floor that I saw, I was out of it almost I was hurting so bad.

While Mrs. Black was accompanied to the store by two companions, neither of them provided any testimony or other information in this case, nor did Mrs. Black produce any other witnesses that could support her allegations.

In support' of its motion for summary judgment, Wal-Mart submitted two affidavits in addition to Mrs. Black’s deposition. Ken Redding, an employee of Sam’s who was responsible for “safety sweeps,” attested he had conducted a “safety sweep” of the area thirty minutes prior to Mrs. Black’s fall, he found no foreign substance on the floor at that time, and no one reported such a substance on the floor where Mrs. Black fell either before or after her fall. Further, Redding stated that the floor is concrete and “does not contain any wax on the floor.” Beverly Geren, also an employee of Sam’s, stated in her affidavit that she was standing approximately twenty feet away and facing toward Mrs. Black when Geren saw the accident occur. Geren attested that Mrs. Black appeared to trip over her own feet and that she, Geren, was unaware of any substance on the floor.

For reversal, Mrs. Black argues that her deposition creates direct and circumstantial evidence supporting a prima facie case of negligence against Wal-Mart, and that a jury could find the waxed or otherwise treated floor resulted in a dangerous condition due to its slipperiness. For support, Mrs. Black cites Nat’l. Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488 (1972), where this court adopted the California view:

If wax, or . . . both wax and soft soap, are applied to the floor, it must be in such manner as to afford reasonably safe conditions for the proprietor’s invitees, and if such compounds cannot be used on a particular type of floor material without violation of the duty to exercise ordinary care for the safety of invitees, by reason of the dangerous conditions they create, they should not be used at all. Of course slipperiness is an elastic term. From the fact that a floor is slippery it does not necessarily result that it is dangerous to walk upon. It is the degree of slipperiness that determines whether the condition is reasonably safe. This is a question of fact.

Id. at 110 (citation omitted). In Nat’l. Credit Corp., this court reversed the lower court’s grant of summary judgment where the facts showed the floor had been cleaned with soap and water. While the floor on which the plaintiff had fallen had not been waxed, it had been buffed with the same buffer used on an adjacent floor that was waxed.

In J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989), the plaintiff fell on a floor she described as “slippery.” While the plaintiff did not contend a foreign substance was on the floor, she argued instead that the floor was inherently and unreasonably slippery, and cited Nat’l. Credit Corp. as support. Rejecting her argument, this court distinguished the facts in the two cases and noted our decision in Nat’l. Credit Corp. was based on evidence that both soap and wax were used on the floor, plus there was evidence the floor had been buffed. On the other hand in Mulligan’s, there was no evidence that wax or any other material had been applied to the floor.

The present case is like the situation in Mulligan’s. Here, Wal-Mart’s proof showed that the store’s floor was concrete, had no foreign substance on it, nor did the floor contain any wax. Wal-Mart also showed that Mrs. Black tripped over her own feet. Mrs. Black, on the other hand, offered no evidence that wax or any other substance had been applied to the floor, but instead she made only the conjectural statement, “I know they had just waxed it because you could tell, it was real shiny.” As this court stated in Mulligan’s, in virtually every case involving a fall, the plaintiff will describe a floor as slick or slippery, and this alone is not sufficient to support a case for negligence. J. M. Mulligan’s Grille, Inc., 300 Ark. at 546, 780 S.W.2d at 555; see also McDonald v. Eubanks, 292 Ark. 533, 731 S.W.2d 769 (1987).

For the foregoing reasons, we affirm the trial court’s granting of summary judgment.

Dudley and Corbin, JJ., not participating. Newbern, J., dissents.

David Newbern, Justice,

dissenting. Ms. Black’s deposition states with respect to the floor on which she allegedly slipped: “They had just waxed it .... I know they had just waxed it because you could tell, it was real-shiny.” In response, a store employee testified the concrete floor “does not contain any wax. .. .” That creates an issue of fact, and a summary judgment should not have been entered. The majority opinion engages in weighing Ms. Black’s deposition testimony against that presented by Wal-Mart. That should not be done at this stage of the case.

Ms. Black’s allegation is that the floor had been made unsafely slippery; her testimony is that the condition of the floor was created because it had just been waxed. In National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488 (1972), we stated the obvious, i.e., if wax is applied to the floor, it must be in such manner as to afford reasonably safe conditions for invitees. We held summary judgment should not have been granted in favor of the property owner because the matter of whether a waxed floor is reasonably safe presented a question of fact. The majority opinion attempts to distinguish the evidence in that case from that now before us. In my view, again, Ms. Black’s observation that the floor had just been waxed is sufficient to raise a factual issue on that point.

The majority opinion relies on J.M. Mulligan’s Grille v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989), which is distinguishable. Ms. Aultman’s contention was not that the property owner had done anything to heighten the slipperiness of the floor on which she was injured. It was, rather, that the floor was composed of a material which was too slick. The only evidence she presented was her testimony that the floor was “slippery.” We noted that she offered no evidence that the materials of which the floor were constructed were in any way defective. A trial was held resulting in a verdict for the plaintiff. We held the Trial Court should have granted a directed verdict for the property owner as the evidence was insufficient to have gone to the jury.

The question whether Ms. Black’s evidence will be sufficient to go to a jury is not before us. The question before us is whether it was error for the Trial Court to hold there was “no genuine issue as to any material fact.” Ark. R. Civ. P. 56(c). It was error.

I respectfully dissent.


author: Robert L. Brown, Justice.

text:
    Michael JOHNINSON v. Mark STODOLA, Prosecuting Attorney
    93-1062
    872 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      William R. Simpson, Jr., Public Defender, by: Jerry J. Sailings, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Dearden, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Michael Johninson was charged with first degree murder. He contended that five witnesses to that murder were in the same gang as the victim of the shooting. On December 10, 1992, his attorney made a Freedom of Information request pursuant to Ark. Code Ann. § 25-19-101, et seq. (Repl. 1992), to the prosecutor, appellee Mark Stodola, for access to the prosecutor’s files or computer compilations to determine gang membership. Counsel contended that he only wanted to know gang membership and was not interested in information on gang activity. The prosecutor denied the request. Johninson then appealed the denial to circuit court under Ark. Code Ann. § 25-19-107(a) (Repl. 1992). On March 1, 1993, after hearing testimony from the Chief Investigator of the prosecutor’s office, Skipper Polk, about the office’s gang affiliation files, the circuit court denied the motion for access on the basis that it was exempt from the FOIA as part of an undisclosed investigation by a law enforcement agency into suspected criminal activity. Ark. Code Ann. § 25-19-105(b)(6) (Repl. 1992). The court declined to review the file at issue.

The issue raised by Johninson before this court has two prongs: 1) whether the circuit court erred in refusing to order disclosure of information pertaining to gang memberships of the five witnesses, and 2) whether the circuit court should have performed an in camera review of the gang affiliation files before making its decision. We believe that the second prong of Johninson’s argument has merit.

Our Freedom of Information Act provides for the disclosure of public records which are defined as including writings and data compilations in any form. Ark. Code Ann. §§ 25-19-103(1), 25-19-105(a) (Repl. 1992); see City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Our policy regarding the FOIA has been enunciated clearly in our case law — we will interpret it liberally to accomplish the purpose of promoting free access to public information. Depoyster v. Cole, 298 Ark. 203, 766 S.W.2d 606 (1989); City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988); Arkansas Gazette Co. v. Southern State College, 273 Ark. 248, 620 S.W.2d 258 (1981).

There are exemptions to the FOIA, one of which directly relates to this case:

(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity.

Ark. Code Ann. § 25-19-105(b)(6) (Repl. 1992). Exemptions to the FOIA are to be construed narrowly. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991); Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987).

