text:
    CITY OF LAMAR, Arkansas and Mayor George Overby, East Johnson County Water Assoc., Horsehead Water Users Assoc., Ludwig Water Users Assoc., City of Coal Hill, Arkansas and Mayor William Yates, City of Hartman, Arkansas and Mayor Coyle James v. CITY OF CLARKSVILLE
    92-1131
    863 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Wilson, Engstrom, Corum & Dudley, by: Gary D. Corum, for appellants.

      Zachary Davis Wilson, P.A., for appellee.
   Robert H. Dudley, Justice.

The City of Clarksville owns electric, water, and waste water utility systems and operates those utilities through the Clarksville Light and Water Commission. CL&W impounds water, produces potable water, and transmits and distributes the water to retail customers inside and outside its city limits. In addition, Clarksville sells treated water at wholesale rates to six other nearby water utility distribution systems. Those six water distribution systems, in turn, provide water to retail customers located in their respective territories. The six water distribution systems that purchase water wholesale are the six appellants, East Johnson County Water Association, Horse-head Water Users Association, Ludwig Water Users Association, and the Cities of Lamar, Coal Hill, and Hartman. Clarksville increased the rate it charges the six distribution systems for water. The sale of water to the six appellants is governed by contracts that, in the material part, provide any “increase or decrease in rates shall be based on a demonstrable increase or decrease in the costs of performance hereunder.” (Emphasis supplied.) This case primarily involves a dispute over whether Clarksville has demonstrated an increase in the costs of performance sufficient to justify a rate increase to $1.56 per thousand gallons of water.

Since the date the contracts were initially signed Clarksville has made various improvements to its water system, and, in both 1985 and 1988, increased the rates it charged the six appellants. The 1988 wholesale rates resulted in an average charge of 78 cents per thousand gallons. In 1989, Clarksville commissioned a rate study to determine the cost of water after additional improvements were constructed. The improvements were to be made with the proceeds of a proposed 1990 bond issue. After the study, in February 1990, Clarksville enacted an ordinance that raised the rates for all customers effective April 15, 1990. This new rate structure resulted in an average wholesale price to the six appellants of $1.56 per thousand gallons of water. The six appellants refused to pay this higher rate and, instead, continued to pay the previous rate of $.78 per thousand gallons.

Clarksville filed suits in circuit court against the six appellants and sought monetary judgments for the difference in the rate paid and the rate charged for water supplied after the effective date of the ordinance and, in addition, sought a declaratory judgment that the ordinance setting rates was valid. Appellants counterclaimed for alleged breaches of the contracts, and three of the appellants sought a modification of provisions in their contracts that limited the quantity of water to be supplied.

The cases were consolidated and tried to the court. The trial court’s letter opinion found that Clarksville had met the burden of showing a demonstrable increase in the cost of performance of $1.56 per thousand gallons. Consequently, the trial court gave monetary judgments against the six appellants for the difference between the old and new rates. However, the trial court did not give a declaratory judgment on the validity of the ordinance. The six appellants appeal, and Clarksville cross-appeals. We affirm the monetary judgment on direct appeal and reverse, in part, on Clarksville’s cross-appeal.

The first assignment of error by the six appellants is that the trial court erred in using the “reasonableness” standard provided in Ark. Code Ann. § 14-234-110(b)(1) (1987) to approve the rate increase. The cited statute provides that “[w]ater may be supplied to nonresident consumers at such rates as the legislative body of the municipality may deem just and reasonable.” We recently interpreted this statute in a case involving Fayetteville providing wholesale water to the Mount Olive Water Association, and we affirmed the trial court’s determination that increased rates were “just and reasonable” under the provisions of the statute. Mt. Olive Water Ass’n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). However, in that case, the contract provided that Fayetteville “in its sole discretion has the right to increase or decrease the rates and charges,” and, therefore, the statutory reasonableness standard was the only standard governing the rate increase. The case at bar has the contractual standard that any “increase or decrease in rates shall be based on a demonstrable increase or decrease in the costs of performance hereunder.” Clarksville did not argue that the statutory reasonableness standard governed and does not make such an argument in this appeal. It is evident from the trial judge’s letter opinion that he was well aware the contract provisions governed because, in material parts, the letter provides:

This first issue we are concerned with is whether the increase in water rates by Clarksville is based on a demonstrable increase in the cost of production.
... I conclude that Clarksville has met the burden of showing a demonstrable increase in the cost of production.
I now consider the amount. The decision on the amount is not predicated on the credibility of witnesses since I feel they were all very knowledgeable and thorough. It is based more on what the Court considers the more proper methodology. . . .
Stated another way, I am convinced the methodology and figures produced by Clarksville are more realistic than those of the defendants. . . .
I am not going to recite all the evidence that supports Clarksville’s contention that its cost of production has increased, except to say I feel it is ample to sustain the contention a raise is justified and the average rate of $ 1.56 per thousand gallons is reasonable.

In sum, it is evident that the trial judge used the language of the contract as the standard for the rate increase, and did not use the “reasonableness” standard of the cited statute.

In several sub-arguments under this same assignment of error the appellants contend that even if the trial court attempted to use the “cost of performance” standard, it erred by using “reasonableness” standards of methodology. These sub-arguments concern various costs that the trial court allowed in determining the cost of performance. The facts leading to the sub-arguments are summarized as follows. Clarksville introduced the testimony of James Ulmer, the consulting engineer who conducted the rate study. He testified a “cash basis” rate analysis reflected a cost of $2.49 per one thousand gallons of water, and that a “utility method” of determining the cost of production, which would include a 1.5 times interest earning ratio, reflected a cost of $2.00. Clarksville also introduced the testimony of Stephen Merchant, an economist with experience in utility rate matters, who testified that Clarksville had to meet the debt service requirements imposed by the public bond markets in order to obtain financing for its waterworks improvements. The trial court found Clarksville’s figures to be “realistic” and ruled that the rate set in the ordinance, $1.56 per one thousand gallons, was based on an increase in the cost of performance.

The six appellants do not dispute that a cash basis rate study would accurately reflect the cost of performance, but rather they contend that the trial court erred in refusing to exclude certain costs from the cash basis analysis, and, because it did not exclude those cash costs, the trial court in effect reverted to a reasonableness standard. They contend the trial court, as a matter of law, should have excluded a number of such cash costs.

The six appellants’ first sub-argument is that the trial court erred in allowing Clarksville to accrue too much expense through funded depreciation. Clarksville’s expert witnesses testified that the rate of depreciation should be even more rapid than the rate used because new federal and state standards for water purity often made waterworks equipment obsolete years before it actually wears out. On the other hand, appellants’ witnesses testified that a longer useful life should have been assigned to various assets. This was a matter of credibility of witnesses, and was a matter for the trial court to weigh. Clearly, it was not an error of law in the methodology used.

Appellants’ second sub-argument about methodology is that the trial court erred in allowing Clarksville to include in “general and administrative expenses” an expense item that CL& W pays to Clarksville. The expense item is 5 percent of gross income. A contract must be interpreted in accordance with the law in' force and effect at the time of the contract formation. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955). The statutes governing municipal waterworks that were in effect at the time these contracts were made are presumed to be a part of the contracts and, at the least, provide guidance in interpreting the contracts. At the time these contracts were entered, section 14-234-114 of the Arkansas Code Annotated of 1987 was in effect, and it provides that municipal water systems are authorized to pay a sum equal to 5 percent of gross income to the municipality in “lieu of taxes, in return for police, fire, and health protection . . . and other services furnished the waterworks system by the municipality.” Thus, the expense item was a valid expense in the lawful cost of performance of the contracts.

