author: David Newbern, Justice.

text:
    William Dillard TAYLOR v. STATE of Arkansas
    CR 97-1240
    974 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   David Newbern, Justice.

Appellant William Dillard Taylor was convicted of raping his daughter. He was sentenced to life imprisonment. Mr. Taylor argues that the Trial Court erred in denying his motion for change of venue due to pretrial publicity. We hold that the Trial Court did not abuse its discretion in denying the motion. In his second point on appeal, Mr. Taylor contends that the Trial Court erroneously refused to excuse a juror for cause based on the juror’s confusion as to the standard of proof required for a conviction in a criminal case. We hold that the Trial Court did not abuse its discretion in refusing to excuse the juror because the juror indicated that he could apply the law. Mr. Taylor also argues that the Trial Court erred in admitting the testimony of Mr. Taylor’s other children and stepchildren, who testified that Mr. Taylor sexually abused them. We hold that the testimony was properly admitted pursuant to the pedophile exception to Ark. R. Evid. 404(b). In his final point on appeal, Mr. Taylor argues that the Trial Court erred in denying his motion for mistrial due to the prosecuting attorney’s reference to the testimony of the children and the stepchildren in his opening statement. We hold that the Trial Court did not abuse its discretion in refusing to grant the motion because the evidence was admissible and because the Trial Court’s admonishment to the jury cured any prejudice.

1. Pretrial publicity

In his first point on appeal, Mr. Taylor argues that the Trial Court erred in denying his motion for change of venue due to pretrial publicity. We disagree.

Mr. Taylor filed a pretrial motion seeking a change of venue and attached several newspaper articles regarding the case as exhibits to his motion. In the motion, Mr. Taylor argued that because of the pretrial publicity, he could not receive a fair trial in Crawford County or Sebastian County. The day before the trial, the Trial Court held a hearing on the venue motion. Mr. Taylor first introduced the testimony of Marvin Honecutt, an attorney in Van Burén, who testified that he had seen extensive television and newspaper coverage regarding Mr. Taylor and that most of the coverage was in regard to police questioning of Mr. Taylor about the disappearance of Morgan Nick and the apparent murder of Melissa Witt. He further stated that he believed that the jurors in Crawford County would try to give anyone a fair trial, but that in spite of their best efforts, he would be concerned that the thought that Mr. Taylor is the person who killed Melissa Witt or abducted Morgan Nick would be in the back of their mind. On cross-examination, Mr. Honecutt testified that he had not gone throughout the county visiting people about this matter and that he did not know the pulse of the community.

Stephen Parker, a regional reporter for the Southwest Times Record in Van Burén who reports on Crawford and Franklin Counties, testified that the newspaper is the daily major newspaper in Sebastian County, but he was not sure of its status in Crawford County. He further testified that he had not visited extensively with the residents of Crawford County concerning their feelings about Mr. Taylor and that he lived in Fort Smith rather than Crawford County.

Mr. Parker testified as to three articles that he wrote for the newspaper in 1996. He also testified as to a fourth article written by another reporter in 1996. The articles state that Mr. Taylor had been “on the run” from law enforcement authorities and was captured in Oklahoma by a game warden. The articles also state the police planned to question Mr. Taylor about the slaying of Melissa Wick and the disappearance of Morgan Nick, and that Mr. Taylor faced three felony rape warrants involving children between the ages of six and fourteen.

Kenneth Fry, a reporter for the Press-Argus-Courier in Van Burén, testified that the newspaper is a bi-weekly newspaper that is available by subscription or at a newsstand. He stated that he did not know whether the Press-Argus-Courier would reach most subscribers in Crawford County, but that the newspaper had about 7,000 subscribers. He testified regarding articles about Mr. Taylor’s case that appeared in the Press-Argus. On cross-examination, Mr. Fry testified that he had not visited with people out in the community in Crawford County concerning Mr. Taylor or his connection with these cases.

Mr. Taylor also introduced a wanted poster which appeared in Crawford County stores. The poster includes a picture of Mr. Taylor with the caption, “Have you seen this man?” The poster also includes a letter from an anonymous writer which states that Mr. Taylor sexually abused the author of the letter and her sisters.

The Trial Court denied the motion for change of venue on the ground that the witnesses did not exhibit any familiarity with the citizens throughout the county, and that the burden is on the defendant to show that it is the opinion of the citizenry that the defendant could not have a fair trial in the county.

The standard of review for denial of a motion for change of venue is whether there was an abuse of discretion by the trial court. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). Mr. Taylor failed to submit affidavits to support his motion for change of venue as required by Ark. Code Ann. § 16-88-104(a) (1987) (“The truth of the allegations in the petition shall be supported by the affidavits of two (2) credible persons who are qualified electors, actual residents of the county, and not related to the defendant in any way.”). Three witnesses did testify at the hearing on the matter. A criminal cause may be removed to another county when the minds of the inhabitants of the original county “are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county.” Ark. Code Ann. § 16-88-201; Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). However, a motion for change of venue is not properly supported when the movants, affiants or witnesses are unable to show in their testimony that they have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the county. Berry v. State, 290 Ark. 223, 235, 718 S.W.2d 447 (1986), Those witnesses who state the appellant cannot receive a fair trial must be able to show that they either have a general knowledge as to the state of mind of the inhabitants of the whole county, or they are cognizant of prejudice existing throughout the whole county. Bell v. State, 324 Ark. 258, 263, 920 S.W.2d 821 (1996). See also Noel v. State, 331 Ark. 79, 84, 960 S.W.2d 439 (1998) (“[A]ffidavits that cite little or nothing beyond an affiant’s own convictions that a fair trial is not possible are insufficient.”). It is clear that the testimony at the hearing failed to satisfy this test. None of the witnesses testified that they had a general knowledge as to the state of mind of the inhabitants of the whole county or that they were aware of prejudice existing throughout the county.

In addition, there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). The defendant is not entitled to jurors who were totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have found and render a verdict solely on the evidence at trial. Id. In this case, none of the veniremen who were selected as jurors could remember anything about Mr. Taylor. Mr. Taylor concedes that the voir dire does not show that the jury was comprised of jurors who were “consciously biased” against him. In fact, of the twenty-four jurors who were voir dired, eighteen knew nothing about the case. Of the remaining six potential jurors, four had varying degrees of knowledge about the case and were excused. The other two potential jurors were not asked about their knowledge, and they were excused for other reasons.

In light of the testimony of the witnesses and the responses of the jurors, we hold that the Trial Court did not abuse its discretion in denying Mr. Taylor’s motion.

2. Juror challenge

Mr. Taylor also argues that the Trial Court erred in refusing to excuse a juror for cause based on the juror’s apparent confusion as to the requirement that the State prove guilt beyond a reasonable doubt in criminal cases. When the juror, in response to defense counsel’s question, indicated that he thought that a balancing procedure should be used to determine guilt rather than requiring guilt beyond a reasonable doubt, defense counsel challenged the juror for cause.