One commentator on the FOIA in Arkansas has this to say about the criminal investigation exemption:

The need for subsection (b)(6), the basic exemption, is obvious; for example, disclosure of such records would hamper the police in investigating a crime before formal charges had been filed and could be detrimental to persons under investigation but subsequently exonerated of all wrongdoing. Despite these and other compelling reasons for the exemption, its precise meaning is hardly clear.

J. Watkins, Arkansas Freedom of Information Act, p. 86 (2d ed. 1994). In discussing what constitutes an investigation, we cited authority in Hengel v. City of Pine Bluff, supra, to the effect that investigatory records are records dealing with the detection of crime. See Caledonian Record Pub. Co. v. Walton, 154 Vt. 15, 573 A.2d 296 (1990). We have also held that an undisclosed investigation includes those that are open and ongoing. Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990).

In the case at hand, the evidence of what information concerning gang affiliation was kept by the prosecutor came from Chief Investigator Polk. Polk testified that the prosecutor participates in a group with other law enforcement agencies, including the Arkansas State Police, called the Pulaski County Gang Enforcement Network. Information on gang activity is exchanged among members of the group and kept in a variety of forms including paper and computer data. That information was described in the following colloquy:

PROSECUTOR: Okay. The information that is contained down in this area of our office, would it be fair to classify it as raw intelligence?
POLK: Yes, sir, unsubstantiated in most occasions.
PROSECUTOR: Okay. Are there references to informants?
POLK: Yes.
PROSECUTOR: Are there conclusions stated by law enforcement officers; just, “I believe X”?
POLK: Yes, sir.
PROSECUTOR: Are you concerned or do you have any concerns with the disclosure of any of this information? And if so, would you please elaborate.
POLK: Yes, sir. Your Honor, if I may, the information that we have is part of an ongoing investigation that we, along with the other major law enforcement agencies, started six months ago on gangs in Pulaski County. Everyday there is some sort of intelligence information developed or followed up on in regards to this. It’s an ongoing thing that we will probably be doing from now on for at least in my foreseeable immediate future.
That information, a lot of it is unsubstantiated. I think some people would be put at risk if names were divulged. I think there may be some embarrassment publicly for some people that may — somebody may say that Joe Blow is a gang member and that’s all that somebody may say with no back up or, in fact, there may be other evidence that indicates they are not gang members. So we don’t know. We don’t know what kind of information it is.

Polk added that there were no individual files on the potential witnesses named by Johninson, although on cross examination he testified that he “could probably” search the files for individual names.

At the conclusion of Polk’s testimony, the circuit court stated that the gang investigation described by Polk “is as much a part of a law enforcement investigation as any criminal case out there.” The court was then asked by Johninson’s counsel to reconsider an in camera review of the files for information about the five witnesses. The court refused based on what it had heard from Investigator Polk.

We conclude that the circuit court must review the relevant files in camera in order to make its decision that this exemption applies across the board to those files. While Investigator Polk presented an overview of the Pulaski County Gang Enforcement Network and the investigative aspect of the files involved as well as the dangers that might result from disclosure, the scope of those files and what information comprised them was left somewhat vague and undefined. It was also less than clear whether the names of the five witnesses and their status could be pulled from the files, and if so, whether this would in any way impair or frustrate an ongoing investigation. It is incumbent on the court to determine whether the exemption applies, and this can be done only by reviewing the relevant information in question.

We do not intend to send a signal by this opinion that the circuit court should release any information to Johninson. That is a matter to be decided by the circuit court after its review. We hold that in order to invoke a narrowly construed exemption under the FOIA, the circuit court must peruse the pertinent data in question in order to make an informed decision.

Remanded.

Hays, J., would affirm.

Corbin, J., not participating.


text:
    Dennis POGUE v. STATE of Arkansas
    CR 93-1097
    872 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Garnet E. Norwood and Ronald Marc Chaufty, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This .case concerns post-conviction relief sought by the appellant Dennis Pogue following his conviction for delivery of a controlled substance. Specifically, Pogue was found guilty on November 7, 1990 of delivering crystal methamphetamine, and sentenced to ten years imprisonment. He appealed his judgment of conviction to the Arkansas Court of Appeals, and it was affirmed on March 4, 1992. On May 1, 1992, Pogue filed his motion for post-conviction relief and premised his grounds on allegations of ineffective assistance of counsel. The circuit court denied the motion on March 11, 1993. We affirm.

The State initially questions the timeliness of the appeal from the denial of the motion. We conclude that it was timely filed. When Pogue was convicted in November of 1990, •an earlier version of Ark. R. Crim. P. 36.4 was in effect which provided for an appeal consolidated with any claim of-ineffectiveness of counsel to be filed within 30 days of judgment. Effective January 1, 1991, we amended Rule 36.4 and reinstated a revised form of Ark. R. Crim. P. 37 dealing with post-conviction relief. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990). Under the revised Rule 37, a petition claiming relief is required to be filed within 60 days of the date the mandate was issued by the appellate court. Ark. R. Crim. P. 37.2(c).

This case was affirmed on March 4, 1992, and the mandate, though the record does not reflect it, was issued on that date or thereafter. Pogue then filed his motion for post-conviction relief on May 1, 1992, which clearly was within 60 days of the mandate. The circuit court treated the motion as one filed under the reinstated Rule 37. The court was correct in doing this. We have noted on two occasions that a Rule 37 petition, filed after January 1, 1991, is timely brought if it is within 60 days of the date the mandate was issued by the appellate court. Ark. R. Crim. P. 37.2(c); see also Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991) fn. 1; Brown v. State, 305 Ark. 53, 805 S.W.2d 73 (1991) fn. 1. This is so even if the conviction occurred during the time period when former Rule 36.4 was in effect. The Rule 3.7 action was appropriately brought in this case.

We turn next to the merits of the motion. Pogue was convicted largely on the basis of the testimony of a confidential informant, Randy Culp, who testified that he purchased crystal methamphetamine from Pogue on August 15, 1989. Culp was wired with a body microphone and the conversation involving the alleged drug purchase was tape-recorded and apparently presented as evidence at trial. Though the petition for post-conviction relief and the proceedings at the hearing were abstracted by Pogue in his brief filed as part of this appeal, none of the trial which resulted in his conviction and where he claimed counsel was ineffective was abstracted as required by Ark. Sup. Ct. R. 4-2(a)(6).

Pogue makes the following allegations of ineffectiveness against his court-appointed counsel in his petition:

(a) Trial counsel was ineffective in that she was too heavily burdened by her case load of criminal Defendants prior to and during trial which effected (sic) her to the degree that she was not functioning as the “counsel” guaranteed by the Sixth Amendment as demonstrated by:
(1) Counsel failed at the trial to challenge the sufficiency of the evidence on the basis that Petitioner proved entrapment by a preponderance of the evidence. Counsel only generally challenged the evidence.
(2) Counsel failed to make a proper motion and/or objection to the admissibility of the tape and its transcription since no expert in transcribing such an inaudible tape testified, Petitioner should have had the assistance of an expert witness regarding transcription of the tape. Had the Court heard expert testimony the tape and its transcription would not have been allowed in evidence.
(3) Counsel failed to serve as effective counsel by allowing Petitioner to testify.
(4) Counsel failed to serve as effective counsel when she did not insist that the Court rule on her Motion for Directed Verdict of Acquittal at the close of the State’s case, renewed at the close of all of the evidence.
(b) Counsel did not determine and investigate certain defense witnesses in order to develop the defense of entrapment to the charge ....