Appellants’ next sub-argument is that the trial court erred in allowing a part of $127,648 per year “debt service coverage” for the revenue bonds issued by Clarksville. This figure amounts to 130 percent of the amount necessary to pay the current principal and interest. Testimony described this as the amount deemed necessary in the bond trust indenture for the city “to provide sufficient revenue to pay the bonds and to provide a cushion or coverage or additional security for the bond holders.” The cushion was also referred to as a sinking fund. There was no testimony to indicate that this cushion or additional security will go to anything other than the retirement of the revenue bonds. Again, the contract must be interpreted in accordance with the law in force at the time of the making of the contract. Section 14-234-214 of the Arkansas Code Annotated of 1987 provides that rates for resident and nonresident customers of a municipal waterworks system must be adequate to pay the principal and interest on all revenue bonds and to make such payments into a revenue bond sinking fund as may be provided by a bond trust indenture. In addition, a witness qualified in the field of municipal bonds testified that this debt service requirement was imposed by the commercial market of public bonds and further testified that if Clarksville did not agree to the sinking fund, it could not compete in that market for funds at a reasonable rate. Accordingly, the trial court did not err as a matter of law in holding that the debt service coverage was a valid expense in the cost of performance of the contract.

Appellants’ final sub-argument is that the trial court erred in the computation of the allowable interest expense on the bonds. Their argument is valid in part, but it does not cause us to reverse. At some time in 1990, Clarksville received the money in exchange for the revenue bonds it issued. The improvement projects were not completed at the time, and so it was not necessary for Clarksville to expend all of the money at that time. As a result, Clarksville had a period of time that it was able to invest these funds, perhaps in United States Treasury obligations, and receive interest in return. One witness testified that Clarksville invested the money it obtained from issuing the bonds and, in return, received $362,000 in interest before it had to use the money to pay the contractors and suppliers. This interest received by Clarksville was not deducted from the cost of the interest it expended on the outstanding revenue bonds. The trial court allowed all of the interest Clarksville expended on the revenue bonds, but did not offset that with the interest it received. To this extent the trial court’s ruling was in error. However, we do not reverse because of it. According to the exhibit abstracted on this issue, Clarksville claimed in 1991 an expense of $ 127,646 for debt service coverage on the 1990 bonds. According to the exhibit, if the interest received from Clarksville’s investment of the bond funds were offset against this amount, the allowable expense for debt service coverage for that year would have been only $33,432. However, according to appellants’ witness, this difference in interest would have only reduced the cost of water by 39 cents per thousand gallons. Clarksville’s cash rate analysis showed a cost of $2.49 per thousand gallons of water, and even if the trial court had deducted the 39 cents, Clarksville’s proof was still sufficient to show that the rate of $1.56 was justified under the contracts as equal to or less than the cost of performance. In addition, this offsetting interest income to Clarksville was a one- year phenomenon. It had not occurred when the ordinance setting the rate was enacted, it will not occur again, and it did not and will not reduce the cost of performance in any year other than the year it was received.

In summary, we hold that the trial court did not err in the methodology it used in finding that the rate of $1.56 per one thousand gallons of water is justified under the contract. This holding is confirmed in a practical way. The 1990 capital improvements cost approximately $10,000,000, and the six appellants, through the rate increase, will pay 8'/: percent of those overall capital costs, but will use 29 percent to 33 percent of the water produced by the system.

Appellants’ second assignment of error involves the quantity provisions of the contracts with three of the six appellants, the Horsehead Water Users Association, the Ludwig Water Users Association, and the City of Hartman. Each of these long term contracts provide that Clarksville will make available potable water in “such capacity as may be required by the Purchaser not to exceed_gallons per month.” In the contract with appellant Horsehead the blank is filled in with the figure 5.4 million. It is undisputed that when the contract was executed, in 1978, Clarksville had a duty to make up to 5.4 million gallons of potable water available to appellant Horsehead. The contracts with Ludwig and Hartman contain the same provision, with a different number of gallons specified. The CL&W, which operates the utility, has recently sold an amount of water to each of the three appellants that is in excess of the figures contained in the original contracts. The three appellants contended below that the original contracts were modified by the conduct of the parties and their course of performance under the contract. The trial court ruled against the contention, and the three separate appellants assign the ruling as error. The ruling of the trial court was correct.

The contracts are between the City of Clarksville and the three separate appellants. Section 14-234-108 of the Arkansas Code Annotated of 1987 provides that these contracts must be between the city owning the producing system and the city or association purchasing the water. It must be authorized by city ordinances, or if one of the purchasers is an association then by resolution, and the contract “shall be signed by the mayor of each contracting municipality and by the chairman of the board of each contracting improvement district.” Ark. Code Ann. § 14-234-108 (1987). These contracts were with Clarksville, and not with CL&W, the entity that operates the utility for Clarksville. The City of Clarksville has not delegated any legislative powers to CL&W. See Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963). Thus, it is the City rather than CL&W that has the authority to enter into or modify the contracts, and the conduct of CL&W in supplying water in excess of the amounts specified did not have the effect of modifying the contract.

Appellants alternatively contend that, even if CL&W did not have the authority to modify the contracts, the trial court’s ruling was still in error because Clarksville ratified the modification. Ratification of a contract must be by the principal or by an authorized agent. City of Greenbrier v. Cotton, 293 Ark. 264, 737 S.W.2d 444 (1987). There was no evidence to indicate that Clarksville authorized CL&W, or any of its employees, to modify these contracts.

Another alternative argument propounded by appellants is that Clarksville is estopped to deny the modification. Estoppel may be applied against a city, but its application will be rare indeed. In Miller v. City of Lake City, 302 Ark. 267, 789 S.W.2d 440 (1990), we stated that a city cannot be estopped by the unauthorized act of one of its officers. There was no evidence that Clarksville authorized any employee to modify the contracts. As a result, even if one of the CL&W employees stated that the three appellants could have water in excess of the amount provided in the contracts, the City would not be estopped from enforcing the quantity provision of the contract. We affirm the ruling of the trial court on the alternative arguments.

Appellant Horsehead Water Users Association separately makes the third assignment of error which involves an alleged modification of the term, or length, of its contract. On January 25, 1978, Clarksville and Horsehead entered into a contract for a term of ten years. Horsehead received a loan for the construction of its system from the Farmers Home Administration. Before the Farmers Home Administration would loan the money, it requested that Horsehead seek to have the term of the contract extended from ten to twenty years. Subsequently, the superintendent of Horsehead went to the executive officer of CL&W, Otis Cude, and suggested the requested change. At some time later the “ten” in the contract was lined out and “twenty” was handwritten in its place. Beside the handwriting were the initials O.R.C., which are Otis Cude’s initials. The trial court ruled this was not a valid modification of the contract. Separate appellant Horsehead assigns the ruling as error.

Parties are free to modify a contract between them, but it is essential that both parties agree to the modification and its terms. Leonard v. Downing, 246 Ark. 397, 438 S.W.2d 327 (1969). Here, there is no evidence that one of the parties, Clarksville, approved the modification, and there was no evidence that Cude was authorized to act for the City. Consequently, the trial court’s ruling was correct.

The foregoing three assignments of error are all of the points advanced by the appellants. None of the points require reversal, and, accordingly, we affirm on direct appeal.

