author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    IN RE ADOPTION OF Andrew William REEVES, A Minor
    91-358
    831 S.W.2d 607
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      The Strother Firm, P.A., by: Judith C. Strother, for appellant.

      Johnson, Sanders & Morgan, by: Roger L. Morgan, for appellee.
   Tom Glaze, Justice.

This is an appeal of the probate court’s denial of Tom Watson’s petition to set aside the adoption of minor, Andrew Reeves, by Todd Reeves. Andrew’s mother, Lynne Watson, and Tom Watson were married for two years, and had one child, Dustin. The Watsons divorced in 1985, but during a reconciliation attempt, Lynn became pregnant. Andrew was born, but the couple had never remarried. Andrew used Watson as his last name. Although Tom Watson was not named as the father on the child’s birth certificate, both Lynne and Tom acknowledged that he was the father.

Todd Reeves married Lynne on November 28,1988, and one year later, petitioned the court to allow Todd to adopt Andrew. In the petition, Todd and Lynne swore that the natural father of the child was unknown. On November 2, 1989, the probate judge entered a final order allowing Todd to adopt Andrew. Tom learned of the adoption, and on February 25, 1991, filed his petition to set aside the court’s order of adoption. Tom’s petition alleged that (1) he was the father of Andrew, (2) he had significant contacts with Andrew since birth, and (3) he had not received notice of the adoption proceedings. While the trial court found that Tom had established a substantial relationship with the child, it held that Tom was not entitled to notice of the adoption proceeding under Ark. Code Ann. § 9-9-212 (Repl. 1991) or, because he was not registered in the state’s putative father registry, under Act 496 of 1989 (codified as Ark. Code Ann. §§ 9-9-207, -210, -224 and §§ 20-18-701 to -705 (Repl. 1991)).

Tom raises three issues why the probate court erred in refusing to set aside the adoption decree, but the crucial issue to be decided is whether the probate court erred in finding Tom was not entitled to notice because he had failed to register with Arkansas’s putative father registry. We affirm the trial court’s decision.

Tom’s argument largely rests upon his belief that the trial court misinterpreted the Supreme Court’s decision in Lehr v. Robertson, 463 U.S. 248 (1983). He argues the trial court wrongfully determined that, under the rationale of Lehr, Tom was not entitled to notice of Andrew’s adoption proceedings even though Tom had established a significant relationship with his son, Andrew. We do not read the trial court’s holding so narrowly.

The Lehr case involved New York’s statutory scheme which protected the unmarried father’s interest in assuming a responsible role in the future of his child. New York’s legislature enacted a law that automatically provided notice to seven categories of putative fathers that the legislature believed would include fathers who likely would have assumed some responsibility for the care of their natural children. Under the law, putative fathers could guarantee they could receive notice of any adoption proceedings regarding their children if they merely registered with New York’s putative father registry.

The father in Lehr did not fit within any of New York’s seven categories, nor did he otherwise show that he had established a significant relationship with his son. After reviewing the cases of Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); and Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977), the Lehr court concluded as follows:

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to this opinion of where the child’s best interests lie.

The court in Lehr concluded that New York’s statutory scheme had adequately protected the putative father’s constitutional right or opportunity to develop a relationship with his offspring. The court further held that the possibility the father may have failed to register because of his ignorance of the law was not a sufficient reason for criticizing the law itself.

Tom is correct in arguing that the Court in Lehr did not assess the constitutional adequacy of New York’s procedures for terminating a developed relationship. As already discussed, the father in Lehr did not fall within any of the categories that purportedly presumed some responsibility on his part towards his child; nor did he show he had developed any such responsible relationship.

In the present case, the trial court determined Tom had established a significant relationship with Andrew because he had visited with Andrew on the same occasions he exercised visitation rights with his older son, Dustin. Because Tom developed this relationship, he argues he was entitled to notice of Andrew’s pending adoption proceeding even though he had failed to comply with Arkansas’s putative father registry law. In making this argument, Tom does not question, below or in this appeal, the constitutional adequacy of Arkansas’s registry law, Act 496 of 1989, as it pertains to terminating a developed relationship.

Arkansas law allows any man, who is not legally presumed or adjudicated to be the biological father of a child, but who claims or is alleged to be the father of the child, the right to file with the state’s putative father registry. See §§ 20-18-701, -702. Upon filing, the father is entitled to a copy of any adoption; petition filed naming or involving his child. § 9-9-224(a). Under these provisions, and the facts of this case as determined by the trial judge, Tom clearly would have been entitled to notice of Todd Reeves’ petition to adopt Andrew, if Tom had complied with Arkansas’s registry law.

In sum, while Tom argues the trial court’s decision violated his due process rights because it deprived him of notice of the pending adoption of Andrew, Arkansas law, in fact, provided notice to Tom in these circumstances. Of course, whether Arkansas’s notice requirement is constitutionally sufficient is, like in Lehr, not raised here.

Also relevant but not constitutionally challenged here is Ark. Code Ann. §§ 9-9-206(a)(2) and 9-9-207(b) (Repl. 1991). These statutory provisions basically require the consent to adoption of fathers who have legally legitimated their relationship with their children, and those fathers, as well as the ones who have filed with the state’s putative father registry, are entitled to notice of a hearing on any petition seeking the adoption of their children. Of course, fathers who have legitimate children are automatically entitled to notice of such a hearing, and putative fathers must register to receive notice. But, again, Act 496 and the adequacy of its notice provisions has not been constitutionally questioned, and these provisions have a presumption of constitutionality. Wells v. Clinton, 282 Ark. 20, 666 S.W.2d 684 (1984). If and when these adoption provisions are challenged, the attorney general is required notice under most circumstances. See Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989). Because Arkansas’s existing statutory scheme does provide notice to putative fathers who have registered, we affirm the trial court’s decision denying Tom’s request to set aside Andrew’s adoption decree.