The circuit court ruled against Pogue on his motion, and we cannot say based on what is before us that it erred in so doing. None of the trial proceedings is abstracted for this court as already mentioned and as required by Ark. Sup. Ct. R. 4-2(a)(6). The trial testimony is contained in the record, but we have said many times that there is only one record and seven justices which makes examination of the record by each justice virtually impossible. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Kitchen v. State, 271 Ark. 1, 607 S.W.2d 305 (1980). It is, therefore, beyond the ken of the full court to know what transpired at trial in the absence of an adequate abstract. We will not explore the record for prejudicial error. Watson v. State, supra.; Bowers v. State, 292 Ark. 249, 729 S.W.2d 170 (1987).

Hence, we affirm the circuit court’s decision regarding much of what Pogue raises in his motion because we have inadequate information before us to do otherwise. Specifically, the abstract does not inform us as to the extent that the defense of entrapment was mounted by trial counsel, the motions or objections made or not made at trial, whether certain rulings were obtained from the trial court, or whether additional evidence or testimony was warranted.

For those claims of ineffective counsel that we are able to reach, they must be examined in light of the standard set in Strickland v. Washington, 466 U.S. 668 (1984). That standard provides a two-prong test that must be met: (1) that the deficient performance of counsel must have resulted in errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment, and (2) prejudice resulted which deprived the petitioner of a fair trial. Id. There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner alleging differently has the burden of overcoming that presumption. Wainright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). In assessing trial counsel’s performance, we make every effort to eliminate the distorting effects of hindsight. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992).

We observe that at the post-conviction hearing the issue of whether trial counsel was ineffective in allowing Pogue to testify was disputed. Pogue testified that this opened him up to questioning about his prior criminal record. Trial counsel retorted that she fully advised him of the ramifications of his testimony. This dispute over Pogue’s taking the stand appears to be more a debate over trial strategy than evidence of ineffectiveness of counsel. Such matters do not form the basis of post-conviction relief. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). Nor does the bald assertion that trial counsel as public defender had a heavy caseload and was overworked. Assuming the allegation of too much work was true, no correlation between caseload and prejudice to the defendant was shown. Again, prejudice must be exhibited for an ineffectiveness claim to be successful. Burnett v. State, 293 Ark. 300, 737 S.W.2d 631 (1987).

We find no fault with the circuit court’s ruling.

Affirmed.

Corbin, J., not participating.


author: Randy F. Philhours, Special Justice.

text:
    WORMALD U.S., INC. v. CEDAR CHEMICAL CORPORATION
    92-1423
    873 S.W.2d 152
    Supreme Court of Arkansas
    Opinion delivered March 22, 1994

      Chisenhall, Nestrud, & Julian, P.A., by: Charles R. Nestrud, Jim L. Julian and Ann P Faitz and Schieffler Law Firm, by: Daniel Schieffler, for appellant.

      Apperson, Crump, Duzane & Maxwell, by: Allen T. Malone and David Solomon, for appellee.
   Randy F. Philhours, Special Justice.

This case involves a suit brought pursuant to the provisions of the Arkansas Remedial Action Trust Fund Act (RATFA). Appellant, Wormald U.S., Inc. (Wormald), attempts to appeal from a partial summary judgment granted in favor of Cedar Chemical Corporation (Cedar). We dismiss the appeal.

Cedar brought suit against Wormald for recovery of costs incurred by Cedar in cleaning up contamination on Cedar’s property in compliance with a Consent Administrative Order of the Arkansas Department of Pollution Control and Ecology. The suit was brought pursuant to the provisions of RATFA. Ark. Code Ann. §§ 8-7-501 — 522 (Repl. 1993).

After the issues were joined, Cedar filed a motion for partial summary judgment. In its motion, Cedar argued that Wormald, as successor in interest to the entity which allegedly caused the contamination of the property in question, be declared a responsible party for the costs associated with implementing the Consent Administrative Order of the Arkansas Department of Pollution Control and Ecology. Wormald then filed its third party complaint against Helena Chemical Company and unspecified John Doe defendants.

The chancellor heard oral arguments on Cedar’s motion and ruled that Cedar was entitled, as a matter of law, to a judgment against Wormald in the sum of $1,722,086.78. That decision reflected the total cost incurred by Cedar under the Consent Administrative Order. The judgment additionally states: “The Court also hereby determines that there is no reason for delay, and that entry of said judgment is hereby directed pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure.” The Order admittedly did not address all of Cedar’s claims in the suit. It also did not address any issues which involve the third party complaint filed by Wormald. No supporting factual findings, as required by Rule 54(b), accompanied the trial court’s determination.

An order dismissing one party from a multi-party or multi-claim lawsuit usually is not an appealable order. Davis v. Wausau Ins. Cos., 315 Ark. 330, 867 S.W.2d 444 (1993); Arkansas Dep’t of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992). The same can be said for an order granting a motion to. dismiss one claim of a multi-party, multi-claim lawsuit. An appeal from such an order, however, is permissible under Rule 54(b) when the trial court directs the entry of a final judgment as to one or more of the claims or parties and makes express findings that there is no just reason to delay the appeal. Davis, 315 Ark. at 332, 867 S.W.2d at 445; Wallner v. McDonald, 308 Ark. 590, 825 S.W.2d 265 (1992). In order to determine that there is no just reason for delay, the trial court must find that a likelihood of hardship or injustice will occur unless there is an immediate appeal. The trial court must also set forth facts to support its conclusion. Davis, 315 Ark. at 332, 867 S.W.2d at 445; Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993); Wallner, 308 Ark. at 592, 825 S.W.2d at 267; Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). In this case the record does not reflect the factual underpinnings supporting a Rule 54(b) certification. Even if the factual underpinnings existed, however, that is not enough. These facts must be set out in the trial court’s order. Davis, 315 Ark. at 331, 867 S.W.2d at 445.

The judgment granting the partial summary judgment does not include specific findings of any danger of hardship or injustice which could be alleviated by an immediate appeal. In addition, the judgment does not detail facts which establish that such a hardship or injustice is likely. Due to the failure to comply with Rule 54(b), we dismiss this appeal without prejudice to refile it at a later date.

Appeal dismissed.

Special Justice Ralph Hamner joins.

Hays and Corbin, JJ., not participating.


author: Per Curiam.

text:
    Jimmy ELLIS v. STATE of Arkansas
    CR 93-1173
    872 S.W.2d 71
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Appellant, pro se.
    No response.
   .

Per Curiam.

The appellant Jimmy Ellis was found guilty by a jury in 1992 of possession of a controlled substance and sentenced as a habitual offender to forty-five years imprisonment. We affirmed. Ellis v. State, CR 92-1295 (March 29, 1993). Appellant subsequently filed in the trial court a timely pro se petition pursuant to Criminal Procedure Rule 37 seeking a new trial or other appropriate post-conviction relief. The trial court denied the petition after a hearing, and appellant lodged the record in this court on appeal. Shortly after the record was lodged, appellant requested appointment of counsel. The motion was denied as there is no right to counsel in a post-conviction proceeding. Ellis v. State, CR 93-1173 (December 13, 1993), citing Pennsylvania v. Finley, 482 U.S. 551 (1987). Appellant was granted an extension of forty days to submit his brief. The brief was filed January 24, 1994, and his reply brief was filed March 9, 1994.

On March 2, 1994, appellant filed another motion for appointment of counsel, or in the alternative, for permission to allow a fellow inmate where he is incarcerated to serve as the unpaid “legal advocate of record.” He further asks-that he be permitted an extension of five days and access to the transcript on appeal so that the fellow inmate may assist him in preparing another brief.