Clarksville, on cross-appeal, makes four assignments of error. The first of these is that the trial court erred in refusing to enforce an implied declaratory judgment in Clarksville’s favor. The argument is meritorious. Clarksville filed suit for the money due under the new rate and, in addition, asked for a judgment declaring the validity of the municipal ordinance setting the rate at $1.56 per thousand gallons of water. The trial court, by granting the money judgment at the rate set in the ordinance, impliedly declared the ordinance valid. However, the trial court declined to formally enter such a declaratory judgment. The result is that Clarksville has a money judgment to the date of the trial. The six appellants filed a supersedeas bond for this amount. However, since the date of trial the appellants have been paying at the rate of only 78 cents per thousand gallons of water, not at the rate of $1.56, and, under the trial court’s ruling, Clarksville will have to continue to file suits to collect the additional deficiencies that will accrue. The ruling was in error. We reverse on this point of cross-appeal and remand for the trial court to enter and to enforce a declaratory judgment.

Clarksville’s second assignment of error involves the trial court’s refusal to award prejudgment interest. Again, the assignment has merit. In Atlanta Exploration, Inc. v. Ethyl Corp., 301 Ark. 331, 784 S.W.2d 150 (1990), we wrote that the test for awarding prejudgment interest is:

whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. If such a method exists, prejudgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid. Where prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law.

Id. at 339, 784 S.W.2d at 153-54 (citationsomitted). Clarksville met this test, and prejudgment interest should have been allowed. We reverse and remand on this point of cross-appeal.

Clarksville’s third assignment, which involves separate cross-appellee City of Hartman, is also meritorious. Clarksville and Hartman entered into a forty-year water supply agreement on February 23,1968. In one part of this case, Clarksville moved for a partial summary judgment declaring that the forty-year term was void as a matter of law. The trial court denied the motion for partial summary judgment and later ruled that the forty-year term was valid.

Section 14-234-108 (b)(2) of the Arkansas Code Annotated of 1987, which has been in effect since 1949, authorizes municipalities to sell water to other municipalities and provides that the “contract may be for a term of not exceeding twenty (20) years.” The Cities of Clarksville and Hartman had no authority to into a contract that was contrary to the general laws of the state. Morrilton v. Comes, 75 Ark. 458, 87 S.W.2d 1024 (1905). A contract by a city that is contrary to the general law of the state is void. Id. Cross-appellee Hartman does not deny the foregoing law, but rather contends that federal law preempts state law because the Farmers Home Administration loaned money to Hartman to build its system. We need not decide whether federal law preempted state law at any time because the Farmers Home Administration is no longer involved in financing the Hartman system. It has sold the notes without recourse, and no authority is cited that federal law would preempt state law in such an event.

Clarksville’s final assignment on cross-appeal is that the trial court erred in refusing to award it a 10 percent penalty against all six cross-appellees in accordance with the 1985 city ordinance that increased the rates. The provision in the ordinance is penal in nature and must be strictly construed, and a trial court will be granted a reasonable amount of discretion in denying or allowing such penalties depending on the circumstances. Lamar Bath House, Inc. v. City of Hot Springs, 229 Ark. 214, 315 S.W.2d 884 (1958). The trial court did not abuse its discretion under the circumstances of this case. The contract, which initially determined the rates, did not provide for a penalty. The contract provided for modification of the rates through city ordinance when the cost of performance increased or decreased. The validity of the ordinance was dependent proof of cost of performance of the contract. We need not decide whether a penalty could lawfully be subsequently added to the cost of performance, because; even if it might be, the trial court did not abuse its discretion in refusing to penalize the appellants for raising a valid justiciable question. In sum, on cross-appeal, we reverse and remand in part, and affirm in part.

Affirmed on direct appeal; reversed and remanded in part and affirmed in part on cross-appeal.

Glaze, J., concurs on direct appeal.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Dameioun Laron TOWNSEND
    CR 93-317
    863 S.W.2d 288
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Don Thompson, Deputy Public Defender, for appellee.
   Robert H. Dudley, Justice.

In 1992, appellee was arrested and found to be in possession of 4.754 grams of a cocaine based substance. In January of 1993, he pleaded guilty to possession of a controlled substance with intent to deliver. The trial court imposed a sentence of ten years for the crime, but suspended the execution of eight years of the sentence. The State objected to the suspension of part of the sentence and argued that the applicable 1992 statutes, Ark. Code Ann. §§ 5-64-401 (a)(1)(i) (Supp. 1991) & 5-4-301 (a)(1)(f) (Supp. 1991), required the trial court to sentence appellee to serve not less than ten years in the penitentiary and that the applicable statutes provided that the sentence could not be suspended. The trial court overruled the State’s objection, and the State appeals from the ruling. The ruling was in error. We reverse and remand.

Pursuant to A.R.Cr.P. Rule 36.10(c), we will accept appeals by the State when our holding will set a precedent that would be important to the correct and uniform administration of justice. The first question presented is whether this is such a case. Act 192 of 1993, which became effective on August 13,1993, or after the sentence was fixed, amends the applicable 1992 statute to allow a trial judge to do just what the trial court did in this case. The 1993 Act is entitled “An Act To Amend Arkansas Code 5-4-104 and 301 To Allow The Suspension Of Sentences For Certain Drug Offenses; And For Other Purposes.” It is clear that this case would not be important to the uniform administration of justice if the trial court could, upon remand, resentence the defendant in the same manner as was done the first time.

The State argues that the statute in effect on the date of the crime was committed is the statute that must govern sentencing, see Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), and, at the time this crime was committed, the trial court could not suspend the sentence. The State additionally argues that, in the absence of a provision stating that an act will apply retroactively, the Act will apply prospectively only. See Arkansas Fire and Police Pension Review Bd. v. Stephens, 309 Ark. 537, 832 S.W.2d 239 (1992). The State has correctly stated the general rules that are applicable when punishment is enhanced in any manner. If it were otherwise, a penalty might be increased after a crime had been committed in violation of the ex post facto prohibition. See Ark. Const. art. 2, § 17. However, in this case the General Assembly reduced the penalty after the crime was committed, but before resentencing can be had. In the past we have held that when the General Assembly amends an act to reduce the punishment after the commission of an offense, but before sentencing, the sentence is to be fixed at the reduced punishment in accordance with the amended act. Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969). If we hold that the trial court erred in construing the statutes in effect at the time of the commission of the crime, we will remand for resentencing, and, if we follow Clark v. State, and hold that the trial court could impose the very same sentence that it fixed originally, we would do nothing for the uniform administration of justice. We would have only performed a vain and useless act, and the law does not require vain and useless acts. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989) (supplemental opinion denying rehearing). Thus, the first issue is whether Clark v. State is still controlling.

The Arkansas Criminal Code, enacted in 1975, had, among its purposes, statewide uniformity in sentencing. Ark. Code Ann. § 5-4-104, a part of the criminal code, sets out a comprehensive list of the dispositions available to the sentencing court. Ark. Code Ann. § 5-4- 104(a) (1987) provides that a convicted defendant shall not be “sentenced otherwise than in accordance with this chapter.” By case law we expanded the literal meaning of the quoted language to say that statutes that define a criminal offense and also possess their own sentencing provisions will control over the general code language. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318, rehearing denied, 283 Ark. 434, 678 S.W.2d 318 (1984). Since the enactment of the code, we have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime, Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), and that sentencing is now controlled entirely by statute, Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Thus, the criminal code sentencing provisions supplanted the case law of Clark v. State on sentencing. Consequently, the holding in this case will affect the uniform administration of justice since there are other cases in the same posture as this one.

The State’s argument on the merits is valid. At the time the defendant committed the crime, the applicable statutes provided that the trial court was required to sentence him to serve not less than ten years in the penitentiary, and that sentence could not be suspended. The defendant pleaded guilty on January 25, 1993, to possession of cocaine with intent to deliver. The penalty for that crime at the time was set out in Ark. Code Ann. § 5-64-401 (a)(1) (i) (Supp. 1991) as follows:

(a) Except as authorized by subchapters 1-6 of this . chapter, it is unlawful for any person to . . . possess with intent to manufacture or deliver a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) A controlled substance . . . shall be imprisoned for not less than (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars. . . . [Emphasis added.]

