author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Harry COPLEN v. STATE of Arkansas
    CR 88-126
    766 S.W.2d 612
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989
    [Rehearing denied May 1, 1989.]

      Gean, Gean & Gean, by: Lawrence W. Fitting, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The trial court denied the appellant’s petition for a writ of habeas corpus and other post-conviction relief. We affirm.

Harry Copien was convicted of two counts of battery involving the young children of his girlfriend. He originally advised his attorney to appeal his conviction, but he changed his mind. After the time for filing the record had passed, he changed his mind again and decided to appeal. He filed a motion for rule on clerk and two motions for a belated appeal, which we denied.

Copien now attempts, by use of a postconviction relief petition, to obtain a review of an alleged evidentiary error that occurred at trial, as well as a review of our denial of his belated appeal requests. At the time Copien filed his petition with the trial court, he was not in custody.

The trial court ruled that the petition stated no grounds for either habeas corpus relief or A.R.Cr.P. Rule 37 relief, and we agree. First of all, Coplen is not entitled to a writ of habeas corpus because his petition did not state that his commitment was invalid on its face or that the convicting court was without jurisdiction. George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985). Second, Rule 37 is not meant to be a substitute for direct appeal and is not designed for review of a mere error that occurred at trial. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

We have reviewed Coplen’s request for a belated appeal three times. He claimed he was under a great deal of stress and was not thinking clearly when he decided not to pursue his appeal. He cites no convincing authority for his claim that we have denied him due process of law by refusing to docket his appeal.

We also note that Coplen was not in custody when his petition was filed, a prerequisite for Rule 37 relief. A.R.Cr.P. Rule 37.1; Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I concede that the majority is technically correct on the “in custody” provision of A.R.Cr.P. Rule 37. However, I cannot agree that the appellant should be foreclosed from pursuing any relief under Rule 37. It is truly a technicality to require a convicted person to be behind bars before he may pursue post-conviction relief. After all, he stands convicted in the circuit court. He may have already been sent to the Department of Correction, in which case he has current “standing” to bring this petition. In my opinion Rule 37 should be available to any person convicted by a circuit court, provided no direct appeal is pending.

       Coplen’s attorney has not taken responsibility for the late filing of the record. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Wilbur Gerome WEATHERFORD and Lynne Huovinen Weatherford v. Richard L. WOMMACK and Mark Lindsay
    88-252
    766 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989

      R.J. Brown and David E. Smith, for appellant.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee.
   John I. Purtle, Justice.

The appellants seek to overturn a judgment by the Washington County Circuit Court entered upon the jury verdict in a malpractice action against their former lawyers. The appellants argue that the court erred in giving two nonstandard jury instructions and reading an interrogatory to the jury. Although we have concluded that it was not necessary for the trial court to have given these instructions or to have read the interrogatory, we do not find prejudicial error.

This malpractice action against the attorneys grew out of their representation of the appellants at an earlier bankruptcy proceeding. The appellees represented the appellants in the filing of a Chapter 7 bankruptcy action in November of 1980. At the first meeting of the creditors, objections were made to the discharge of the appellants on the basis that they had concealed property with the intent to hinder, delay, or defraud the creditors. The creditors amended the objection to include a claim that the appellants had knowingly made fraudulent statements under oath. The specific objection was that the appellants failed to list an antique piano and a secretary on their inventory sheet in the bankruptcy court. On May 19, 1981, the - bankruptcy judge granted the creditors’ petitions and dismissed the appellants’ bankruptcy proceeding. The bankruptcy opinion denying the discharge was filed on March 8,1982. The court found that “the Weatherfords knowingly and frauduently made a false oath in connection with their case by omitting the piano and secretary from Schedule B, the statement of financial affairs, and by failing to mention these items at the first meeting of the creditors.” In sustaining the objection to the discharge, the court further stated: “The Weatherfords have not been honest with the Court, the Trustee or their creditors.” The bankruptcy judgment was made a part of the trial record in the present action.

On July 15, 1986, the appellants filed a complaint in Washington County Circuit Court, asserting legal malpractice against both of their former attorneys. It was the contention of the appellants that the attorneys were negligent in failing to file a Federal Rules of Civil Procedure Rule 12(b)(6) motion to dismiss the objection to discharge and in failing to challenge the amended complaint as untimely. The appellees responded that they were not negligent in any respect and that if the appellants suffered damage, it was a result of their own omissions and misrepresentations. Attorney Wommack filed a counter-complaint in the amount of $7,851.11 for legal services rendered.

During the trial of the malpractice suit the appellees maintained that their decision not to file a Rule 12(b)(6) motion was a question of trial strategy and supported this position by insisting that the bankruptcy court would have perceived such motion as a technical defense and therefore highly suspect. The attorneys also frequently pointed out the bankruptcy judge’s finding that the appellants committed fraud on the court. At the close of the trial the court instructed'the jury in terms of standard Arkansas Model Instructions and gave non-AMI instructions numbers 13 and 16. Instruction number 13 dealt with “the duty of the [appellants] ... to use ordinary care to insure the information provided in the petition was not false.” Instruction number 16 was to the effect that the Weatherfords were bound by those findings and rulings made in prior court proceedings.

The trial court also read the interrogatories to the jury. Interrogatory number 6, which was objected to by the appellants, is as follows:

A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others, induces or misleads another to conduct dealings which he would not have entered upon but for this misleading influence, will not be allowed afterwards to come in and assert his right to the detriment of the person so misled.
Do you find from the facts in this case that the plaintiffs committed the above acts and that the defendants reasonably relied thereon?

Although this interrogatory was read to the jury, no response was required because the jury answered another interrogatory adversely to the appellants.

The appellants rely heavily on the case of Rutland v. P.H. Ruebel and Co., 202 Ark. 987, 154 S.W.2d 578 (1941), which states in part:

The appellant at the time specifically called to the court’s attention the objectionable feature of said instruction through his specific objection thereto, and insisted that it unduly emphasized this strong circumstance, and in singling it out in such a manner, amounted to an instruction on the weight of the testimony. We think that under the facts in this case the giving of said instruction, over the specific objection of the appellant, was prejudicial and constituted reversible error.
The courts generally have held that it is improper for a trial judge to single out any one circumstance and give it undue emphasis. This is for the reason that it is well known that a jury is ordinarily influenced by the opinion.expressed by the court. It is to guard against such a tendency and to guarantee an even contest on the facts that appellate courts have condemned this practice. Reversals have not always resulted, because in some instances no prejudice could be shown. Where there is prejudice a reversal is proper. Whether there is prejudice depends upon the particular conditions as reflected by the record under consideration.

The court held in Rutland that the practice of giving instructions which single out or unduly emphasize specific aspects of the case is not commendable and in many cases calls for reversal. “But,” the court stated, “the giving of such an instruction is not prejudicial error where the court in the whole charge directs the jury to consider all of the facts and circumstances provided in the case.” The opinion further pointed out that the trial court failed to tell the jury that they should consider all the facts and circumstances in evidence and not single out any particular instruction or phase of the evidence. The general rule concerning the giving or failure to give an instruction is stated in Purnell v. Missouri Pacific Railway Co., 235 Ark. 957, 362 S.W.2d 674 (1962): “It is well settled that when the correctness of an instruction to a jury is a question, the instruction complained of must be examined in conjunction with all the instructions given.”

A case strongly favoring the argument of the appellants is that of Harlan, et al. v. Curbo, Guardian, 250 Ark. 610, 446 S.W.2d 459 (1971). The Harlan opinion concerned personal injuries received by several people as a result of an automobile collision. The court gave an instruction concerning the failure to use seatbelts when it had already given AMI 305(b), which explains the duty of all persons involved to use ordinary care for their own safety. The opinion held that the additional reference to the failure to use seatbelts was unnecessary and duplicative and also served to single out the particular fact for undue emphasis. The only evidence concerning seatbelts in the Harlan case was that belts were available but were not fastened at the time of the collision. The Harlan opinion reversed the action of the trial court as to one party and affirmed as to another. Thus, the facts of the case were considered not only as to the accident itself, but also as they related to each party claiming injuries. As to one party the facts required a reversal, and as to another an affirmance. This decision points out the necessity for considering the facts and circumstances of each case when it is alleged that an erroneous instruction was given or a correct instruction refused.