While a prisoner may avail himself of the assistance of an unpaid lay person in conducting his legal affairs, this court will not extend to a non-attorney permission to proceed as counsel-of-record before this court. States are not obligated to provide for post-conviction relief. When a state undertakes to provide for collateral attack on a criminal judgment, due process requires only that the proceeding be fundamentally fair. Fox v. State, 309 Ark. 619, 832 S.W.2d 244 (1992), citing Pennsylvania v. Finley, 481 U.S. 551 and Evitts v. Lucey, 469 U.S. 387 (1985). Appellant has not demonstrated that he is entitled to the assistance of a lay advocate-of-record or an extension of time to file another brief.

Motion denied.

Corbin, J., not participating.


text:
    Bryon FOSTER v. STATE of Arkansas
    CR 94-229
    873 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Bill Luppen, for appellant.
    No response.
   Per Curiam.

Bryon Foster, by his attorney, has filed a motion for a rule on the clerk.

His attorney, William Luppen, admits by motion and brief that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

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

Dudley and Corbin, JJ., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    HAROLD M. and Darla M. v. Brenda CLARK and Paul Clark
    93-868
    872 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994
    [Rehearing denied May 2, 1994.]

      Sam Sexton III, for appellants.

      Ronald E. Bumpass, for appellees.
   Jack Holt, Jr., Chief Justice.

The present appeal arises from the setting aside of a judgment characterized by the trial court as a default judgment. On appeal, the appellants, Harold M. and Darla M., in their capacity as guardians and next friends of a minor child, argue that the judgment in question was not one of default but was instead a judgment on the merits and that the trial court was without statutory authority to set it aside.

We agree with the appellants to the extent that the circuit court erroneously set aside what was in fact a judgment on the merits with respect to appellee Brenda Clark. Therefore, we reverse the circuit court’s decision with respect to Ms. Clark. At the same time, though, we have determined that appellee Paul Clark’s position was substantially different and that the judgment against him was one of default. Thus, the circuit court correctly set aside the judgment so far as it pertained to Mr. Clark.

Appellants Harold M. and Darla M., who are the parents of the child, Dee Ann M., secured the services of attorney Sam Sexton III and filed a complaint on April 12, 1989, against appellee Brenda Clark, alleging negligence. The complaint stated that the child, while in the care of her babysitter, Brenda Clark, was repeatedly raped by Brenda Clark’s brother-in-law, Danny Clark, and contracted genital herpes. (Danny Clark was convicted on a criminal charge of abusing the child.) Brenda Clark secured the services of attorney John Buergler, who filed an answer in her behalf on May 2, 1989. Ms. Clark made periodic payments to counsel.

The record is silent regarding what transpired between May 1989 and February 1990, when the circuit court filed its notice that trial was set for March 26, 1990. Subsequently, in a letter dated March 21,1990, attorney Sexton wrote a letter to the circuit judge stating that “Mr. Buergler and I wish to jointly move the Court for a continuance.” A copy of the letter was sent to attorney Buergler. Trial was rescheduled for July 23, 1990.

In the meantime, Harold and Darla M. determined that Danny Clark had a history of prior sexual abuse of children and that this information was known to both Brenda Clark and her father-in-law, appellee Paul Clark, the owner of the property where Brenda Clark resides and where Dee Ann M. was raped. They also were informed that both Paul and Brenda Clark had taken action that prevented Danny Clark’s ex-wife from alerting them that Danny Clark was a child molester. Attorney Sexton, in a letter to the circuit judge dated June 11, 1990, requested that the trial date be moved again.

On June 12, 1990, Harold and Darla M. filed a motion to add Paul Clark as an additional party defendant. In an amended complaint filed on July 20, 1990, the appellants alleged that Mr. Clark, as the property owner, had a duty to warn them of the potential danger on the property to their child. They sought damages from him for negligence in his failure to provide such a warning. Mr. Clark, who was personally served by certified mail with the summons and complaint on July 27, 1990, also retained Mr. Buergler and paid him as counsel for about ten months. No answer was filed in his behalf.

Notice of a December 5, 1990 trial date was filed on October 26, 1990. The form indicated that notice had been mailed to attorneys Buergler and Sexton on October 24, 1990. Subsequently, a copy of a letter from the appellants’ attorney requesting a continuance, dated November 6, 1990, was sent to Mr. Buergler as counsel for the Clarks. On January 10, 1991, a letter from Circuit Judge John G. Holland’s administrative secretary and an order signed by the judge transferring the case from his division to that of Circuit Judge Don K. Langston were sent to both Mr. Sexton and Mr. Buergler.

A jury trial was set for November 25, 1991, and letter notice from the circuit court was sent on July 22, 1991, to attorneys Buergler and Sexton. On November 19,1991, about a week before the trial date, the appellants filed a motion for default judgment, noting that “To date, although over fifteen months [have] passed since the service of the pleadings upon both defendants, no response to the defendant’s Amended Complaint has been filed.”

On November 25, 1991, appellants Harold and Darla M. appeared and testified, and a judgment of $350,000 was rendered against the Clarks for joint and several liability on the basis of their failure to warn the child’s parents of Danny Clark’s dangerous propensity to molest children. The judgment was entered of record on December 6, 1991.

Neither Brenda Clark nor Paul Clark was informed of the proceedings, and .they only discovered the judgment in August 1992. On September 28, 1992, they filed a motion to set aside the default judgment. A hearing was held on April 19, 1993, and it was learned at that time that the record of the November 1991 proceedings had been lost. Harold and Darla M. filed a motion requesting that the court make findings of fact and conclusions of law and reconstruct the record. Although the trial court denied that motion, it adopted in toto an affidavit filed with the court by the appellants’ attorney as the record of the underlying case.

Thereafter, the trial court declared that the default judgment was set aside in accordance with Ark. R. Civ. P. 55(c) and issued its order accordingly. Attorney Buergler surrendered his license on May 3,1993, in lieu of disbarment proceedings. The Clarks, meanwhile, engaged other counsel for purposes of perfecting this appeal.

For reversal, Harold and Darla M. contend that Ark. R. Civ. P. 55(c), under which the trial court set aside the judgment of November 25, 1991, is inapplicable as to their circumstances and that the trial court consequently erred in employing the rule to vacate what it mischaracterized as a “default judgment.” We agree in part with the appellants’ position.

Unfortunately, the record of the proceedings which led to the underlying judgment of December 6,1991, could not be found or no longer existed. After setting aside the judgment, the trial court denied the motion by Harold M. and Darla M. to reconsider the setting aside of the judgment, to make findings of fact and conclusions of law, and to reconstruct the record. Nevertheless, the court, in its order of May 19, 1993, did “adopt the Affidavit of Plaintiffs’ Counsel, Sam Sexton III, filed in this matter as being true and correct” for purposes of establishing a record.

Attorney Sexton’s affidavit recited that a trial was held in the matter. Further, counsel stated in his affidavit that the appellants made no request at trial for a ruling upon the motion for default judgment they had filed, and the court never ruled on their motion. Moreover, the affidavit revealed, testimony taken from both Darla M.'and the victim indicated that the child had been sexually abused by Danny Clark while Brenda Clark was babysitting her at a residence owned by Paul Clark. Testimony was also presented to show that the victim, who was a small child at the time the abuse occurred, had contracted genital herpes from sexual contact with Danny Clark. Attorney Sexton further declared that testimony was given to establish that both of the appellees knew of Danny Clark’s propensities to molest small children and that his former wife had been obstructed by the Clarks in her efforts to warn the appellants.

It is important to note that, while the trial court declined to make any findings of fact or conclusions of law in connection with the proceedings of November 25, 1991, neither did it disavow any of the statements of counsel in the affidavit it had expressly ratified as “true and correct.” That affidavit and, indeed, the judgment entered on December 6, 1991, both speak of a trial having been held. In addition, the trial court’s judgment of record began with the notation that “Now on this 25th day of November, 1991, comes before the Court the above-styled matter for trial.” The findings are said to have been “[b]ased upon the pleadings, testimony and evidence presented, and other matters before the Court.”