Tom Watson makes two other arguments for setting aside the adoption decree, viz., (1) the mother committed perjury by falsely swearing in the petition for adoption that the natural father was unknown and (2) the adoption was not in the best interest of the child. Our resolution of the notice issue disposes of these remaining issues. As was pointed out by the trial court, Tom failed to comply with Arkansas’s registry law so as to trigger its notice provisions. As a consequence, he was not entitled to notice regardless of the improper actions of Andrew’s mother. By our holding, we certainly do not condone her actions and merely state that sanctions are available when a party or witness offers perjured testimony. As to the issue pertaining to the child’s best interest, Tom Watson simply has no standing to raise it under the circumstances of this case.

For the reasons stated above, we affirm.

Holt, C.J., and Brown, J., dissent.

Robert L. Brown, Justice,

dissenting. I respectfully dissent.

The chancellor here found that Tom Watson had developed a significant personal relationship with his son, Andrew Reeves. Moreover, the natural mother, Lynn Watson, while acknowledging that Andrew was Tom Watson’s child, swore as part of the adoption petition filed with her new husband that the natural father was unknown. Knowing that the child was Tom Watson’s, she purposely did not notify him of the adoption. Under these circumstances I would hold that Watson’s due process rights were violated.

The majority states that the Putative Father Registry Act satisfies notice requirements. It further concludes that if a putative father fails to register, he is not entitled to notice of an adoption, regardless of his personal relationship with his son or the mother’s calculated acts to deny him notice. That cannot be the law.

The Putative Father Registry Act certainly provides a procedural mechanism for notifying putative fathers. I cannot agree, however, that it provides an exclusive means for notice or that failure to register deprives a putative father of his right to notice under these circumstances.

Notice in addition to that afforded by Arkansas’ Putative Father Registry Act is guaranteed by the due process clauses of the state and federal constitutions when the father has developed a significant personal relationship with the son. The U.S. Supreme Court has stated in this vein:

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “com[ing] forward to participate in the rearing of his child,” Caban, 441 US, at 392, 60 L.Ed.2d 297, 99 S.Ct. 1760 his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he “act[s] as a father toward his children.” Id., at 389, n 7, 60 L.Ed.2d 297,99 S.Ct. 1760. But the mere existence of a biological link does not merit equivalent constitutional protection.

Lehr v. Robertson, 463 U.S. 248, 261 (1983). In Lehr, that relationship between father and son was lacking. Here, the significant personal relationship is given, and the chancery court so found.

But since Watson does not attack the Putative Father Registry Act on constitutional grounds, the majority is reluctant to delve into whether Watson had due process rights in addition to the statutory rights. The focus, however, should not be on whether a constitutional question relating to the statute was raised, but on whether Watson was entitled to notice in this case as part of procedural due process. I believe that he was. Any other conclusion violates fundamental fairness.

The fact that the natural mother attempted to thwart notice to Watson enhances this position. Under the majority opinion, a putative father could have the best of relationships with his son but fail to register. Then when the natural mother hides the fact of an adoption from him, he has no recourse.

I would reverse.

Holt, C.J., joins.

       Persons entitled to notice under the New York law included the following:
      (a) any person adjudicated by a court in this state to be the father of the child;
      (b) any person adjudicated by a court of another state or territory of the United States to be the father of the child, when a certified copy of the court order has been filed with the putative father registry, pursuant to section three hundred seventy-two-c of the social services law;
      (c) any person who has timely filed an unrevoked notice of intent to claim paternity of the child, pursuant to section three hundred seventy-two of the social services law;
      (d) any person who is recorded on the child’s birth certificate as the child’s father;
      (e) any person who is openly living with the child and the child’s mother at the time the proceeding is initiated and who is holding himself out to be the child’s father;
      (f) any person who has been identified as the child’s father by the mother is written, sworn statement; and
      (g) any person who was married to the child’s mother within six months subsequent to the birth of the child and prior to the execution of a surrender instrument or the initiation of a proceeding pursuant to section three hundred eighty-four-b of the social services law.
      463 U. S. at 251-2.

       Tom neither financially supported Andrew nor attempted to legitimate him. Tom did offer to marry Lynne, but she refused.

       We note Tom Watson’s pleadings never raised the constitutionality of Act 496 of 1989 or other adoption statutes, and nothing in the record reflects such arguments were otherwise raised. At pages 61 through 76 of the record, the trial court made general reference to a statute (presumably § 9-9-224) not requiring notice to Tom Watson in the circumstances of this case, but such statute and the sufficiency or adequacy of notice it provides putative fathers was never mentioned.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Andy Clay LEWIS v. STATE of Arkansas
    CR 92-393
    831 S.W.2d 145
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      William E. Johnson, P.A., for appellant.

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

The appellant, Andy Clay Lewis, raises two general points in his appeal. The first concerns the failure of the prosecutor to comply with discovery rules. The second deals with an improper forfeiture of his truck. We affirm the circuit court on both points.

Lewis was charged with selling marijuana to a confidential informant, David Hartley, on March 29, 1990. The transaction was observed by State Police Investigator, Nick Castro, who orchestrated the drug purchase. Lewis was arrested some months later on September 27, 1990.