Ark. Code Ann. § 5-4-301 (a)(1)(F) (Supp. 1991), in effect at the time, prohibits suspension of the sentence as follows:

A court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for the following offenses:
Drug related offenses under the Uniform Controlled Substances Act. . . .

The defendant was convicted under the provisions of the Uniform Controlled Substances Act. Thus, the trial court erred in suspending a part of the sentence that had been imposed.

The defendant gives a number of arguments for upholding the trial court. We summarily dismiss those arguments by stating that the statute is clear, and there is no need for construction or interpretation of the statute. The statutes in effect at the time provided that the sentence imposed could not be suspended. Resentencing on remand is not prohibited by former jeopardy considerations. See Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985) and Caldwell v. State, 268 Ark. 713, 595 S.W.2d 253 (1980). Thus, we remand for resentencing.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Michael Vincent ADAMS a.k.a. Vincent Valachi v. STATE of Arkansas
    CR 93-354
    863 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Austin & Osborne, by: Brenda Horn Austin, for appellant.

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

Michael Vincent Adams was convicted of five felonies: two counts of aggravated robbery and theft of property and one count of aggravated assault, a lesser included offense of attempted capital murder. Under the Habitual Offender Act, Adams was sentenced to two consecutive life sentences for the aggravated robberies, two concurrent ten year sentences for the thefts, and a concurrent fifteen year sentence for aggravated assault.

Michael Vincent Adams appeals from the judgment of conviction, contending the trial court erred in not suppressing his confessions on the grounds that they were involuntary or were elicited because he was not taken before a judicial officer without unnecessary delay. Finding no error, we affirm the judgment.

Adams was arrested by police from the City of Rogers at about five o’clock on the afternoon of October 15, 1991. The arrest was pursuant to a warrant issued by the State of California. Around six o’clock, Adams asked to speak to Sgt. Mark Russell. Russell told Adams that he would talk to him as soon as he finished other duties. Russell returned about midnight and proceeded to take a statement from Adams until 3:30 a.m. The statement implicated Adams in several offenses but not in a recent robbery and theft at the Westside Elementary School.

On the following day Adams complained of chest pains and was taken to a Rogers hospital, returning later that afternoon. At 5:19 p.m. Russell again spoke with Adams and this time Adams implicated himself in the Westside incident.

Adams maintains that both confessions should have been suppressed because he was not brought promptly before a judicial officer and because the confessions were involuntary. The trial court denied the motion and both confessions were introduced at the trial.

Adams submits that under Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), and County of Riverside v. McLaughlin, _U.S_, 114 L.Ed. 49 (1991), his confessions should be excluded due to a violation of A.R.Cr.P. 8.1, which provides:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

In the Duncan case we held that when a delay occurs in bringing a defendant before a judicial officer we will exclude a confession taken during the delay if: a) the delay was unnecessary; b) the evidence is prejudicial; and, c) there is a reasonable correlation between the confession and the delay. The delay need not have been the sole basis for the confession, it is enough if it reasonably appears it was a coefficient cause of the confession. Id., p. 529-530. See Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992).

In the McLaughlin case, supra, the Supreme Court held that when no probable cause hearing is conducted within forty-eight hours following an arrest, the burden of proof shifts to the government to demonstrate the existence of a “bona fide emergency or other extraordinary circumstance” occasioning the delay. The court also pointed out that a probable cause hearing would not pass constitutional muster simply because it occurred within forty-eight hours of the arrest. The prompt arraignment rule could be violated under such circumstances if the probable cause determination was delayed unreasonably. McLaughlin continued:

Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay’s sake.

The issue then is whether there was an unnecessary delay and, if so, whether it warrants exclusion of the confessions under the Duncan test.

As to the first confession, within an hour of his arrest Adams asked to speak to Sgt. Russell and Russell met with Adams as soon as other matters were completed. Between midnight, when the interview began, and 3:30, when it ended, Adams confessed to all the crimes with which he was later charged except the Westside School robbery. We find no basis for the suppression of this confession either for unnecessary delay or for a causal connection between the confession and a lapse of time. The defendant’s confession appears to have been entirely prompted by his own purposes. See Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989).

At 5:30 on the following afternoon, Russell again interviewed Adams and took his confession to the Westside School robbery. Adams argues that the want of an appearance before a judicial officer on October 16 constitutes an unnecessary delay. We disagree, particularly in light of the fact that Adams’s medical problems necessitated his spending part of that day at the hospital. The details of the events of October 16 are sketchy at best, but inasmuch as Adams had, at that point, been confined for less than twenty-four hours, it was not the state’s burden to disprove that any delay in arraignment was simply for the sake of delay or was motivated by ill-will. Rather, it was appellant’s burden to show that the delay was the precipitating cause of the confession. We find no such proof in the record.

As to the argument the confessions were involuntary, there is no basis in fact. Adams alludes to his unhealthy state, lack of sleep, hours of questioning and the subtle coercion associated with his girlfriend and their daughter. He also points to the supportive testimony of a cell mate, who testified that he observed officers throw Adams down in the cell and jump on him. Adams’s girlfriend testified that he had not slept the night of the 14th, but taking that proof at face value, Adams still had opportunities to rest between the arrest at 5:00 p.m. and the initial meeting with Russell seven hours later. Nor do we regard three and one-half hours as unreasonable on its face. It was Adams who requested the interview and there is no indication that he wanted a cessation. See Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990).

As to the likelihood of subtle coercion, we can find no direct proof in support of that conclusion and Russell’s testimony to the contrary is essentially unrefuted. In short, these issues turned altogether on credibility and we cannot say the findings of the trial court were clearly erroneous.

For the reasons stated, the judgment is affirmed.


author: David Newbern, Justice.

text:
    Christopher E. FENDLEY v. STATE of Arkansas
    CR 93-637
    863 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Daniel D. Becker and Terri L. Harris, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Christopher Fendley was found guilty and sentenced as an habitual offender to six years imprisonment for being a felon in possession of a firearm. The Statute making it an offense for a felon to possess a firearm criminalizes that conduct “Unless so authorized by and subject to such conditions as prescribed by the Governor. . . .” Fendley contends the State failed to prove he had not been authorized by the Governor to possess a firearm. We affirm the conviction because the language to which he refers creates a defense to the crime rather than an element of it, and the evidence was sufficient to prove he conducted himself in violation of the Statute.

Mr. Fendley pawned a shotgun at a pawn shop in Hot Springs. Fendley completed an information card that listed his name, driver’s license number, and address. The card was sent to the Garlarid County Sheriff’s Office where it was determined that Fendley was a convicted felon, and a warrant for his arrest was issued.

The Statute mentioned above is Ark. Code Ann. § 5-73-103 (Supp. 1991). It states, in pertinent part:

(a) Unless so authorized by and subject to such conditions as prescribed by the Governor, or his designee, or the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, or other bureau or office designated by the Treasury Department, no person shall possess or own any firearm who has been:
(1) Convicted of a felony; ....

The prosecutor presented evidence that Fendley was a convicted felon, and he presented the information card Fendley completed to pawn the shotgun. Fendley’s attorney moved for a directed verdict, stating that the prosecutor had failed to prove all the elements of the offense.

The State contends the “authorization” clause permitting a felon to possess a firearm if authorized by the Governor, his designee, or the Treasury Department creates a defense on which Mr. Fendley was obliged to present evidence rather than an element to be proved by the State. Fendley presented no such evidence at his trial.

