author: David Newbern, Justice.

text:
    Freddie Thomas ALLRED v. STATE of Arkansas
    CR 92-597
    837 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Matthews, Campbell, and Rhoads, P.A., for appellant.

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

Freddie Thomas Allred, the appellant, was charged in the Municipal Court of Prairie Grove with D.W.I., failure to register, and endangering the welfare of a minor. On December 5,1990, as the result of a plea negotiation, Allred pleaded guilty. He was fined $500, charged $335.50 costs, ordered to be confined for 11 days in the Washington County Jail and to attend the Ozark Guidance Center, and his vehicle operator’s license was suspended for 90 days. The jail time was suspended on condition of no similar occurrences within a year. He attempted to appeal to the Circuit Court which found his appeal to be untimely and dismissed it. We find no error and affirm.

On December 13, 1990, Allred gave notice of his intent to appeal. For reasons not explained in the record, the appeal transcript was not filed in the Circuit Court until March 27, 1991, more than 90 days after the date indicated in the municipal docket as the date notice of appeal was given.

No further action in this matter occurred until February 20, 1992, when the parties appeared in the Circuit Court on the prosecution’s motion to dismiss the appeal as untimely. Allred argued the merits of his challenge, i.e., that there was error in the manner of acceptance of his guilty plea and that he had a right to appeal. The prosecution argued that the appeal should be dismissed as untimely.

The Circuit Court found that the appeal was untimely and dismissed the matter. On February 24, 1992, Allred moved for a new trial and requested a hearing. The Circuit Court did not rule on this motion. On March 19, 1992, Allred filed a notice of appeal from the decision of the Circuit Court dismissing his appeal. Finally on April 15, 1992 an order dismissing the appeal was entered and on April 23, 1992, Allred filed a new and final notice of appeal.

Allred now argues that the Court erred by not hearing the belated Municipal Court appeal and erred in not granting a hearing on his motion for a new trial because our rules of criminal procedure require that the Court grant a hearing if one is requested.

1. Timeliness

A conviction upon a guilty plea is appealable from a municipal court pursuant to Ark. Code Ann. § 16-96-501 (1987). Riley v. City of Corning, 294 Ark. 480, 743 S.W.2d 820 (1988). In Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992), we concluded that Rule 9(a) of the Inferior Court Rules controls the procedure for such an appeal. It provides:

All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.

We held the Rule applies to criminal appeals as well as civil case appeals.

Just as in the Bocksnick case, Inferior Court Rule 9 (a) is wholly dispositive of the issue before us. Judgment was entered by the municipal judge by docket entry, and no appeal was perfected within 30 days. There was no jurisdiction in the circuit court to hear the appeal as it was untimely, and thus there was no jurisdiction to grant a “new trial.” A hearing on that motion would have been superfluous.

2. Belated appeal

Allred argues that this Court should reverse the dismissal by the Trial Court based on the concurring opinion in Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). There, it was held that the Circuit Court lacked authority to grant belated municipal court appeals pursuant to Ark. R. Crim. P. 36.9. The concurring opinion agreed with the majority but concurred to state that circuit courts should have the authority to grant belated appeals of municipal court decisions just as this Court may grant belated appeals of circuit court decisions. It was also noted that it is practicable for this Court to apply Rule 36.9 to appeals of municipal court proceedings.

Nothing in the Edwards decision, neither the majority nor the concurring opinion, supports the relief sought by Allred, i.e., reversal due to error in the Circuit Court’s holding that the appeal was untimely.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Albert Ray BISHOP v. STATE of Arkansas
    CR 92-440
    839 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Larry W. Horton, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant’s convictions for aggravated robbery and rape. He received consecutive sentences of sixty years’ imprisonment on each count. Before trial, appellant made a motion to suppress the victim’s in-court identification of the appellant as being tainted by the police photo lineup. After a hearing, the trial judge denied the motion. At trial, appellant also made a directed verdict motion which was denied by the trial judge. Appellant argues on appeal that the victim’s trial identification of him as the rapist was tainted by a suggestive pre-trial photograph lineup. He also argues that there is insufficient evidence to support his convictions.

On September 12, 1991, the victim was raped and robbed by a man wearing a nylon stocking mask. The man had gained entrance to the victim’s house while she was away, and attacked her when she returned home. The man was armed with a double-barreled shotgun. The man demanded money from the victim, and became irate when she only had $6.22. He struck her in the face with his fists and on her hip with the shotgun, and then he raped her. After raping the victim, the man stayed in the house and continued threatening the victim and looking for valuables. He discovered and took a man’s diamond ring. The victim estimated that he was in her house for a total of forty-five minutes.

The victim described her attacker as being a large man, maybe 5’9” or taller, being of a stocky or strong build and had a beard and a mustache. She said that her attacker wore dark cotton pants and a light khaki-colored shirt. The victim testified that, during the rape, the attacker was within a few inches from her face, and she focused on remembering the details of his face —shape of the face, shape of the nose, hairline, and skin tone. She stated that she noticed under the stocking mask that the attacker had a dark place about the size of a dime on his right cheek. Besides being close to her during the rape, the victim stated that the attacker stayed close to her — the length of a shotgun — while he was in the house.

The victim talked to the police the night of the attack and came to the police department the next night to view a photographic lineup. The appellant was a suspect and had been photographed wearing a light khaki shirt for the lineup. Another man in the lineup wore a similar shirt. The victim identified the appellant in the photographic lineup, and also identified him in court as the rapist.

In arguing that the photographic lineup was suggestive, the appellant focuses on the following things: 1) Before taking his picture for the photographic lineup, the police officers had the appellant put on a light khaki shirt that was recovered at his house during the arrest; 2) There was only one other person in the lineup wearing a khaki shirt like the one the victim described her attacker as wearing; and 3) During the photographic lineup, an officer told the victim “by looking at this picture it appears that he has a dark place on his cheeks.”

If there are suggestive elements in the before-trial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Moser v. State, 287 Ark. 105, 696 S.W.2d 744 (1985). However, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Moore v. State, 304 Ark. 558, 803 S.W.2d 553 (1991). Further, we do not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id.

This court has also held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. Id. We have held that the following factors must be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and confrontation. Id.

Turning to appellant’s arguments, we first consider his charge that the photographic lineup was tainted by the police having him wear his khaki-colored shirt. This court has held that a lineup is not per se unconstitutionally suggestive merely because only one person was wearing a piece of clothing similar to the one by the offender. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984). Here, as discussed above, another man besides the appellant was shown wearing a khaki-colored shirt. All six men in the lineup otherwise were similar in appearance including having mustaches and beards. The victim testified that she could easily tell from the appellant’s face in the picture that he was her attacker because, while he had a nylon stocking over his face at the time of the crime, she was only six inches from him and could easily observe details of his face. She had no question in her mind concerning her identification of appellant. See Evans v. State, 310 Ark. 397, 836 S.W.2d 384 (1992).

Appellant further complains concerning an officer’s statement made when the prosecutrix was viewing the photographic lineup. He said, “By looking at this picture it appears that he has a dark place on his cheeks. You look pretty close to it (sic), could have been what you was looking at?” The prosecutrix responded that she could tell there was something on the cheek of the person in the picture referred to by the officer, but said that the picture was not large enough to tell if the dark place was identical to the one on her attacker’s face. Instead, she identified appellant’s picture by paying attention “to the shape of his face, the size of his nose, the hair line, plus the mark.”

Aside from appellant’s arguments that the officers’ actions and remarks were impermissibly suggestive, the totality of the circumstances supports the reliability of the prosecutrix’s identification of appellant. In reviewing the record in light of the factors cited in Moore above, the prosecutrix had the opportunity to view her attacker, because he was in the prosecutrix’s home for forty-five minutes and the lights were on the entire time. Again, while the appellant wore a stocking mask throughout the episode, the prosecutrix testified that she could tell the details of her attacker’s face through the nylon stocking and that he was in close range to her the entire time. She further testified that she focused on paying close attention to the details of appellant’s face because, if she survived the ordeal, she wanted to be able to identify him. The victim never changed her description of her attacker, and she was positive in both her pre-court identification and in-court identification. Further, the prosecutrix went to the police station the night after she was attacked, and identified the appellant in a photographic lineup. Thus, her identification of appellant occurred only one day after she was raped. In sum, this court cannot say that the trial court’s denial of the appellant’s motion to suppress the in-court identification was clearly erroneous.