The Trial Court asked the juror whether he would ignore an instruction that he must be convinced beyond a reasonable doubt before he could find Mr. Taylor guilty. The juror responded “no” and indicated that he did not understand the defense counsel’s question. The Trial Court then explained the difference between the preponderance-of-the-evidence standard of proof in civil cases and the beyond-a-reasonable-doubt standard of proof required in criminal cases two times. After both explanations, the juror responded that the standards were the same to him. The Trial Court then asked the juror if he understood that he was under a higher duty in a criminal case than he was in a civil case, and the juror responded “yes.” The Trial Court explained the difference the standard of proof in a criminal case and the standard in a civil case for a third time and asked the juror if he thought one standard was higher than the other. Mr. Wagner responded, “Reasonable doubt is still reasonable.” However, the juror, in response to the Trial Court’s question, stated that he would follow the Trial Court’s instructions as to the law. Defense counsel renewed his objection and pursued the matter with the juror who stated that “Yes, I feel that this person is guilty” is the same as being convinced beyond a reasonable doubt,” and that whether he was on a criminal or civil jury, he would have to be convinced “they” are right. Mr. Taylor again challenged for cause. The Trial Court responded that it believed that the discussion involved “semantics” and asked the juror how convinced he would have to be in order to find Mr. Taylor guilty. The juror responded “beyond a reasonable doubt.” Mr. Taylor renewed his objection again. The Trial Court asked the juror whether he would follow its instructions, and the juror responded in the affirmative. The Trial Court declared the juror to be a good juror. Because Mr. Taylor had exhausted his peremptory challenges, the juror was seated on the jury.

The decision to excuse a juror for cause rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Persons comprising the venire are presumed to be unbiased and qualified to serve. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). The burden is on the party challenging a juror to prove actual bias, and when a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, a trial court may find the juror acceptable. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). However, we have also recognized that the bare statement of a prospective juror that he can give the accused a fair and impartial trial is subject to question. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984). Any uncertainties that might arise from the response of a potential juror can be cured by rehabilitative questions. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

The State argues that the Trial Court properly refused to excuse the juror for cause because he indicated that he could set aside any preconceived notions concerning the definition of reasonable doubt and follow the Trial Court’s instructions.

It is generally held that a juror, who holds a mistaken view of the law as to a defense, a particular principle of law, the burden of proof, the presumption of innocence or the weight or effect of the evidence, but is willing to abide by the law as explained or stated by the court and not by his own ideas, is not disqualified for cause. Jones v. State, 264 Ark. 935, 576 S.W.2d 198 (1979). In the Jones case, we affirmed the Trial Court’s refusal to dismiss two potential jurors for cause when the jurors were confused as to whether the defendant had to put on any evidence in his defense. One potential juror stated that she would follow the law that was given to her, and the second potential juror eventually said that she understood that the defendant did not have to say anything in his defense. Id at 936.

We hold that the juror had a sufficient understanding of the law and that the Trial Court did not abuse its discretion in refusing to dismiss the juror for cause. The juror stated that he would follow the law and that he would have to be convinced beyond a reasonable doubt in order to find Mr. Taylor guilty.

3. Ark. R. Evid. 404(b)

Mr. Taylor argues that the Trial Court erred in admitting the testimony of his children and stepchildren who testified that Mr. Taylor abused them. Prior to trial, Mr. Taylor filed a motion in limine in which he argued that the Trial Court should exclude their testimony. At a pretrial hearing, the Trial Court considered the motion and found that it was inclined to allow the evidence but that it wanted the opportunity to know more about the evidence before determining whether it was overly prejudicial.

The victim, Mr. Taylor’s daughter, testified that when she was four years old, Mr. Taylor began molesting her, and that he later raped her on more than one occasion. She stated that the abuse often involved her siblings and other men. She also stated that Mr. Taylor threatened to kill her mother and her sisters if she told anyone about the abuse. Mr. Taylor’s children and stepchildren testified that while they were in his home or in his care, he began molesting them. All but one witness testified that Mr. Taylor later began raping or attempted to rape them. Like the victim in the case, some of the witnesses testified that these incidents involved their siblings or other men. Several of the witnesses offered testimony regarding Mr. Taylor’s threats against them and their family if they told anyone about the abuse.

Because the Trial Court did not rule on Mr. Taylor’s motion in limine, he must object to the testimony at trial in order to preserve his point for appeal. See Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). Mr. Taylor did not object to the testimony of all witnesses at trial; however, even if he had preserved this point for appeal as to all witnesses, we must affirm based on the pedophile exception to Ark. R. Evid. 404(b).

Arkansas R. Evid. 404(b) provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may however, be admissible for other purposes, such as proof of notice, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In recognizing the pedophile exception to Ark. R. Evid. 404(b), this Court has stated as follows:

When the alleged crime is child abuse or incest, we have approved allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship.

Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998) (quoting Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996)). The rationale for recognizing the exception is that such evidence helps to prove the depraved sexual instinct of the accused. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693; Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996) (quoting Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). While there is admittedly extensive testimony from witnesses as to Mr. Taylor’s abuse of them, the testimony of the children and stepchildren present a classic case of evidence that is admissible pursuant to the pedophile exception. Like the victim, the witnesses lived in the same household as Mr. Taylor or were in his care when the abuse occurred. In addition, the abuse of the witnesses was strikingly similar to the abuse of the victim. Like the victim, the witnesses testified that Mr. Taylor began molesting and later raped them. Again like the victim, they stated that the abuse sometimes involved their siblings or other men, and that Mr. Taylor threatened to harm them and their family if they told anyone about the abuse.

The Trial Court did not err in concluding that the probative value of the evidence outweighed the danger of unfair prejudice because the evidence involves similar crimes against children who were in Mr. Taylor’s care or household at the time that the incidents occurred. See Hernandez v. State, 331 Ark. 301, 311, 962 S.W.2d 756 (1998). As to Mr. Taylor’s argument that the testimony of the witnesses should be excluded pursuant to Rule 403 because the testimony comprised the “vast bulk of the State’s case” and that the jury was willing to impose the maximum sentence based on the testimony, Mr. Taylor did not make a cumulative error argument below and the testimony was admissible. Mr. Taylor also argues that the additional evidence was not needed to show that he intended to commit the rape or that he was the person who committed the abuse; however, the pedophile exception allows testimony to show that the perpetrator has a “proclivity” for the sexual abuse of children. See Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). “The basis of the pedophile exception to Rule 404(b) is our acceptance of the notion that evidence of sexual acts with children may be shown as that evidence demonstrates a particular proclivity or instinct.” Id.

Mr. Taylor also argues that this Court should consider abandoning the pedophile exception. In the Hernandez case, we noted that the Supreme Court of Missouri had rejected the pedophile exception, but that Arkansas R. Evid. 403 provides the necessary “parameters.”

4. Opening statement

Mr. Taylor argues that the Trial Court erred in denying his motion for mistrial based on the prosecuting attorney’s reference, in the State’s opening statement, to the testimony of Mr. Taylor’s children and stepchildren. After the prosecuting attorney stated that Mr. Taylor was on trial for the charge of raping his daughter and that Mr. Taylor’s children and stepchildren were going to testify that he molested them, he stated as follows:

I think when you listen to all of this testimony and all the evidence today and tomorrow, there will be no doubt in your mind that William Dillard Taylor not only raped [the victim in this case] but he also raped and molested several of his other children.

At this point, Mr. Taylor objected and moved for a mistrial as follows: “We are here today on one specific charge and the prosecutor has just alleged that there were other wrongful acts that occurred.” The Trial Court denied the motion and admonished the jury as follows:

Ladies and gentlemen of the jury, it is true as defense counsel has stated that the defendant is charged with only one alleged violation. There are times when evidence of other crimes is admissible to show intent and any number of other things, but he is only charged with having violated the particular alleged violation in the information, and is not on trial for the other incidents that may be admitted for other purposes.

The Trial Court refused Mr. Taylor’s request that it refer to the other incidents as “alleged” incidents, and then stated as follows to the jury:

I want to clarify the statement I made earlier. The defendant is on trial for a specific violation as the prosecutor and the deputy prosecutor have indicated. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person or to how that he acted in conformity therewith. It may be admissible for other purposes. These purposes might be showing opportunity, intent, preparation, knowledge and absence of mistake. For any one of those instances, the State may well introduce evidence of those instances.

Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). The trial court is in a better position to determine the effect of the remark on the jury. Id. An admonition is the proper remedy where the assertion of prejudice is highly speculative. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994).