Arkansas Code Ann. § 5-1-111(c) and (d) (1987), refer to two types of criminal defenses as follows:

(c) The issue of the existence of a defense need not be submitted to the jury unless evidence is admitted supporting the defense. If the issue of the existence of a defense is submitted to the jury, the court shall charge that any reasonable doubt on the issue requires that the defendant be acquitted. A defense is any matter:
(1) So designated by a section of this code; or
(2) So designated by a section not a part of this code; or
(3) Involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence.
(d) The defendant must prove an “affirmative defense” by a preponderance of the evidence. An “affirmative defense” is any matter:
(1) So designated by a section of this code; or
(2) So designated by a statute not a part of this code.

The “authorization” clause in subsection (a) of § 5-7 3-103 creates a defense as defined by § 5-1-111(c)(3). Were that not so, we would have to hold that the General Assembly intended to require the State to prove a negative, that is, to prove a defendant has not been authorized, by one of the several official officers or office mentioned, to possess a firearm. That he had been authorized officially to possess a firearm would be “peculiarly within the knowledge of the defendant.”

Mr. Fendley cites Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (1990). Irvin had been convicted under the Youthful Offender Alternative Service Act of 1975 which requires expungment of the conviction upon completion of sentence. There was no showing that Irvin’s conviction record had been physically expunged, and it was used to convict him under § 5-73-103. We reversed, holding that Irvin was not required to produce evidence that the conviction had, in fact, been expunged and thus he was no longer a “felon” who could be charged with unlawful possession of a firearm.

The point was that one convicted under the Youthful Offender Alternative Service Act may assume, due to the law requiring it, the conviction has been expunged. Under § 5-73-103(a), however, no governmental entity is required to authorize a convicted felon to possess a firearm. Unlike the “automatic” expungment requirement we found in the Irvin case, a request for and the granting of authority to possess a firearm are matters which should clearly be within Fendley’s knowledge but not necessarily within the State’s knowledge. Under these circumstances it is fair to require a defendant to introduce evidence that he has authorization to possess a firearm.

Affirmed.


text:
    Louis FIGHT v. STATE of Arkansas
    CR 93-114
    863 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Oscar Stilley, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Louis Fight, was convicted of manslaughter, leaving the scene of a personal injury accident, and two counts of aggravated assault. He was sentenced to 10 years incarceration on the manslaughter count and six years on each of the other counts. The death and injuries were inflicted by a person other than Fight who drove her vehicle into the victims and then away from the scene. The basis of Fight’s conviction was that he contributed to the driver’s intoxication by sharing a marijuana cigarette with her. We agree with Fight’s contention that the evidence was insufficient to support the conviction, thus the conviction is reversed and dismissed. Other arguments need not be addressed.

The case was tried before a jury. From the evidence presented, viewed most favorably to the State’s case, the Trial Court could have concluded the following events took place in the early morning hours of August 27,1992. Fight and Renee Smith were together at her home. Both were drinking, and Fight rolled one marijuana cigarette which he shared with Ms. Smith when they left her house. They got in Ms. Smith’s pickup truck with Ms. Smith driving. Her blood alcohol level was .16 % and his was .15% when they were arrested a short time later.

Ms. Smith drove on a highway past the scene of a burning car. She then turned her truck around and headed back to the fire scene where there were several emergency vehicles with their emergency lights flashing. At least one emergency vehicle was parked in the middle of the highway, and hoses were stretched from the emergency vehicle over to the burning car which was at the side of the highway. Instead of driving on the vacant part of the highway, and thus around the emergency vehicle and the burning car, Smith drove between the emergency vehicle and the burning car. Her truck struck two policemen, Jerry Stallings and James Andoe, and one fireman, Johnnie Grizzle. Stallings was killed, and the other two were injured.

Ms. Smith continued driving even though she blew out one of her tires on a fire hose coupling. Officer Andoe chased the vehicle until it was forced to stop, and he arrested both occupants.

Sufficiency of the evidence

There is no question that a directed verdict motion was made at the proper points in the trial on the ground that there was a lack of evidence to support the conviction. The State contends we should not address the sufficiency of the evidence issue as Fight’s abstract does not apprise us of the argument made to the Trial Court in conjunction with the motions for directed verdict. The State does not deny that the argument made by Fight on appeal was made to the Trial Court, but contends that it is not properly abstracted.

We agree with the State’s citation of Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991), for the proposition that the record on appeal is limited to that which is abstracted. The State also quite correctly cites Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); and Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989), holding that a directed verdict motion setting forth a specific theory must be made to the Trial Court.

Unlike cases where we have dismissed appeals for total failure to abstract an essential motion or judgment, see, e.g., Taylor v. State, supra, or where the abstract displays a different argument made to a trial court than is made on appeal, see, e.g., Pilcher v. State, supra, we do not find this abstract to be “flagrantly deficient.” See Arkansas Supreme Court and Court of Appeals Rule 4-2(b)(2). From Fight’s abstract, we know that the directed verdict motions were made. From his argument we know what his contention with respect to the directed verdict motions is. Again, the State does not deny that the contention now argued was argued to the Trial Court.

It is obvious that, as Fight did not directly cause the injuries resulting in the charges, his criminal responsibility must be based upon accomplice liability. Fight asserts there can be no basis for the conviction because there can be, as a matter of law, no accomplice liability based solely upon supplying an intoxicant to one who then commits a criminal act. In general, when the sufficiency of the evidence is challenged, we look to the evidence presented and affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). We review the evidence in the light most favorable to the appellee, considering only that which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). But the evidence thus considered must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987).

The evidence in this case concerning intoxicants came from Fight’s statement after he was arrested that he shared a marijuana cigarette with Ms. Smith at some point in the evening. There was undisputed evidence presented by toxicologist Randall Tucker that Ms. Smith was over the legal limit of .10% for alcohol consumption and operation of a vehicle at the time of the incident. See Ark. Code Ann. § 5-65-103 (1987). There were in addition traces of cannabanoids in her fluid sample. No evidence was presented suggesting that Fight supplied any alcohol to Ms. Smith, and no witness testified that intoxication from the sharing of whatever quantity of marijuana Fight shared with her created or enhanced the danger of injury to another.

Fight cites cases which demonstrate that we have clearly held in civil litigation there is no liability on the supplier of intoxicants because it is the consumption of them that is to blame rather than the supplying of them. Rone v. H. R. Hospitality, Inc., 297 Ark. 107, 759 S.W.2d 549 (1988); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). We have repeatedly stated that the issue of civil liability for supplying alcohol to one who then injures another rests in the hands of the Arkansas General Assembly. He also cites older dram-shop cases which considered the effect of a statute requiring one selling liquor to post a bond. In those cases it was held that the statute imposed no liability on the supplier beyond the natural consequences of the consumption of alcohol, generally stating that the supplying of alcohol was not the proximate cause of the injuries in question. Bolen v. Still, 123 Ark. 308, 185 S.W. 811 (1916); Peter Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861 (1906); and Gage v. Harvey, 66 Ark. 68, 48 S.W. 898 (1898).

The State responds on the manslaughter charge by citing Lewis v. State, 220 Ark. 914, 251 S.W.2d 490 (1952), for the proposition that it is possible for a defendant to be criminally liable for recklessness causing the death of another in a vehicular homicide even if that defendant is not driving the vehicle at the time of the incident. The Lewis case opinion referred to Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173 (1944), in which we held that a drunk passenger could be convicted as an accessory before the fact to involuntary manslaughter and held to the same degree of fault as the driver who was the principal offender.

In the Fitzhugh case, each of the occupants of the truck, Fitzhugh and Davis, contended the other was driving and that he had no recollection of the incident. Fitzhugh and Davis were drunk or had been drinking in the truck belonging to Fitzhugh, and we said the jury could have found that, even if Fitzhugh was not actually driving, he was not so drunk that he could not know that his truck was being driven on the wrong side of the road in such a manner as to become an instrument of death.