Most significantly, the court’s judgment made a specific finding of negligence: “The Court finds that based upon the evidence presented that both Defendants were negligent in their supervision of and warning to the minor child, Dee Ann Mí 1. and that such negligence was a proximate cause of the damages of Dee Ann M[_], a minor child.” A judgment was clearly delivered upon the merits. That finding is now the law of the case. See Sphere Drake Ins. Co. v. Bank of Wilson, 312 Ark. 540, 851 S.W.2d 430 (1993).

In Diebold v. Myers General Agency, Inc., 292 Ark. 456, 459, 731 S.W.2d 183, 185 (1987), this court held that “when a judgment is based upon the evidence presented to the court at a trial, as opposed to being based on the failure of a party to appear or attend, the judgment is not a default judgment, and Rule 55 does not apply.” Thus, it is really a matter of no particular moment that, in its order of April 19, 1993, the trial court characterized the judgment previously entered on December 6, 1991, as a “default judgment.” By its own adoption of the affidavit sworn by counsel for Harold and Darla M. as a substitute for a record of trial, the circuit court conceded that the judgment it was setting aside was based on the evidence recited in the affidavit. We have, therefore, no choice other than to hold that the underlying order in this matter was a judgment on the merits — that is, insofar as it pertained to appellee Brenda Clark, in whose name an answer had been filed on May 2, 1989.

Appellee Paul Clark’s situation, however, is entirely another matter. Unlike Mrs. Diebold, one of the defendants in Diebold v. Myers General Agency, Inc., supra, Mr. Clark did not answer the complaint or otherwise appear in the case. He was, quite simply, in default. The question thus becomes whether the court, by taking evidence prior to reaching a judgment, could change Paul Clark’s status from that of a defaulting defendant to that of a party against whom judgment was entered on the merits. If the judgment against Mr. Clark is on the merits, he is not entitled to the benefit of Ark. R. Civ. P. 55(c); if, on the other hand, the judgment is a default judgment, he is entitled to the benefit of the rule’s liberal provisions for setting a default judgment aside.

If, by taking evidence against a party who has neither answered nor appeared, a court could cause a judgment on the merits to be entered against that party, the purpose of Rule 55(c) would be subverted. The reason for our amendment of the rule in 1990 was to foster judgments on the merits rather than on technicalities. See In the Matter of Changes to the Arkansas Rules of Civil Procedure, the Arkansas Inferior Court Rules, and the Administrative Orders of the Supreme Court, 304 Ark. 733 (1990), and the Reporter’s Note to Rule 55. It would be wrong, though, to say that judgment is based on the merits when the underlying claim remains completely uncontested.

To permit a court to convert what would otherwise be a default judgment into one on the merits by taking evidence against someone not present in any sense of the word would be to compound the problem we sought to cure in the 1990 amendment. Such a judgment would be taken against one whose failure to appear might well fall within the circumstances enumerated in Rule 55(c), and yet that party would be deprived of the benefit of the rule.

Were the shoe on the other foot and Mr. Clark attempting to avoid a default judgment, he might be able to contend successfully that Ms. Clark’s answer inured to his benefit. See Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). Indeed, his counsel mentioned that possibility at the hearing on April 19, 1993. The rule permitting such an inurement was not, however, intended to apply — and, so far as we know, has never been applied — to the detriment of one in Paul Clark’s position. For these reasons, we affirm the trial court’s order setting aside the judgment against Paul Clark.

However, we reverse the trial court’s order setting aside the judgment against Brenda Clark. That judgment must stand. She had answered the complaint and was not in default. She does not argue lack of notice of the application for judgment. See Ark. R. Civ. P. 55(b). The circuit court took evidence and decided her case on the merits.

The standard by which we review the granting or denial of a motion to vacate a default judgment is whether the trial court abused its discretion. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). We hold that, with respect to Mr. Clark, there was no abuse of discretion by the circuit court.

Affirmed in part; reversed and remanded in part.


author: Robert H. Dudley, Justice.

text:
    Margaret ALEXANDER v. TOWN AND COUNTRY DISCOUNT FOODS, INC.
    93-1181
    872 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Carney & Cooper, Law Firm, P.A., by: Mark F. Cooper, for appellant.

      Snellgrove, Laser, Lanaley & Lovett, by: P. Sanders Huckabee, for appellee.
   Robert H. Dudley, Justice.

The plaintiff tripped and fell over a mat as she was entering defendant’s store. The trial court granted a summary judgment in favor of the defendant. The plaintiff appeals and states:

The fact that res ipsa loquitur may not have been applied to slip and fall cases in the past should not preclude this court from now reversing, changing or perhaps modifying previous Arkansas law and holding that the doctrine of res ipsa loquitur from this point forward will apply in slip and fall cases.

The court of appeals certified the case to this court. We affirm the summary judgment.

We have often held that the doctrine of res ipsa loquitur is not applicable to slip and fall cases. Mankey v. WalMart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986); Haggans v. Jonesboro Cable TV, Inc., 252 Ark. 191, 477 S.W.2d 840 (1972); Miller v. F.W. Woolworth Co., 238 Ark. 709, 384 S.W.2d 947 (1964). The reason the doctrine is not applicable to slip and fall cases is that the sole cause of the injury is not necessarily a negligent act by the defendant. There are possibilities of negligence by third parties as well as the plaintiff.

Affirmed.


author: Steele Hays, Justice. Donald L. Corbin, Justice,

text:
    Beulah Irene MALOY v. STUTTGART MEMORIAL HOSPITAL
    93-606
    872 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Robert Dittrich, for appellant.

      Bynum & Kizer, by: F Wilson Bynum, Jr., Maxie G. Kizer, and Keith B. Hall, for appellee.
   .

Steele Hays, Justice.

This is an appeal from a writ of garnishment on a certificate of deposit held in joint tenancy. The trial court found the funds were in fact those of the debtor and sustained the garnishment. The debtor appealed to the Court of Appeals and the order was affirmed by a three to three decision. See Maloy v. Stuttgart Memorial Hospital, 42 Ark. App. 16, 852 S.W.2d 819 (1993). We granted appellant’s petition to review. When we review a decision of the Court of Appeals under Rule l-2(f) of our rules we review the case as though it had been originally filed in this court. Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). See also Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992); Hall’s Cleaners v. Worthen, 311 Ark. 103, 842 S.W.2d 7 (1992); and Leach v. State, 311 Ark. 485, 845 S.W.2d 11 (1993).

Beulah Irene Maloy, appellant, was indebted to the Stuttgart Memorial Hospital, appellee, for $6,234.94. On June 8, 1990, a default judgment was entered in favor of the hospital. On September 16, 1991, the hospital served a writ of garnishment on Farmers and Merchants Bank of Stuttgart, Arkansas. The bank responded that it had two certificates of deposit totalling $8,620.79, held jointly in the names of appellant and her mother, India Ola Glover.

On September 27, 1991, appellant filed her objection to the garnishment and a motion to dismiss the writ on the grounds that the funds on.deposit were not hers, but her mother’s. On the same date an order directing the garnishee to pay the sum of $7,703.79 to the hospital was filed with the clerk of the circuit court. It was agreed between the parties that the hospital’s attorney would hold the sums paid to him pursuant to the writ of garnishment until a hearing could be held upon appellant’s motion to dismiss.

A hearing was held in the circuit court of Arkansas County on December 19, 1991, and only the appellant presented evidence — testimony from her mother, her brother and herself. On January 24, 1992, the motion to dismiss the writ of garnishment was denied and the previous order directing delivery of $7,703.79 to the hospital was allowed to stand.