The assumption of a disputed fact in a jury instruction is prejudicial error. Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984); and Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958). Even if one instruction does include the assumption of a disputed fact, it is not necessarily reversible error if another instruction leaves the fact question to be decided by the jury. Porter v. Lincoln, supra. We also held in Porter that “the instruction was a correct statement of the law and we will not reverse on the objection made.” Instructions are not viewed in isolation but are considered together as a whole to ascertain whether the law applicable to the case at bar was correctly declared by the court. Peters v. State, 248 Ark. 134, 450 S.W.2d 276 (1970).

It is argued by the appellants that the instructions given over their objections incorporated essentially the same material as that included in other instructions already given. It is argued that the restatement of these same principles was prejudicial to the appellants. During the instruction conference, the court, considering proposed instruction number 16, stated: “I’m not telling the jury in this instruction that they are bound by the findings of those courts; I’m telling them the Weatherfords are bound by those findings.” The essence of this instruction was that the Weatherfords were bound by the bankruptcy court’s order concerning the bankruptcy and that they could not relitigate the issue before the present jury. We do not view these instructions as having bound the jury on any fact issue involved in this suit. Nor do we view the instructions or the interrogatory as a comment on the evidence by the trial court.

The appellants concede that instructions 13 and 16 were legally sound and expressed correct principles of law. That being so, we examine the record to determine whether the instructions amounted to comments by the trial court. A jury is ordinarily influenced by the opinion expressed by a trial judge. It is for that reason that a trial court is legally and morally bound not to express an opinion about the evidence in the case. To allow a comment by the trial court on the weight of the evidence or credibility of a witness would, in all probability, hinder the jury in its search for the truth.

At most, instructions 13 and 16 were repetitious because the instructions were correct statements of the law. The objective of the trial court in the present case seems to have been directed at obtaining a trial which was an even contest on the facts of the case. The jury was specifically told not to consider one instruction to the exclusion of all others but rather to consider the instructions as a whole. The court further admonished the jury to apply the instructions to the facts in evidence. Moreover, the court instructed the jury: “I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified.”

The giving of the disputed instructions in addition to other instructions on the same subject is a matter within the discretion of the trial court when AMI Civil 2d instructions fail to cover an issue. See Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988). We have carefully read the abstracts and briefs and are unable to find that the trial court abused its discretion in giving these instructions or that any prejudice resulted from them. The record reveals some factual basis for the giving of the two instructions in controversy. Although the two instructions were not taken from the model instructions, the court stated its reasons for giving them. Even though the court did not follow the required procedure exactly, we are able to understand why the instructions were given. The model jury instructions do not contain instructions relating to attorney malpractice or bankruptcy cases. Therefore, in order to fully apprise the jury of the law as it relates to these facts, the court decided the instructions should be given.

The per curiam by this court dated October 17,1973, adopting the model instructions, states that when an AMI instruction cannot be modified the instruction on that subject should be simple, brief, impartial and free from argument. We are unable to say that the giving of the instructions, or the.reading of the interrogatory, resulted in prejudice to the appellants. The action of the trial court consequently is affirmed.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Sylvia KNOLES, Personal Representative of the Estate of Larry Moore, et al. v. Jesus SALAZAR, Anders Salazar, Orange Porter Hillard, and Orange Porter Hillard, d/b/a Hillard Farms
    88-242
    766 S.W.2d 613
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989

      Hixson, Cleveland & Rush, for appellant.

      Roy & Lambert, by: David E. Morris, for appellee.
   Robert H. Dudley, Justice.

The primary point of appeal in this case is the alleged inadequacy of a jury verdict. The facts, when viewed most favorably to appellees, as we must do, are as follows: Appellee Orange Porter Hillard authorized his farm employee, appellee Jesus Salazer, to use his pickup truck, but he instructed Salazar not to let his teenage son, appellee Anders Salazar, drive the truck. Anders Salazar had flunked his driver’s license exam at least eight times. Hillard saw Anders Salazar driving his truck on two or three occasions and told Jesus Salazar several times not to let his son drive the truck. On the day of the accident the farm employee, Jesus Salazar, contrary to instructions, authorized his son, Anders Salazar, to use the truck to take a freezer from the farm to a vocational-technical school. Anders later went to his parents’ home and got permission from his mother to drive the truck to softball practice. On the way to practice he picked up two of his friends, Larry Moore and A.C. Thompson, Jr. After practice Anders drove the truck in a negligent manner and, in a one vehicle accident, wrecked the truck. The passengers, Moore and Thompson, were both killed.

Moore’s estate, his mother, stepfather, and sisters filed suit against Anders Salazar, Jesus Salazar, and Orange Porter Hillard. The jury returned a verdict in favor of the Moore estate and against Anders and Jesus Salazar in the amount of $5,211.40, the exact amount of the funeral expenses. The jury did not make a finding against the owner of the truck, appellee Orange Porter Hillard, and did not give an award for mental anguish to decedent Moore’s survivors. The appellants moved for a new trial. The trial court denied the motion. We affirm the trial court’s ruling.

Under ARCP Rule 59(a)(5), the inadequacy of the recovery can be a ground for a new trial. When the primary issue in a motion for a new trial is one of liability, as distinguished from the inadequacy of the award, we sustain the trial judge’s denial of a new trial when the verdict is supported by substantial evidence. But when the primary issue is the alleged inadequacy of the award, we sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. Fields v. Stovall, 297 Ark. 402, 762 S.W.2d 783 (1989). The trial judge in this case did not clearly and manifestly abuse his discretion.

In a review of the trial court’s discretion in denying a new trial because of alleged inadequacy, an important consideration is obviously whether a fair-minded jury might reasonably have fixed the award at the challenged amount. The verdict in this case is understandable and defensible.

The appellants argue that the verdict is inadequate because the decedent’s beneficiaries were not given an award for mental anguish. However, before one can recover for mental anguish, he must prove more than normal grief. St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977). With one exception, all of the testimony on mental anguish came from the appellants themselves. The one exception was the testimony of a deputy sheriff who testified about the mother’s and stepfather’s reaction when he notified them of the decedent’s death. All of the other testimony on mental anguish was offered by one of the appellants, either for himself or for one of the other appellants. They were interested parties, and the testimony of an interested party is taken as disputed as a matter of law. Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). A fair-minded jury could reject the testimony of the interested parties and find that the beneficiaries did not suffer more than normal grief. Similarly, in Harris v. Damron, 267 Ark. 1141, 594 S.W.2d 256 (Ark. App. 1980), the Court of Appeals affirmed a jury verdict for partial funeral expenses, but no mental anguish award, for the death of an 80 year old woman.

The appellants’ next two arguments deal with future mental anguish. An award for mental anguish may cover not only the mental suffering prior to trial, but also the suffering which is reasonably probable to occur in the future. 22 Am. Jur. 2d Damages^ 252 (1988). See also Davis v. Green, 188 F. Supp. 808 (W.D. Ark. 1960). The trial judge obviously thought that future mental anguish was not a recoverable element of damage. As a result, he erroneously ruled that the appellants could not introduce a mortality table showing the probable life expectancies of the appellants, and directed the jury not to consider appellants’ attorney’s closing argument about future mental anguish.

However, we do not reverse because of those errors. The refusal to allow the mortality table into evidence was an erroneous evidentiary ruling. Pursuant to A.R.E. Rule 103 (a), we do not reverse a case because of an erroneous evidentiary ruling unless a substantial right of the party is affected. Here, the appellants were not prejudiced by the ruling. First, the jury found that the appellants did not suffer more than normal grief up to the time of trial, and, second, there was no proof that they would suffer more than normal grief in the future. Thus, common sense dictates that the erroneous ruling on the mortality tables was harmless error.

In addition, the trial court, by a cautionary instruction, directed the jury not to consider the appellants’ closing argument asking for damages for future mental anguish. The cautionary instruction was an erroneous statement of the law, but the trial judge, pursuant to AMI Civil 2d, 2216, had already instructed the jury that the appellants could recover only for mental anguish which they had “endured.” The appellants did not object to this part of the instruction and even proffered their own instruction which asked only for “mental anguish they have endured.” No objection was made to the jury instruction which included only past mental anguish. When, in the closing argument, the appellants’ attorney asked the jury to award damages for future mental anguish, the trial court correctly acted in requiring the jury to follow the instructions which had been given.