The facts and instructions in the Lewis case were similar to those in the earlier Fitzhugh case. Lewis owned the car, and each defendant stated the other was driving and denied recollection of the incident. Both were charged under the accessory before the fact law. The instructions stated that if one of the defendants was driving the car in a reckless, willful manner with wanton disregard for the safety of others, and the other defendant was riding as a passenger and was aiding, abetting, or assisting in the unlawful operation of the car by the co-defendant, then both defendants could be found guilty of involuntary manslaughter. The jury was also told that if either defendant was under the influence of intoxicants and incapable of properly operating the car and the non-driver, with knowledge of the co-defendant’s condition and incapacity, knowingly permitted him to operate the car in a reckless manner without protest and encouraged such driving, then the non-driver would be guilty of criminal negligence and involuntary manslaughter in the event the jury found the driver guilty of the charge.

The Lewis and Fitzhugh cases are distinguishable from, and provide no support for the Trial Court’s ruling in, this instance. At the time those cases were decided, “accessory before the fact” was defined as one who stands by, aids, abets, or assists, or who, not being present, advises and encourages the perpetration of the crime. The same was true when we decided Stacy v. State, 228 Ark. 260, 306 S.W.2d 852 (1957), where the owner of a truck was responsible for having an intoxicated person drive it, and a death resulted.

The current Criminal Code treats the concept of accessories differently. An accessory before the fact is now referred to as an accomplice, and one who was formerly an accessory after the fact is now guilty of a separate crime — hindering apprehension and prosecution. See Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). An accomplice is no longer one who merely stands by while a crime is being committed. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991).

An accomplice of another person in the commission of a crime has, since 1975, been defined in Ark. Code Ann. § 5-2-403 (1987) and its predecessor codifications as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). There is no evidence that Fight did anything with the purpose of promoting or facilitating the crimes charged against Smith and insufficient evidence to move one beyond conjecture that Fight’s actions aided the conduct which resulted in the death.

The State’s argument on the merits of the question whether Fight was properly convicted points out that manslaughter, as defined in Ark. Code Ann. § 5-10-104(a)(3) (1987), requires a finding of a particular result, i.e., the death of another person. The definition of aggravated assault, found in Ark. Code Ann. § 5-13-204(a) (1987), does not require a finding of a particular result, only that the accused acted in a certain way in certain circumstances. The latter is also true of the offense of leaving the scene of a personal injury accident as defined in Ark. Code Ann. § 27-53-101(a)(1) (Supp. 1991) making the “driver” responsible. The State’s point is that Fight’s argument on the aggravated assault and leaving the scene charges is without merit because a lack of causation argument may succeed only with respect to those criminal offenses requiring proof that the accused caused some result to occur, citing Neely v. State, 18 Ark. App. 122, 711 S.W.2d 482 (1986).

The Neely case does not support the State’s argument. Neely argued that because he did not intend to kill his victim he could not be guilty of aggravated assault for having held a knife up to him with the intent of cutting him and scaring him. The Court of Appeals held that the requirement that the defendant act “purposefully” to be guilty of aggravated assault related to the conduct of the defendant rather than the intended result. In Fight’s case, we are dealing with an entirely different matter, i.e., whether it was proven that Fight, in the words of our accomplice liability statute, did anything “with the purpose of promoting or facilitating the commission of an offense” allegedly done by someone else, or was shown to have “act[ed] with respect to that result with the kind of culpability sufficient for the commission of the offense.” Ark. Code Ann. § 5-2-403(a) and (b) (1987).

As to manslaughter, the State argues Fight was properly convicted if it was shown he “acted recklessly with regard to the required result, which is the death of another person.” Again, the only citation given is Lewis v. State, supra, which we have distinguished.

We have found neither an Arkansas case nor a case from any other jurisdiction in which there has been an attempt to impose accomplice criminal responsibility on the basis of supplying an intoxicant to one allegedly responsible as a principal. We have, however, found one case which is close enough to present a helpful, albeit imperfect, analogy, State v. Etzweiler, 480 A.2d 870 (N.H. 1984).

Etzweiler and Bailey arrived at Etzweiler’s place of employment in a car owned by Etzweiler. Bailey was intoxicated, but Etzweiler loaned Bailey his car, and Bailey drove away and caused an accident resulting in two deaths. Etzweiler was charged in two counts of negligent homicide and in two counts as an accomplice to negligent homicide. The Trial Court certified questions on appeal to the New Hampshire Supreme Court. One of them was “whether the legislature in enacting RSA 630:3,1 [negligent homicide], and RSA 626:8 [manslaughter], intended to impose criminal liability upon a person who lends his automobile to an intoxicated driver but does not accompany the driver, when the driver’s operation of the borrowed automobile causes death.”

The question was answered in the negative. As we have done here, the New Hampshire Supreme Court pointed out the distinction between common law and older accessory statutes and the current New Hampshire accomplice liability statute which is like the Arkansas law. As to charges of negligent homicide against Etzweiler, the Court said:

If he aided and abetted Bailey, although not present at the commission of the crime, Etzweiler, at common law, may have been guilty as an accessory before the fact to involuntary manslaughter. See, e.g., Stacy & Rusher v. State, 228 Ark. 260, 306 S.W.2d 852 (1957). However, at common law, the crimes of principals and accessories before the fact were distinct and separate. [Citation omitted.]
In 1973, the legislature enacted the Criminal Code and created RSA 626:8, the accomplice liability statute. That statute abrogated the common-law distinction between principals and accessories and narrowly defined those situations in which an individual could be held criminally liable for the conduct of another. [Citation omitted.] Etzweiler’s conduct, in lending his automobile to Bailey, must be measured against the standards set forth in the statute.
Etzweiler’s conduct may fall within the statutory language defining negligent homicide. However, whether to impose criminal liability on Etzweiler involves an important policy decision of broad social consequences. The awesome deliberative task of making such a judgment should not, in the first instance, be thrust upon the juries of our trial courts but should be resolved through the legislative process to determine in what manner society seeks to deal with the criminal liability of those who permit unqualified operators to wreak havoc upon our public ways. This is a matter for legislative concern and is not a matter for judicial innovation. [Citations omitted.]

The Court then discussed the charges against Etzweiler as an accomplice, quoting RSA:8 III, the New Hampshire accomplice liability statute which is the same as § 5-2-403 quoted above. It was held that to be guilty under the negligent homicide statute, the accused must be unaware of the risk created by his or her conduct; one cannot intentionally aid another in committing an offense of which the latter is unaware.

While the analogy is thus not apt in all respects, we agree with this statement made by the New Hampshire Supreme Court:

Our interpretation of the accomplice liability statute effectuates the policy that an accomplice’s liability ought not to extend beyond the criminal purposes that he or she shares. Because accomplice liability holds an individual criminally liable for actions done by another, it is important that the prosecution fall squarely within the statute.

The Trial Court erred in failing to grant Fight’s directed verdict motions. The evidence was not sufficient to prove beyond speculation or conjecture that Fight’s actions in any way were done “with the purpose of promoting or facilitating the commission” of any of the crimes allegedly committed by Ms. Smith. Nor is there evidence to show that Fight took any action which could be shown to have aided or encouraged Smith to engage in the conduct causing death or in the language of the statute, to have acted “with respect to that result [manslaughter] with the kind of culpability sufficient for the commission of the offense.”

As we have done with respect to the question of civil liability of the supplier of an intoxicant to one who causes injury, we point out that it is up to the General Assembly to decide whether to impose criminal responsibility in circumstances where it is shown that the mere supplying of an intoxicant, rather than the consumption or use of it, resulted in criminal misconduct by another.