In the second issue, the appellant argues that there is insufficient evidence to support his convictions for rape and aggravated robbery. This court treats directed verdict motions as challenges to the sufficiency of evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). We affirm if there is substantial evidence to support the verdict, and in making this determination, we review the evidence in the light most favorable to the appellee. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

In rape cases, this court has consistently held that the requirement of substantial evidence is satisfied by the rape victim’s testimony. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). However, the appellant appears to suggest that the prosecutrix’s testimony is insufficient because her attacker was wearing a stocking mask during the entire criminal episode. This court found sufficient evidence in Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983), where the robbery victims identified the robber even though he wore a stocking mask during the robbery. In Tosh, one of the victims, an artist, testified that she focused on her attacker’s facial features and that the stocking did not change these features. As we pointed out when discussing the identification issue above, the prosecutrix testified that she focused on her attacker’s features so that she could identify him and that she could see his features through the stocking. The appellant’s attorney, on the other hand, questioned witnesses, so as to make it clear that the prosecutrix’s attacker never took off his mask. The witness’s stories and demeanor when asked about this factual question was before the jury, and the jury obviously believed that the prosecutrix could identify the appellant as her attacker in spite of the nylon stocking he wore.

Besides the prosecutrix’s identification of appellant, the state presented evidence of fibers found on clothing obtained from the appellant’s house that matched the fibers of the blanket and pillow on the prosecutrix’s bed. Also, fibers similar to the appellant’s work pants were found on the prosecutrix’s clothes. Based upon the evidence set out above, we have not hesitancy in holding there is sufficient evidence to support appellant’s conviction of rape. See Ark. Code Ann. § 5-14-103 (1987).

Concerning appellant’s robbery conviction, a person commits aggravated robbery if, with the purpose of committing a theft, he employs or threatens to immediately employ physical force upon another, and he is armed with a deadly weapon. Ark. Code Ann. §§ 5-12-102(a) and 5-12-103(a)(1) (1987). As thoroughly discussed above, the prosecutrix identified the appellant as the man who had robbed her. She testified that he was armed with a shotgun, and took $6.22 and a diamond ring from her house. The evidence clearly supports appellant’s aggravated robbery conviction.

We affirm


author: Donald L. Corbin, Justice.

text:
    Timothy BAKER v. STATE of Arkansas
    CR 92-375
    837 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Davis & Watson, P.A., by: Jeff H. Watson, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Timothy Baker, was convicted of four counts of Delivery of a Controlled Substance in violation of Ark. Code Ann. § 5-64-401 (Supp. 1991) of the Uniform Controlled Substances Act. Appellant was sentenced to a fine of $2,500.00 on count one, a fine of $2,500.00 on count two, a fine of $5,000.00 on count three, and a fine of $5,000.00 and ten years in prison on count four. On appeal, appellant contends that the trial court erred in two respects. For his first point of error, appellant contends that the trial court erred in refusing to give appellant’s requested instruction on the defense of entrapment. For his second and final point of error, appellant contends that the trial court erred by refusing to consider probation or some form of suspended imposition of sentence of his prison term under Act 346 of 1975, which is codified at Ark. Code Ann. §§ 16-93-301 to -303 (1987). Appellant’s second point of error requires our construction of Act 346 of 1975; our jurisdiction is therefore proper pursuant to Ark. Sup. Ct. R. 29(l)(c).

I. ENTRAPMENT

Appellant does not deny that he delivered one ounce of marijuana to the confidential informant, Glen Luster, on January 31, 1991 (count one) or that he delivered one ounce of marijuana (count two), one quarter ounce of mushrooms (Psilocybin, Psilocyn) (count three), and one eighth of an ounce of cocaine (count four) to Glen Luster on February 6, 1991. Appellant contends that he was so induced by Glen Luster to sell him the cocaine that he should have been entitled to raise the defense of entrapment at least as to count four, the delivery of cocaine.

Entrapment is an affirmative defense that must be proven by a preponderance of the evidence. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Entrapment is defined at Ark. Code Ann. § 5-2-209(b) (1987), as follows:

Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

When deciding whether a person was entrapped as a matter of law, we have said that:

[M]ore importance [is attributed] to the conduct of the law enforcement officers [and any people acting in cooperation with them] than to any predisposition of the defendant and the question is directed to the effect of that conduct on “normally law-abiding persons.” (Emphasis theirs)

Spears v. State, 264 Ark. 83, 96, 568 S.W.2d 492, 501 (1978). But we have also said that:

defendant’s conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question whether the government agents only afforded the opportunity to commit the offenses with which he is charged, [cite omitted]

Id. at 97, 568 S.W.2d at 501.

The only evidence that appellant points to as behavior by the government informant that induced him to sell cocaine were several phone calls by the informant to appellant and the informant’s in-person requests for cocaine at the January 31st drug sale. According to appellant’s testimony, at the first drug buy of January 31, 1991, the informant asked appellant about getting some cocaine and appellant initially told the informant that he never got any cocaine and did not know of anybody that had any to sell. However, it was also appellant’s testimony that after further inquiries from the informant during the same transaction on January 31st, which lasted approximately five to ten minutes, appellant stated he thought he could get some cocaine. Appellant also testified he had sold cocaine to the informant in the past and had bought cocaine from the informant in the past.

When there is no evidence to support the giving of an instruction, it is not error to refuse it. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). The informant’s behavior in asking appellant if he could get some cocaine and calling him several times about getting cocaine, without more, is not enough to raise a fact question as to entrapment, especially coupled with appellant’s testimony that he had sold cocaine to the informant in the past and that he was willing to sell marijuana and mushrooms to the informant. Appellant, having the burden of proof, failed to present any evidence to indicate that he was induced by governmental conduct of a character likely to cause a normally law-abiding person to commit the offense. Therefore, it was not error for the trial court to refuse to give appellant’s proposed instruction on entrapment.

II. PROBATION

Appellant’s argument that he was eligible for and should have been considered for probation and sentencing under Act 346 of 1975 is without merit. At the time of sentencing, appellant asked the court to consider probation under Act 346 of 1975 as an alternative. The trial judge responded that he did not feel he had the discretion to grant probation under the law.

Since the crime for which appellant was sentenced to ten years in prison was committed on,February 6, 1991, before the amendments contained in Act 608 of 1991 went into effect, appellant was sentenced under the versions of the statutes this court interpreted in Pennington v. State, 305 Ark. 507, 808 S.W.2d 780 (1991). In Pennington we held that a trial court was allowed to consider alternative sentencing under Ark. Code Ann. §§ 5-4-301 to-311 (1987 &Supp. 1989) for an appellant who was found guilty of possession of cocaine with intent to deliver and sentenced to five years imprisonment under Ark. Code Ann. § 5-64-401 (a)(1)(i) (1987) of the Uniform Controlled Substances Act.

Appellant in this case contends that he is eligible for probation and sentencing under Act 346 of 1975 (codified at Ark. Code Ann. §§ 16-93-301 to -303 (1987)). Section 16-93-303 provides in pertinent part:

(a)(1) Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or municipal court, criminal or traffic division, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court.

We apply the plain meaning rule when the wording of a statute is clear and unambiguous. Life Ins. Co. of Arkansas v. Ashley, 308 Ark. 335, 824 S.W.2d 393 (1992). Act 346 of 1975 applies only to an accused who “enters a plea of guilty or nolo contendere prior to an adjudication of guilt.” Appellant was adjudged guilty by a jury, therefore, the trial court correctly determined that he was not entitled to probation under Act 346 of 1975.

Appellant also contends the trial judge made his determination based on his reading of the Criminal Code as codified at Ark. Code Ann. §§ 5-4-104 (1987) and 5-4-301. We do not see any indication in the record that the trial court was relying on these sections or even that appellant brought these sections to the attention of the trial judge. It is the duty of a party desiring relief to apprise the trial court of the proper basis upon which he relies in order to preserve an issue for appeal. See Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). We will not consider on appeal issues that the trial judge did not have a fair opportunity to consider. Mays v. State, 308 Ark. 39, 822 S.W.2d 846 (1992). In the case of requests for probation or a suspended sentence this requires appellant to cite the appropriate statute under which he claims he is entitled to such relief. While appellant’s request for probation was specific it did not include an assertion that appellant was entitled to probation pursuant to sections 5-4-104 and 5-4-301. Therefore we will not address whether appellant would have been entitled to probation based on sections 5-4-104 and 5-4-301. See Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992).

Affirmed.


text:
    Ernest ROE v. STATE of Arkansas
    CR 92-457
    837 S.W.2d 474
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Thomas Devine, Public Defender’s Office, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Ernest Roe, appeals a judgment of the Pulaski Circuit Court convicting him of two counts of aggravated robbery and two counts of misdemeanor theft of property. Appellant was tried by a jury, found guilty, and sentenced as an habitual offender to two concurrent terms of forty years in the Arkansas Department of Correction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1)(b).

As his sole point for reversal, appellant claims the trial court erred in restricting his cross-examination of the prosecution’s key witness. We find no error and affirm the trial court’s judgment of conviction.