The appellants next contend that the trial judge erred in refusing to allow their economic expert to testify about the present value of the decedent’s future services and contributions and also in refusing to instruct the jury on the element of damages for future services and contributions. Our law on the subject is clear. Parents who have been deprived of the services and contributions of a minor during his minority are entitled to the present value of those services, reduced by the reasonable and necessary expenses of providing for the minor through minority. AMI Civil 2d, 2216. If the child as a minor had made contributions to the parents and evidence supported an intention to continue to make them after reaching majority, the parents may recover as well for such future and anticipated contributions. Missouri Pac. Transp. Co. v. Parker, 200 Ark. 620, 140 S.W.2d 997 (1940); Brill, Arkansas Law of Damages § 28-10 (1984).

At the time of his death the decedent was sixteen years old. He had a part time job at a small grocery store where he earned $3,000.75 in 1983 and $877.50 in 1984, the year he was killed. His stepfather testified that, before his death, the decedent spent most of the money he made on himself and his car; that he helped the family a little, but he didn’t look to the decedent for support. His mother testified similarly. Neither witness stated that the decedent had expressed a hope or desire, or demonstrated an intention or disposition, to be of financial assistance to the parents after reaching majority. In fact, the stepfather testified that he did not expect the decedent “to get out of school and start sending money.”

The appellants’ attorney did ask the decedent’s mother the following question: “Was Larry the type of boy that, had he survived, and, had you been in financial need, would he give you money, do you think, to provide support for you?” The court sustained an objection to the question on two bases: (1) it called for speculation by the witness and, (2) the issue was whether there were future anticipated contributions, not possible contributions contingent upon the parents’ financial needs. Appellants now argue the ruling was erroneous. They do not give us a reason the ruling was erroneous, nor any citations of authority, and no reason is readily apparent to us. Therefore, we do not consider the issue. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Appellants next argue that the trial court erred in refusing to allow their economic expert to testify that the present value of the parents’ loss of future contributions was $534,113.86. The short answer to the argument is that the trial court correctly ruled that the appellants failed to establish a factual basis showing that the decedent would have made future contributions to his parents; therefore, the economic expert’s testimony was not relevant and would only confuse the jury.

The appellants’ last argument is that the jury made a mistake when it did not find Orange Porter Hillard guilty of negligent entrustment of his truck to Anders Salazar. The statement of facts set out in the opening paragraph of this opinion shows there was substantial evidence to support the jury’s finding.

Affirmed.


author: Steele Hays, Justice.

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION of Paragould v. David K. DRAKE, Bettye J. Drake, Bob Berry and Karin Berry
    88-288
    766 S.W.2d 617
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989

      Fulkerson & Todd, P.A., by: Michael E. Todd, for appellant.

      Osmon & Wilber, by: David L. Osmon, for appellee.
   Steele Hays, Justice.

On March 18, 1986, the appellees, David K. Drake, Bettye J. Drake, Bob Berry, and Karin Berry executed a real estate mortgage to the appellant, First Federal Savings & Loan Association of Paragould. This mortgage was filed on July 31, 1986, in the Mortgage Records of Greene County, Arkansas. Paragraph 2(h)(7) of this mortgage provided that the maturity of the principal indebtedness which the mortgage secured could be accelerated by the appellant “if the mortgagor or assignee sells or conveys (or contracts to sell or convey) all or any part of the mortgage property without the written consent of the holder of said note.”

On February 17 and 25, 1988, the appellees David Drake and Bettye Drake, executed additional estate mortgages to Bruce M. Smith and Rollin M. Smith on the property previously mortgaged to the appellant. After informing the appellees by letter of their decision to accelerate their mortgage, the appellant filed a Complaint in Foreclosure on September 17,1988, alleging that the subsequent mortgages to the Smiths breached paragraph 2(h)(7) of the mortgage agreement. Also named as defendants in the foreclosure action were John and Elaine Newsom. The Newsoms possessed a leasehold interest in the mortgaged property and thereby asserted a counterclaim against the appellant alleging their leasehold interest to be superior to the appellant’s mortgage. In addition, the Newsoms asserted a cross-claim against defendants/appellees, Drake and Berry, for delinquent accounts. Because the Newsoms’ leasehold interest was mortgaged to Security Bank of Paragould, the bank was also named as a defendant as well as Waterfurnace International and Shannon King, judgment lien holders against the defendants/appellees, Drake and Berry.

The appellees filed a motion for summary judgment contending that the appellant had no right to accelerate the note based on the appellees’ issuance of subsequent mortgages on the property. The chancellor held that the language contained in paragraph 2(h)(7) of the appellant’s mortgage did not provide the appellant with a right to accelerate and foreclose and granted the appellees’ motion for summary judgment.

We dismiss this appeal because the order does not meet the requirements of ARCP Rule 54(b). Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987). ARCP Rule 54(b) provides:

When multiple parties are involved, or where more than one claim is presented, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties and claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment.

There are multiple parties as well as multiple claims present in this action. The chancellor granted the appellees’ motion for summary judgment, but other defendants in the action remained. The chancellor’s order does not make a determination that there is no just cause for delay, and thus, the requirements of ARCP Rule 54(b) were disregarded.

We have issued numerous reminders that the rules of civil procedure do not permit an appeal in such cases except in accordance with Rule 54(b). McClendon v. State, 293 Ark. 173, 735 S.W.2d 700 (1987); Earl v. Mosler Safe Co., 291 Ark. 276, 724 S.W.2d 169 (1987); Arkhola Sand & Gravel Co. v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986); Sherman v. G & H Transportation, Inc., 287 Ark. 25, 696 S.W.2d 832 (1985); Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984); 3-W Lumber Co. v. Housing Authority of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985); Vermeer Manufacturing Co. v. Vandiver Equipment Co. and Ford Motor Co., 279 Ark. 248, 650 S.W.2d 244 (1983).

Appeal dismissed without prejudice to an appeal from a final judgment.


text:
    Anthony L. HURVEY v. STATE of Arkansas
    CR 88-173
    766 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989
    [Rehearing denied April 17, 1989]

      Darrell F. Brown & Associates, P.A, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Anthony Lavell Hurvey has appealed from a judgment of conviction on three counts of delivery of cocaine and one count of possession of cocaine with intent to deliver. Hurvey received ten year sentences for each conviction, the sentences to run consecutively. Two points for reversal are argued, neither of which has merit.

I

Appellant contends the verdict of guilty on each count of delivery of cocaine is not supported by substantial evidence. Several police officers testified to buying cocaine from an individual known to them only as “Malt Stand,” but later identified as the appellant. The transactions occurred at different times and places and the officers’ estimate of the height of the individual ranged from 5'3" to 5'9". As the appellant denied ever selling cocaine, credibility of the witnesses is the heart of the issue.

To determine the sufficiency of the evidence we need to consider only that evidence which supports the verdict. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Working through an informant, the police met appellant at a K-Mart parking lot in North Little Rock where they purchased a packet of cocaine for $165. Two officers, Baker and Sipes, identified appellant as the person who sold them the cocaine. A few days later Officers Sipes and Schlalchlin met appellant at a Kroger parking lot and again purchased cocaine for $165. A final purchase of cocaine for $165 was made on June 11 behind the sea wall.

Appellant maintains that because of inconsistencies in the officers’ testimony, the jury’s verdict was not based on substantial evidence. Some of the discrepancies were explained, some were not. None was of sufficient scope to defeat the verdict. In Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986), we held that minor discrepancies were for the jury to consider in weighing the verity of the testimony. In Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975), we said:

Where the testimony is conflicting, this court does not pass upon the credibility of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon.

II

Appellant argues the jury’s verdict of guilty of possession with intent to deliver is not supported by substantial evidence. Officer Sipes testified that while appellant was being admitted to jail following his arrest he was asked to remove a cap he was wearing. A small packet of cocaine fell out and, on inspecting the cap, five other packets of cocaine were found inside the band.

Since the amount of cocaine did not equal one gram, the presumption of an intent to deliver pursuant to Ark. Code Ann. § 5-64-401 (d) (1987), does not arise. Even so, intent to deliver may be proved by circumstantial evidence. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). Intent to commit a crime is not ordinarily susceptible of direct proof and may, therefore, be inferred from the circumstances. Circumstantial evidence is sufficient to constitute substantial evidence. Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985). Those circumstances include the packaging of the cocaine in small individual packets and the fact that appellant was shown to have sold cocaine on prior occasions. Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985).