Reversed and dismissed.


author: David Newbern, Justice. Robert H. Dudley, Justice, Tom Glaze, Justice,

text:
    Darrell SMITH v. STATE of Arkansas
    CR 93-219
    863 S.W.2d 563
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is a first degree murder case in which the appellant, Darrell Smith, was convicted and sentenced to life imprisonment for killing George Sparlin. Smith’s sole point of appeal is that the evidence was insufficient to support the conviction. We find the evidence was sufficient and affirm the conviction.

Police investigations produced a stream of circumstantial evidence which tied Smith to the shooting. From testimony the jury could have found these facts: Sparlin employed Smith on a part-time basis and on the night in question was working with Smith in his (Sparlin’s) shop where heavy trucks were repaired. The shop was 30 to 40 yards away from Sparlin’s home. Sparlin was last seen alive, other than by Smith, at 3:00 p.m. on February 1 by his step-son, Kevin Hopkins. Hopkins also heard Sparlin talking on the shop phone between 8:00 and 8:45 p.m. on that date. Kevin left the house with his girlfriend shortly after hearing the phone calls.

Chuck Fite was also employed by Sparlin, and on the night of February 1 Fite made a call to Sparlin about 8:00 p.m. asking if Sparlin needed him to come into work. Sparlin promised to come and pick Fite up. After waiting for a time without being picked up Fite called Sparlin again and was informed that Smith was at the shop and they were working. Sparlin informed Fite he would be there to pick him up in a short time. After another period of time Fite called again and Sparlin stated that Smith would pick him up shortly. Approximately 30 minutes later, Smith arrived to pick Fite up in a black four-wheel drive Chevrolet pickup.

Rather than take Fite directly to the shop, Smith, who said he needed to run an errand, drove to the home of David Givens. Givens also employed Smith, and there was testimony that Givens’s wife and Sparlin were having an affair. Givens was not at home when Smith and Fite arrived. Smith then drove Fite to a point near Sparlin’s shop and dropped him off. Fite found Sparlin in the garage dying from gunshot wounds. Fite called an ambulance which arrived five minutes after the call. He also called Sparlin’s mother-in-law, Willene Hopkins, who lived nearby. She arrived within minutes.

Hopkins stated she had heard five or six shots from the direction of the shop around 9:30 p.m. February 1 and a short time later heard a truck leave the vicinity. Joy Batchelor lives about 100 yards from the Sparlin home, and as she was coming home around 9:30 that night, she encountered a black pickup truck coming out from in front of the shop at a high rate of speed. Debbie Batchelor was in the Batchelor home around 9:30 p.m. and heard five or six shots followed by the sound of a truck leaving. Cindy Batchelor was following her mother-in-law, Joy, home from work and also saw the black or dark blue Chevrolet pickup leave the shop at a high rate of speed. She stated the truck she saw was almost identical to one shown in a photograph of Smith’s truck although she could not positively say they were the same.

Catherine Boyette was an EMT attendant on the ambulance which arrived at the shop. She found Sparlin unconscious but alive. He was taken to a hospital in Malvern. He was in a coma. Robert Fletcher, the nursing supervisor who treated Sparlin, observed a bullet fragment fall from one of his wounds. The fragment was later placed in the hands of the sheriff.

Bob Adams, Sheriff of Grant County, arrived on the scene of the shooting on February 1 at approximately 10:30 p.m. The ambulance had taken Sparlin away. At the scene Adams located five spent .22 cartridge casings, each of which was marked with a “C” on the end. After investigating at the scene Sheriff Adams went to Smith’s home. Upon arrival he observed Smith’s truck in the driveway. Adams glanced into the truck and observed a brick of .22 caliber shells of the same brand as those found at the scene of the shooting. When Adams entered the residence Smith denied knowing of the shooting. Adams asked Smith to come to the Sheriffs office with him, and as they were leaving, Adams observed blood on the back of Smith’s trouser leg. He immediately advised Smith of his rights and arrested him.

Smith made a statement at the Sheriffs office in which he denied any involvement in the shooting and explained that he was injured while hunting earlier in the day. He stated he had changed his trousers and burned the ones he had been wearing earlier. He explained his failure to mention the gunshot wound to his leg to persons he spoke with later that evening as being due to the fact that it was not bothering him that much. Smith also denied owning a .22 caliber pistol but said he owned a single shot .22 antique rifle. Later on in the investigation blood on the drivers side seat and a spent .22 cartridge casing were found in Smith’s truck.

Alvin Brown, a Malvern resident, stated he observed Smith firing a .22 automatic pistol in front of Brown’s house, for the purpose of “sighting it in” some three or four weeks before the shooting of Sparlin. Sheriff Adams located additional casings in Brown’s yard which were later identified as having been fired from the same weapon as the bullets which struck Sparlin.

Tom Carden, a U.S. Army Recruiter, stated that three years before the shooting he had traded to Smith a .22 automatic rifle with a rotary clip which would fire 10 or 11 times in succession.

Lisa Sackevicius, a criminalist for the Arkansas State Crime Laboratory, testified that Smith was found to have a low level of the elements which may have been gunshot residue on his hands at the time of his arrest. The tests were not conclusive as there are environmental and occupational sources which could have been sources of the elements.

Dr. David DeJong, a forensic pathologist, performed the autopsy on Sparlin and concluded he died as the result of a gunshot to his head. There were four bullet holes in the body, and three bullets taken from the body were turned over to the Arkansas State Crime Laboratory.

Berwin Monroe, chief firearms and tool marks examiner for the Crime Laboratory, testified that all the bullets submitted were examined by him. He concluded the casings found in the Smith vehicle, the casings found at the Brown residence, the five casings found at the scene of the shooting, and the bullet removed from Sparlin were all fired from the same firearm.

After presentation of this testimony to the jury, counsel for Smith made a directed verdict motion on the basis that there was no physical evidence tying Smith to the commission of the crime and that the evidence was otherwise insufficient to sustain a guilty verdict. The motion was denied.

In defense Smith called his brother, Richard. Richard Smith testified that he had traded a .22 caliber pistol to his brother Darrell at Christmas of 1991 in exchange for the .22 automatic rifle. Samantha Smith, Darrell’s daughter, testified in his behalf that her father left their home about 8:30 p.m. on February 1 to go hunting and didn’t return until around 10:00 p.m. Darrell Smith testified and explained his version of the events of February 1, denying any involvement in the shooting of Sparlin.

The defense rested and renewed the motion for directed verdict. The motion was again denied. The jury deliberated and returned a guilty verdict imposing a sentence of life imprisonment.

1. Sufficiency of the evidence

When the sufficiency of the evidence is challenged, we affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion that is beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We have long held that circumstantial evidence alone may be sufficient to support a conviction. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). Such evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987). We review the evidence in thelightmost favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).

There is ample evidence to support the verdict in this case. Shell casings from the murder weapon were found in Smith’s vehicle and a vehicle very similar to his was seen leaving the scene of the murder at a time shortly after the shots were heard. Smith’s explanation for the recent wound in his leg, which he did not even mention to persons he spoke with after he allegedly shot himself, was absurd, and the jury obviously chose not to believe his story.

The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finder’s conclusion. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

2. Rule 4-3(h) review

As Smith received a life imprisonment sentence, the record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and there were no rulings adverse to Smith which constituted prejudicial error.

Affirmed.

Holt, C.J., and Dudley and Glaze, JJ., concur.

Robert H. Dudley, Justice,

concurring. This concurring opinion is written to discuss an erroneous ruling, and, at the same time, to give notice to any new trial judge who might not be familiar with the rule concerning cameras and recording devices in the courtroom.