On October 3,1990, Lewis moved for comprehensive discovery from the prosecutor. The deputy prosecutor, Sara Sawyer, responded on October 4, 1990, by essentially making her file, including police and lab reports, available to Lewis. On December 14,1990, Lewis moved to dismiss the charges due to failure to comply with discovery, and the deputy prosecutor supplemented her response with additional information on December 17,1990. Also, on December 17,1990, Lewis moved to compel disclosure of the names of two confidential informants.

On December 31,1990, the deputy prosecutor served Lewis with a civil complaint for forfeiture of his 1987 Chevrolet pickup truck, which had previously been attached by the state. The complaint apparently was not filed. Lewis answered the complaint and denied that the truck was used to transport marijuana, which was the statutory basis for the forfeiture. His answer was filed of record under the criminal case number.

A pre-trial hearing was held on most of Lewis’s discovery points on January 29,1991, at which time his discovery requests were discussed item by item. On February 1,1991, Lewis moved to suppress introduction of the marijuana at trial predicated on the circuit court’s failure tó permit him to examine and test the material. Alternatively, he prayed that should the court grant testing, he be awarded a continuance of the trial, which was set for February 14,1991, to give him sufficient time to accomplish it.

A comprehensive order ensured on February 11, 1991, wherein the court denied the motion to dismiss but ordered the prosecutor to provide the names and addresses of all witnesses the State planned to call at trial. The court did authorize examination of the marijuana that was in Officer Castro’s possession and which was the basis for the delivery charge. The court noted that the names and addresses of the two confidential informants, David and Debbie Hartley, had been disclosed to Lewis, but it refused to order the prosecutor to make those informants available to Lewis. Lastly, the court allowed the prosecutor to amend the State’s information to change the erroneous date of the offense from March 29, 1990, to March 21, 1990. This amendment subsequently proved to be an error.

A bench trial on the delivery charge commenced on February 14, 1991. At the trial, Lewis raised again his objections that he had not been provided with the names and addresses of state witnesses prior to trial or with the correct address of the confidential informants or given time in which to test the marijuana independently. The circuit court found Lewis’s arguments to be without merit and convicted him of delivery of marijuana. He was sentenced to four years in the state penitentiary, with three years suspended, and fined $1,000 plus costs.

Immediately following the sentencing, the circuit court considered the State’s complaint for forfeiture and heard testimony and arguments of counsel. The court then made its ruling:

The Court further finds by a preponderance of the evidence that this truck was used to consummate this sale in some method. The Court finds that the officers had reasonable grounds, probable cause to confiscate or take into their possession this truck involved. The transaction, of course, took place in the truck. That’s sufficient to warrant confiscation.

The judgment of forfeiture was filed in the criminal case file and included a finding that the truck was used either to transport a controlled substance or as a container for a controlled substance.

/. DISCOVERY COMPLIANCE

Lewis generally argues that the “open file” policy of the deputy prosecutor in the case violated Rule .17.1 of the Arkansas Rules of Criminal Procedure. At the heart of his frustration with the prosecutor was her failure to provide him with an exact list of witnesses whom the state intended to call, with their addresses, and the correct address for the confidential informants. Apparently, some twenty-two potential witnesses for the State could be gleaned from the prosecutor’s file which was disclosed to Lewis. Only two were called — Officer Nick Castro and State Chemist Jerry Buck. The informants, David and Debbie Hartley, were not available for trial and, according to the prosecutor, had left the state.

Lewis, though, has failed to show how he was prejudiced by any discovery lapses on the prosecutor’s part. From the reports delivered to Lewis in advance of trial, it was obvious that the crux of the state’s case would be the testimony of the investigating officer and the state chemist. Failure to list these two witnesses on a separate prospective witness list did not prejudice the defense when the defense had access to their names and the reports, and the witnesses testified to matters in those reports. See Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992). This argument has no merit.

Nor can we give credence to Lewis’s contention that the prosecutor was at fault in not making the confidential informants available to him. The circuit court correctly observed that it could not order the informants to the office of Lewis’s attorney for an interview. Lewis then sought to subpoena the informants for deposition but had an erroneous address furnished to him by the prosecutor. Ultimately, it was determined that the informants were in Alabama.

Again, Lewis does not show how he was prejudiced by this turn of events. As it happened, the informants were not available to either party because they had left the state. The Arkansas Constitution provides that a defendant shall have the right to have compulsory process to obtain witnesses in his favor. Ark. Const, art. 2, § 10. (Emphasis ours.) Lewis presented no testimony or argument that the informants’ testimony would have been favorable to him. We fail to see any prejudice here caused by the prosecutor’s actions.

II. EXAMINATION AND TESTING OF THE EVIDENCE

For his second point, Lewis claims that he was denied the right to test the marijuana which was tested by the State Lab. Lewis cites this court to Rule 17.1(c) of the Arkansas Rules of Criminal Procedure:

(c) The prosecuting attorney shall, upon timely request, disclose and permit inspection, testing, copying, and photocopying of any relevant material regarding: (i) any specific searches and seizures.

On the day of the trial, the circuit court permitted Lewis’s attorney to interview the State Police Investigator and examine the marijuana, which he did. No independent testing was permitted at that time. Following the state chemist’s direct testimony, there was no cross-examination by the defense on whether the material was marijuana or not.

Our Rule 17.1(c) is explicit that testing shall be allowed. Here, it clearly was not. The question then turns on whether Lewis was timely with his request to test the material and, as a corollary, did he show prejudice based on the failure to test.