The judgment is affirmed.


text:
    Gary Jerome RILEY v. STATE of Arkansas
    CR 88-13
    766 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989

      Marc Aaron Kline, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

On January 11, 1984, the Chief Gas Station in Pine Bluff was robbed by three men using a sawed-off shotgun. A few days later two men wearing ski masks and using a sawed-off shotgun robbed the Riverside Motel. A description of the car used in the robbery was broadcast by police radio and appellant Gary Jerome Riley and a companion were promptly arrested. They had ski masks and a sawed-off shotgun in their possession.

Appellant pled guilty to the aggravated robbery of the motel and was tried and convicted for the gas station robbery. As a habitual offender he was sentenced to consecutive terms of twenty and ten years for aggravated robbery and theft. Riley appealed and on September 18, 1985, the Arkansas Court of Appeals affirmed the judgment, Riley v. State, (CACR 85-64).

Appellant then petitioned this court for permission to proceed under criminal procedure Rule 37, alleging that his trial counsel was ineffective for failing to move to suppress custodial statements he gave following his arrest. We granted the petition (See Per Curiam, Riley v. State, CR 86-173, February 23, 1987). At a hearing in the Jefferson Circuit Court appellant and three police officers testified concerning several statements given by Riley shortly after his arrest. The net effect of the officers’ testimony was that Riley’s statements implicated him in both robberies. While Riley’s testimony disputed the state’s proof in some respects, his own version had several contradictions. Riley testified that he immediately requested an attorney. The officers said he gave the statements readily after the Miranda warnings were given and did not ask for a lawyer until the following day when told he would be charged with the robbery of the gas station.

The circuit court denied the requested post-conviction relief and made findings of fact which included the following:

The testimony is in conflict as to when Petitioner requested the assistance of an attorney, and whether or not that request for assistance related only to written statements or to oral statements as well. However, Petitioner’s version conflicted within itself, and it was in conflict with the police version.
Petitioner contends that he requested the assistance of an attorney as soon as he executed the Rights Form. But in his testimony he relates several voluntary statements to the police concerning the gun, the motel robbery, and the Chief Gas Station robbery.
Petitioner has failed to overcome the presumption of effective assistance of counsel because he has failed to “show by clear and convincing evidence that the (alleged) prejudice resulting from the representation of trial counsel was such that he did not receive a fair trial.” Blackmon v. State, 623 S.W.2d 184 (1981).

Gary Jerome Riley has appealed. Appellant’s brief recognizes that the issue is largely one of credibility. Counsel for appellant has filed a brief in accordance with Anders v. California, 386 U.S. 378 (1976), in which he concedes there is no merit to the appeal. Though given the opportunity to file a brief pro se, appellant has not done so and has not challenged the position of his counsel as to the absence of merit. The state’s brief concurs and, pursuant to Rule 11, asserts that the record is devoid of errors which might dictate a different result. Finding nothing to the contrary in the record, we affirm.


text:
    Harold SPEER v. Carolyn SPEER, Deceased, by J.D. Campbell, Administrator
    88-220
    766 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989
    [Rehearing denied April 17, 1989.]

      Fendler, Gibson & Bearden, by: Oscar Fendler; Barbara Halsey, for appellant.

      Knauts & Cole, by: C.W. Knauts, for appellee.
   Steele Hays, Justice.

This appeal has been certified to us under Rule 29(1 )(p) as involving the construction of a deed. It is the second appeal of a divorce case between Harold Speer, appellant, and Carolyn Speer. The parties were divorced by a decree entered in 1985, from which Harold Speer appealed. The Court of Appeals affirmed on direct appeal and modified and remanded on cross-appeal. See Speer v. Speer, 18 Ark. App. 186 (1986). Carolyn Speer died while that appeal was in process and her interest was pursued by her father as special administrator.

Harold Speer’s contentions in the first appeal included an unsuccessful challenge to a finding by the trial court that a tract referred to as “The Glenn Farm” was marital property. Carolyn Speer’s argument on cross-appeal was that the trial court should have awarded her one-half of a joint checking account containing $4,672. That argument was sustained by the Court of Appeals and the case was remanded with directions to make an appropriate award of those funds.

Following remand other disputes arose and Harold Speer has again appealed on three points of error. The first involves a lien on the Glenn Farm, which was sold at public auction to appellant Speer. The order for sale provided, among other things, that the property was to be sold free of any liens. But when appellant became the purchaser the chancellor directed that a lien be impressed on the property in the amount of $6,906.94, the balance due Carolyn Speer as a result of the divorce. Appellant does not challenge the amount of the lien, but rather, contends it was error to apply a lien at all, citing the order of sale as stating the property was to be sold “free of any liens.”

We find no merit in the argument. Obviously, the provision for a sale free of liens was intended to apply in the event a third party became the purchaser and does not preclude the chancellor from imposing a lien on the property as part of the divorce proceedings. It cannot be seriously urged that the order of sale was intended to render the property lien-proof. Furthermore, appellant ignores the fact that a judgment lien attaches in any case by operation of law under Ark. Code Ann. § 16-65-117 (1987) . Appellant has cited no authority and has offered no convincing argument to support his claim. See HCA Health Services of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Appellant’s second point concerns certain expenditures he incurred in connection with the Glenn Farm and a ski boat, both of which were found to be marital property in the original divorce decree. On remand, appellant claimed he had incurred expenses on both properties and requested a set-off. As to the boat, appellant claimed marina storage charges for the two years following the decree. As to the farm, he claimed taxes and insurance for the same period. The trial court disallowed these expenses as a set-off, finding that appellant paid them as a volunteer, in the nature of an “officious intermeddler.”

As appellant and Carolyn Speer were co-tenants of the properties in question when these expenses were incurred, we disagree with the trial court’s reasoning. See, e.g., Adkins v. Adkins, 258 Ark. 852, 529 S.W.2d 144 (1975). However, we think the decision was correct in any event and will uphold the trial court if it reached the right result, even if it did not enunciate the right reason. Tisdale v. Seavey, 286 Ark. 222, 691 S.W.2d 144 (1985).

It is clear from the record that the expenses claimed by appellant were regularly incurred and capable of being anticipated. Appellant does not claim otherwise. The farm and the boat were both matters in litigation in the original divorce proceedings, yet appellant made no request for reimbursement of these expenses, either during or after the original trial of the case, nor, consequently, were these issues raised in the first appeal. The decision on the first appeal becomes the law of the case and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been but were not presented. Morris v. Garmon, 291 Ark. 67, 772 S.W.2d 571 (1987). Clearly, the matter of these expenses raised by appellant on remand were issues that could have been raised in the original trial. As appellant failed to raise these claims in the original proceeding, he is precluded from doing so at this stage.

Appellant also sought expenses on engine repairs of the ski boat that were made in 1984. These expenses were properly excluded by the trial court as expenses incurred prior to the decree. Goodlett v. Goodlett, 209 Ark. 297, 190 S.W.2d 14 (1945). Nor do we find error in the trial court’s disallowance of post-trial expenses made on well repairs at the Glenn Farm. The matter of post-trial expenses had not been mentioned by appellant in his petition for the hearing on remand and when appellant attempted to introduce proof on the issues, appellee objected on the basis of surprise. See ARCP 15. The trial court questioned both attorneys and determined that prior to the hearing, the parties had had conversations or negotiations which would have put the appellee on notice as to most of these expenses, but not as to the well repairs. On that basis, those repairs were excluded. ARCP 15 vests broad discretion in the trial court and from an examination of the record we cannot say that discretion was abused. See Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983).

The trial court also excluded leveling expenses paid on the Glenn Farm, on the ground that the issue had already been litigated. When the court had heard evidence on post-trial expenses at the hearing after remand, there was no mention of leveling expenses. Several months later, appellant requested a second hearing and attempted to introduce the leveling expenses. As the issue of post-trial expenses had already been litigated, the trial court did not err in excluding appellant’s evidence.

The final point concerns the effect which the death of Carolyn Speer had on these proceedings. As noted previously, Carolyn Speer’s father, J.D. Campbell, had been appointed administrator of her estate and was substituted on appeal to represent her interests. See Speer v. Speer, supra, at 187. After remand, no additional action was taken to establish Mr. Campbell’s status as a substituted party.

Appellant argues that because of appellee’s death, the action after the decree abated or, alternatively, there being no motion for revivor, all subsequent proceedings after the appeal were void. We find no merit to these contentions.