The only proof linking appellant with the crimes charged was the testimony of one of the two victims, Michael Sutton. Although there were two victims of the robbery, only Sutton was able to identify appellant as the robber. Sutton testified that on May 17, 1991, at approximately 3:00 a.m., he and the other victim, Julie Currence, were leaving their room at the Quality Inn in North Little Rock, Arkansas, when appellant approached them in the parking lot. Sutton testified that appellant brandished a gun and then stated, “You know what’s happening. Put in on the ground.” Both victims did as appellant requested. Appellant then grabbed the valuables the victims had placed on the ground and ran out of sight. Sutton testified that the man who robbed him was real close when he pointed the gun, so close that the two men were almost touching, and that he got a good look at the person who was robbing him. Sutton made an in-court identification of appellant as the man who robbed him. Sutton also identified appellant as the robber in a photographic lineup.

On appeal, appellant argues that because Sutton’s testimony was the only evidence identifying appellant as the man who robbed Sutton and Currence, Sutton’s ability to comprehend and remember the robber’s face was critical. Currence was not able to identify appellant as the robber. Appellant claims he was not allowed to explore fully Sutton’s ability to see, comprehend, and remember the robber’s face because the trial court sustained an objection to the following question: “And had you driven from your home that day to the hotel and arrived on the 16th?”

The state does not contest appellant’s argument that the ruling sustaining the objection was erroneous. Instead, the state argues simply that appellant failed to proffer Sutton’s response to the question and we should therefore affirm.

Our law is well-settled that error may not be predicated upon a ruling which excludes evidence unless both a substantial right of the party is affected and the substance of the excluded evidence was made known to the trial court by offer of proof or was apparent from the context within which the questions were asked. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991); A.R.E. Rule 103(a)(2). The record does not indicate that appellant made a proffer of Sutton’s response to the sustained question. Furthermore, it is not apparent from the context in which the question was asked what Sutton’s response would have been. The subject of Sutton’s driving to the hotel had not been discussed elsewhere in the trial. Although Sutton did state that he was from Crossett, Arkansas, there is simply nothing in the record from which we can determine Sutton’s response. Thus, there is no record before us for review. We have no means of determining if prejudice occurred; the failure to proffer evidence so that the appellate court can make that determination precludes review of the issue on appeal. Bennett, 307 Ark. 400, 821 S.W.2d 13.

It almost goes without saying that a witness’ physical capacity to observe the events about which he testifies may be challenged during cross-examination. Edward W. Cleary, McCormick on Evidence § 45 (3d ed. 1984); 3 Jack B. Weinstein, Margaret A. Berger, Weinstein’s Evidence ¶ 607 [04] (1987); 3A John H. Wigmore, Evidence in Trials at Common Law §§ 993, 994 (Chadbourn rev. 1970). This is particularly true in a case such as the present one, where an accused’s conviction hinges on the observations of one witness. However, the trial court exercised its discretion and allowed appellant wide latitude in attacking Sutton’s credibility with respect to Sutton’s ability to observe the robber. During cross-examination, appellant was able to elicit testimony that Sutton had arrived at the hotel at about 10:00 p.m., that he had been awake the entire time at the hotel, and that he had been awake for a total of about twenty-one hours when the robbery occurred in the parking lot at 3:00 a.m. Thus, while we agree with the state that the easy answer to this case is appellant’s lack of a proffer, we point out that even if we were to conclude that such a defect was not prejudicial, we could just as easily affirm on the basis that the trial judge allowed appellant to attack Sutton’s ability to observe the events in question and did not abuse his discretion by unduly restricting cross-examination.

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    David Harold SIMPSON v. STATE of Arkansas
    CR 92-383
    837 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Bob Frazier, for appellant.

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

The appellant, David Harold Simpson, raises several arguments on appeal following his two convictions for the rape of his daughters: 1) whether joinder of the offenses for trial was error; 2) whether Simpson should have been charged with incest and not rape; and 3) whether the trial judge was without jurisdiction to try this case. The three points are meritless, and we affirm.

On May 16, 1991, Simpson was charged in two separate informations for raping his two daughters, who at the time of the allegations were age four and age seven, respectively. A month later the prosecutor moved to join the two rape offenses for trial pursuant to Ark. R. Crim. P. 21.1. Simpson opposed the motion and simultaneously filed a motion for severance under Ark. R. Crim. P. 22.2 (a), contending that the two alleged offenses were not part of a single plan or scheme. Simpson further moved to dismiss the rape charges or, alternatively, to amend the charges to incest. The motion to sever and the motion to amend were denied by the trial judge following a pretrial hearing. Simpson was then tried before a jury on October 22, 1991, convicted on both rape charges, and sentenced to twenty years on each offense, to be served consecutively.

Simpson first contends that it was error not to sever the two offenses for trial, since the offenses charged were not part of a single plan or scheme. We disagree. Ark. R. Crim. P. 22.2 reads:

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

In addition, the commentary to the joinder rule (Ark. R. Crim. P. 21.1) states that the severance rule (Ark. R. Crim. P. 22.2) provides a defendant with an absolute right to severance of offenses when joined solely on the basis that they are of the same or similar character. Commentary to Article VI, Arkansas Code, p. 168 (1991).

Whether to grant a severance lies at the discretion of the trial judge, and the decision will not be reversed absent an abuse of discretion. Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991); Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990); Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981).

We have previously held that the testimony of other rape victims is relevant in a criminal trial for the rape of two underage girls to show “motive, intent or plan” under Ark. R. Evid. 404(b). Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992); see also George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991) (separate conviction for sexually abusing a child was admissible to prove motive, plan or intent of defendant). We have further stated that:

“we will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’ ”

Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455 (1987), quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

In this case, the issue is whether the two charges relating to separate daughters were part of “a single scheme or plan.” A corollary issue under Rule 22.2 is whether severance is necessary to achieve a fair determination of guilt or innocence. Based on the authority cited above, it is clear that the testimony of one daughter would have been admissible at the trial of the other daughter to show a plan. Moreover, here there was ample evidence that the sexual activity relating to the two daughters was inextricably connected. Simpson admitted, according to the testimony of witnesses, that he had fondled his children. There was additional testimony that deviate sexual activity had occurred involving the children more than once over a period of a year. The victims and Simpson were all residing in the same household at the time. It is difficult, if not impossible, to isolate Simpson’s sexual abuse of one daughter from that of the other. We hold that the trial judge did not abuse his discretion in denying the severance motion and in deciding that the rapes were part of a single scheme or plan.

Nor do we give credence to Simpson’s second argument that the trial judge should have ordered an amendment of the two charges to incest. Our state constitution provides that only the prosecutor can file a criminal information. Ark. Const. amend 21, § 1. It necessarily follows that neither the trial judge nor the appellant has the authority to amend the information. That authority rests solely with the prosecutor.

The prosecutor in this case elected to charge Simpson for rape rather than incest. Rape as a Class Y felony carries with it a more severe sentence and therein lies the problem, according to Simpson, who urges that a charge of incest, a Class C felony, was more appropriate for sexual abuse of descendants and should have been substituted in its stead. The evidence presented at trial undoubtedly would have supported a charge for either offense. Indeed, we have previously reviewed a prosecutor’s decision to charge a defendant with both rape and incest for forcing his fourteen-year-old daughter to have sex with him on multiple occasions, and we affirmed the subsequent convictions for both offenses. Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983). In short, the charge to be filed was a matter of prosecutorial discretion.

The United States Supreme Court has discussed the precise issue raised by the appellant:

More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. [Citing authority.] Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. [Citing authority.]

United States v. Batchelder, 442 U.S. 114, 125 (1979); cited with approval Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981).

We agree with the Court in Batchelder that the decision of the charge to be filed rests with the prosecutor. The fact that the prosecutor in the case before us chose to file a Class Y felony against Simpson which carries with it a higher penalty does not, by itself, give rise to a constitutional infringement.

Finally, Simpson argues that the chancellor and probate judge who tried this case lacked subject matter jurisdiction to do so under our decision in Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992). Though Simpson failed to raise this issue to the trial court, subject matter jurisdiction may be raised before this court on its own motion. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983).

Subject matter jurisdiction, however, is determined from the pleadings, and once a proper charge is filed in circuit court, that court may exercise jurisdiction over that subject matter. Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992). Moreover, jurisdiction is granted to a particular position, that is, to a particular court, and not to the person who fills it. Nation v. State, 283 Ark. 250, 674 S.W.2d 939 (1984). Here, the Faulkner County Circuit Court clearly had jurisdiction over the two rape charges and the issue raised by Simpson concerns the authority of the individual who filled that position. As was the case in Nation, that issue relates to the authority of the sitting judge and not to the jurisdiction of the circuit court.