Mr. Taylor argues that the State improperly inferred that because he “did it before, he did it again this time.” We hold that the admonishment cured any prejudice resulting from the prosecuting attorney’s statement. In addition, as we have discussed, the testimony of the children and stepchildren was admissible; thus, the prosecuting attorney was entitled to refer to it during his opening statement. See Rank v. State, 318 Ark. 109, 883 S.W.2d 843 (1994) (“Where evidence is admissible, a party is entitled to refer to it during opening statement.”).

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    James McGANN v. PINE BLUFF POLICE DEPARTMENT
    97-899
    974 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Edward G. Adcock, for appellant.

      John W. Cone, for appellee.
   Tom Glaze, Justice.

Appellant James - McGann was employed by the Pine Bluff Police Department in 1985, but in June of 1995, the Department’s chief of police suspended McGann for twenty working days for conduct unbecoming an officer. McGann appealed to the Pine Bluff Civil Service Commission, which reduced McGann’s suspension period to fifteen days. Based on evidence that surfaced during litigation concerning the incident that led to McGann’s suspension, the Pine Bluff city attorney suggested that McGann was too great a liability and should be terminated. The chief of police terminated McGann on January 6, 1997. McGann requested that the Commission review his discharge in accordance with Ark. Code Ann. § 14-51-308 (Repl. 1998). Following a hearing and its review of the matter on February 10, 1997, the Commission issued its findings in an order on March 7, 1997, which in relevant part reads as follows:

Although termination of [McGann’s] employment was not wrongful and was based on legitimate concerns involving Officer McGann’s potential contribution to economic liability to the City of Pine Bluff, it is believed that additional steps can be taken to better evaluate the risk McGann poses.
[McGann] should be thoroughly evaluated by a psychologist approved by the [Commission] and . . . should satisfactorily complete short term training in options for handling situations in which the subject is uncooperative and/or aggressive, said training to be first approved by the [Commission].
... If the psychological examination concludes that [McGann] meets the psychological standards for law enforcement officers, and ... if [McGann] successfully completes the short term training described above, he shall be reinstated.

Disagreeing with the Commission’s decision, the Department filed a timely appeal to the circuit court on March 10, 1997. One week later, McGann appeared before the Southeast Arkansas Behavioral Healthcare System (Southeast) for an evaluation and met with a “psychological examiner.” His evaluation resulted in Southeast’s March 17, 1997 report that contraindicated McGann’s certification and reinstatement as a police officer. McGann received a letter dated April 7, 1997, indicating that Southeast had not recommended him. On April 9, 1997, the Department dismissed its appeal of the Commission’s decision. McGann, having learned of the Department’s dismissal, filed his own notice of appeal to the circuit court on April 14, 1997. The Department requested the circuit court to dismiss McGann’s appeal because his notice of appeal was filed beyond the thirty-day appeal deadline prescribed by § 14-51-308(e)(1)(B)(i). The circuit court granted the Department’s motion to dismiss, and McGann appealed the trial court’s dismissal order to the court of appeals. The court of appeals certified that appeal to this court in accordance with §14-51-308(e)(2) (A).

McGann presents one point for reversal, arguing that the circuit court erred in ruling he filed an untimely appeal. McGann concedes the original deadline for his appeal was April 9, 1997, or thirty days after the Commission’s March 7, 1997 decision. However, citing Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W.2d 114 (1993), McGann compares the thirty-day appeal deadline to a limitation statute and suggests that the appeal period had been tolled by the Department’s filing of its notice of appeal. Thus, the appeal time did not commence running again, according to McGann, until the Department dismissed its appeal. He also cites another case, Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989), involving a limitation-period issue and submits that because he suffered no actual injury under the Commission’s order, his time for appeal did not take effect until April 7th — the date he first learned that Southeast declined to recommend McGann’s retention.

We find no merit in McGann’s novel arguments, but we need not reach them because the Commission’s March 7 order was not final, and therefore, not appealable. The want of a final order is a matter that we raise ourselves, and under Rule 2(a)(1), Arkansas Rules of Appellate Procedure — Civil, we are limited to a review of a final judgment, decree, or order to avoid piecemeal litigation. See also Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). Under § 14-51-308(e)(1)(A), McGann had a right to appeal any decision of the Commission to the circuit court, but like in every case of adjudication by an agency or commission, there still must be a final order. The final decision or order must be in writing or stated in the record, and that final decision must include findings of fact and conclusions of law. See Ark. Code Ann. §§ 25-15—210(b)(1) and (2) (Repl. 1996); Sykes, Printing Adm’r v. General Publishing Co., 264 Ark. 1, 568 S.W.2d 33 (1978); Earp v. Benton Fire Dep’t, 52 Ark. App. 66, 914 S.W.2d 781 (1996); see also Ark. Code §§ 14-51-308(e)(1)(B)(ii); and 14-51-308(e)(2)(A), (B), and (f). This court has defined “final order” as one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy. See General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994).

Here, the Commission’s decision left several issues unresolved. For example, the Commission’s order initially ruled that McGann was not wrongfully discharged, but it then ordered McGann to be reinstated only if, after a psychological examination, he met the minimum standard for law enforcement officers and he completed a short-term training program. McGann concedes the Commission never made a finding concerning these two preconditions, nor does the abstract of record show that McGann or the Department asked the Commission to make any findings or enter an order touching on these preconditions. Because a final order was not entered which resolved the Commission’s preconditions set forth in its March 7 order, we are unable to decide this case on appeal.

In oral argument, the Department suggested the Commission’s order was final at least to the extent that the Commission agreed the chief of police had properly discharged McGann. It submits the Commission simply had no authority to provide conditions under which McGann would be reinstated. See Ark. Code Ann. §14-51-212 (Repl. 1998). The Department, however, never raised that issue below, and while it initially appealed the Commission’s order, it chose not to challenge the Commission’s authority to enter such preconditions by dismissing its appeal. It cannot now raise that issue in this appeal. See Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998).

Therefore, we affirm the circuit court’s decision dismissing McGann’s appeal, but we do so on the basis that the order McGann appealed from was not final. See Gurley v. Mathis, 313 Ark. 412, 856 S.W.2d 616 (1993) (where staff memorandum did not constitute final order but was merely a step in the overall administrative process, the trial court’s dismissal of the appeal from the memorandum was affirmed). However, we modify the circuit court’s decision dismissing McGann’s appeal to reflect that the dismissal is without prejudice to file an appeal once the Commission’s final order is entered.

Affirmed as modified.

Corbin, J., not participating.


author: Donald L. Corbin, Justice.

text:
    FORD MOTOR CREDIT COMPANY v. Doris ELLISON
    97-607
    974 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Davidson & Associates, P.A., by: Bob Davidson, for appellant.

      Cheryl K. Maples, for appellee.
   Donald L. Corbin, Justice.

This is a contract case. Appellant Ford Motor Credit Company (FMC) appeals the order of the Union County Circuit Court finding in favor of Appellee Doris Elhson on its contract claim against her. Ellison purchased a car in 1991 and was making payments to FMC pursuant to an installment contract. FMC repossessed the car in December 1993, and subsequently sold the car at auction. In September 1994, FMC brought suit against Ellison to obtain a deficiency judgment in the amount of $3,791.77, the difference of the amount owed on the contract and the sales price of the car at auction, plus costs and attorney’s fees. This case was certified to us from the court of appeals, as it presents an issue of first impression requiring our interpretation of Ark. Code Ann. § 4-2-609 (Repl. 1991); hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(d). We affirm the trial court’s judgment.