Our cases hold that a court will lose jurisdiction to award a divorce when one party dies prior to a decree, Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984), as well as to decide matters relating to alimony or to the custody of children upon the oath of one party after the decree. See McLaughlin v. Todd, 201 Ark. 348, 145 S.W.2d 725 (1940); Day v. Langley, 202 Ark. 775, 152 S.W.2d 308 (1941); Kupers v. Kupers, 20 Ark. App. 198, 726 S.W.2d 686 (1987). The death of a party will not, however, result in the court’s losing jurisdiction in all matters. We have specifically held that the court will retain jurisdiction to settle property rights when one of the parties dies after a decree is entered and an appeal is pending. In Owen v. Owen, 208 Ark. 23, 184 S.W.2d 808 (1945), a decree of divorce was granted and property rights were adjudicated. The wife appealed and prior to a decision in this court the husband died. We stated that while death abates a divorce suit, even so, where property rights are involved it becomes our duty as an appellate court to review the decree. We said:

Where the party seeking a divorce appeals from a judgment, simply denying it, and pending the appeal either party dies, the appeal and the action abate absolutely and cannot be reviewed, there being no one living who can legally have any interest in the same. . . .We do not have for decision the question whether an appeal could be prosecuted where no property rights were involved, for property rights were adjudged here; and there appears to be no division of authority as to the existence of the right of appeal when the decree also adjudicates property rights.

See also, Bradshaw v. Sullivan, 160 Ark. 547, 254 S.W. 1064 (1923); Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659 (1906).

The same reasoning is found in 33 A.L.R. 4th 47, Divorce-Death Pending Appeal (1984), i.e., that a divorce action is purely personal and consequently terminates on the death of either spouse, but a different result is effected when property rights are involved: “This proposition [that the action is purely personal] is to be distinguished from the view taken in cases in which the death occurs after the final decree of divorce but during the time when an appeal may be taken. The general rule applied in cases involving such appeals is that the action abates with respect to the issue of the marital status of the parties but not with respect to the determination of property interests which may be affected by the divorce.” Id., at § 2. To the same effect see 24 Am. Jur. 2d, Divorce and Separation § 177 (1983).

In this case, all the issues considered in Speer I, and on remand, were purely matters of property rights, and consequently jurisdiction was properly retained as to those issues. The post-trial proceedings were not void as to those issues of property rights. Finding no error, we affirm.

The one issue of question in Speer I was an argument by appellee that the trial court’s award of child support was inadequate. Our cases would indicate that because of appellee’s death, this question was not properly before the Court of Appeals. See McLaughlin v. Todd, supra. We note initially that the Court of Appeals took no action on this point, but simply affirmed the trial court’s award. But even if it had been otherwise, it would not alter our holding that the Court of Appeals and the trial court on remand did not lose jurisdiction on the issues of property rights. There is no basis to contend that the child support issue in any way affected the property issues joined with it and we find no authority that even suggests such a possibility.

Neither do we have any question on the effect of the absence of any motion for revivor after the appeal. When a motion for revivor is not timely made and a representative continues the action without objection, it has generally been held to be deemed a waiver of such a motion. 1 Am. Jur. 2d, Abatement § 117 (1962). And we have so held. Short v. Stephenson, 239 Ark. 287, 388 S.W.2d 912 (1965); McDonald, Ex’x v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973); and see Obennoskey v. Obennoskey, 215 Ark. 358, 220 S.W.2d 619 (1949). Furthermore, the burden to have the action properly revived is on the party seeking the relief from the court. McDonald v. Petty, supra.

Here, there can be no doubt but that any objection to a failure of revivor had been waived by appellant. Following the appeal, there were not one but two further hearings concerning matters after remand. Both hearings were made at the request of appellant, and in both instances, it was the appellant seeking relief from the court. It was not until nineteen months after appellee’s death, on the very morning of the second hearing, that appellant first raised the issue of abatement by filing a motion to that effect. The trial court dismissed the motion.

Finding the issue was clearly waived, we can find no error on the trial court’s dismissal of appellant’s motion on this point.


author: Per Curiam.

text:
    ARKANSAS PUBLIC SERVICE COMMISSION and Arkansas Western Gas Company v. ARKANSAS CHARCOAL COMPANY and TXO Production Corporation
    89-13
    766 S.W.2d 931
    Supreme Court of Arkansas
    Opinion delivered March 20, 1989

      George C. Vena, Ass’t Gen. Counsel, for petitioner Arkansas Public Service Commission.

      Keck, Mahin & Cate, by: Robert Y. Hirasuna and Jeffrey L. Dangeau, for petitioner Arkansas Western Gas Company.

      Steve Clark, Att’y Gen., by: Paul Cherry, Asst. Att’y Gen., for petitioner Consumer Utility Rate Advocacy Division.

      Preston, Thorgrimson, Ellis & Holman, by: Carol S. Arnold', and Rose Law Firm, A Professional Association, by: Herbert C. Rule III, for respondent TXO Production Corp.
   Per Curiam.

On February 6,1989, we granted review of the

decision of the Arkansas Court of Appeals in which it was held that the Arkansas Public Service Commission could not regulate a pipeline from a TXO facility to Arkansas Charcoal Company except to the extent of requiring an environmental impact statement.

The Commission and Arkansas Western Gas Company have moved to stay the mandate of the court of appeals. TXO and Arkansas Charcoal Company oppose the motion for fear that staying the court of appeals mandate will reinstate cease and desist orders issued by the Commission which were the subject of the appeal to the court of appeals. They suggest that if the court of appeals mandate is stayed, the only way to retain the status quo is to stay the cease and desist orders of the Commission as well.

The Commission and Arkansas Western Gas Company have responded that they have no objection to staying the Commission’s orders.

The court of appeals mandate in this case is stayed as are the orders of the Commission.


author: David Newbern, Justice. Tom Glaze, Justice, John I. Purtle, Justice,

text:
    Paul Edward JULIAN v. STATE of Arkansas
    89-11
    767 S.W.2d 300
    Supreme Court of Arkansas
    Opinion delivered March 27, 1989

      Maxie G. Kizer, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal of a burglary conviction. Paul Edward Julian, the appellant, contends he should not have been convicted of burglary because the building he was charged with entering for the purpose of committing theft was not an “occupiable structure” as defined by Ark. Code Ann. § 5-39-201(a) (1987). We find that the structure, which was a twelve by fifty-five foot “trailer” or mobile home was an occupiable structure, and thus the conviction is affirmed.

Julian and two others were found by the owner of the trailer, Johnny Davis, in the process of removing items such as door knobs, brass water faucets, and bathroom faucets from the trailer. The trailer was one of a number of trailers located together. The other trailers were rented by Davis to tenants as dwellings. The one in which Davis found Julian was not and had not previously been rented but was used as place for storage of items used by Davis in his business, such as aluminum window frames and door knobs. Davis testified that he had never set the trailer up for occupancy by attaching utilities, although it contained a bathroom, kitchen, and bedroom.

Section 5-39-201 (a) provides: “A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-101 (1987) gives three definitions of “occupiable structure” as a vehicle, building, or other structure:

(A) Where any person lives or carries on a business or other calling; or
(B) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or
(C) Which is customarily used for overnight accommodation of persons whether or not a person is actually present. Each unit of an occupiable structure divided into separately occupied units is itself an occupiable structure.

The appellant cites no cases or other authority helpful in interpreting the statute. His sole argument is that the state proved only that Julian was guilty of the lesser included offense of breaking or entering, as that offense is defined in Ark. Code Ann. § 5-9-202 (1987), and thus should have been given a lesser sentence. His contention is that the trailer was a building which was not occupiable. We disagree and hold the trailer fell within the definition found in § 5-39-101 (C).

Among the definitions of the word “customary” in Webster’s Third International Dictionary (Unabridged, 1968) is the following: “commonly practiced, used or observed.” We have no doubt that it is a common practice for persons to be in mobile homes overnight.

In Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977), it was contended that breaking into the Baptist Student Union at the University of Arkansas at Pine Bluff at night when no one was present was not burglary because it was not an occupiable structure at the time the entry occurred. We held the structure was occupiable and wrote:

Under the statutory definition of ‘occupiable structure,’ whether anyone is physically occupying the structure is irrelevant. The determinative factor is the nature of the premise, that is, not whether it was occupied at the time of the crime, but rather whether it was occupiable [emphasis in original, 262 Ark. at 274, 555 S.W.2d at 950].