The appellant’s counsel as a practicing attorney in this state undoubtedly knew that the sitting judge was the elected chancellor/probate judge. Yet no objection was made to his status at any stage of the circuit court proceedings. We have held that a defendant loses his or her right to raise a disqualification of a judge due to bias for the first time on appeal if that defendant participates in the trial, knowing of the potential bias, without objection. See, e.g., Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976); see also Waiver of Loss of Right to Disqualify Judge By Participation in Proceedings Modern State Criminal Cases, 27 ALR4th 597 (1984). Because this issue is not one of subject matter jurisdiction and because it was not raised before the trial judge, it was not preserved for appeal. Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992) Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Accordingly, we will not consider it.

Affirmed.


text:
    Larry SPOHN v. STATE of Arkansas
    CR 92-500
    837 S.W.2d 873
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Daniel D. Becker and Terri Harris, for appellant.

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

The appellant, Larry Spohn, was convicted of first degree murder and sentenced to forty years in prison. He argues on appeal that the circuit court erred in two respects. First, his expert witness was foreclosed from testifying about the effect of blackouts resulting from alcoholism on specific intent to commit murder, and, secondly, the court allowed the prosecutor to interrogate Spohn about a past bad act on cross-examination. The appellant’s arguments are not persuasive, and we affirm.

Spohn and the victim, Dr. Mary Lyn Bryden, operated a correspondence-school business in Dallas, Texas and had been involved in a personal relationship for several months. On June 15, 1991 they left Dallas and drove in separate cars to Hot Springs Village for a month’s vacation. They arrived in Hot Springs late that afternoon and witnesses described Spohn as intoxicated. Later that night they came to the Village and Spohn testified that he continued to drink beer. Sometime during the course of the evening, Dr. Bryden was on the telephone. After she hung up, Spohn asked her whom she had been talking to and told her not to lie to him. She hit him, and he testified that he does not know what happened from that point forward. Dr. Bryden died from manual strangulation.

About noon the next day, Spohn went to the house of a friend, Kim Redding. Redding testified that Spohn was very intoxicated and that Spohn told him that he had “big trouble.” Spohn further told Redding that he had a body in the trunk. He then wanted to know if Redding knew anyone with a meat grinder. The two men drove to the Village and entered the rented house, whereupon Spohn called out, “Honey, are you here?” Redding subsequently checked the car trunk and found the body of Dr. Bryden. He notified the Garland County Sheriffs office, and Spohn was arrested and charged with first degree murder the next day. After a two-day trial, he was convicted as charged and sentenced.

For his first point, Spohn contends that his expert witness on blackout alcoholism, Dr. Douglas Stevens, was impermissibly curtailed in his testimony by the circuit court. Dr. Stevens testified that Spohn had been a blackout alcoholic from “a fairly early age.” Dr. Stevens further testified that with this malady “you go on automatic pilot and the conscious mind no longer is in control and the conscious mind doesn’t process or retain what happens.” Defense counsel then asked Dr. Stevens: “While someone is in one of these alcoholic blackouts, could they form intent, specific intent?” An objection from the prosecution ensued on the basis that the question posed was the ultimate question for the jury to determine.

The circuit court sustained the objection but did so on the basis that the testimony was irrelevant since voluntary intoxication was not a defense to criminal prosecutions. Spohn then made a proffer of Dr. Stevens’s testimony that an individual does not form intent during a blackout. The court again sustained the state’s objection, stating that it would be an opinion on the ultimate issue. He added: “To me, it’s the back door,” apparently in reference to Spohn’s attempting to invoke an intoxication defense.

The court was correct in its ruling. Purposeful conduct, as required for a first degree murder conviction, was shown in this case by the manual strangulation of Dr. Bryden. In 1986, we declared that voluntary intoxication was no longer an available defense to criminal prosecutions. White v. State, 290 Ark. 130, 717 S.W.2d 704 (1986); see also Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991); Cox v. State, 305 Ark. 204, 808 S.W.2d 306 (1991). Testimony from Dr. Stevens about blackouts was simply another means of using voluntary intoxication as a defense. This was irrelevant in light of our decision in White. The appellant argues that White does not apply to specific intent crimes such as we have here, but the appellant is wrong. White clearly abolishes the defense of voluntary intoxication for all criminal prosecutions, and the court was correct in its ruling.

The appellant’s second point concerns the question of evidence of a prior bad act, which is precluded under Arkansas Rule of Evidence 404(b). On direct examination, Spohn testified that there was never any violence in the relationship with Dr. Bryden. He said that he never had thoughts of harming the victim. He then added: “I wouldn’t hurt her for the world. I loved her. I wanted to marry her.” Spohn also testified that he had never been charged with an act of violence. On cross-examination, the prosecutor queried about a woman in Sedona, Arizona and then asked: “Did you ever hold her against her will while you were in Sedona?” Spohn objected and the circuit court noted that the defense had portrayed Spohn as a nonviolent person on direct examination. The court then overruled the objection. Spohn answered the question by saying that he “had another blackout in Sedona.”

It is true as a general rule that proof of other crimes or bad acts is never admitted when its only relevancy is to show that the accused is a person of bad character. Ark. R. Evid. 404(b); see also Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971); Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). However, in McCormack on Evidence, the following statement of the law is made relative to character testimony:

Ordinarily, if the defendant chooses to inject his character into the trial in this sense, he does so by producing witnesses who testify to his good character. By relating a personal history supportive of good character, however, the defendant may achieve the same result. Whatever the method, once the defendant gives evidence of pertinent character traits to show that he is not guilty, his claim of possession of these traits - but only these traits - is open to rebuttal by cross-examination or direct testimony of prosecution witnesses.

McCormack, Vol. 1 § 190, p. 816 (1992).

Spohn raised the character issue in the case before us. He testified that there was no violence in the relationship and that he never had been charged with a criminal offense. The clear implication was that violence was not a character trait. By testifying as he did, he invited a retort from the state on the peacefulness of his character, and the state obliged. We have held in a civil case that testimony of a witness relating to reputation for peacefulness opened the door to the admission of rebuttal evidence. Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). The same principle applies in this criminal case. There was no abuse of discretion in admitting the testimony.

Affirmed.


author: Per Curiam.

text:
    Harold Edward CHISM v. STATE of Arkansas
    CR 92-569
    837 S.W.2d 479
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Denny Hyslip, for appellant.
    No response.
   Per Curiam.

Appellant, Harold Edward Chism, by his attorney has filed for a rule on the clerk.

His attorney, Denny Hyslip, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. Donald L. Corbin, Justice,

text:
    Mary Elizabeth CIGAINERO v. STATE of Arkansas
    CR 92-85
    838 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992
    [Rehearing denied November 2, 1992.]

      Damon Young, for appellant.

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

      Corbin, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

Appellant, Mary Elizabeth Cigainero, was convicted of first degree murder in the shooting death of her husband, Christopher Cigainero. She argues that her conviction should be reversed claiming there was insufficient evidence to support the conviction and the trial court erred in not granting her a new trial based on juror bias. We disagree and affirm her conviction.

Early the morning of June 4, 1989, Christopher Cigainero returned home after an evening with his cousins. As he attempted to enter the house through his living room window, he was shot through the chest with a high powered rifle. Mr. Cigainero’s wife, Mary Elizabeth Cigainero, admits having shot him. She claims that she thought he was an intruder and fired upon him out of fear. The jury found that she had killed him with premeditation and deliberation and sentenced her to life imprisonment.

Cigainero first argues that the evidence presented at trial was insufficient to prove her guilty of first degree murder and that the trial court erred in overruling her motion for directed verdict. In consideration of Cigainero’s motion for directed verdict, we will affirm the trial court’s decision if there is substantial evidence to support the verdict. Williams v. State, 289 Ark. 443, 771 S.W.2d 825 (1986). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond a suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).

Circumstantial evidence indicating that Cigainero had planned and committed the murder of her husband is more than substantial. The law makes no distinction between circumstantial and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. It is up to the jury, however, to determine whether the evidence excludes every other reasonable hypothesis. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). The matter of premeditation and deliberation and intent may all be inferred from the circumstances. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977); Wilson v. State, 258 Ark. 110, 522 S.W.2d 413, cert. denied, 423 U.S. 1017 (1975) An instant of premeditation is enough to sustain a conviction. Shipman v. State, 252 Ark. 285, 478 S.W.2d 421 (1972).

Testimony indicated that Cigainero was unhappy with her marriage but was afraid to divorce her husband because she might lose custody of her children. She had been involved in affairs while married. Numerous witnesses testified that Cigainero had discussed ways to have her husband killed. Although Cigainero claimed that she shot the victim believing he was an intruder, witnesses claimed that the victim often climbed through the window after coming home late in the evening. Cigainero’s co-worker testified that the day prior to the homicide, he had taken her to pick up the rifle used in the murder. Evidence also indicated that although Cigainero’s home was usually “very nasty,” on the morning of the homicide, the home was very neat, except for a bathtub filled with dirty dishes. A witness testified that Cigainero had told her that she was going to clean up her house and have her lawn mowed prior to killing her husband as he came through the window. Lastly, Cigainero confided her acts to her friends and lovers indicating on at least one occasion that she intentionally shot her husband.