Lewis received the State Lab report on the marijuana prepared by Jerry Buck four months before trial. He did not move specifically to suppress the marijuana due to his inability to test until February 1,1991 — two weeks before trial. Lewis had asked for permission to test generally, without naming what materials, in his Motion for Discovery filed on October 3, 1990, but he did not relate the request to the marijuana tested by the State Chemist until February 1, 1991. In his motion to suppress he moved, alternatively, for a continuance because he admitted testing could not occur within two weeks and trial was set for February 14, 1991.

We hold that Lewis’s request, coming as it did so near to trial, was untimely. Lewis had known about the State Lab’s test for months and had ample opportunity to pursue independent testing without causing a continuance of the trial. Furthermore, his failure to cross-examine the State Chemist, Jerry Buck, on the tests administered by the State Crime Lab suggests that he had no independent grounds to contest the legitimacy of the marijuana and that the absence of testing caused him no prejudice.

III. DATE OF OFFENSE

The State first charged Lewis correctly for delivery of marijuana on March 29, 1990. At the pre-trial hearing on January 29, 1991, the prosecutor amended the information to show an offense date of March 21, 1990, based on an error in Officer Castro’s notes. This was not the correct date. At the trial proper, Officer Castro clarified the date once more as March 29, 1990, and a second amendment by the prosecutor occurred.

Although one of Officer Castro’s reports erroneously referred to a March 21, 1990, offense date, all of the other information provided Lewis by the State noted March 29, 1990, as the date of the crime. We cannot glean prejudice to the substantial rights of the accused from this discrepancy in dates, and that is the test. See Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). In Tackett, we upheld a manslaughter information that differed twenty-two days from the proof at trial and further held that the appellant was not prejudiced by the discrepancy.

Nor is time an essential element of the offense charged in the case before us. We have held that where time is not essential to the charged offense, the absence of any date in the information is not fatal to the charge. See Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).

We observe no palpable prejudice to Lewis by allowing the prosecutor to amend the date of the offense to March 29,1990, at trial.

IV. FORFEITURE OF TRUCK

For his final point, Lewis contends, first, that forfeiture was not brought as a separate civil action and, secondly, that there was no proof warranting forfeiture of his Chevrolet pickup truck to the State.

Lewis is correct that forfeiture is an in rem civil proceeding, independent of any pending criminal charges, to be decided by a preponderance of the evidence. See Gallia v. State, 287 Ark. 176, 697 S.W.2d 108 (1985); Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985). He also is correct that the forfeiture statute is penal in nature and because forfeitures are not favorites of the law, the statute is interpreted narrowly. Beebe v. State, 298 Ark. 119, 765 S.W.2d 943 (1989); Gallia v. State, supra.

Lewis makes much of the fact that the civil complaint was not filed as a separate action and that the forfeiture judgment was filed in the criminal matter. We note, however, that the issue was joined by the parties as a civil matter separate from the criminal trial and was decided in a hearing which came after the criminal prosecution. We observe no prejudice in the procedure followed.

The second point raised involves the following statutory language:

(a) The following are subject to forfeiture:
(3) All property which is used, or intended for use, as a container for property described in subsection (1) and (2) [includes controlled substances];
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2) [includes controlled substances] . . . .

Ark. Code Ann. § 5-64-505(a)(3) and (4) (Supp. 1991).

The critical language in this statute is “used ... as a container” or “used ... to transport.” Officer Castro testified that the marijuana sale took place in Lewis’s truck. The question we have to resolve is whether this is sufficient evidence that the truck was used to contain or transport marijuana.

The circuit court focused on Officer Castro’s description of the drug sale in the truck and found this to be some evidence that the truck was used in the marijuana transaction. Though the evidence was circumstantial, we cannot say that the circuit court clearly erred in reaching the conclusion that it did.

Lewis also argues that forfeiture proceedings were not instituted promptly under Ark. Code Ann. § 5-64-505(c) (Supp. 1991). The truck was seized on September 27, 1990, and the complaint was served approximately three months later. Though it was not expeditious, we hold that three months satisfies the statutory requirement of promptness. Cf. United States v. $18,505.10, 739 F.2d 354 (8th Cir. 1984) (a delay in forfeiture proceedings of twenty-six months was not unreasonable). We note no prejudice to Lewis caused by this delay.

Affirmed.


author: Per Curiam.

text:
    John STACK and Joe Lee v. Bill CLINTON, Governor of the State of Arkansas, et al.
    92-439
    832 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered May 18, 1992

      M. Edward Morgan and Ralph J. Blagg, for petitioner.

      Winston Bryant, Att’y Gen., Tim Humphries, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioners filed their Petition and Application for Revision of Plan of Apportionment on April 12, 1992, contesting a) the division of Van Burén County into three House Districts under the Plan of Apportionment filed January 13, 1992, and b) the transfer of three townships from one House District to another by technical amendment of the Board of Apportionment on March 12,1992. The respondents have moved to dismiss the petition.

The Plan of Apportionment filed January 13, 1992, divided Van Burén County into three House Districts. Petitioners’ challenge to this division is untimely as it was not made within thirty days of the filed Plan. Ark. Const, art. 8, §§ 4 and 5. We have held that the requirement that a challenge be made within the thirty day period is jurisdictional. Taylor v. Clinton, 284 Ark. 170, 680 S.W.2d 98 (1984).

Petitioners are, therefore, limited in their petition to the March 12, 1992, amendments which relate to three townships within Van Burén County. On this point, the recourse of the petitioners is to return to the status quo, that is, to the placement of the three townships under the Plan of January 13, 1992. Our constitutional authority, however, does not permit a piecemeal attack on the Plan of Apportionment. Ark. Const, art. 8, § 5; Bizzell v. White, 274 Ark. 511, 625 S.W.2d 528 (1981).