Just as the definition of “occupiable” does not depend on the presence of a person in a building, it does not depend on whether it is being used for some other purpose as long as “the nature of the premise” is that it is “occupiable.” A mobile home or trailer of the sort described in the testimony here is a premise the nature of which is occupiable.

The obvious reason for the distinction between our burglary and breaking and entering statutes is the intent of the general assembly to punish burglary more severely because it involves entering a place where people, as opposed to mere property, are likely to be. Barksdale v. State, supra. The appearance of the trailer in question was apparently distinguishable from that of the other trailers rented as dwellings only by the fact that it was numbered “8.” The building was thus one in which a person planning to enter could have anticipated finding a person or persons, absent any evidence that the trailer was uninhabitable, and thus entering it could have endangered human life or health. It was the sort of building to which the burglary statute was intended to apply.

Affirmed.

Glaze, J., concurs.

Purtle, J., dissents.

Tom Glaze, Justice,

concurring. I concur. As noted in the majority opinion, Ark. Code Ann. § 5-39-201(a) (1987) provides that a person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-101(l)(A) (1987) defines “occupiable structure” as a building or structure where any person lives or carries on a business or other calling.

In Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977), this court explained the term “occupiable structure” by saying that whether anyone is physically occupying the structure is irrelevant; the determinative factor is the nature of the premises, that is, not whether it was occupied at the time of the crime, but rather, whether it was occupiable. In the present case, the issue is whether Mr. Davis used the trailer — which appellant unlawfully entered to commit theft — to carry on his business. Clearly, the answer is yes. The appellant and others broke into the trailer which was owned by Davis and used by him as a storage facility for his business. Davis testified that he operated a business as a maintenance person for the Federal Home Administration and that he stored windows, doorknobs and other things in the trailer as a part of his business. The fact that Davis was not inside the trailer at the time the appellant and others actually entered it is of no relevance.

For the foregoing reasons, I would affirm the trial court.

John I. Purtle, Justice,

dissenting. The majority opinion is nothing less than judicial legislation. The crimes of burglary and breaking or entering have previously been clearly established by the General Assembly and may be found at Ark. Code Ann. §§ 5-39-201 (a) and 5-39-202(a) (1987). These two laws, as written, are perfectly compatible and fairly easy to understand, or were until today.

Burglary is defined as occurring when “a person enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” On the other hand, “a person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe. . . Obviously a “structure” as mentioned in the burglary statute includes a mobile home if it is occupiable. At the same time it is obvious that the breaking or entering statute applies to a mobile home if it is not occupiable. The distinction between breaking and entering and burglary is determined by the facts of each case.

At common law and under our earlier statutory law, the offense of burglary was designed to prohibit the invasion of premises under circumstances likely to inspire terror or constitute a physical threat to the safety of other persons. Historically the offense of burglary consisted of breaking into or entering, at nighttime, the dwelling of another, with the intent to commit a felony. The earlier statutory laws defining burglary required a breaking or entering of a dwelling. Burglary laws are designed primarily to protect people and secondarily to protect property. Breaking or entering laws have always been directed at crimes against property.

This court considered what acts were necessary to constitute burglary under the present law in Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977). At that time burglary was defined in Ark. Stat. Ann. § 41-2002 (Repl. 1977). There has been no change in the law since Barksdale was decided. The opinion stated:

Under the statutory definition of ‘occupiable structure,’ whether anyone is physically occupying the structure is irrelevant. The determinative factor is the nature of the premise [s], that is, not whether it was occupied at the time of the crime, but rather whether it was occupiable. The fact the building was used for social activities, religious sessions, and classroom meetings clearly demonstrated that the building was an “occupiable structure.” Thus there was no issue on this point to go to the jury. [Emphasis in original.]

The foregoing quotation is a common and ordinary interpretation of the phrase “occupiable structure.” Certainly a mobile home used as a residence and having a room for storage would be an occupiable structure. Even a storage unit with a portion of it occupiable would still meet the definition of occupiable structure. However, a building used exclusively for storage is clearly not an occupiable structure within the meaning of this provision of the code. The facts related in the majority opinion clearly establish that this structure was not an occupiable one.

According to the express words of the present code an “occupiable structure” means a vehicle, building, or other structure where any person lives or carries on a business or where people assemble for some purpose or which is customarily used for the overnight accommodation of persons. The acts ascribed to the appellant in the present case simply did not occur in an occupiable structure. It would be painful indeed to see this court caught up in the hysteria of anti-crime paranoia by dividing every criminal act into as many offenses as possible and to mete out the utmost punishment under each element of the offense. I would much prefer that this body stand back and evaluate the law and the facts as each case comes before it.

We ought not to blindly accept the assertion by the state that this is an occupiable structure simply because the state said it was in the information. Sometimes the state argues merely to fulfill its “presumed” obligation. Just because the state says something is so does not make it so. It should be the goal of the state to imprison the guilty and free the innocent. No one pretends that only the guilty are charged. Sometimes the innocent suffer as a result of our criminal justice system. One of our goals should be to • eliminate such instances of injustice. However, in doing so we should be careful not to create more. I cannot condemn the appellant for not offering some authority on his behalf. Obviously, the reason no authority was cited is that we have not heretofore reached the outer fringes of statutory and common law construction. Under these circumstances there is no precedent to quote. Now, alas, there will be.

Since both statutes make it an offense to break into a structure it is obvious that only one statute is needed if we are going to allow the word “structure” to be used as the state sees fit. Fair minded men can only conclude that the statute as it exists today requires that for a person to commit the offense of burglary, there must be an entry into an “occupiable structure” with the purpose of committing a crime punishable by imprisonment. This phrase by its own terms clearly means a place where people sometimes assemble or where people reside. By no stretch of the imagination can it be said that the structure in this case was an occupiable one, if we give the word its plain meaning. There is no evidence that anyone other than the owner ever visited this property, except for the thieves. The majority opinion in effect gives the prosecuting attorney his choice of charging a person with burglary or breaking or entering. I do not believe it was the intent of the legislature to confer such power upon the state’s agent. If, however, it can be said that this was the intent of the legislature, then I am of the opinion that such unbridled discretion is violative of the United States Constitution.


author: David Newbern, Justice.

text:
    V.E. HARVEY v. S.L. HARVEY
    89-27
    766 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered March 27, 1989

      Dodds, Kidd, Ryan & Moore, by: Greg Alagood, for appellant.

      Wallace, Hamner & Arnold, for appellee.
   David Newbern, Justice.

This is the second appeal in a divorce case. By our earlier decision we remanded the case because the property of the parties had been divided unequally without the chancellor having stated reasons as required by Ark. Code Ann. § 9-12-315(a)(l)(B) (Supp. 1987). We also reversed an alimony award to the former wife, S.L. Harvey, of $1000 per month because we could not tell whether the alimony award was related to the unequal property distribution, and we intended to give the chancellor flexibility in refashioning the decree if necessary. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).

After our decision was rendered, S.L. Harvey filed a motion for alimony. A hearing was held on August 9, 1988, resulting in an order reinstituting the original decree, including the $ 1000 per month alimony. The order recited that the original decree had divided marital property unequally and that the alimony award was intended to compensate S.L. Harvey for the disparity. The order also recited the reasons for the unequal property distribution.

At the hearing counsel for V.E. Harvey moved orally for a reduction in the amount of alimony because he was unable to pay. The chancellor refused to hear V.E. Harvey’s evidence because the motion had not been made in writing and because she and opposing counsel were not prepared to go into the issue of changed circumstances or V.E. Harvey’s current ability to pay. The chancellor noted that she had set aside time for a further hearing in October, 1988, at which counsel could present evidence on that issue.

V.E. Harvey argues now that the chancellor abused her discretion in reinstituting the $1000 per month alimony award without taking evidence on the elements we said should be considered in Sutton v. Sutton, 266 Ark. 451, 587 S.W.2d 67 (1979). While it is true the chancellor took no evidence at the August 9, 1988, hearing, she based the reinstitution of the original decree, with the appropriate explanation of the unequal property distribution, upon evidence taken at the previous hearings in the case. In support of his argument that he is unable to pay alimony, V.E. Harvey recites some of the evidence from the earlier hearings. Much of the evidence recited came from his own testimony which the chancellor clearly said she did not believe.

V.E. Harvey does not argue that the original decree was improper because an indefinite alimony award should not be used to equalize property distribution, and we do not reach that issue. His only arguments are that the record shows his inability to pay and the chancellor reinstituted her decree without hearing further evidence. His additional evidence could have been presented at the scheduled hearing, but he chose to appeal instead. We find no fault in the reinstitution of the original decree, as corrected, and no error in refusing to take evidence immediately on Mr. Harvey’s oral motion.