Cigainero also argues that the trial court erred in refusing to grant her a new trial based on juror bias. The state argues that this issue was not preserved for appeal because the motion for new trial was filed almost ninety days after the conviction was entered. We agree with the state.

Both A.R.Cr.P. Rule 36.22 and Ark. Code Ann. § 16-91-105 (1987) dictate that a motion for new trial must be filed within thirty days of the judgment. The trial court found that the motion for new trial was timely, claiming that the motion involved newly discovered evidence and A.R.C.P. Rule 60(c)(1) allows a motion for new trial to be filed after ninety days where the grounds for the motion are newly discovered evidence. The trial court was wrong as A.R.Cr.P. Rule 36.22, not A.R.C.P. Rule 60, is applicable here.

A person convicted of either a felony or misdemeanor may file a motion for new trial, a motion in arrest of judgment, or any other application for relief, but all motions or applications must be filed prior to the time fixed to file a notice of appeal. Such pleadings should include a statement that the movant believes the action to be meritorious and is not offered for the purpose of delay. . .Upon the filing of any motion or other application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications.

A.R.Cr.P. Rule 36.22 (emphasis added).

Cigainero also relies on Ark. Code Ann. §16-89-130 (1987) as a grant of extra time to file. It provides in part: “The application for a new trial must be made at the same term at which the verdict is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment,” and notes that this applies in cases including where, because of jury misconduct, the court is of the opinion that the defendant did not receive a fair trial. To the contrary, A.R.Cr.P. Rule 36.22 and Ark. Code Ann. § 16-91-105 (1987) have set the time frame, thirty days from date of judgment, and they have effectively superseded and taken precedence over Ark. Code Ann. § 16-89-130. Chism v. State, 274 Ark. 332, 625 S.W.2d 448 (1981). Cigainero’s motion is not timely, and her issue of whether the trial court erred in refusing to grant a new trial will not be considered on appeal.

In accordance with Rule 11 (f) of the Rules of the Supreme Court, all other objections made during the trial have been examined. We find no error.

Affirmed.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. The appellant was convicted of first degree murder on December 17, 1990. Notice of appeal was filed on December 19, 1990. On March 15, 1991, appellant filed a motion for new trial on the basis that two of the jurors who sat on this jury, together with their spouses were among the 2500 persons who had signed a petition before trial asking that the circuit judge of Miller County call a grand jury to investigate the office of the prosecuting attorney for his failure to “file, charge, and prosecute the Christopher Cigainero homicide.” The petition also requested that a special prosecutor be appointed to investigate this “serious breakdown in justice in Miller County, Arkansas.” It also stated that “a failure to prosecute these criminals is against Arkansas law.”

At the hearing on the motion for new trial, it was brought out th?.t each of the two jurors had at least eight opportunities during voir dire to tell the court and counsel of their involvement with the petition, but never did. They remembered that during voir dire the court informed the jury panel that the case involved the murder of Christopher Cigainero; that the prosecutor asked if anyone on the panel knew about the case; and that inquiry was made as to any discussion that the jurors may have had about the case with anyone in such places as a restaurant or church. Both jurors remembered defense counsel’s question of whether anyone thought he or she might not be a qualified juror because of anything he or she had heard or read. However, each denied that, during voir dire, they remembered signing the petition.

In arguing her motion, appellant relied on both Ark. Code Ann. § 16-89-130(c)(3) (1987), which provides for a new trial where the verdict was reached by “lot, or in any other manner than by a fair expression of opinion by the jurors” and section 16-89-130(c) (7) which provides for a new trial “[w]here, from the misconduct of the jury, or from any other cause, the court is of the opinion that the defendant has not received a fair and impartial trial.” Appellant argued this motion was timely filed within the November 1990 term of the court as provided by section 16-89-130(b). The majority opinion concludes that her motion was untimely and therefore declines consideration of what actually occurred.

The writ of error coram nobis might be the better way of dealing with such a problem as presented in this case. We have limited its availability to cases where there is an error of fact extrinsic to the record such as insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor that might have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). This limitation is justifiable for the reason that we would have little or no finality in criminal prosecutions in the absence of a strictly limited application of the writ. This case presents facts that would perhaps warrant an extension of our limited application of the writ of error coram nobis.

A trial by a fair and impartial jury made up of one’s peers is the very cornerstone of our American system of jurisprudence. It is a right granted to us by our United States and State Constitutions and protected by case law spanning the 156 years of this court’s existence. Today, this court departs from this fundamental and guaranteed right because of noncompliance with a court rule of procedure. True enough, the attorney for the defendant failed to timely move for a new trial, the evidence of guilt is overwhelming, and the attorney should probably have checked the names of the jury panel against the 2500 plus names on the petition (a tedious task); however, he should also be allowed some leniency in failing to check the signatures given the failure of the jurors to inform counsel of their familiarity with the case and involvement with the petition. There should be a remedy when the jury starts up 10 to 2. These two jurors should not have been on this panel.


author: Jack Holt, Jr., Chief Justice.

text:
    Raymond SANDERS v. STATE of Arkansas
    CR 92-552
    838 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      Robert N. Jeffrey, for appellant.

      Winston Bryant, Att’y Gen., by; Cathy Derden, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Raymond Sanders was found guilty of capital felony murder for the shooting death of Frederick LaSalle and sentenced to life imprisonment without parole. The murder occurred during the course of a robbery of LaSalle’s bootlegging operation. At trial Sanders’ accomplice, Byron Hopes, testified in detail as to the events of the night of the murder and robbery up until the men were arrested. Testimony of other witnesses and circumstantial evidence further supported Sanders’ guilt.

On appeal Sanders contends that there was insufficient evidence presented at trial to corroborate the testimony of his accomplice, Hopes, or to prove robbery as the underlying felony supporting the capital felony murder conviction. We find the evidence more than sufficient.

Sanders’ accomplice, Byron Hopes, testified to the following: He and Sanders were riding around together on the night of the murder when Sanders mentioned that a guy owned him money. Sanders told Hopes that he needed a gun in order to get the money back. Hopes had left his gun with Wanda Morgan, so Sanders and Hopes went by her home and picked it up. Then, the two men went to Hopes’ house to get shells for the .22 rifle.

With gun in hand, Sanders, accompanied by Hopes, walked down the railroad tracks to LaSalle’s small, tin building. The ground was wet, and both men were wearing tennis shoes. According to Hopes, Sanders walked to the side of the building, and Hopes heard a gunshot. Hopes walked around and witnessed Sanders reload the gun and shoot through the window at LaSalle, who was sitting up in bed. After this shot, LaSalle was on the floor and reaching for the telephone; Sanders shot him a third time, this time in the side of the head. Hopes and Sanders went around to the front. Sanders entered the building, telling Hopes to stand outside and keep a look out. Hopes heard a lot of “rumbling, racket and noise,” after whioh Sanders came out and said he could not find anything but beer. Sanders unplugged an outside light, and Hopes stood outside while Sanders handed him six to eight cases of beer and several pints of alcohol which they left by the nearby railroad tracks. Sanders also took the victim’s wallet but discarded it over a bridge while he and Hopes were walking up the tracks.

Upon reaching Hopes’ house, they got his car and went back to pick up the beer and other alcohol. Then, the men went to get gas. Sanders removed his pants, revealing a second pair of pants underneath. A police car drove by, and the men got scared and pulled off behind a Sears store. Sanders threw his pants out the window.

Next, the two went to Sanders’ house. Sanders’ brother, James, was there and Sanders’ girlfriend, Diane, came over. Sanders left them to sell the beer and returned with crack cocaine, which they all smoked. The four then went driving toward Arkadelphia. During this drive, Sanders asked his brother to throw his tennis shoes out the window, and he complied. They returned to their homes.

The next day, Hopes and Sanders were driving across the railroad tracks, near LaSalle’s building, when the police stopped them and took them into custody.

Accomplice testimony must be supported by corroborating evidence:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Ark. Code Ann. § 16-89-111 (e)(1) (1987)

Sanders argues that Hopes’ testimony at trial was not sufficiently corroborated. On appeal “our inquiry is whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient. . .we need only consider testimony lending support to the verdict.” Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).

In order to be sufficient, the corroborating evidence must connect the accused with the crime and be independent of the evidence given by the accomplice. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980); Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). The test for determining the sufficiency of the corroborating evidence is whether, if the accomplice’s testimony were eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). However, the corroborating evidence does not have to be sufficient to convict defendant of capital felony murder independently of the accomplice’s testimony. Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987). Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt is excluded. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990).

We have no problem in noting that the other evidence and testimony was sufficient to corroborate Hopes’ testimony. Donald Smith, criminalist with the State Crime Lab, testified that he had taken hair samples from a bloody blanket found on the crime scene. In his professional opinion, these hairs belonged to Sanders. Smith also testified that he found what he believed were Sanders’ hairs on the victim’s clothing.