The motion to dismiss is granted.


author: Jack Holt, Jr., Justice. Steele Hays, Justice.

text:
    Joseph DEITSCH, et al. v. Frank TILLERY, et al.
    91-297
    833 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Steve Napper and Robert McHenry, for appellant.

      Matthews, Campbell & Rhoads, by: David R. Matthews, for appellant.
   Jack Holt, Jr., Justice.

This appeal raises questions concerning tort liability, the scope of immunity from such liability under Arkansas’ immunity statutes, and liability under 42 U.S.C. § 1983, as applied to school districts and their employees and local school board members.

The appellants, a group of named plaintiffs consisting of parents of children who attend Westside Elementary School, which is located in Rogers School District #30, and one employee of the school, filed suit against the defendants/appellees, school employees, past and present school board members, and the Rogers School District #30, alleging the appellees knew or should have known of the presence of friable asbestos in Westside Elementary School and failed and refused to correct the condition and to protect the students and staff from the dangers of exposure. The complaint specifies that during “spring break” in March 1990, 30,000 square feet of ceiling tile, containing asbestos, was improperly and negligently removed and, further, that for many years prior to the March exposure, the asbestos was agitated, causing loosening of the material and daily incidents of exposure. Three separate counts were alleged: 1) the tort of outrage; 2) negligence; and 3) liability under 42 U.S.C. § 1983.

The appellees responded to the appellants’ complaint with a motion to dismiss based on Ark. R. Civ. P. 12(b)(6), failure to state a claim upon which relief could be granted.

Following a hearing, the trial court entered an order of dismissal as to all three causes of action. The court determined that the allegations in the complaint fell short of stating that the conduct complained of amounted to a tort of outrage as defined by Arkansas law. The negligence claim was dismissed pursuant to the statutory immunity afforded in Ark. Code Ann. § 21-9-301 (1987), and the § 1983 claim was dismissed upon a finding that the complaint did not sufficiently allege a custom or policy by the Rogers School District. The trial court also dismissed the appellants’ claim for punitive damages since there was no substantive claim to which it could attach. The appellants now appeal.

We reverse the trial court’s dismissal of the appellants’ cause of action for the tort of outrage and negligence and affirm the dismissal of the appellants’ § 1983 claim.

In considering a motion to dismiss under Rule 12(b)(6), the facts alleged in the complaint are treated as true and viewed in the light most favorable to the party seeking relief. See Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989); McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992). It is improper for the trial court to look beyond the complaint to decide a motion to dismiss, unless it is treating the motion as one for summary judgment. Battle v. Harris, supra. There is no mention by the trial court, here, that it considered the motion to dismiss as a motion for summary judgment, and it does not appear the trial court considered anything beyond the pleadings. Pleadings are to be liberally construed and are sufficient if they advise a defendant of his obligations and allege a breach of them. Rabalais v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). With these general principles in mind, we proceed to the appellants’ challenges concerning the trial court’s order of dismissal.

I. TORT OF OUTRAGE

The appellants first argue that immunity from tort liability under Ark. Code Ann. §21-9-301 (1987 and Supp. 1991), which provides that “[no] tort action shall lie against [school districts] because of the acts of their agents and employees,” would not extend to intentional acts. It was alleged the appellees were aware of the nature of the asbestos material present in the school, and the regulations required in removing such material, but that they intentionally violated these regulations. This argument encompasses the first count of the appellants’ complaint, which is that the acts of the appellees rose to the level of conduct actionable under the tort of outrage.

The trial court, in its letter opinion and in its decree, did not reach the issue of liability or immunity as to intentional torts as it held that the acts articulated in the complaint fell “woefully short” of stating a cause of action for the tort of outrage because the conduct was “not so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly] intolerable in a civilized society.” We disagree.

The language cited by the trial court was first enunciated in M.B.M. Co., Inc. v. Counce, 266 Ark. 1068, 597 S.W.2d 92 (1980), and is now the accepted definition for outrage. Four elements are needed to establish liability. It must be shown: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable man could be expected to endure it. Id.

In their complaint, the appellants allege the appellees knew of the presence of specific rules and regulations for the removal of asbestos and “failed and refused” to follow such procedures. The complaint states the appellees “knowingly misrepresented and/ or concealed the dangerous asbestos condition ... in order to induce the school employees and students to attend and work at the school.” It is further alleged the appellees had such knowledge of the proper procedures (or by the exercise of reasonable care and compliance with state and federal laws, should have known) at least by May 27, 1983, and that the appellees did have such knowledge by October 1988, following inspection of the school for asbestos. The alleged proper standards, comprising both federal and state regulations, were set out at length in the complaint. The appellants allege they have sustained, and continue to sustain, damages for emotional distress and fear, physical injury, and increased risk of serious injury in the future. Appellant, Delores Bartizal is alleged to have contracted throat cancer, proximately caused by exposure to the asbestos.

The wording of the complaint recited more than mere conclusory allegations, as it was required to do. See McKinney v. City of El Dorado, supra. The appellants do not allege simply that the appellees’ conduct was “outrageous” or “willful and wanton,” but that the appellees purposefully deceived the appellants, as to the condition of the asbestos, in order not to disrupt school routine.

Although we have traditionally taken a narrow view of claims for the tort of outrage, Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991), and we do not comment upon the merits of such an action here; taking the facts alleged in the complaint as true, and in the light most favorable to the appellants, we hold sufficient facts were at least alleged to state a cause of action for the tort of outrage.