This case involves a sentence of life imprisonment. In cases of life sentences we must examine the record in accordance with Ark. Sup. Ct. R. 4-3(h) to determine if there are rulings adverse to the appellant which require reversal. In examining this record it is clear that a video camera was allowed to operate in the courtroom during the trial over appellant’s objection. The trial court stated that the camera was set up in such a way that it would not cause a distraction and overruled the objection. The ruling was patently in error.

In 1980, in Canon 3(A)(7)(b) of the Arkansas Code of Judicial Conduct, we authorized, with many limitations, the broadcasting, recording, or photographing of trials, provided, among other things, “all parties and attorneys, whether depicted or not, and all witnesses that may be depicted or recorded have given written consent; the jurors shall not be depicted nor recorded.” See In re: Petition of Arkansas Bar Ass’n, 271 Ark. 358, 362, 609 S.W.2d 28, 30 (1980).

Two years later, in Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), we issued a clear caveat about violation of this Canon. We wrote:

[Safeguards have been adopted by Canon 3(A)(7) of the Code. A willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court. Since the trial of the appellant had been completed [when a camera was allowed] and the only thing left to do was to sentence him and only one sentence was to be imposed, we cannot hold that there was any prejudice to the appellant as a result of coverage by the media without prior approval.

Id. at 111-12, 633 S.W.2d at 11.

In 1982 we modified the Canon to eliminate the requirement of a written consent of all the parties, see In re: Modification of the Code of Judicial Conduct Relating to Broadcasting and Photographing Court Proceedings, 275 Ark. 495, 628 S.W.2d 573 (1982). In conjunction with that change, Canon 3(A)(7) was amended to read as follows:

A judge may authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent thereto during sessions of court, recesses between sessions, and on other occasions, provided that:
(a) the participants will not be distracted nor will the dignity of the proceedings be impaired;
(b) an objection timely made by a party or attorney shall preclude broadcasting, recording or photographing of the proceedings; and, an objection timely made by a witness who has been informed of the right to refuse such exposure, shall preclude broadcasting, recording or photographing of that witness;
(c) the broadcasting, recording or photographing of any court proceeding will be in compliance with the rules adopted by the Arkansas Supreme Court;
(d) trials in juvenile court or concerning adoptions, guardianships and domestice relations shall not be subject to broadcasting, recording or photographing.

Ark. Code of Judicial Conduct Canon 3(A)(7) (1993).

In Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), we issued yet another warning. We wrote:

The appellant acquiesced in the trial judge’s ruling by failing to make further objections during the course of the trial. In this instance, the error was rendered harmless. The bench and bar should be on notice however that his court will closely scrutinize any further violation of this rule.

Id. at 471, 683 S.W.2d at 905.

In a supplemental opinion we wrote:

Had the record in this case hinted of any prejudice to the appellant by the presence of cameras within the courtroom, reversal would be in order. Absent any prejudice, to reverse and remand as punishment to the trial court would not justify the time and expense for all parties and the court system to relitigate this matter.

Jim Halsey Co. v. Bonar, 284 Ark. 461, 473-B, 688 S.W.2d 275, 276 (1985) (supplemental opinion denying rehearing) (emphasis added).

The Canon has now become a part of the Administrative Rules. It is styled Administrative Order #6 and will be located in the “Court Rules” volume of the Arkansas Code Annotated as an appendix to the Arkansas Rules of Civil Procedure.

Under the rule, if a party objects, the trial judge must prohibit the recording or broadcasting of the trial. A fair trial without undue distractions is the paramount objective. In addition to the parties, the witnesses are given standing to object, and when a witness does so, the broadcasting or photographing must be prohibited. To rule otherwise might deprive the parties of the unhindered testimony of witnesses who might be reluctant to have their picture transmitted by television. Some confidential informants would easily come within this group. Jurors represent an even different interest. Jury service is a duty of citizenship, and many citizens are reluctant to serve, especially in cases involving habitually dangerous criminals, mob or gang members, or in cases they find personally embarrassing, such as deviate sexual activity cases. Jurors serve because the State asks them as good citizens to judge facts involving their peers. That is enough. They should not additionally be subjected to worries or embarrassment that might come about by having their pictures transmitted by television or published in newspapers.

Trials in juvenile court or cases concerning adoptions, guardianships, or domestic relations are never subject to broadcasting, recording, or photographing.

In the case at bar, following jury selection, appellant’s counsel objected to the videotaping of the trial by stating that he felt the presence of the camera in the courtroom would constitute a distraction to the jury and interfere with the fair administration of justice. The trial court erroneously overruled the objection. However, counsel did not make a sufficient record for reversal. We are not told whether the jurors were photographed, whether some or all of the witnesses were photographed, whether the videotaping was limited to counsel and the trial judge, or whether the camera did in fact cause a distraction. The record simply is insufficient to show any prejudice to the appellant. As we said in the supplemental opinion in Jim Halsey Co. v. Bonar, under these circumstances we will not reverse and remand solely as punishment to the trial court. 284 Ark. at 473-B, 688 S.W.2d at 276. Since appellant has not shown that he was harmed by the erroneous ruling, I join the majority in affirming the judgment of conviction.

Holt, C.J., joins in this concurrence.

Tom Glaze, Justice,

concurring. Justice Dudley’s concurring opinion suggests the trial court committed patent error when it allowed courtroom video taping conditioned upon the taping not being disruptive. I respectfully disagree with Justice Dudley’s opinion because I believe the Judicial Canon provides some discretion with the trial judge who must decide such issues.

In pertinent part, Canon 3(A)(7)(a) provides that a judge may authorize photography in the courtroom provided neither the participants will be distracted nor the dignity of the proceeding will be impaired. Provision (b) of that section states that a party’s or attorney’s timely objection shall preclude photography.

This court has previously considered cameras in trial proceedings. In Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), Jim Halsey Co. objected to the use of cameras, but the trial court allowed them so long as they did not become distracting. On appeal, this court held the trial court erred by disregarding Canon 3(A)(7), and although the majority court in Bonar announced its notice that further violation of this Canon would not be tolerated and “may well” result in automatic reversal, it affirmed the trial court’s decision because prejudice was absent.

In Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), this court stated willful disobedience of Canon (A)(7) would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial. Nonetheless, the Ford court upheld the trial court’s ruling to permit cameras because no prejudice was shown.

In sum, this court has never automatically reversed a case on appeal because a trial court allowed cameras over counsel’s objection. This court has not modified Canon 3 since the Ford and Bonar decisions to put the bench and bar on notice that the mere violation of the Canon would result in automatic reversal.

Here, while Smith’s counsel objected to video taping, he showed no prejudice resulting from the taping, presumably because none occurred. Smith neither argued below nor in this appeal that the trial court abused its discretion or that automatic reversal should occur from the trial court’s ruling on the taping issue.

To date, this court has expressed that a retrial could occur if a trial judge willfully violated Canon 3(A)(7) and automatic reversal may well happen if a violation of the Canon is shown and no prejudice was involved. Obviously, this court has struggled during the past eight years or more over how cameras and video taping and media coverage should be handled and enforced at trial proceedings, but, as yet, the court has been unwilling to address this exact issue in its rules or canons. Other sanctions are available to the court to insure enforcement of Canon 3 rather than declaring error and requiring automatic reversal and retrial of a case which otherwise was tried without flaw, prejudice or impairment to a fair trial. If this court should decide to enforce Canon 3 by declaring error and reversing, I feel the court should notify the bench and bar by saying so in our canons and rules. Perhaps, with modern-day technology as it is, this court’s study and consideration of this subject might lead it to clarify its rules to permit non-intrusive or non-disruptive videotaping in many, if not most, cases. In any event, trial courts should have discretion in making these decisions.