This action was tried before the court, sitting as the factfinder, on January 24, 1997. The record reflects the following facts. On September 30, 1991, Ellison purchased a 1990 Ford Escort from Hagood Ford Company and, after receiving credit for a trade-in vehicle, financed the balance of the purchase price through FMC. Ellison had previously financed a vehicle purchase through FMC and had fulfilled her contractual obligations. Ellison had been gainfully employed for a number of years at ConAgra and had an unblemished credit record. Ellison was married during the time in question, but the title to the 1990 Ford Escort was solely in her name, as was the installment contract. During March or April of 1993, Ellison’s husband was arrested in the Ford Escort by the Thirteenth Judicial District Drug Task Force. The task force impounded Ellison’s car for a period of time and then released it to FMC in July 1993, advising FMC that if the car were impounded again, FMC’s lien may not be protected. Based on this information, FMC advised Ellison that pursuant to section 4-2-609, additional security would be required before FMC would release the car to her. Ellison was not able to produce such security, and in December 1993, FMC sent her notice that it was repossessing the car. Ellison had continued to make payments to FMC after the car had been seized, before eventually defaulting on the note. FMC then sold the car at auction and filed this action against Ellison. Prior to repossessing the car, FMC did not investigate the criminal charges against Ellison’s husband, who was later acquitted.

With respect to the applicability of section 4-2-609, the trial court found:

[FMC’s] reliance on the statement of the Drug Task Force that [FMC’s] lien could not be protected if they seized the vehicle a second time does not constitute reasonable grounds for insecurity. That insecurity is directed at the ability of [Ellison] to continue to perform her obligations. At that time, there was no evidence available to [FMC] that [Ellison] could not or would not make her monthly payments. To the contrary, [Ellison] was current in her obligations under this contract, had fully and completely performed a prior contract with plaintiff and continued to be gainfully employed and had an unblemished credit record. The legal problems of a third party not a signatory to the contract and a statement by law enforcement about its future position on a contingent possibility are not sufficient to justify the demand of [FMC] for additional security from [Ellison]. The subsequent default by [Ellison] by which the vehicle was repossessed was a direct result of the unreasonable action of [FMC] and for which [Ellison] should not be held hable. [Emphasis added.]

FMC argues that the trial court erred in ruling that there were no reasonable grounds for insecurity under section 4-2-609 and in finding that Ellison was current in her payments at the time of repossession. FMC asserts that it had reasonable grounds for insecurity based upon (1) the task force’s statement about FMC’s hen not being protected in the event of a future seizure, and (2) Ellison’s failure to make timely payments under the terms of the finance contract. FMC argues further that it had the right to later repossess the car, in any event, due to Ellison’s failure to make timely payments on the car.

In bench trials, the standard of review on appeal is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. ARCP Rule 52(a); McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Id. For the reasons set out below, we affirm the trial court’s ruling that there were no reasonable grounds for FMC’s insecurity in this case.

There is no Arkansas case law interpreting section 4-2-609, which is identical to § 2-609 of the Uniform Commercial Code. That section provides in pertinent part:

(1) A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return. [Emphasis added.]

We adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Leathers v. Cotton, 332 Ark. 49, 961 S.W.2d 32 (1998). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language is plain and unambiguous, our analysis need go no farther. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). It is evident from the plain language of section 4-2-609 that a demand for adequate assurance of performance may only be made by one party to a sales contract upon the other party if there are reasonable grounds for insecurity that the other party will not perform his or her contractual obligation, thus impairing the first party’s expectation of receiving due performance.

Section 4-2-609(2) specifically provides that for sales transactions between merchants, commercial standards are to be used in determining the reasonableness of the grounds for insecurity. Here, however, we are presented with a sales transaction between a merchant and a consumer. Because this is an issue of first impression in this state, we look beyond our laws for guidance in determining the appropriate burden of proof. Professor William Hawkland has written that for sales transactions between a merchant seller and a nonmerchant buyer, the test for determining whether the seller has reasonable grounds for insecurity is whether a reasonable merchant in the seller’s position would have that feeling. 3 William D. Hawkland, Uniform Commercial Code Series § 2-609:02, at p. 208 (1994). A party claiming that its conduct is justified by section 4-2-609 and that damages are warranted bears the burden of proving the applicability of that section. See 4 Ronald A. Anderson, Anderson on the Uniform Commercial Code § 2-609:11, at p. 499 (3d ed. 1997); see also Cargill, Inc. v. Storms Agri Enters., Inc., 46 Ark. App. 237, 878 S.W.2d 786 (1994) (holding that the party seeking damages under Ark. Code Ann. § 4-2-610 (Repl. 1991) must prove that the conduct was justified under that section). Whether the demanding party has reasonable grounds for insecurity is a question to be decided by the trier of fact. Clem Perrin Marine Towing, Inc. v. Panama Canal Co., 730 F.2d 186 (5th Cir. 1984); S & S, Inc. v. Meyer, 478 N.W.2d 857 (Iowa Ct. App. 1991).

There are several circumstances that may be considered in determining whether the demanding party has reasonable grounds for insecurity. (1) the nature of the sales contract; (2) the repetition by the party upon whom demand is made of conduct that caused insecurity in other transactions; (3) insecurity existing in the performance of other contracts unrelated legally to the contract at issue; (4) the expanding use of a credit term by the party upon whom demand is made; and (5) reputation and rumors concerning the stability and conduct of the party upon whom demand is made. Anderson, § 2-609:37, at p. 509-10. “A seller does not have reasonable grounds for insecurity when the buyer is clearly financially able and willing to pay for delivered goods[.]” Anderson, § 2-609:55, at p. 515.

We are aware of no case interpreting section 2-609 of the Uniform Commercial Code involving the particular facts of this case. In Ford Motor Credit Co. v. Alachua Trading Co., Inc., 531 So.2d 982 (Fla. Dist. Ct. App. 1988), however, the Florida District Court of Appeals was faced with a similar factual scenario requiring construction of § 672.609 of the Florida Statutes, Florida’s version of section 2-609. In that case, Ford held an installment financing contract for a car purchased by the appellees. The car was seized by the United States Drug Enforcement Agency (DEA), in connection with an alleged illegal drug transaction, and later returned to Ford with instructions that should Ford release the car to appellees, the agency would again confiscate it and not return it to Ford. As in the present case, the appellees were current in their payments under the contract at the time of seizure, and the alleged drug transaction was committed while the car had been loaned to a third party. Unlike this case, however, Ford made no written demand for adequate assurance from the appellees, opting instead to treat the contract as if it had been breached. While not actually reaching the issue concerning the reasonableness of Ford’s grounds for insecurity, the Florida court stated:

The potential for a forfeiture claim as to the vehicle, and appellant’s knowledge that the vehicle was used in connection with a drug transaction, prompts appellant’s concern for its security interest. . . . But appellant seeks to deem the contract breached under the statute without having sought any assurance of performance in accordance with the statutory procedure. We do not address the question of what assurance might be sufficient in these circumstances, but we conclude that appellant may not ignore the statutory procedure. [Emphasis added.]

Id. at 984.

Although we find that language somewhat persuasive, we do not believe that it is dispositive of the particular issue in the present case. The pertinent facts of that case are distinguishable from those here. In the Florida case, Ford was instructed by the DEA that if it returned the vehicle to the appellees, the DEA would confiscate it again and not return it to Ford. In other words, the car was released to Ford by the DEA on the condition that it not be subsequently returned to the appellees. Here, the task force merely informed FMC that in the event the car was seized again in the future, the task force could not assure FMC that its lien would be protected. Those are two entirely different scenarios. In the Florida case, the instructions from the DEA were mandatory and definite, while the present case involved only a lack of assurance from the task force as to what might happen if the car was seized again. There was no indication in this case that the task force had any reason to believe that Ellison’s car would be seized again. Furthermore, the evidence in this case showed that this was the first time FMC had demanded a surety bond from a customer based on information from a police task force.