By definition, the tort of outrage, also known as the intentional infliction of emotional distress (see Ross v. Patterson, supra), is an intentional tort. Appellants are correct that Section 21-9-301 does not provide immunity for the intentional acts of school districts and their employees, only their negligent acts. Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992). In addition, Ark. Code Ann. § 16-120-103(a) (Supp. 1991), which applies to school board members, states that immunity will not extend to intentional torts committed by such members.

Accordingly, the trial court erred in dismissing the appellants’ claim of tort of outrage.

II. NEGLIGENCE

The appellants next argue that despite the immunity afforded by Section 21-9-301 for acts of negligence, Ark. Code Ann. § 6-17-1113 (1987 and Supp. 1991) requires the Department of Education to procure insurance for such acts, thereby creating an exception to the grant of immunity. The appellants also cite Bly v. Young, 293 Ark. 36, 732 S.W.2d 157 (1987) for the proposition that a state employee can be liable for tortious acts committed in the course of his or her duty, to the extent the employee is already covered by liability insurance.

As an initial matter, the appellees argue that because the appellants did not raise the issue of insurance in their original complaint, the argument is waived on appeal. We disagree.

The issue of insurance was first raised at the hearing before the trial court. The court noted the complaint did not plead the issue and indicated this should be done and that it would allow the appellants the opportunity to do so. Five months later, the trial court filed its opinion letter in which it noted that although the insurance issue had been raised at the hearing, since there were no such allegations in the complaint, under Ark. R. Civ. P. 12(b)(6), it could not consider the matter. Thereafter the appellants filed an amended complaint, fully pleading the issue, shortly before the trial court filed its final decree. The final order did not address the matter and simply dismissed the negligence claim based on the immunity granted under Section 21-9-301.

Ark. R. Civ. P. 15(a) allows a party to amend its pleadings at any time without leave of the court. The rule provides, however, that upon motion by the opposing party, the trial court may strike the amendment or grant a continuance of the proceeding where the amendment would result in prejudice or undue delay. Here, the appellees did move to dismiss the amended and substituted complaint, but based their grounds on Rule 12(b)(6) for failure to state a claim upon which relief could be granted. No mention was made of prejudice or undue delay under Rule 15. Since the appellants filed their amended complaint prior to issuance of the final decree and no objection was made on the grounds stated in Rule 15(a), it necessarily follows that the matter was properly preserved.

On the merits, we recently addressed the issue of liability insurance coverage, with regard to school districts and their employees, in Waire v. Joseph, supra. In Waire, as here, the parent of a student brought a negligence claim against, among other parties, the school district and certain of its employees. At issue were the very questions concerning insurance that are now being asserted by the appellants and which were alleged in the amended and substituted complaint. Sections 6-17-1113 and 21-9-301 are set out in Waire, along with a more thorough discussion.

We first examined the above statutes in light of legislative intent and previous case law and concluded that Section 6-17-1113 “authorizes and directs” the department of education to establish a self-insurance fund or to procure insurance for school employees against acts or omissions “from which they have not traditionally been immune, i.e., civil rights claims . . . and intentional or malicious acts or omissions.” 308 Ark. at 534, 825 S.W.2d at 598 (emphasis added). The statute does not require the procurement of insurance for acts of negligence. Id.

Appellants claim that the statute not only mandates the department of education to establish a self-insurance fund or to provide insurance for the appellees’ negligent acts, but also for their intentional acts. We have decided the matter as to negligence and, at this time, we have no need to address whether the statute is mandatory as to intentional torts since the appellants pled, in their amended and substituted complaint, that insurance had been procured by the state under this statute. The complaint thus states sufficient facts for recovery on this basis, as to the claim of damages for the tort of outrage.

The Waire decision also reaffirmed our previous holdings that state employees are not immune from suit for negligence, to the extent the employees are covered by other viable liability insurance. See also Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988). The amended and substituted complaint also sufficiently alleged the appellants’ right to recover on this basis, listing the names of various insurance companies and policies believed to cover the appellees. We therefore reverse the trial court’s dismissal of the negligence claim since the appellees may potentially be covered by other liability insurance.

III. CIVIL RIGHTS CLAIM

For their third and final point, the appellants claim the trial court erred in dismissing their cause of action for recovery under 42 U.S.C. § 1983. We disagree and affirm the trial court’s dismissal.

The appellants’ complaint alleges that “the acts and omissions on the part of the Defendants as alleged herein have violated Plaintiffs’ constitutional rights as protected by the 14th Amendment of the United States Constitution and accordingly said acts and omissions have violated 42 U.S.C. § 1983. . . .” The trial court held that the allegations in the complaint did not sufficiently allege a custom or policy by the Rogers School District #30 as the allegations concerned only one instance of failing to inform the public of the asbestos and one instance of negligent removal of the same.

The trial court’s holding was based on a long line of cases beginning with the 1978 United States Supreme Court case of Monell v. New York, 436 U.S. 658 (1978) in which thecourt held that local governments can be sued directly under § 1983 if the alleged unconstitutional action implements or executes a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Liability may also attach pursuant to governmental “custom”, even though such a custom has not received formal approval. 436 U.S. at 691. The cornerstone of the court’s holding is § 1983 itself, which refers to violations by persons acting “under color of any law, statute, ordinance, regulation, custom or usage. ...”