The seminal case in Arkansas on the question of garnishment of a joint banking account is Hayden v. Gardner, 238 Ark. 351, 381 S.W.2d 752 (1964), where the court set down the following rules:

1. [T]he joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other.
* *
2. [The court should first consider that] all of the joint bank account [is] prima facie subject to garnishment and that the burden [is] on each joint depositor to show what portion of the funds he or she actually own[s]. [Our emphasis.]

The court concluded:

We believe this is the fair and reasonable rule because the depositors are in a much better position than the judgment creditor to know the pertinent facts.

This appears to be the majority rule. See Note, Joint Bank Account as Subject of Attachment, Garnishment, or Execution by Creditor of One of the Joint Depositors, 11 A.L.R.3rd 1465 (1967 and Supp. 1993); Baker v. Baker, 710 P.2d 129 (Okla. App. 1985); The approach was summarized in Traders Travel Intern, Inc. v. Howser, 753 P.2d 244 (Hawaii 1988):

We now adopt the majority view that the debtor presumptively holds the entire joint bank account but may disprove this supposition to establish his or her actual equitable interest. In this way, the debtor, at -an evidentiary hearing, may prevent the judgment creditor from seizing more than the debtor’s fair share of the account. The judgment creditor, moreover, may introduce its own evidence on this issue. Should the debtor fail to show by a preponderance of the evidence that he or she does not possess the whole joint account, however, then the judgment creditor may confiscate all the deposits therein to satisfy the garnishment.

Under this approach, the hearing in this case began with the presumption that appellant was entitled to the whole of the certificate of deposit. The burden was on appellant to disprove this proposition and establish her actual interest in the CD. The crucial testimony was given by appellant’s mother, Ms. Glover. She testified that the source of the funds was from various articles owned by her and her late husband liquidated after his death. She put the proceeds into several joint CDs with each of her children. Only the CDs held jointly with appellant were at issue.

As to her reasons for putting the funds in these joint CDs, Ms. Glover gave divergent accounts: On the one hand she intended the money to remain hers throughout her life and at her death to be divided among her children. She explained this was so the children could more easily pay her bills if she became incapacitated. On the other hand she stated she put the money in joint names with her children to enable her to keep the money from creditors, a nursing home in particular, if she should have to enter one. She testified she’d heard that could be done, that she knew this at the time she opened the joint CDs and that her intent was to put the money beyond the reach of a potential nursing home creditor.

When there are issues of credibility and conflicting testimony, we defer to the superior position of the factfinder to resolve those questions. Guaranty National Insurance v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). The trial court made no findings in this case but simply held for the hospital, creating the inference that Ms. Glover failed to persuade the trial court she intended to keep the money for herself.

Appellant contends the only argument for sustaining the garnishment is that Ms. Glover intended a gift to appellant and there was no proof of actual delivery. Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W. 2d 218 (1975). Without delivery, appellant concludes, there is insufficient proof to show any intention to make a gift. Appellant’s argument is unpersuasive for it misinterprets the burden of proof. There is no necessity for the hospital to prove a gift, so whether or not delivery was demonstrated is irrelevant. The analysis begins with the presumption that all the funds are garnishable. It is incumbent on the appellant as the depositor to prove otherwise. Hayden v. Gardner, supra. The hospital’s right to the funds is not dependent on finding a gift to appellant. Its claim is presumptively established as a judgment creditor having garnished funds of which the judgment debtor is a joint depositor.

As to remanding the case to the trial court to have Ms. Glover joined as a party, suggested by the dissent, neither party has raised this issue and we see no reason to do so on our own.

While the joinder of parties will not be invariably waived if not raised, see Martin v. Wilks, 490 U.S. 755 (1991), the necessity for joinder fades when that party’s interest has been fairly litigated. As the Martin opinion points out:

We have recognized an exception to the general rule [that a stranger to a judgment is not bound by it], when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone else with the same interests who is a party.

At 762, fn2.

This court came to the same result in Carrigan v. Carrigan, 218 Ark. 398, 236 S.W.2d 579 (1951). In that case we held that where the wife of a party in a former suit had testified at that trial, and in fact was the witness whose testimony consumed a large part of the record, res judicata would be applied to her in a subsequent proceeding. We said:

The strict rule that a judgment is operative, under the doctrine of res judicata, only in regard to parties and privies is sometimes expanded to include as parties, or privies, a person who is not technically a party to a judgment, or in privity with him, but who is, nevertheless, connected with it by his interest in the prior litigation and by his right to participate therein, at least where such right is actively exercised by the employment of counsel, filing of an answer, payment of expenses of costs of the action, or doing of such other acts as are generally done by the parties.
We are not suggesting that an individual similarly situated to Ms. Glover could not be properly joined as a party at this stage of the proceedings, upon her own request and under the appropriate circumstances. In this case, however, Ms. Glover was an active participant in the proceeding before the trial court. In fact, it was on her testimony that the case was decided. Nor has the dissent suggested how Ms. Glover’s rights could have been better protected. Ms. Glover and the appellant clearly had the same interests and both testified to those ends.

In the absence of apparent prejudice or a request to intervene, we do not find it appropriate, under the equitable doctrine that governs ARCP 19, to remand the case sua sponte. See Wright and Miller, Federal Practice and Procedure, § 1609 at 143; § 1611 at 171-176 (1986).

The dissenting opinion cites the rule mentioned in McLarty Leasing Systems, Inc. v. Blackshear, 11 Ark. App. 178, 668 S.W.2d 53 (1984). That rule, retiring at best, expressly excludes testimony which is self-contradictory or from which differing inferences may be drawn. Jolley v. Meek, 185 Ark. 393, 47 S.W.2d 43 (1932); Kansas City Southern Railway Co. v. Lewis, 80 Ark. 396, 97 S.W. 56 (1906). Here, the testimony of Mrs. Glover, as we have noted, contained conflicting versions of her purpose in establishing the joint CDs. We cannot conclude that her testimony was arbitrarily disregarded by the trial court.

Affirmed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. I dissent. The majority opinion will have a greater impact on the citizens of Arkansas than appears at first glance. Many families, as is common practice, create accounts in the names of a parent and one or more child. Certainly most are unaware how easily a creditor of one of the children can access the funds placed in those accounts, which is the result of the majority’s ruling.

The majority relies on Hayden v. Gardner. 238 Ark. 351, 381 S.W.2d 752 (1964), calling it the seminal case in Arkansas on the question of garnishment of a joint banking account. Hayden determined that a joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other. The rule in Hayden makes sense. Noticeably absent from the majority’s result, however, is a direction to remand so as to join the co-tenant, the mother of the appellant, as was done in Hayden. The mother, Mrs. India Glover, was called as a witness but was not a party to this action. The Hayden court ordered the wife to be added as a party upon remand in order to determine the extent of contribution or ownership of the certificate of deposit held jointly by the debtor husband and his wife. The court in Hayden clearly stated:

It goes without argument that Mrs. Gardner has (or might have) some interest in the money in the joint account. Therefore she should have been made a party to the garnishment proceedings against the bank. This can be done upon remand.

Id. at 354, 381 S.W.2d at 754. If we are to follow the ruling in Hayden, then the majority should have, at minimum, remanded for this purpose.

Like the federal rule, ARCP Rule 19 provides the means for adding parties that are necessary or indispensable; i.e. compulsory joinder. The emphasis is placed on what practical effects a judgment might have upon an absent party. See Reporter’s Notes to Rule 19 (1993). Here, an elderly woman testified regarding her ownership of monies; the result of which was that her monies were taken without being made a party to the action and her rights unprotected. The factors should be used to determine on an ad hoc basis “whether in equity and good conscience the action should proceed among the parties before it” despite the absence of a party. See ARCP Rule 19; D. Newbern, Arkansas Civil Practice and Procedure § 5-3 (2d ed. 1993). This is certainly a case in which in equity and good conscience, the mother of appellant should have been joined as a party. Should her claim then be regarded as res judicata, as the majority would assert, then all the more reason she should have been joined below.