FMC’s account representative Sam Hayes testified that he was not aware of any other occasion when a vehicle had been seized by a drug task force and then released to FMC where it had demanded a surety bond or other assurance of payment from its customer. In response to Ellison’s counsel’s question whether FMC will, after a seizure has occurred, generally return the car to the person purchasing it, Hayes stated, “If we feel that the person will continue to make payments and we’ll not lose lien on the vehicle, yes.” When Ellison’s counsel, Ms. Maples, asked what type of investigation FMC does to determine whether there is adequate security of payment, Hayes stated that it depended upon the situation of each account. When asked if he had done any investigation into Ellison’s ability to continue making her payments or the facts surrounding the police seizure, Hayes replied that he had depended upon the information received from the task force. The exchange is as follows:

Cross Examination of Mr. Hayes by Ms. Mapees
Q. You did not do any independent investigation into their ability or her ability to keep up the payments and as to your security?
A. Well, she was in contact with us so we had — she was continuing to make the payments — so we were in contact with her as far as making the payments.
Q. But you did no investigation into her ability or into your risk associated with her making the payments on your vehicle?
A. We didn’t need to do an investigation as far as — she was making the payments. [Emphasis added.]

Hayes additionally admitted that he had not conducted any investigation into Ellison’s home situation to find out whether she was the primary driver of the car, whether her husband ever drove the car, or anything else in order to find out whether FMC had a risk involved in returning the car to Ellison.

Ellison confirmed Hayes’s testimony about a lack of investigation by FMC prior to demanding additional assurance of performance. She stated that she had never been asked by anyone at FMC whether she was involved in the drug charge, and that she had never been questioned by anyone at FMC about her ability to continue to pay for the car. She stated that prior to the seizure, she had no flaws in her credit record, that she was still working for ConAgra, and that she had always paid her debts.

From the foregoing testimony, we conclude that the trial court’s ruling that FMC did not have reasonable grounds for insecurity was not clearly erroneous or clearly against the preponderance of the evidence. Flayes never satisfactorily explained the decision in this case to require a surety bond before returning the car to Ellison, which is particularly troublesome given Hayes’s testimony that he did not need to investigate her ability to continue making payments, because he knew that she was making the payments on the car. Notwithstanding this knowledge, there was apparently no consideration by FMC of Ellison’s ability to continue making payments, the fact that she was gainfully employed, or the fact that she had previously successfully completed payments on an installment contract for another vehicle with FMC.

Given FMC’s general policy of returning seized vehicles to its customers in every other situation but this one, there were no reasonable grounds for insecurity in this particular case. We agree with the trial court that it was unreasonable for FMC to rely solely upon the information supplied by the task force that it could not assure FMC that its lien would be protected in the event of a future seizure of the car. We further agree that there is too much uncertainty and contingency in such information, as it had nothing to do with Ellison’s ability to perform her obligations under the terms of the installment contract. Thus, FMC had no reasonable grounds under section 4-2-609 to retain Ellison’s car and demand additional assurance of performance from her.

FMC alternatively contends that it was entitled to demand adequate assurance from Ellison on the ground that she had defaulted under the terms of the finance contract. We are not persuaded by this argument. The record reflects that although Ellison began making late payments after the task force had seized the car, FMC was accepting the late payments and merely adding on extra fees. The letter written by FMC to Ellison demanding further assurance of payment from her indicates that as of July 13, 1993, the date the letter was written, Ellison was only past due for her June 30, 1993 payment plus $68 in late charges. The issue then is whether FMC had reasonable grounds for insecurity to justify its demand for either full payment on the balance of the contract or a surety bond based solely on the fact that Ellison’s account was past due approximately thirteen days for one payment.

The exhibits presented below show that Ellison was never more than thirty-seven days late on a payment; the majority of her late payments were late only ten days or less. FMC clearly accepted late payments and merely added late fees when such payments were received, rather than instituting immediate repossession of the car. A seller may waive its rights to strict compliance with the terms of the finance contract where it has established a course of dealing of accepting late payments from the buyer. Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993). The waiver remains in effect until such time that the seller notifies the buyer that the seller will no longer accept late payments and will henceforth require strict compliance with the contract. Id. There was no notice of strict compliance given here. As such, FMC should not now be permitted to claim that it had reasonable grounds for believing that Ellison would not perform her contractual obligations.

Lastly, we address FMC’s argument that the trial court erred in finding that Ellison was current in her payments at the time of repossession. Ellison asserts that it is clear from the trial court’s order that the court meant to state that she was current in her payments at the time of seizure, rather than repossession. She argues that the error is thus harmless. FMC contends that the erroneous finding was a primary reason for the trial court’s ruling against it, and as such, constitutes a clear and manifest abuse of discretion requiring reversal.

We agree with FMC that this factual finding was erroneous, but we do not agree that it was a primary reason for the trial court’s ruling. Rather, we conclude that the error was harmless and does not warrant reversal, as it was not essential to the trial court’s ruling that information from law enforcement about a possible future occurrence did not constitute reasonable grounds for insecurity to support FMC’s retainment of the car while it demanded additional security from Ellison. FMC failed to meet its burden of proving that its actions were justified under section 4-2-609 or that they were reasonable under the circumstances. Accordingly, we conclude that the trial court’s ruling was not clearly erroneous or clearly against the preponderance of the evidence.

Affirmed.

       FMC relies on specific provisions of the finance contract that are not included in the abstract, but were only set out in the argument portion of its brief. As such, we do not consider those contract provisions, as it is fundamental that the record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the briefs. National Enters., Inc. v. Rea, 329 Ark. 332, 947 S.W.2d 378 (1997).


author: Robert L. Brown, Justice.

text:
    Jessie Renee GARLING and Vincent Garling v. STATE of Arkansas
    CR 97-1385
    975 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      McCullough Law Firm, by: R.S. McCullough, for appellants.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen.; James Gowen, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar of the Arkansas Supreme Court under the Supervision of Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellants Jessie and Vincent Garling appeal their convictions and sentences for one count of engaging in a continuing criminal enterprise and one count of Medicaid fraud. They raise three points for reversal. We find no merit in any of the points raised, and we affirm.

The Garlings, at the time of the crimes, operated taxicabs for the Black and White Cab Company, which transported Medicaid recipients to and from their medical providers. The Garlings produced forged vouchers for payment by the Medicaid program during the period of June 1, 1994, to September 30, 1995, and illegally collected hundreds of thousands of dollars in public funds. They submitted approximately 7,000 vouchers which were paid by Medicaid. Each forged voucher purported to represent a separate taxicab ride to a Medicaid provider. The trial judge sentenced Jessie Garling to ten years for the continuing-enterprise charge and five years for Medicaid fraud, together with $742,870.83 in fines and restitution. Vincent Garling was sentenced to twenty-two years and four and one-half years for the criminal-enterprise and Medicaid-fraud charges, respectively, and fined $973,960.79.

I. Predicate Criminal Offense

The Garlings raise as their first issue whether the term “predicate criminal offense” as used in Ark. Code Ann. § 5-74-104 (Repl. 1997), and the criminal information requires proof of the commission of a felonious act or proof of an actual conviction for a felonious act. Ark. Code Ann. § 5-74-104 (Repl. 1997) provides in part:

(a)(1) A person commits the offense of engaging in a continuing criminal gang, organization, or enterprise in the first degree if he:
(A) Commits or attempts to commit or solicits to commit a felony predicate criminal offense; and
(B) That offense is part of a continuing series of two (2) or more predicate criminal offenses which are undertaken by that person in concert with two (2) or more other persons with respect to whom that person occupies a position of organizer, a supervisory position, or any other position of management.