The appellants claim there was not one, but many, instances in which the appellees ignored the proper procedures for dealing with asbestos, citing the language in the complaint where it was alleged “there were dozens of separate instances of additional loosening of asbestos fibers . . . . [f]or example . . . when other sections of the asbestos containing ceiling tile was removed; where rain leaked through the roof and ceiling tile was then allowed to dry. . . . and when birds flew through the ceiling tiles causing constant agitation. . . .” We agree with the trial court that such actions simply do not amount to established policy or custom. Clearly, there were no written or official policies for dealing with the asbestos in the manner alleged, nor do we find the actions or omissions evidenced a custom. “Custom” is defined by Webster’s New World Dictionary (2d ed. 1984) as “a usual practice or habitual way of behaving.” The fact that the asbestos tiles may have been agitated at various times due to what appellants allege were either negligent or intentional violations of safety regulations, does not constitute a “custom” of such practices by the school district and its employees.

For the foregoing reasons, we reverse the trial court’s dismissal of the appellants’ claims for tort of outrage, negligence, and punitive damages, and remand these claims for further proceedings. We affirm the dismissal of appellants’ § 1983 claim.

Dudley and Hays, JJ., dissent.

Newbern, J., dissents in part and joins the dissenting opinion of Hays, J., with respect to the tort of outrage.

Glaze, J., dissents in part and joins the dissenting opinion of Hays, J., with respect to the issue of negligence.

Steele Hays, Justice.

I respectfully disagree with the majority and would affirm the order appealed from in all respects.

As to the tort of outrage, we have often stressed that ours is a fact pleading state and this complaint, as I read it, fails to allege facts which show the plaintiffs (appellants) are entitled to relief by the tort of outrage. The trial court’s dismissal under Rule 12(b)(6) was entirely correct. We addressed an identical issue in Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985) involving an action for breach of contract and for the tort of outrage against a religious body. Noting that no facts were pled entitling the plaintiffs to relief by the tort of outrage we wrote:

Rule 12(b)(6) provides for dismissal of a complaint for “failure to'state facts upon which relief can be granted.” The two rules must be read together in testing the sufficiency of a complaint; facts, not mere conclusions, must be alleged. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Since no facts were alleged regarding the tort, the trial court was right to dismiss the claim. Therefore, we need not reach the question of whether the appellees enjoy charitable immunity from tort actions.

This complaint is generally couched in the familiar phraseology of negligence: The defendants knew or should have known of the presence and hazards of asbestos, and they failed to take necessary steps to correct the condition or warn the plaintiffs of the dangers. The only added ingredients are a liberal interspersing of the words “intentional” and “outrage.” But the complaint is lacking in those factual assertions from which it could be said the defendants’ conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991). The complaint does allege that the defendants “knowingly misrepresented and/or concealed the dangerous asbestos condition. . . .” But that is palpably conclusory and not a statement in ordinary and concise language of facts showing that the plaintiffs are entitled to the relief afforded by the extreme and drastic remedy of the tort of outrage. Ark. R. Civ. P. 8.

What is essentially a negligence claim is not transformed into an intentional tort— assault, for example — 1 by inserting the words “intentional” and “deliberate” at strategic points. If that were not so, most negligence claims could be converted to intentional torts merely by alleging the defendant “intentionally” drove his vehicle at an excessive rate of speed or on the wrong side of the road, etc.

Moreover, we have held that for a complaint to assert an intentional tort it must be based upon an allegation that the intentional or deliberate act was performed with a desire to bring about the consequences of the act. Miller v. Ensco, Inc., 286 Ark. 458, 692 S.W.2d 615 (1985); Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266 (1973).

If individuals, public officials, school boards and similar bodies protected by immunity from tort liability are compelled to defend asbestos cases under the rubric of outrage it will have extended the concept far beyond anything envisioned in M.B.M. Company, Inc. v. Counce, 266 Ark. 1068, 597 S.W.2d 92 (1980).

As to the count of negligence, appellants contend that despite the immunity afforded by Ark. Code Ann. § 21-9-301 (1987) for acts of negligence, Ark. Code Ann. § 6-17-1113 (1987 and Supp. 1991) requires the Department of Education to procure insurance for such acts, thereby creating an exception to the grant of immunity. The appellants cite Bly v. Young, 293 Ark. 36, 732 S.W.2d 157 (1987) for the proposition that a state employee can be liable for tortious acts committed in the course of his or her duty, to the extent the employee is already covered by liability insurance, issues we recently addressed in Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992).

In their original complaint the appellants did not allege that appellees were covered by liability insurance. They first raised the matter at the hearing before the trial court. The trial court noted the appellants did not plead negligence and indicated a willingness to afford them the opportunity to do so.

A full five months after the hearing appellants had still not amended their complaint. At that point, the trial court filed its opinion letter with the clerk of the court. The letter contained the court’s findings and conclusions and instructed the appellees’ attorney to prepare a written order consistent with the letter opinion. In finding that school employees were immune for their acts of negligence, the court noted that although the issue of insurance had been raised, there were no allegations in the complaint referring to such insurance, adding, “As we all know, I am not permitted to go outside of the complaint in ruling on a 12(b)(6) motion.”

A few days after the filing of the opinion letter, and shortly before the final order was filed, appellants amended their complaint to include the insurance issue. The final order incorporated the holdings of the opinion letter and dismissed the negligence claim, following which the appellees filed a motion to dismiss the amended and substituted complaint.

The appellants had five months to file their amended complaint and failed to do so. Thereafter, the trial court issued its ruling, based on the pleadings before it, which it was required to do. Although the trial court had not entered its formal order, the appellants’ last-minute amendments of its complaint, only a few days before the final order was filed, could only have worked to the appellees’ prejudice and resulted in an unjust delay of the proceedings. See Ark. R. Civ. P. 15(a). The dismissal of the appellants’ claim for negligence at that point was not error.

Dudley, J., joins in this dissent.