Affirmed.


author: Tom Glaze, Justice.

text:
    Donald COUSINS, Father and Next Friend of Tracy Cousins, A Minor, and Donald Cousins, Individually v. L. D. DENNIS, Terrance Mitchell, Huntsville School District #1, Jointly and Severally
    88-297
    767 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered March 27, 1989

      Odom, Elliott & Martin, by: Don R. Elliott, Jr.; Bill E. Bracey, Jr., for appellant.

      W Q Hall, for appellee.
   Tom Glaze, Justice.

This appeal involves a tort case which requires this court’s interpretation of several statutes that bear on (1) whether the appellees are immune from liability under the concept of governmental immunity and (2) whether the appellee Huntsville School District #1 was required to insure the vehicle that caused the injury sustained by one of the district’s students, appellant Tracy Cousins. The trial court, holding appellees were immune from tort liability and were not required to insure the vehicle in question, granted the appellees’ motion for summary judgment and dismissed the appellants’ suit. We affirm.

On April 11,1984, Tracy was attending school and walking to the coach’s office when he was struck in the left eye by a rock which was thrown by a bush hog mower being pulled by a tractor. Appellee L. D. Dennis was operating the tractor at the time and was mowing grass on the school premises under the direction of the school maintenance supervisor, appellee Terrance Mitchell. Donald Cousins filed suit, on behalf of his son and individually, against Dennis, Mitchell and the school district alleging, among other things, that the appellees’ negligence caused Tracy’s injury that blinded him in his left eye.

Cousins first challenges the trial court’s decision that appellees were immune from suit under Ark. Code Ann. § 19-10-305 (1987), a statute that immunizes state officers and employees from civil liability for certain acts and omissions occurring within the scope of their employment. Cousins is correct that § 19-10-305 is inapplicable to the facts here. However, since a school district and its employees are involved, not state employees, we still affirm the trial court’s holding because the court’s decision is supported by Ark. Code Ann. § 21-9-301 (1987), which provides as follows:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state shall be immune from liability for damages. No tort action shall lie against any such political subdivision because of the acts of their agents and employees. (Emphasis added.)

In considering § 21-9-301 in Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983), we held that the immunity granted to the political subdivisions named in the statute extends to the officials and employees of that governmental entity. Because Dennis and Mitchell were performing their official duties for the school district at the time of their alleged acts of negligence, they and the school district are immune from any such tort liability under § 21-9-301. Id. at 346, 658 S.W.2d at 375.

Although the school district is immune from tort liability under § 21-9-301, we must still consider whether the district was required, pursuant to Ark. Code Ann. § 21-9-303 (Supp. 1987), to insure the vehicle that was involved in Tracy Cousins’s injury. When a political subdivision named under § 21-9-303 fails to carry motor vehicle liability insurance, it becomes a self-insurer, if found liable, in an amount not to exceed the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984).

Section 21-9-303 in relevant part provides as follows:

(a) All political subdivisions shall carry liability insurance on their motor vehicles or shall become self-insurers, individually or collectively, for their vehicles, or both, in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq.

Cousins argues that the tractor used by the appellees is a motor vehicle, and the school district was required to insure it. To support his argument, he cites Ark. Code Ann. § 27-19-206 (1987), which, in relevant part, defines motor vehicle to mean every vehicle which is self-propelled. Cousins further argues that, in the Thompson case, this court found the Dardanelle School District liable for negligence that resulted from its employee’s use of a tractor on the highway when it struck a motorcycle driven by Sanford. The rationale in Thompson, Cousins submits, should apply here.

In Thompson, we never discussed or decided the issue of whether a tractor is a motor vehicle under § 21-9-303(a). Here, however, the school district’s main argument is that the tractor owned and used by the school district is not a motor vehicle that is required to be insured under § 21-9-303(a). The Huntsville School District reasons that § 21-9-303(a) requires insurance on motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq. By referring to § 27-19-101 et seq., the General Assembly obviously intended that the insurance coverage required of political subdivisions under § 21-9-303(a) should be subject to all of the provisions of the Motor Vehicle Safety Responsibility Act. In this respect, Ark. Code Ann. §§ 27-19-605 and 27-19-713 (1987) provide the minimum amounts of liability insurance coverage for a security deposit or proof of further financial responsibility ■ required under the Act. As we noted earlier, a school district becomes a self-insurer, if found liable, in an amount not to exceed those minimum amounts. See Thompson, 281 Ark. at 367, 663 S.W.2d at 934. The minimum liability insurance amounts required under these statutory provisions, subject to certain exceptions, apply to the driver and owner of any vehicle of a type subject to registration under the motor vehicle laws of this state, Ark. Code Ann. § 27-19-601 (1987), and to persons who have been convicted of or forfeited bail or who have failed to pay judgments upon causes of action arising out of ownership, maintenance, or use of vehicles of a type subject to registration under the laws of this state. Ark. Code Ann. § 27-19-702 (1987).

Under Arkansas’s motor vehicle registration laws, particularly Ark. Code Ann. § 27-14-703(3) (1987), an implement of husbandry is not required to be registered. Arkansas law defines implements of husbandry as being every vehicle designed and adapted exclusively for agricultural, horticultural, or livestock raising operations, or for lifting or carrying an implement of husbandry, and, in either case, not subject to registration if used upon the highways. Ark. Code Ann. § 27-14-212 (1987). In the case at hand, the motor vehicle in issue was a tractor pulling a bush hog mower. A tractor clearly falls within the definition of an implement of husbandry, and, as such, is not required to be registered under Arkansas law. Therefore, we agree with the Huntsville School District that it was not required to insure its tractor under § 19-10-303(a) because the vehicle is not required to be registered under Arkansas law.

In construing § 21-9-303(a), it is tempting to conclude that since the General Assembly failed to mention the vehicle registration statutes, those registration laws do not apply and, thus, a political subdivision should insure every motor vehicle it owns, registered or not. Such a construction would be erroneous for several reasons. One reason is that the language in § 21-9-303(a) specifically refers to the entire Motor Vehicle Responsibility Act, which, as we previously have discussed, relies, in turn, upon Arkansas’s vehicle registration and licensing laws. Another, and more important reason, is if Arkansas’s vehicle registration laws are not considered when construing § 21-9-303(a), absurd results would be reached. For example, if we limited the construction of § 21-9-303(a) to require political subdivisions to carry liability insurance on all motor vehicles meeting the definition found in § 27-19-206, a self-propelling riding lawn mower would qualify, thereby requiring the school district to include its mowers under liability coverage. This same rationale would include any self-propelled vehicle even though it is not designed or used primarily for transportation of persons or property. If we were to construe § 21-9-303(a) without considering all relevant provisions of Arkansas’s vehicle registration laws and Motor Vehicle Responsibility Act, another absurdity would arise by requiring political subdivisions to acquire liability insurance coverage on vehicles, which no one else in the state would be required to insure. Wedecline any interpretation of § 21-9-303(a) that would result in an absurdity or injustice. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985).

We believe the General Assembly, in requiring political subdivisions to purchase motor vehicle liability insurance, never intended non-registered vehicles to be covered. In passing § 21-9-303, the legislature undoubtedly was aware of how Arkansas’s Motor Vehicle Responsibility Act and vehicle registration laws worked together in requiring security deposits and liability insurance coverage only on those vehicles which are subject to registration. In keeping with this view, we have held that in construing any statute, we should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973).

In sum, in applying Arkansas’s registration laws, we find, as may reasonably be expected, that mowers and other vehicles not designed for transportation purposes are designated as special mobile equipment and exempted from registration. Ark. Code Ann. §§ 27-14-703(4) and 27-14-211 (1987). Thus, self-propelling mowers and other equipment not designed or intended for transportation purposes — being exempt from registration — are not required to comply with the security deposit or liability insurance provisions required under the Act. For the same reason, the Huntsville School District in the present case was not required to insure its tractor, because the vehicle is an implement of husbandry, which is specifically excluded from vehicle registration under § 27-14-703(3).

For the reasons, stated above, we affirm.

       A related case was previously before us and was dismissed pursuant to ARCP 54(b). Cousins v. Farm Bureau Mut. Ins. Co., 296 Ark. 552, 758 S.W.2d 707 (1988).


text:
    Mark STONE v. STATE of Arkansas
    CR 84-175
    767 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered March 27, 1989

      Appellant, pro se.
    No response.
   Per Curiam.