The Garlings contend that the prosecutor charged them only with one count of Medicaid fraud and, as a consequence, did not meet the statute’s requirement of showing two or more predicate criminal offenses. They further argue that there must be at least three felony convictions proved at trial to sustain the enterprise violation, and they insist that the term “predicate criminal offense” means proven charged offenses which result in convictions.

The State responds that the plain language of the statute does not require the State to charge a defendant with each individual felonious act; nor does it require convictions on each offense in the series. Rather, it merely requires the commission of predicate criminal offenses. Those offenses are defined in Ark. Code Ann. § 5-74-103(b) as any violation of Arkansas law that is a crime of violence or pecuniary gain.

But the State also raises two procedural points as a basis for affirmance. It, first, contends that the Garlings are challenging the criminal information and that a motion for a directed verdict is the wrong procedure to follow for attacking an information. We disagree. It appears that defense counsel was challenging the sufficiency of the evidence presented by the State to establish the offenses as opposed to attacking the criminal information. Hence, a direct challenge to the criminal information was not required.

The State also claims that the Garlings’ motion for directed verdict should fail on appeal for lack of specificity. Again, we disagree. Defense counsel appears to have argued both in his motion at the close of the State’s case and at the close of all of the evidence that the prosecutor filed only one Medicaid-fraud count and that one charged offense is not sufficient. The prosecutor responded to the trial court that every time a fraudulent voucher was used for Medicaid reimbursement, this was a separate offense irrespective of whether the State had formally charged the Garlings with each offense.- Because defense counsel’s motion was couched in terms of attacking the sufficiency of the proof, we conclude that though defense counsel did not argue specifically that offenses must be proved by convictions, he did argue that they had to be proven by formal charges. That was enough to preserve the issue for our review.

We turn then to our principles of statutory construction in deciding whether § 5-74-104 requires proof of convictions. The first priority in construing a statute is to give effect to the intent of the General Assembly. See Graham v. Forrest City Housing Authority, 304 Ark. 632, 803 S.W.2d 923 (1991); Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984). We have further said that this Court should strive to give words their ordinary and usual meaning. See Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997).

By its plain meaning, the term “predicate criminal offense” does not incorporate a requirement for a conviction. An “offense” is defined in Black’s Law Dictionary as “[a] felony or misdemeanor; a breach of the criminal laws; violation of law for which penalty is prescribed.” See Black’s Law Dictionary, p. 1081 (6th Ed. 1990). A “conviction,” on the other hand, is “the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged.” Id. at p. 333. Clearly, one can commit an offense without being convicted of the crime.

There is no case law directly on this point in Arkansas, but this court has dealt with a similar issue in its construction of Ark. Code Ann. § 5-4-604(3) (Repl. 1997), which mandates as an aggravating circumstance in a death-penalty case that “[t]he person previously committed another felony, an element of which was the use or threat of violence.” Before 1977, the General Assembly used the word “convicted” in lieu of “committed.” Ark. Stats. Ann. § 41-4711(b) (Supp. 1973). See also Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). This underscores for us the point that the General Assembly, when enacting legislation, knows and understands the critical difference between a conviction and the commission of a criminal offense. See also Ark. Code Ann. § 5-1-105(a) (Repl. 1997) (“An offense is conduct for which a sentence to a term of imprisonment or fine or both is authorized by statute.”).

There is one additional point. Our statute is modeléd on the federal “kingpin” statute. See 21 U.S.C. § 848. See also Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992). Two federal courts of appeal have interpreted this statute as not requiring a conviction for the predicate criminal offenses but have held that .proof of the commission of an offense is sufficient. See U.S. v. Apodaca, 843 F.2d 421 (10th Cir. 1988); U.S. v. Markowski, 772 F.2d 358 (7th Cir. 1985).

"We hold that a committed offense for purposes of the continuing-criminal-enterprise statute need not be proved by- a conviction or even a formal charge. The Garlings’ argument is meritless.

II. Mistrial Motion

During the trial, the prosecutor repeatedly asked Vincent Garling how he was going to prove his version of the facts:

Q. Do you have any records that would support your claim that you had that many cars running?
A. No. But the people at the cab company know that I had those vehicles.
Q. Well, Shaheed testified. He said he only saw three. Is there anybody else that’s going to come in and tell this jury that you had five cars?
A. He wasn’t concrete on that. He said that he only remembered three.
Q. Well, who are you going to prove to this jury, how [are] you going to prove that you had five?
Defense Counsel: Judge, he doesn’t have to prove anything in this case. He doesn’t have to call any witnesses.
Judge: That’s right, but you’ve put him on so he’s subject to cross-examination.
Q. You can’t prove that, can you?
A. At one time I could have proved it. I can’t prove it now because Black and White have taken all the records. You all don’t even have all their records and documentation.
Q. Well, how about some of your satisfied customers? Would they come in and say, I rode in one of Jessie or Vincent’s taxi cabs. I went there every day . . . Anybody like that that can come in and testify?
A. You got the vouchers. You called all the other people. I don’t see why you didn’t get those people, also.
Q. I’ve proven my case.
Defense Counsel: Objection.
Witness: I don’t have to prove anything.
Court: Sustained. He doesn’t have to prove anything.
Q. But you’ve chosen to take the witness stand and you’ve chosen to put on a defense, isn’t that correct?
Defense Counsel: Objection again ... I’d ask to approach ... I make a motion for a mistrial, Judge, based upon her statements about him taking the stand and trying to prove something. That shifts the burden of proof and impinges upon the Fifth Amendment, and his right to due process, equal process.
Court: . . . I’m not going to grant it but it’s real close.

Defense counsel also moved for a mistrial during closing arguments when the prosecutor asked why the Garlings had not introduced the taxicab records at trial. The trial judge denied the motion.

A mistrial is an extraordinary remedy that should only be used when an error is beyond repair by any curative measure. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). It is only when the fundamental fairness of the trial has been manifesdy affected, such that justice cannot be served by continuing the trial, that mistrial is appropriate. See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997). The trial court is considered to be in the best position to determine the effect of a prejudicial remark on the jury. See Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). We will reverse the trial court only upon a showing of abuse of discretion. See Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996).

We note from the colloquy quoted above that the trial court told the jury that Vincent Garling “doesn’t have to prove anything.” That admonition offsets any prejudice that might have accrued from the prosecutor’s cross-examination and argument. We affirm on this point as well.

III. Prior Felony Offense

The Garlings next contest the trial court’s allowance of a question to Vincent Garling about whether he was a convicted felon, which he answered in the affirmative. The trial court initially granted the Garlings’ motion in limine to prohibit this question. They now argue that the trial court’s reversal on this issue amounted to an abuse of discretion. The State posits in reply that (1) the Garlings are precluded from making this argument on appeal because they did not provide the substance of the prior conviction, either in the record or the abstract, and (2) this line of questioning was an appropriate method of impeachment under Ark. R. Evid. 609.

It is impossible for us to determine the nature and time of the conviction used for Garling’s impeachment because that information is not included in the record. At trial, defense counsel argued that Vincent Garling’s conviction might not be a conviction because he received a ten-year sentence but was in prison only six months. The trial court examined Garling’s criminal record, but there is nothing in the record of the proceedings on appeal showing exactly what crime resulted in the conviction or when it occurred.

Arkansas Rule of Evidence 609 allows impeachment of a witness by evidence of a prior conviction only if the crime (1) was punishable by death or imprisonment for more than one year, and the court determines that the conviction’s probative value outweighs its prejudicial effect, or (2) the crime involved dishonesty or false statement. The rule also prohibits the use of the conviction if it is more than ten years old. Without question, the nature of the crime and date of the conviction are essential to this court’s determination of whether the trial court abused its discretion.