Further, Sanders’ girlfriend, Diane Baker, testified that she had seen him with Hopes on the night of the murder. She had noticed he had on two pairs of pants that night. Sanders had left her and returned with some crack cocaine which everyone smoked. When Sanders, his brother, James, Hopes, and she had gone riding around that night, she saw James throw Sanders’ tennis shoes out the window.

There was testimony from the officer who found the discarded green pants and the tennis shoes as well as testimony from a forensic serologist who found human blood on the green pants.

The foregoing evidence independently connects Sanders with the commission of the crime. The hair found by Smith of the crime lab independently connects Sanders with the crime scene. In all, the corroborating evidence was overwhelming.

Sanders’ argument that the evidence was not sufficient to corroborate the underlying felony of robbery is of no moment. Obviously, the victim was part of a bootlegging operation that he ran out of the building in which he was killed. Floyd Willingham testified that he rented the building to LaSalle. According to Willingham, he visited LaSalle on the night of the murder. LaSalle was alone, in good health and stocked with beer and whiskey. When Willingham returned to the premises the next morning, he found LaSalle lying in a pool of blood and about six cases of beer and twenty half-pints of vodka and whiskey missing along with some money he had given LaSalle the previous evening. Willingham’s testimony corroborates Hopes’ testimony concerning the robbery and establishes robbery as the underlying felony for the capital murder conviction. See Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989).

Pursuant to Arkansas Supreme Court Rule 11(f), the objections decided adversely to Sanders have been reviewed. This court finds no error; however, one issue is worthy of review.

Over Sanders’ objection, the trial court granted the state’s motion to reopen its case-in-chief. The motion was made at the close of Sanders’ case but before the case was submitted to the jury. Once its case was reopened, the state presented the testimony of Floyd Willingham for the purpose of establishing the items were stolen in the robbery.

The reopening of the case-in-chief for the taking of additional evidence is a matter within the sound discretion of the trial judge, and his decision will not be reversed absent an abuse of that discretion. Williams v. State, 262 Ark. 219, 555 S.W.2d 231 (1977). Here, Willingham’s testimony was relevant, not cumulative. The court properly exercised its discretion in allowing the state to reopen its case. See Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983).

Affirmed.


text:
    STATE of Arkansas v. Demetrius EDWARDS
    CR 92-537
    838 S.W.2d 356
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

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

      Robert P. Remet, for appellee.
   Jack Holt, Jr., Chief Justice.

The State appeals an order dismissing Demetrius Edwards’ charges on possession of cocaine with intent to deliver, second degree battery, and fleeing for lack of a speedy trial. The State contends that the appeal is authorized by Ark. R. Crim. P. 36.10(b) and (c) because an error has been committed in the trial court which will prejudice the State and review is required for “the correct and uniform administration of the criminal law.” Since this appeal does not fall within this category, we disagree with the State and dismiss its appeal.

The dates pertinent to the “speedy trial” issue are as follows:

Feb. 25, 1991 Date of Edwards’ Arrest

Oct. 14, 1991 Information Filed

Nov. 7, 1991 Original Trial Date

Jan. 16 & 24, 1992 Two Orders Filed Setting Trial on Feb. 4-7

Jan. 24, 1992 Appointment of Counsel Order

Jan. 28, 1992 Defendant’s Motion for Discovery

Feb. 4, 1992 Order Resetting Trial to March 11, 1992 — delay charged to the defendant

Feb. 5, 1992 Defendant’s Objection to Trial Court’s Order of February 4 — excludes delay due to resetting of trial date from one year speedy trial time period

Mar. 5, 1992 Defendant’s Motion to Dismiss for Lack of Speedy Trial

Mar. 9, 1992 Date of Hearing on Motion to Dismiss

Mar. 10, 1992 Dismissal of Charge

Except for three days in September 1991, Edwards was incarcerated on other charges from February 25, 1991, until a hearing was held on March 9, 1992, at which Edwards’ pretrial motion to dismiss for lack of speedy trial was granted. Edwards was never arraigned, nor was counsel appointed until January 24, 1992.

The threshold issue in this case is whether this court has

jurisdiction under Ark. R. Crim. P. 36.10(b) and (c), the rules governing appeals by the State from final judgments. Although this issue was not raised by the parties, we have a duty to raise this question as it is a matter of subject matter jurisdiction. City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990); State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988).

The State submits this appeal on the basis that it entails an interpretation of Ark. R. Crim. P. 28.3(c), which provides that “ [t] he period of delay resulting from a continuance granted at the request of the defendant or his counsel will be excluded in computing the time for trial” when considering whether a defendant received a speedy trial, and that this interpretation is necessary for the “correct and uniform administration of the criminal law requiring] review by the Supreme Court.” Ark. R. Crim. P. 36.10(c). We find to the contrary.

In determining whether or not we have jurisdiction, the question before us is not whether the trial court improperly interpreted Ark. R. Crim. P. 28.3(c) as a matter of law, but rather, who is the proper party to make an evidentiary determination as to whether or not the defendant should have been brought to trial. Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). Here, the State questions the trial court’s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.

A review of the record in this case reveals that the trial court reset the initial trial date from February 4, 1992, to March 11, 1992. The order appears as a preprinted form noting the oral motion of defendant to reset the trial and with handwritten notation that the delay caused by the resetting of the trial is to be excluded from the “speedy trial” period because “defendant’s attorney did not request discovery until 1-28-92.” A day later, February 5, defense counsel filed a formal objection to the court’s charging of this delay to Edwards because any delay in trial was “not fairly attributable to acts or omissions of the defendant or his court-appointed counsel” since counsel had been appointed at such a late date.

On March 5, 1992, defense counsel filed a motion to dismiss for failure to bring Edwards to trial within the one year limit prescribed by Ark. R. Crim. P. 28.1. A hearing was held on the matter and the trial court entered an order dismissing the charges. Here again, this order was on a preprinted form on which the choice “Speedy trial limitations bar prosecution of the case” was checked, followed by a handwritten notation, “Court finds speedy trial expired 2-25-92.” There are no further findings or recitations as to excludable time periods. In short, we have a scant record before us which declares a finding of fact by the trial court that the defendant was denied a speedy trial. Nonetheless, the trial court conducted a hearing, made a factual determination based on the pleadings and representations of the parties, and concluded that charges against Edwards should be dropped because his right to a. speedy trial had been violated. This determination was well within the trial court’s discretion. His ruling did not require an interpretation of our'rules, merely its application to the facts at hand.

We have said on numerous occasions that the state has no right to appeal beyond that conferred by the Constitution or rules of criminal procedure. City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990); State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). Arkansas R. Crim. P. 36.10 is jurisdictional and mandatory. Id. Section (b) of Rule 36.10 applies in this appeal because this court considers an appeal from an order of dismissal noninterlocutory. Ziegenbein v. State, 282 Ark. 162, 666 S.W.2d 698 (1980); State v. Block, 270 Ark. 671, 606 S.W.2d 362 (1980), cert. denied, 451 U.S. 937 (1981).

Rule 36.10(b-c) provides that:

Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge. . .If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review of the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.

Ark. R. Crim. P. 36.10(b-c) (our emphasis).

Directly on point is our holding in Tipton v. State, 300 Ark. 211, 779 S.W.2d 138 (1989). In Tipton, the trial court dismissed with prejudice a second degree murder charge pending against Tipton because the trial court failed to grant him a speedy trial. As in the instant case, the State attempted to appeal the order under Rule 36.10:

We find that under the circumstances the State has no right to appeal under Rule 36.10 and, therefore, we dismiss the appeal.
As a general rule, the State has no right to appeal except as conferred by constitution or rule of criminal procedure. State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). Ark. R. Crim. P. 36.10(b) and (c) authorizes the State to appeal following either a misdemeanor or felony prosecution if “the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and the correct and uniform administration of the criminal law requires review by the Supreme Court.''’
It is clear that the State’s point for reversal that the trial court erred in dismissing the charge and in denying its motion for an excludable period does not involve the correct and uniform administration of the criminal law, a prerequisite for appeal under Rule 36.10(b) and (c). It simply concerns application of our speedy trial rules. Accordingly, the State cannot appeal from the trial court’s order.

Tipton, 300 Ark. at 212, 779 S.W.2d at 139 (our emphasis).