The movant Mark Stone was found guilty by a jury of murder in the first degree and sentenced to forty years imprisonment in 1984. We affirmed. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). We also denied a petition for writ of error coram nobis which had been filed in the case after the appeal record was lodged. Stone v. State, 290 Ark. 203, 718 S.W.2d 108 (1986). Stone now requests pursuant to the Freedom of Information Act, 5 U.S.C. § 552, a copy of all files and documents held by the clerk of this court. He states that he will be unable to prepare a defense properly without the production of the documents.

The federal statute cited by Stone does not apply to this court. Even if we treat the motion as a motion for transcript pursuant to our post-conviction rule, Criminal Procedure Rule 37, however, there is no basis to grant the relief requested.

A petitioner is not entitled to a free copy of the trial transcript on file with this court or any other document in possession of the clerk unless he demonstrates some reasonably compelling need for specific documentary evidence to support an allegation contained in a petition for postconviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); see Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entitle a petitioner to a transcript at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). As the petitioner here has cited no specific reason for requiring a copy of the trial transcript or other items on file here, his motion is denied.

It should be noted that when an appeal has been lodged in either this court or the Court of Appeals, the appeal transcript and other documents filed with this court remain permanently on file with the Clerk of the Supreme Court. Counsel may check a transcript out through the Clerk’s office for a period of time, and persons who are not attorneys may review a transcript in the Clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript or other documents on file with the clerk may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra.

Motion denied.


author: Per Curiam. John I. Purtle, Justice,

text:
    Garry WILLIAMS v. STATE of Arkansas
    CR 88-188
    766 S.W.2d 931
    Supreme Court of Arkansas
    Opinion delivered March 27, 1989

      John Wesley Hall, for petitioner.

      Steve Clark, Att’y Gen., by: C. Kent Jollijf, Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner Garry Williams was convicted of rape, kidnapping, burglary, and two counts of second degree battery. He was sentenced to twenty years for rape and to five years for each of the other crimes, all to be served concurrently. He appealed the rape conviction, arguing that there was insufficient evidence of rape. The Arkansas Court of Appeals affirmed without reaching the issue since the petitioner’s attorney had failed to raise the sufficiency of the evidence at trial. Williams v. State, 24 Ark. App. 118, 748 S.W.2d 355 (1988). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Rule 37.

The petitioner claims that his attorney was ineffective for not making a motion for a directed verdict with respect to the rape charge and one of the battery charges. The evidence showed that the petitioner, who had at one time dated the victim, broke into the victim’s apartment, carrying with him an ice pick, screwdrivers, and a stun gun. The victim woke with stabbing pains from the stun gun which felt like electric shocks. According to the petitioner’s testimony, a voice told him to kill the victim, and he counted her ribs so that he could insert the ice pick exactly where the voice directed. When he placed the ice pick in the chosen point on the victim, the voice told him not to proceed. According to the victim, the petitioner inserted his fingers in her vagina during the attack. The attack left the victim with numerous abrasions, burns, and marks on her body.

The petitioner was convicted of rape in that he engaged in deviate sexual activity with the victim. See Ark. Code Ann. § 5-14-103 (1987) [Ark. Stat. Ann. § 41-1803 (Repl. 1977)]. He was also convicted of the second degree battery of the victim in that he caused physical injury to her by means of a deadly weapon. See Ark. Code Ann. § 5-13-202(a) (2) (1987) [Ark. Stat. Ann. § 41-1602(l)(b) (Repl. 1977)]. The other conviction for battery arose out of injury the petitioner inflicted on the victim’s eight-month-old son.

The petitioner argues that although there was evidence that he inserted his fingers into the victim’s vagina, there was no evidence that he did so for sexual gratification as required by the statutory definition of deviate sexual activity. Ark. Code Ann. § 5-14-101 (1)(B) (1987) [Ark. Stat. Ann. § 41-1801(1 )(b) (Repl. 1977)] states: “ ‘Deviate sexual activity’ means any act of sexual gratification involving:. . . (B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.” The petitioner also claims that he assaulted the victim with a stun gun and that there was no evidence that a stun gun is a deadly weapon as required by the second degree battery statute.

The petitioner’s arguments are attacks on the sufficiency of the evidence and are not cognizable under Rule 37 because they are direct, rather than collateral, challenges to the conviction which should be made at trial and on direct appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Nor may a petitioner circumvent this rule by alleging that his counsel was ineffective for failing to raise the sufficiency of the evidence. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). Rule 37 is a narrow remedy designed to prevent wrongful incarceration under a sentence so flawed as to be void. Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988). The dissent would have us ignore the rule in order to answer a collateral attack to correct what it perceives to be a “catch 22.” That view misconstrues the scope of the remedy since Rule 37 does not provide such an option.

The only instance in which we would consider the sufficiency of the evidence within the purview of Rule 37 is when there is absolutely no evidence whatsoever to support the conviction; in such a case the conviction would be void. When we review a conviction on appeal, it is in a light most favorable to the appellee, and we affirm if there is substantial evidence. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Substantial evidence means that the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). In a Rule 37 petition, however, if a petitioner alleges that there is no evidence, we consider whether the conviction is supported by any evidence, however slight, not whether the evidence is sufficient. See Thompson v. Louisville, 362 U.S. 199 (1960). Where there is no evidence whatsoever, a conviction could not stand because a conviction under such circumstances would violate due process. See Gregory v. Chicago, 394 U.S. 111 (1969). This “no evidence” rule protects an accused from a wholly arbitrary deprivation of liberty. Jackson v. Virginia, 443 U.S. 307 (1979).

In the petitioner’s case there is evidence' to support both convictions. Although there is no direct evidence that the petitioner put his fingers in the victim’s vagina for sexual gratification, it may be assumed that the desire for sexual gratification was the plausible reason rather than out of revenge or out of anger as the petitioner suggests. The plain fact is that when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification. With respect to the second degree battery charge, the petitioner admitted holding an ice pick next to the victim’s body and using a stun gun to shock her. The victim did not know what was being used to produce the pains and cuts on her body. The fact that the petitioner was carrying an ice pick, clearly a deadly weapon, and admittedly held it to the victim’s body, is sufficient to find that the conviction for battery was supported by some evidence.

Petition denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The United States Constitution requires that an accused be convicted only upon evidence which goes beyond a reasonable doubt. The Constitution further requires that an accused be furnished effective assistance of counsel. In the present case the issue of the sufficiency of the evidence to support a conviction for rape was not brought to the attention of the trial court. It was the duty of defense counsel to have done so. The Court of Appeals did not reach the issue due to the defense attorney’s failure to question the sufficiency before the trial court. In the present decision this court does not reach the issue — this time on the basis that there is no constitutional right to a post-conviction proceeding.

Even though the opinion pretends not to reach the issue of the sufficiency of the evidence, the majority points out in much detail the evidence to support the verdict without allowing petitioner to challenge the sufficiency of the evidence. What is the purpose of reciting the facts if we are not going to review them? It seems to me that the opinion is doing exactly what it states cannot be done in this case. The opinion states that “there is evidence to support both convictions.” What do these words mean if they do not mean the evidence was sufficient to sustain the conviction? Likewise, the ineffective assistance claim is evaded by holding that it cannot be included in a claim challenging the sufficiency of the evidence. A claim of ineffective assistance of counsel usually cannot be made until after trial. The vast majority of our Rule 37 petitions claim ineffective assistance ,of counsel.

The petitioner is consequently denied a hearing on the merits of either issue. We ought not to cover up the denial of a constitutional right under the guise that there is no constitutional right to a post-conviction proceeding. We should allow the petitioner to argue the ineffective assistance issue to the trial court pursuant to his Rule 37 petition as that is the normal procedure. After all, he has already been denied a direct appeal concerning the sufficiency of the evidence. This is a real “Catch 22.” The opinion appears to have ruled on both issues without considering the merits of either.

Not one court — not the trial court, not the Court of Appeals, nor this court — has directly addressed the issue of whether petitioner’s rape conviction was supported by evidence proving the state’s case beyond a reasonable doubt. Not one court has reached the issue of ineffective assistance of counsel on its merits. I believe that the petitioner has been denied due process of law. I would grant the petition for Rule 37 relief and allow him to proceed in the trial court.