The State contends, and we agree, that Garling’s failure to include this in the record constitutes a waiver. The appellant always has the burden of demonstrating reversible error and of presenting a record sufficient to evidence the error. See Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Porter v. Porter, 329 Ark. 42, 945 S.W.2d 376 (1997). When the appellant fails to meet that burden, the trial court must be affirmed. See Equity Fire and Cas. Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996). Hence, this court is effectively precluded from determining whether the trial court applied Rule 609 properly. This point does not constitute reversible error.

Affirmed.


author: Per Curiam.

text:
    David COLEY v. STATE of Arkansas
    CR 98-1077
    974 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Louis Etoch, for appellant.
    No response.
   Per Curiam.

David Coley, the appellant, has filed this motion for rule on the clerk through his attorney, Louis Etoch. We grant the motion.

In verdicts filed on January 22, 1998, the jury found Mr. Coley guilty on two counts of delivery of a controlled substance and imposed a ten-year prison term and fine of $5,000. Mr. Etoch filed a notice of appeal on Mr. Coley’s behalf on January 23, 1998, prior to the filing of the judgment and commitment order on January 28, 1998. No subsequent notice of appeal was filed. Mr. Etoch tendered the transcript to the clerk of this Court on August 17, 1998, but the clerk correctly refused it because the notice of appeal had been prematurely filed. See Ark. R. App. P.—Crim. 2(b). Mr. Coley now asks that we allow the record to be docketed and the case to proceed.

Mr. Coley’s motion is styled as one for rule on the clerk, but we treat it in these circumstances as a motion for belated appeal. Brown v. State, 321 Ark. 282, 900 S.W.2d 954 (1995). We will grant such a motion “when the attorney admits that the notice of appeal was not timely filed due to an error on his part.” Brazil v. State, 332 Ark. 74, 75, 959 S.W.2d 55, 55 (1998). See Brown v. State, supra.

Mr. Etoch admits that he “inadvertently” calculated the time for filing the notice of appeal from the date on which the jury returned its verdicts and that he “should have” calculated the filing time from the date on which the judgment and commitment order was filed. In light of Mr. Etoch’s admission of fault, we grant the motion and direct the clerk to accept the record for filing. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Brazil v. State, supra.

Motion granted.


text:
    Charlotte DePRIEST v. T. David CARRUTH
    CR 98-1005
    974 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Charles Peden, for appellant.

      No response.
   Per Curiam.

Pursuant to Ark. Sup. Ct. R. 2-2 (1998), appellant, Charlotte DePriest, by her attorney, Charles Peden, filed a motion for rule on the clerk. On July 9, 1997, a default judgment was filed in favor of the appellee, T. David Carruth. On July 28, 1997, the appellant moved to set aside the default judgment. The motion to set aside the default judgment was deemed denied thirty days after its filing, and the order denying the motion was entered on April 20, 1998. Subsequently, the appellant tendered the record on appeal on August 10, 1998. However, on August 11, 1998, the Supreme Court Clerk notified the appellant that the tender was untimely pursuant to Ark. R. Civ. P. 52(b) (1998), which requires certain posttrial motions to be made within ten days of entry of judgment.

The appellant contends that the record was timely tendered pursuant to Ark. R. Civ. P. 55(c) (1998), which provides the exclusive basis for moving to set aside a default judgment. We agree with the appellant that Ark. R. App. P.—Civil 4(b), (c), and (d) (1998), do not contemplate such a motion and that the time constraints mandated by those provisions are inapplicable. However, pursuant to Ark. R. App. P.—Civil 4(a), the appellant must file a notice of appeal within thirty days of the expiration period, here, April 20, 1998, and the record must be tendered within ninety days of the timely filing of a notice of appeal. Appellant’s entry of notice of appeal, twenty-one days after the entry of the order denying the motion to set aside the judgment, complies with the time constraints of Ark. R. App. P.—Civil 4(a) because it was filed within the thirty-day window. Likewise, the tender of the record on August 10, 1998, was timely. Accordingly, we grant appellant’s motion for rule on the clerk and order the Supreme Court Clerk to accept the record.


text:
    Ben Wesley HICKS v. STATE of Arkansas
    CR 98-353
    974 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Tamra Barrett, for appellant.
    No response.
   Per Curiam.

The motion of Tamra Barrett, counsel for Ben Wesley Hicks, to withdraw as counsel is granted. Attorney George Spence is appointed to represent the appellant. The clerk is directed to set a new briefing schedule for the appeal.

Motion granted; counsel appointed.


text:
    Shawn O’BRIEN v. STATE of Arkansas
    CR 98-921
    974 S.W.2d 473
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      L.D. Gibson, for appellant.
    No response.
   Per Curiam.

L.D. Gibson filed a motion to be relieved of the circuit court’s appointment as counsel to appellant, Shawn O’Brien, or, in the alternative, to be appointed by this court to represent appellant with his appeal to this court from a denial of his Rule 37 petition.

On January 6, 1998, a mandate affirming appellant’s conviction was entered in the Arkansas Court of Appeals. This conviction was filed in Poinsett County Circuit Court on January 7, 1998. Appellant filed his petition for postconviction relief with the circuit court on April 28, 1998. On July 6, 1998, the circuit court denied appellant’s petition based on its untimeliness. Appellant then filed a notice of appeal on July 24, 1998. Following appellant’s notice of appeal, the circuit court appointed L.D. Gibson on July 28, 1998, to assist appellant in his appeal to this court.

The circuit court did not have authority to appoint Mr. Gibson as counsel to appellant on July 28, 1998. After the notice of appeal of an order denying Rule 37 relief has been filed, the supreme court shall have exclusive jurisdiction to relieve and appoint new counsel. Ark. R. App. P.—Crim. 16. Therefore, the circuit court lacked jurisdiction to appoint Mr. Gibson as counsel to appellant following the filing of his notice of appeal to this court.

Mr. Gibson requests, as an alternative to being relieved of his circuit court appointment as counsel to appellant, that this court appoint him to represent appellant in his petition to this court. In our consideration of this request, we note that appellant’s filing of his petition for postconviction relief was untimely. A petition for postconviction relief must be filed within sixty days from the date of issuance of the mandate affirming the conviction. Ark. R. Crim. P. 37.2(c).

Postconviction proceedings are civil in nature; thus, there is no constitutional right to appointment of counsel as part of a criminal proceeding. McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997). Further, we will not appoint counsel to pursue the appeal of an untimely Rule 37 petition unless the petition states a ground sufficient to void the judgment. Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987). A ground sufficient to void a conviction must be one so basic that the judgment is a complete nullity. Id.

Commencing January 1, 1991, appointment of counsel to pursue an untimely Rule 37 appeal was no longer provided for in our rules, and, therefore, Mr. Gibson’s alternative motion for appointment by this court is denied.

Mr. Gibson has filed a second motion to request a delay in which to file appellant’s brief. Because Mr. Gibson has not been validly appointed as counsel to appellant, his second motion for a delay in which to file appellant’s brief is now moot.

Finally, we note that appellant filed his appellate brief with this court pro se on September 8, 1998.

Motion to be relieved of appointment granted, and motion for a delay to file appellant’s brief moot.


text:
    Gilberto RAMOS v. STATE of Arkansas
    CA CR 98-730
    974 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered September 24, 1998

      Sharon Russell, for appellant.
    No response.
   Per Curiam.

On June 25, 1998, we issued a per curiam, wherein we concluded that counsel, Sharon Russell, had filed a timely notice of appeal on August 22, 1997, from appellant’s conviction on a drug charge, but that counsel did not perfect appellant’s appeal because she failed to file a record with the appellate court. Appellant later filed a pro se motion for a belated appeal which we considered and granted as a motion for rule on the clerk. At the same time, we appointed substitute counsel for Ms. Russell, and that substituted counsel now represents appellant on appeal.