Further, the majority’s result ignores the overwhelming weight of the evidence. The evidence submitted leads to the conclusion that appellant did not have any ownership interest in the certificates of deposit. The testimony of appellant, her mother, and her brother revealed that all the monies in the certificates of deposit belonged to the mother, Mrs. Glover, and was derived thirteen years beforehand through the sale of assets after the death of her husband. The mother testified that she wanted the monies to eventually go to her children upon her death. Appellant and her brother never considered the money theirs and knew of their mother’s intentions. The most noteworthy pieces of evidence were the three certificates of deposit introduced into evidence, all in the names of appellant or Mrs. India Ola Glover. Mrs. Glover had signed the notice of penalty for early withdrawal for each of the certificates and had signed notices for withdrawal of interest. Neither appellant nor her brother ever exerted any ownership or control over the certificates of deposit. This evidence was uncontradicted by appellee.

The court of appeals pointed out in McLarty Leasing System, Inc. v. Blackshear, 11 Ark. App. 178, 182-83, 668 S.W.2d 53, 56 (1984) the rule with regard to uncontradicted testimony:

Under our established rules of law the trier of fact is not bound to accept the testimony of any witness even if uncontradicted and is the judge of the weight of the testimony and credibility of the witnesses. It does not, however, have the right to arbitrarily disregard the testimony of any witness and where the uncontradicted testimony of even an interested witness is unaffected by any conflicting inferences to be drawn from it, and is not improbable, extraordinary or surprising in its nature or there is no other ground for hesitating to accept it as truth, there is no reason for denying the finding of verity dictated by such evidence.

See also Knighton v. International Paper Co., 246 Ark. 523, 438 S.W.2d 721 (1969); Maloy v. Stuttgart Memorial Hospital, 42 Ark. App. 16, 852 S.W.2d 819 (1993) (Mayfield, J„ dissenting). Even if one agrees with the majority that there were two conflicting accounts of what Mrs. Glover’s intent was in setting up the accounts, the certificates themselves and Mrs. Glover’s actions in endorsing the certificates one time to receive interest income are clear and convincing evidence of the mother’s claim of ownership.

The evidence presented in this case and the manner in which the result is reached leads me to the inescapable conclusion that the trial court and the majority at least partially base their decision on an intervivos gift of the certificates to appellant. This clearly runs afoul of the rules cited in our recent case of Irvin v. Jones, 310 Ark. 114, 117, 832 S.W.2d 827, 828 (1992) wherein we emphasized the following:

‘In all gifts a delivery of the thing given is essential to their validity; for although every other step be taken that is essential to the validity of a gift, if there is no delivery, the gift must fail. Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite, without which the gift fails, regardless of the consequences. . . .’

(quoting Ragan v. Hill, 72 Ark. 307, 80 S.W. 150 (1904)).

In the instant case, there was no delivery. The mother maintained possession. The mother alone took interest income. Appellant never asserted nor ever intended to assert ownership over the funds clearly placed in both names for the purpose of caring for the mother. The actions taken with regard to the certificates coupled with the uncontradicted testimony of the mother, appellant, and the brother cannot be summarily disregarded. The decision below and now here is arbitrary and should not be allowed to stand.


author: Steele Hays, Justice.

text:
    Constance Bolin YOUNG v. William Kelly YOUNG
    93-949
    872 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered March 28, 1994

      Pettus Law Firm, by: E. Lamar Pettus, for appellant.

      Jones, Hixson & Jones, by: Lewis D. Jones and J. Scott Hardin, for appellee.
   Steele Hays, Justice.

This is a contempt proceeding involving a property settlement in divorce. In a hearing requested by William Young (appellee) to locate some of the marital property, Constance Young (appellant) refused to answer questions on the basis of her Fifth Amendment rights. The trial court found no legitimate Fifth Amendment privilege and that any privilege she might have had was waived. Mrs. Young still refused to answer and was found in contempt. She brings this appeal from the order requiring her to answer and from the order of contempt. We affirm the trial court.

The Youngs were divorced in 1986 in Dallas County, Texas. The property settlement agreement left the bulk of the household effects to be divided later and provided for the appointment of a receiver in the event no agreement was reached. Mrs. Young was awarded the residence for three years, at which time it was to be sold. Mr. Young was to lend Mrs. Young $10,000 a month for those three years, to be repaid when the house was sold.

In May 1988, a receiver was appointed to inventory the furniture. It was valued at $1,869,305.00 and in 1989 the court divided the furniture, one-half to each party. The residence did not sell, and in October of 1991 the court appointed a receiver to sell the property.

Early in 1992, Mr. Young sought a preliminary injunction against Mrs. Young alleging she had forcibly removed various fixtures from the house, i.e., mantels, paneling, fountains, etc., to block a sale by discouraging prospective buyers. Mr. Young requested sanctions against further destruction of the home or removal of its fixtures. In February 1992, a Texas district court awarded Mr. Young $3,247,171.97 against Mrs. Young for breach of contract, emotional distress, and exemplary damages. Tjiis judgment was reduced by $1,800,000.00 when Mr. Young purchased the marital home.

Mr. Young then filed the judgment in the circuit court of Washington County, Arkansas. Subsequently, approximately five self-storage units of furniture and fixtures from the home were discovered in Springdale, Arkansas. A judicial sale of that property was held, which reduced the judgment by another $1,000,000.00.

In May of 1993 Mrs. Young was tried and convicted of the offense of mail fraud in connection with a plot to bomb the marital home. She was sentenced to twenty-four months in prison. Mr. Young continued efforts to discover the remaining fixtures and furniture. He requested a hearing and Mrs. Young appeared for oral deposition on March 25, 1993, but refused to answer questions as to the whereabouts of the property on the basis of self-incrimination. On May 7, 1993, the trial court found Mrs. Young had no legitimate Fifth Amendment privilege and issued an order compelling discovery and requiring Mrs. Young to answer all questions concerning the whereabouts of the property. The May 7th order did not specify a date for the discovery as ordered, so on May 13, a judge sitting in exchange modified the May 7th order by ordering Mrs. Young to appear on May 15.

Mrs. Young again refused to answer specific questions on the basis of self-incrimination. On May 17, Mr. Young filed a petition for contempt and after a hearing the trial court entered an order on May 27, finding there was no Fifth Amendment privilege, and alternatively, a waiver of the privilege. Mrs. Young was found in contempt of the May 7, 1993, order and the trial court directed the sheriff to arrest and incarcerate her. She appeals from the orders of May 7 and May 13 and from the finding of contempt.

Initially we note that an order of contempt is a final, appealable order. Frolic Footwear v. State, 284 Ark. 487, 683 S.W.2d 611 (1985); Taylor v. Taylor, 26 Ark. App. 31, 759 S.W.2d 222 (1988). Moreover, the appeal brings up, in addition to the contempt order, the two earlier orders on which the contempt order was based and which Mrs. Young also challenges. ARAP Rule 2(b).

I

Mrs. Young contends she had a right to assert her privilege not to incriminate herself under the Fifth and Fourteenth Amendments to the United States Constitution and art. 2, § 8 of the Arkansas Constitution. The trial court rejected that contention and, in the alternative, found that the privilege was waived. We sustain the trial court on the ground of waiver.