Other recent cases support our lack of jurisdiction in this type of appeal. In State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990), we held that a trial court’s determination of a factual matter was not a proper subject for appeal under Rule 36.10(b) and (c):

While Ark. R. Crim. P. 3 6.10(c) provides that the attorney general must make the determination whether this is the sort of case we should take on appeal, the ultimate decision rests clearly with this court. If we were to reach the issue posed, it would have not universal affect [sic] on the administration of the law. The decision we are asked to review was factual.
Our rule on taking appeals by the state in criminal cases dates back as far as §§ 3410-11 of Crawford & Moses Digest which contained the same language permitting such appeals for the correct and uniform administration of justice. In State v. Massey, 194 Ark. 439, 107 S.W.2d 527 (1937), we were presented with an appeal by the state of a trial court’s decision that evidence to corroborate accomplice testimony had been insufficient. We regard that as similar to the question here of whether the foundation evidence was sufficient. We wrote “[i]n this case the error complained of did not relate so much to a question of law as one of fact, or a mixed question of law and fact. It does not appear to be of sufficient importance under the provisions of the statute as to require an opinion upon the correctness of the conclusion reached by the trial judge.”

Massery, 302 Ark. at 450-1, 790 S.W.2d at 178. See also City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990); State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988).

As a matter of practice, we have only taken appeals which are narrow in scope and involve the interpretation of the law. These are clearly distinguishable from the present case. See State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992) (appeal allowed under Rule 36.10 where fourth amendment evidentiary question at issue); State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992) (appeal allowed under Rule 36.10 where case involved an interpretation of the implied consent statute and a constitutional issue involving former jeopardy); State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992) (appeal allowed under Rule 36.10 where constitutionality of criminal statute at issue bore on the correct and uniform administration of the criminal law); State v. Switzer, 305 Ark. 158, 806 S.W.2d 368 (1991)(appeal allowed under Rule 36.10 where key term of a statute required definition by this court); State v. McMullen, 302 Ark. 252, 789 S.W.2d 715 (1990) (appeal allowed under Rule 36.10 where substantial question as to interaction between state and federal statute created former jeopardy).

To now hear this appeal would run afoul of the principles set forth in all of our previous opinions. We are not inclined to do so.

Appeal dismissed.


author: Robert H. Dudley, Justice.

text:
    Ronald J. GREER v. STATE of Arkansas
    CR 92-619
    837 S.W.2d 884
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      Hubert W. Alexander, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On May 2, 1991, about midnight, a police officer saw Ronald Greer, appellant, drive his vehicle to the left of the center line on a roadway. The officer followed appellant and saw him again drive to the left of the center line. The officer stopped him and asked to see his driver’s license and, at that time, smelled a strong odor of intoxicants about the appellant, and noticed that his face was flushed, that his eyes were watery, and that he was swaying badly. The officer also noticed that he was dressed in a disheveled manner, was very talkative, and had a bottle of whiskey on the floorboard of the vehicle. The appellant could not successfully perform two field sobriety tests. The officer took appellant to the police station, and a breathalyzer test was administered. Appellant registered . 11 %, by weight, of alcohol in his blood. He was charged by citation with “D.W.I. 5-65-103.” A few lines above the charge is the notation “.119%.” The circuit court, in a non-jury trial, excluded the evidence of the breathalyzer test because there was no evidence the machine used to perform the test had been timely calibrated, but still found the appellant guilty of driving while intoxicated. The court of appeals certified the case to this court. We affirm the judgment of conviction.

Appellant first argues that Ark. Code Ann. § 5-65-103(b) (1987), which makes it illegal to drive a motor vehicle with a .10% or greater blood alcohol level, and Ark. Code Ann. § 5-65-206(a) (1987), which creates statutory presumptions according to the result of an alcohol-content test, are in conflict, and, as a result, the statutes are so vague and uncertain that they are unconstitutional. Since the test for appellant’s blood alcohol level was ruled inadmissible, and appellant was not found guilty under the cited subsections, he has no standing to challenge them. In order to challenge the constitutionality of a statute, a person must demonstrate that the challenged statute had a prejudicial impact on him. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982). Thus, we do not address this point.

Appellant next argues that the “trial court abused its authority and discretion by substituting its opinion for that of the arresting officer as to the intoxication of the appellant at the roadside site.” Appellant’s argument is a challenge to the sufficiency of the evidence, and, since appellant did not move for a directed verdict at the close of all the evidence, we do not address the issue even though this was a bench trial. See Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).

At trial appellant contended that the breathalyzer test results were not admissible until the State first produced evidence of certification of the machine. The State’s attorney indicated that the machine was properly certified. The trial judge reserved ruling on the issue until the State’s attorney could produce the evidence. The State never produced the certification. The trial judge stated that he would research the statutes on the issue before ruling. There was no objection to the procedure. Subsequently, the trial judge ruled the test result inadmissible. Appellant now contends the delay in ruling constitutes error. Since appellant did not object to the procedure, we do not address it.

Appellant’s final point of appeal is that he was charged with violating Ark. Code Ann. § 5-65-103(b) (1987), which makes it illegal to operate a vehicle while having . 10 % or greater blood alcohol content, but was wrongfully convicted of violating Ark. Code Ann. § 5-65-103(a), which prohibits operating a vehicle while intoxicated. The argument has no merit, either factually or legally. Factually, even though the citation contained the notation “.119%,” the actual charge was “D.W.1.5-65-103.” The citation did not specify either subsection (a) or (b). Legally, it would not matter if he had been charged under subsection (b), but convicted under subsection (a). The two subsections are simply two different ways to prove a single violation. Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985).

Affirmed.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    Luke MOORMAN, D.M. Cox, Diane Davis and Charlene Hardcastle, v. Sharon D. Priest, Mayor and the City of Little Rock and Vaughn McQuary, Bob Brooks, and Mary Louis Williams as Members of the Pulaski County Election Commission v. Jim LYNCH, Jean Gordon, Jim Finch, Dale Charles, Dalton Jones, Sammy Mills, Johnnie Pugh, Kathy Wells, Brenda Wyrick, and Tommy Hudson
    92-944
    837 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered October 5, 1992

      John I. Purtle, P.A., for appellants.

      Johnson & Johnson, by: Karen K. Johnson, for appellees.

      Thomas M. Carpenter, City Att’y, by: Thomas M. Carpenter, for amicus curiae City of Little Rock.
   Robert H. Dudley, Justice.

The trial court declared that a proposed ballot issue to change the form of city government was invalid and directed the county election commission to remove the proposal from the ballot. We affirm that declaratory judgment.

Prior to 1957, the City of Little Rock was organized under the aldermanic form of government. The mayor was directly elected by majority vote, and two aldermen were elected from each of five wards. The city attorney, city clerk, and city treasurer were also elected. Since 1957, the City has been organized under the city manager form of government. See Ark. Code Ann. §§ 14-47-101 — 14-47-139 (1987). Under the city manager form of government, the City is governed by a board of seven directors elected at large. .See Ark. Code Ann. §§ 14-47-109 & 110(1987). The elected directors, in turn, select a mayor from among themselves. Ark. Code Ann. § 14-47-116 (1987).

An unincorporated association of citizens, appellees Charles, et al., formed a campaign committee entitled “Little Rock Fair Representation Campaign Committee” and successfully petitioned the City for a special election on the issue of reorganizing the current form of city government to elect six directors from wards and to elect a mayor at large. This group did not seek to change the form of government; it sought only to change the method of selecting the governing body. A special election was called on the issue for August 11, 1992. There was no further dispute over the “Fair Election” issue being on the ballot.

A second unincorporated association of citizens, appellants Cox, et al., formed a campaign committee entitled “Mayor-council Form of Government Committee” and submitted another petition to the City. Their petition asked that the City call a special election to determine whether the City should change its form of government and be reorganized under the aldermanic form of government. See Ark. Code Ann. § 14-47-107 (1987). The City Clerk certified the petition as being sufficient in form and number of signatures, and the Mayor called for a special election on that issue, also to be voted upon on August 11, 1992. The proposed ballot form for that issue was to be as follows:

ALDERMANIC FORM
ON THE QUESTION OF ORGANIZING THE CITY OF LITTLE ROCK UNDER THE ALDER-MANIC FORM OF GOVERNMENT (MAYOR AND COUNCIL); WHEREBY A MAYOR IS ELECTED AT-LARGE BY A MAJORITY OF THE VOTERS; AND WHEREBY SIX (6) WARDS WILL BE ESTABLISHED WITHIN THE CITY WITH TWO (2) COUNCIL POSITIONS PER WARD. [Emphasis supplied.]
_FOR _AGAINST

The first unincorporated association of citizens, the “Fair Representation” appellees, Charles, et al., filed a petition in circuit court for declaratory judgment and for a writ of mandamus compelling the Pulaski County Election Commission and the City of Little Rock to remove the second, or aldermanic, issue from the ballot. The petition named as defendants the Election Commissioners, the City Directors, and three of the members of the “Mayor-council Form of Government Committee,” D.M. Cox, Diane Davis, and Luke Moorman, whom the appellees claimed “are the principal leaders of a group of citizens operating under an unincorporated association under the name ‘Mayor-council Form of Government Committee.’ ” The City Directors and the Election Commission answered and also joined in asking for declaratory relief. The three defendant citizen members of the “Mayor-council” committee answered and asked the trial court to dismiss the action. They did not request any affirmative relief.