In the June 25, 1998 per curiam, we directed Ms. Russell to appear and show cause why she should not be held in contempt for her conduct in failing to perfect appellant’s appeal. As directed, she appeared on Thursday, September 17, 1998, at which time she pled guilty. Ms. Russell offered mitigating circumstances which this court fully considered in rendering its decision, wherein we accepted Ms. Russell’s plea and imposed a fine of $250.00. That fine shall be paid within thirty days of the date of this per curiam. Having accepted counsel’s guilty plea and having assigned a fine, we now conclude this matter by forwarding a copy of this opinion to the Committee on Professional Conduct for that Committee’s consideration along with our earlier June 25, 1998 per curiam.

Contempt order is hereby issued.


text:
    Clay Anthony FORD v. STATE of Arkansas
    CR 98-98
    976 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered October 1, 1998
    [Petition for rehearing denied October 29, 1998.]

      Brian Ratcliff; Mays, Byrd & Hicks, by: Rickey Hicks; and Timothy O. Dudley, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   David Newbern, Justice.

Clay Anthony Ford was convicted of capital murder and sentenced to death for having killed Sergeant Glen Bailey, an Arkansas State Policeman. We affirmed the conviction and sentence. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). We denied a stay of execution, Ford v. State, 278 Ark. 106, 644 S.W.2d 252 (1982), but the execution was stayed by a federal court after Mr. Ford began proceedings there. Ultimately, a writ of habeas corpus was granted, and Mr. Ford’s conviction and sentence were vacated. Ford v. Lockhart, 861 F.2d 1447 (E.D. Ark. 1994). That decision was affirmed by the United States Court of Appeals for the Eighth Circuit. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

The State retried Mr. Ford on the capital murder charge in July 1997. He was convicted of first-degree murder and sentenced to life in prison. Mr. Ford again appeals, contending that the Trial Court erred by refusing to admit testimony about brutal mistreatment Mr. Ford suffered as a child at the hands of his father. We hold there was no abuse of the Trial Court’s discretion and thus affirm the conviction.

In September 1980, Mr. Ford was observed driving in excess of 100 miles per hour on Interstate 55 in a car later determined to have been stolen. He slowed to take an exit ramp, and a State Police car pulled in front of him to block his way. Mr. Ford shifted into reverse and rammed a second State Police car behind him that was driven by Sergeant Bailey. Mr. Ford got out of the car he had been driving. He was holding a firearm. While he was in a crouched position beside the car, he turned and saw Sergeant Bailey coming toward him with arms outstretched as if ready to “jump” him. Mr. Ford shot and killed Sergeant Bailey.

Mr. Ford admitted in his testimony that he shot Sergeant Bailey. He did not plead not guilty by reason of mental disease or defect, but he argued that he acted impulsively and instinctively without premeditation or deliberation. At the time of the offense, Ark. Stat. Ann. § 41-1501 (Repl. 1977) provided, in relevant part:

(1) A person commits capital murder if:
(b) with the premeditated and deliberated purpose of causing the death of any law enforcement officer . . . when such person is acting in the line of duty, he causes the death of any person; ....

Arkansas Stat. Ann. § 41-1502 (Repl. 1977) provided, in relevant part:

(1) A person commits murder in the first degree if:
(b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.
***

1. Child abuse

Mr. Ford’s counsel sought to introduce the testimony of Mr. Ford’s sister, Katie Cleveland, who is a counseling professional. She was to testify concerning abuse Mr. Ford had suffered as a child from their father. In her proffered testimony she gave her opinion that Mr. Ford, as the result of having been brutally abused as a child, shot Sergeant Bailey impulsively in response to a perceived attack.

The Trial Court ruled that the testimony was inadmissible because it was not relevant, citing Ark. R. Evid. 401 which provides: ‘“Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Defense counsel stated that, in addition to Ms. Cleveland’s testimony, Mr. Ford intended to testify that “the experiences of his childhood influenced what he did at the time of this incident.” The Trial Court ruled that testimony inadmissible also.

A trial court’s rulings on the admissibility of evidence are not overturned absent a showing that the trial court has clearly abused its discretion. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997). In support of the contention that the Trial Court abused its discretion in disallowing the evidence, Mr. Ford cites Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986), as his principal authority that a lay witness like Ms. Cleveland may render an opinion about the mental state of a defendant.

In the Graham case, we held that evidence of the defendant’s mental condition, even if it does not show mental disease or defect sufficient to constitute a defense, is relevant on the issue of the culpable mental state. 290 Ark. at 110, 717 S.W.2d at 206, citing Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). Mr. Graham was charged with aggravated robbery. His mother and grandmother proffered testimony that he would “go to pieces” under pressure, but the Trial Court held the evidence inadmissible. On appeal, we pointed out that “purposeful intent” is an essential element of aggravated robbery. It was a fact issue, and according to Ark. R. Evid. 701, a witness may give a non-expert opinion on matters rationally based upon his perception if it helps determine a fact issue. A statute, now codified as Arkansas Code Ann. § 5-2-303 (Repl. 1997), also provided that evidence of mental disease or defect was admissible to prove whether the accused had the kind of mental state required for commission of the offense. From the record, it appeared that Mr. Graham’s mother and his grandmother were qualified to express an opinion about his then-current mental condition; thus, we held that it was error to refuse their testimony.

Mr. Ford insists that the primary purpose of Ms. Cleveland’s testimony was to show that the abuse suffered by Mr. Ford during his childhood affected his judgment at the time of the shooting. Mr. Ford was born in April 1959. The offense occurred in September 1980 when he was twenty-one years old. Ms. Cleveland’s proffered testimony was that Mr. Ford was abused until he was fourteen or fifteen years old, some six or seven years previous to the killing. The testimony in the Graham case dealt with the mother’s and grandmother’s immediate perceptions of Mr. Graham’s condition at the time of the crime.

In the case of Cullum & Boren v. Peacock, 267 Ark. 479, 592 S.W.2d 442 (1980), the defendant gunshop, Cullum & Boren, sold a pistol to a Mr. Blodgett, who used it to shoot Mr. Peacock. Mr. Peacock and his spouse recovered substantial damages awards against Cullum & Boren. The Peacocks introduced evidence that Mr. Blodgett had psychiatric treatment some thirteen years prior to the incident. We reversed because the evidence should not have been admitted. One of the grounds upon which we reached that conclusion was that there was no evidence connecting the prior psychiatric treatment with the condition of Mr. Blodgett at the time he purchased the pistol from Cullum & Boren. It was not relevant to the allegation that Cullum & Boren employees had been negligent in their observations of Mr. Blodgett as he purchased the pistol shortly before the crime was committed. It was too remote.

Other than his sister’s opinion, Mr. Ford offered no evidence that the abuse he suffered at the hands of his father during his childhood was connected with his condition in 1980, when Sergeant Bailey was shot and killed.

Deliberation has been defined as “a weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.” Davis v. State, 251 Ark. 771, 773, 475 S.W.2d 155, 156 (1972). Premeditation means to think of beforehand, and it is well established that it is immaterial as to just how long premeditation and deliberation exist, so long as they exist for a period of time prior to the homicide. Id. Premeditation and deliberation may occur on the spur of the moment, Westbrook v. State, 265 Ark. 736, 747, 580 S.W.2d 702 (1979), and may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds inflicted. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

Given the evidence that Mr. Ford was crouched beside the stolen car he had been driving while facing a police officer when he turned and shot and killed another police officer who was about to apprehend him, we cannot say the Trial Court abused his discretion in disallowing the evidence of the abuse of Mr. Ford that had occurred at a time somewhat remote from the time the crime was committed.

2. Rule 4-3 (h)

The record in this case has been examined for errors prejudicial to the defendant in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.