Mrs. Young cites only Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), pertinent to this issue. In that case Mrs. Dunkin, defending a wrongful death claim arising from the homicide of her estranged husband, refused to answer interrogatories propounded to her on the grounds that her answers might tend to incriminate her. The trial court ordered her to respond and, when she still refused, struck her answer asserting self-defense.

We affirmed the order, noting that ARCP Rule 37(d) provides that the failure to serve answers or objections to interrogatories “may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided in Rule 26(c).” (Emphasis in original text.) Since Mrs. Dunkin had not asserted the privilege in a timely and proper manner, it was rejected. As to the substantive issue, the opinion said, “The privilege applies alike to civil and criminal proceedings whenever the answers might tend to subject the party giving it to criminal responsibility.” Camelot Group Ltd. v. W.A. Krueger Co., 486 F.Supp. 1221 (S.D.N.Y. 1980).

Relying on this general statement from Dunkin, the trial court in this case concluded there was little chance that appellant would be subjected to criminal prosecution. The Dunkin case, however, did not reach the necessity of showing the incriminating nature of each question asked, nor was the case decided on that basis.

We have found no other cases of our own on the question of proving the claim of a Fifth Amendment privilege, so we have turned elsewhere for guidance.

In a leading case in this area, In Re Folding Carton Anti-Trust Litigation, 609 F.2d 867 (7th Cir. 1979), the court said:

We cannot agree that a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution. Rather, we conclude that it is only when there is but a fanciful possibility of prosecution that a claim of fifth amendment privilege is not well taken. . . .
When a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated a reasonable fear of prosecution.

In Choi v. State, 560 A.2d 1108 (Md. 1989), the state had relied on the prosecuting attorney’s representation in the trial court that the witness “was not at risk of prosecution.” To that the court stated:

The rarity of prosecutions under a particular statute, or a prosecuting attorney’s indication in a particular case that he will not prosecute, are not sufficient to defeat a claim of privilege under the standards of Hoffman v. United States, 341 U.S. 479 (1951) and other cases.

See also United States v. Miranti, 253 F.2d 135 (2d Cir. 1958); In Re Grand Jury Proceedings (Samuelson) 763 F.2d 321 (8th Cir. 1985).

Here, evidence that Mrs. Young had removed fixtures from the marital home would have subjected her at least to the possibility of felony criminal penalties in Texas for tampering with and damaging the property of another, notwithstanding the fact that she had an interest in the property. Texas Cr. Code, § 28.03, § 28.05. The probability of such prosecution is not controlling, nor are assurances by Mr. Young and the receiver that they will not promote prosecution.

As to the questions Mrs. Young refused to answer, we believe they sought to elicit information that can be withheld under a Fifth Amendment claim. Mrs. Young was withholding answers to the whereabouts of the furniture and fixtures and to any dealings she might have had in transporting that property. A witness is not required to show the testimony she declines to give will result in direct criminal exposure, it is enough if the information, used with other evidence, would lead to a conviction. Kastigar v. United States, 406 U.S. 212 (1972). It is stated in United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973), quoting from Hoffman v. United States, 341 U.S. 479 (1951):

The privilege protects not only answers which directly reveal criminal activity, but also those that might furnish a link in the chain of evidence necessary to convict.

In sum, we believe the nature of this testimony and the possibility of prosecution are sufficient to create a valid Fifth Amendment privilege.

II

The trial court held that even if Mrs. Young did have a Fifth Amendment claim, it was waived. This conclusion was based on two things, first a letter from her lawyer to Mr. Young’s lawyer offering to sell the items “which she removed from the home in Fort Worth.” Second, the trial court found Mrs. Young had waived her privilege through two affidavits she filed with the court with “respect to facts concerning the property involved in this case.”

As to the letter, it will not qualify as a waiver of her privilege as it was not compelled testimony. It is clear from the case law that a waiver can only occur where compelled testimony is involved. Where a disclosure of facts may tend to incriminate a witness, that tendency is not removed by a showing that the witness had elsewhere made a statement tending to incriminate himself. Temple v. Commonwealth, 74 Va. 892 (1881), cited in Ex Parte Berman, 287 P. 125 (Cal. Dist. Ct. App. 1930). To the same effect see McCormick on Evidence, supra, § 140; In Re Neff, 206 F.2d 149 (3rd Cir. 1953).

The two affidavits are not included in the record but they were apparently filed by Mrs. Young in connection with the judicial sale of the marital property found in the self-storage units in Springdale. Mrs. Young argues that the affidavits were not made part of the record to the detriment of the opposing side. She then states: “However, appellant does admit. . .these affidavits were offered to show the Notice of Sale was deficient.” The argument misconstrues the burden of proof on appeal.

The burden of proving error on appeal is on the appellant, not the appellee. Looper v. Madison Guaranty Savings & Loan Ass’n, 292 Ark. 156, 292 S.W.2d 225 (1987). It is appellant’s burden to bring up a record sufficient to demonstrate error. Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989). When an appellant fails to demonstrate error we affirm. Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992). We will accept as correct the decisions of the trial court which the appealing party does not show to be wrong. Blissard Management and Realty, Inc. v. Kremer, 289 Ark. 419, 711 S.W.2d 813 (1984). Although we cannot presume that any portions of the record not designated for appeal will support the trial court’s action, we will not reverse the lower court unless the record shows apparent error. Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978); Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987).

The trial court concluded the affidavits constituted a waiver and nothing in the record refutes that. Contrary to Mrs. Young’s argument that Mr. Young had failed to include the affidavits in the record, it was incumbent on her to produce a record which reflected that the affidavits did not support a waiver. Significantly, Mrs. Young does not deny that the affidavits constituted a waiver, but relies on the fact that they are not in the record. Having failed to demonstrate any error on the part of the trial court in finding there was a waiver, we affirm the trial court on that point.

III

Several procedural errors are advanced under a second assignment of error. Mrs. Young submits the trial judge should not have ordered her to appear for a deposition one day after the filing of a motion to that effect. However, the trial court, after convening the court on May 13, 1993, stated he was not ruling on Mr. Young’s motion, but was amending the May 7 order to specify a date and time for the deposition, namely, May 15 at 10:00 a.m.

The trial court has inherent power to modify an order with or without notice to any party by motion of a party or on its own within ninety days of filing. ARCP Rule 60(b). Presumably the trial court was cognizant of the notice problem, but arguably there was an emergency (Mrs. Young’s incarceration was to begin in June) and the court undertook to amend the earlier order under its plenary power to amend or modify within ninety days. Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984).

It is also argued that it was error for one judge, on exchange, to modify the earlier May 7 order of the sitting judge. No authority is cited and we do not find this point to have been made to the trial court.

Mrs. Young insists the trial court erred in holding her in contempt. She argues she was found in contempt of the May 7 order, which only required her to answer questions, and not to appear on a particular date for that purpose. Her brief states:

Actually, following the logic of the trial court, there could be no contempt of the May 7, 1993 order, but only a contempt of the May 7, 1993 order together with the May 13, 1993 order, because the May 7, 1993 order did not provide for a time to appear for deposition. (Brief at 81).

While it is not entirely clear how we are asked to address this argument, we find no support for the point asserted. The Order of Contempt, at R. 133, purports to be “pursuant to the court’s orders of May 7, 1993, and May 13, 1993,” and that Mrs. Young’s refusal to answer questions “was in direct violation of the Orders of this court and was in contempt of the orders of this court.” Citing page 260 of the record, Mrs. Young contends the trial court told her at the May 27, 1993, hearing that she was only in violation of the May 7, 1993, order. However, we cannot identify such comments by the'trial court either in the abstract or in the record and the order itself is clearly to the contrary.

For the reasons stated, the orders appealed from are affirmed.

Corbin, J., not participating.