On July 17, 1992, the trial court ordered the Election Commission to remove the “Mayor-council” issue from the special election because it proposed not only to vote on the form of government, but also to change the number of wards in the City to six. See Ark. Code Ann. § 14-47-107(c) (1987) for the statutory ballot form. This issue was struck from the ballot, and on August 11, 1992, the citizens voted only on the “Fair Representation” proposal and defeated it.

The proponents of the “Mayor-council” issue asked the trial court to reconsider the matter, but on July 29th, the trial court refused the motion. On August 21st the “Mayor-council” appellants filed a notice of appeal and asked us to advance the appeal. We set an expedited briefing schedule.

The “Mayor-council” appellants ask this court to order that a special election be held on the issue, to be placed on the November 3, 1992, general ballot. We do not decide whether such relief is possible because we hold that the circuit judge ruled correctly in striking the issue from the August 11th, special election ballot.

The appellants argue that the circuit court was without subject-matter jurisdiction to decide the issue. Their argument is based upon Ark. Code Ann. § 14-14-916(a) (1987), which provides in part: “Jurisdiction is vested upon the chancery courts and chancellors in vacation to hear and determine petitions for writs of mandamus, injunctions, and all other actions affecting the submission of any proposed county initiative or referendum petitions.” The quoted statute is not a part of the city government chapter; it is a part of the county government chapter. The chapter on the city manger form of government provides that the “initiative and referendum laws of this sate are applicable to cities organized under this chapter.” Ark. Code Ann. § 14-47-124 (1987).

Amendment 7 to the Constitution of Arkansas, the Initiative and Referendum Amendment, under the title of “Sufficiency,” provides in part: “The sufficiency of all local petitions shall be decided in the first instance by . . . the city clerk,. . . subject to review by the Chancery Court.” This provision gives the chancery court “jurisdiction only to review the action of the county or city clerk in determining the sufficiency of the petitions.” Rick v. Walker, 237 Ark. 586, 587, 374 S.W.2d 476, 478 (1964). The city clerk reviews the sufficiency of the petitions, but does not have the authority to determine the legal validity of a proposal. The jurisdiction of a suit to question the validity of a proposed measure is in circuit court. Catlett v. Republican Party, 242 Ark. 283, 413 S.W.2d 651 (1967). Thus, we affirm the circuit court’s exercise of jurisdiction in this case.

On the merits of the case, appellants argue that the trial court erred in ruling that a statute governs this case and, in addition, that trial court erred in construing the statute. The trial court held that Ark. Code Ann. § 14-47-107(c) (1987) provides that the citizens of a city may vote only for or against the proposition to reorganize the city under the aldermanic form of government and that the statute does not provide for voting to change the number of wards and aldermen. The trial court held, “The statute provides that the only issue to be presented is the question of whether to organize under the aldermanic form.” The trial court quoted a portion of the statute and found as follows:

(e) If the majority of the votes cast on the issue shall be in favor thereof, the city shall thereupon proceed to the election of all the City officials who were subject to election in the City immediately prior to the date on which the City was organized under the management form of City government. [Ark. Code Ann. § 14-47-107(e) (1987).]
The Court finds that the petitions and the ballot calling for the establishment of six wards are beyond statutory authority. . . .

We have no hesitancy in affirming the trial court’s interpretation of the statute. The language of the statute is clear. In addition to the passage quoted by the trial court, the statute provides:

[T]he ballots shall read:
“FOR the proposition to organize this city under the aldermanic form of government...................□
AGAINST the proposition to organize this city under the aldermanic form of government.................

Ark. Code Ann. § 14-47-107(c) (1987) (emphasis added).

This interpretation is reinforced by two additional sections of the code — Ark. Code Ann. §§ 14-61-109 and 14-43-311 (1987 & Supp. 1991). Section 14-61-109 provides that under the city manager form of government, the county election commission shall divide the territory of the city into wards, and section 14-43-311 provides that if a city has the aldermanic form of government, the city council can redistrict the wards by adding, combining, or changing ward boundaries.

Appellants also argue that the statute cited by the trial court does not govern this initiative procedure, but rather is governed by Amendment 7 to the Arkansas Constitution. There is not merit in the argument for two distinct reasons. First, the argument was not presented to the trial court. The appellants did make two arguments concerning Amendment 7, but neither of those arguments were related to whether it or the statute governed this procedure. They argued that Amendment 7 deprived the circuit court of jurisdiction and that Amendment 7 provided a procedure for competing issues to be on the same ballot, but they never contended that the statute cited by the trial court did not govern this attempt to change the form of city government. We will not consider an argument presented on appeal for the first time. Second, we have expressly ruled that a statute very similar to the one at issue was “wholly independent” of Amendment 7. In Dingle v. City of Eureka Springs, 242 Ark. 382, 382-83, 413 S.W.2d 641, 641 (1967), we said:

In Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934), we held that such a procedure as petitioners are here following was wholly independent of the Initiative and Referendum Amendment to the Constitution, and that the election called for under the act there involved was not controlled by the election provisions of Amendment 7. . . . There is nothing in the Initiative and Referendum Amendment limiting the power of the legislature to pass an act authorizing a city to change its form of government at a special election to be called by its mayor on the petition of a certain number of voters therein.

Accordingly, we affirm the trial court’s ruling that the statute governed the validity of the ballot procedure and that the proposal was invalid under the statute.

In a post-trial motion, appellants asked the trial court to rewrite the proposed ballot form and order the election commission to place the proposal on the ballot as rewritten by the trial court. The trial court declined to do so and cited the case of State v. Phillips, 176 Ark. 1141, 5 S.W.2d 362 (1928). Appellants argue that the trial court erred in refusing to rewrite the proposed ballot form and in refusing to order the election commission to place the rewritten proposal on the ballot. However, appellants cite no authority for their argument, and it is not readily apparent to us that this is an appropriate function of the judicial branch of government. Assignments of error, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.

Brown, J., concurring.

Robert L. Brown, Justice,

concurring. I agree with the result in this case but for different reasons than those stated in the opinion.

The circuit judge removed the mayor-council issue from the ballot on the stated basis that there was no statutory authority for calling a special election establishing six wards. The operative statute for changing a city-management government back to the aldermanic form is Ark. Code Ann. § 14-47-107 (1987). Part of that statute speaks of elections, such as we have here, of “all of the city officials who were subject to election in the city immediately prior to the date on which the city was organized under the management form of city government.” (Emphasis added.) Ark. Code Ann. § 14-47-107(e) (1987). Prior to Little Rock’s present structure of government, the city had a mayor-council form with aldermen elected from five wards. Now Little Rock has seven directors elected at large.

I would interpret the statute to include aldermen as “city officials” in accord with the current number of directors which would permit their election, as the appellants request, with six elected by wards and one (the mayor) elected at large. Clearly, we cannot construe a statute to reach an impractical result. See Cotham v. State, 291 Ark. 401, 725 S.W.2d 548 (1987). If we limited the elections of aldermen to five wards as opposed to six, we might be foreclosing the possibility of ever returning to that form of government. That is a circumstance which the General Assembly never contemplated.

Moreover, the mayor’s proclamation of July 1, 1992, calling for this special election, was in accord with the formal statutory requirements of Ark. Code Ann. § 14-47-107(c):

ON THE QUESTION OF ORGANIZING THE CITY OF LITTLE ROCK UNDER THE ALDER-MANIC FORM OF GOVERNMENT (MAYOR AND COUNCIL); WHEREBY A MAYOR IS ELECTED AT LARGE BY A MAJORITY OF THE VOTERS; AND WHEREBY SIX WARDS WILL BE ESTABLISHED WITHIN THE CITY WITH TWO (2) COUNCIL POSITIONS PER WARD
FOR the proposition to organize this City under the aldermanic form of government □
AGAINST the proposition to organize this City under the aldermanic form of government □

The circuit judge describes a different ballot title prepared by the Election Commission in his order, but the record itself does not contain that ballot title.

The City of Little Rock, in its brief filed as amicus curiae, offers a different rationale for affirming the circuit judge, which I would adopt. We have held in a case where competing petitions were filed to change city government that it was the mayor’s duty to call the election on the first legal petition filed before him and not on the later petition. Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934). The reasoning behind such a holding is obvious. Competing petitions on the same subject would be unduly confusing to the electorate. Moreover, if both petitions were successful at the polls, which would take precedence? Dual petitions would be cumbersome and invite litigation.

Common sense militates in favor of placing only the first legally filed petition on the ballot. In this case that was the petition by the Fair Representation Campaign Committee.

The circuit court reached the right result but for the wrong reason. Summers v. Chevrolet v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). Accordingly, I concur.