Newbern, J., joins the part of this dissenting opinion concerning the failure to state facts to support a claim of outrage.

■ Glaze, J., joins that part of this dissenting opinion concerning the failure to state facts to support the claim of negligence.


author: Robert H. Dudley, Justice.

text:
    IN THE MATTER OF Lonnie POSTON, as Administrator of the Estate of Zachary Poston, Deceased v. Shirlie FEARS, et al.
    92-44
    828 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

      Walters Law Firm, P.A., by: Michael Hamby, for appellant.

      Pryor, Barry, Smith, Karber & Alford, by: Thomas B. Pryor, for appellee.
   Robert H. Dudley, Justice.

The plaintiff filed suit against three defendants. Two of the three defendants filed motions for judgments on the pleadings. See A.R.C.P. Rule 12(c). The trial court granted the motions for the two defendants, but the third separate defendant remains in the suit below. Thus, the trial court did not grant a final judgment, see A.R.C.P. Rule 54(b), and yet, the plaintiff seeks to appeal. We dismiss the appeal because the order entered is not an appealable order. Burnley v. Mutual of Omaha, 291 Ark. 185, 723 S.W.2d 363 (1987).


author: Steele Hays, Justice.

text:
    Gregory R. LARIMORE v. STATE of Arkansas
    CR 91-144
    833 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992
    [Rehearing denied July 13, 1992.]

      Dan Ritchey and Bill Bristow, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Shortly before noon on January 11, 1990, the body of June Larimore was found on a bedroom floor of her Blytheville home. She had been stabbed 134 times, apparently with a knife that had been wiped clean and replaced in a cutlery block in the kitchen. The body was nude except for panties rolled down around the hips. Body temperature rectally was 91.2 degrees at 12:10 p.m. There was no visible sign of entry nor any evidence of robbery. Ms. Larimore’s jewelry was undisturbed and her open purse, containing cash, was by a living room couch where she had left it.

Gregory Larimore, June Larimore’s husband of one year, arrived for work at a family business at about 6:45 a.m. and worked routinely throughout the morning, showing no signs of stress or emotional upset. When contacted by the Blytheville police he said that he and June had come home from a wake between nine and ten the previous evening. He fell asleep on the couch watching television and got up at 6:00 a.m. to go to work. When he left his wife was asleep on the bed clad only in a pair of panties. Larimore told another officer he fell asleep on the couch but woke up at 3:00 a.m. and got in bed with his wife where he slept until morning.

Gregory Larimore was charged and convicted of first degree murder and sentenced to life imprisonment.

No motive was established for the murder of June Larimore. The state’s case was wholly circumstantial, structured on the theory that she was murdered between 2:00 and 4:00 a.m. and, hence, was not alive when Larimore left for work at 6:30 a.m. Thus, the time of death was a crucial element in the case.

Dr. Fahmy Malak performed the autopsy and postmortem studies on the body of June Larimore. He testified that the pancreas, spleen, kidneys, heart, brain and blood vessels were empty, or “blanched,” from a total loss of blood. He said, “It is a known fact that when a body is exposed to numerous stabbings, the body will generate heat.” Using a ratio of one degree of temperature loss per hour, Dr. Malak estimated a lapse of 8.4 hours from death to discovery, adding: “But to consider this one point would not be accurate. We have to consider all of the findings — presence of the rigid body, the examination of the body inside — the degree of pathology — the degree of decay inside. In my opinion, she died at least ten to twelve hours before she was found.”

The defense presented the testimony of three experts in forensic pathology — Dr. Frank Cleveland, Dr. Don Voilman and Dr. Werner Spitz, all of whom took exception to Dr. Malak’s opinion that body heat rises with massive bleeding frpm stab wounds. Dr. Cleveland estimated five hours as the outside limit with regard to the time of death, Dr. Vollman, four to five hours. Dr. Spitz estimated death as having occurred after 7:00 a.m.

On appeal, Larimore asserts five points of error: I. The circuit judge erred in denying defendant’s motion for directed verdict of acquittal; II. The circuit judge erred in denying defendant’s motion for a new trial; III. Defendant will be denied due process of law if no relief is granted for the prejudicial exposure of extraneous matter to the jury; IV. The circuit judge erred in allowing the evidence regarding luminol testing to be presented to the jury; V. The circuit court erred in allowing the introduction of extraordinarily gruesome and inflammatory photographs and video tapes. For reasons to be seen, we hold that a new trial should have been ordered and, therefore, we reverse and remand.

I

The Circuit Judge Erred in Denying Defendant’s Motion for Directed Verdict of Acquittal

Appellant movfed for a directed verdict of acquittal and challenges the trial court’s denial thereof on the premise that evidence which is contrary to the daily experience of common life and inconsistent with well known physical laws will not sustain a verdict. Alldread v. Mills, 211 Ark. 99, 199 S.W.2d 571 (1947); St. Louis S.W. Railway Co. v. Ellenwood, 123 Ark. 428, 185 S.W.2d 770 (1916); 5A C.J.S. Appeal and Error § 1649, at 365-366 (1958); 5 Am. Jur. 2d Appeal and Error § 827, at 268-269 (1962). We disagree, not with the legal principle stated, but with its applicability to the case before us.

In neither of the cases cited by appellant did this court sustain the argument that pertinent physical laws were so irrefutable it could be said that reasonable minds could entertain no other conclusion, so that the issue could be taken from the jury. In Alldread we wrote:

Only in those extraordinary cases where deductions from physical laws and facts so clearly and irrefutably disprove the testimony of witnesses that reasonable minds may not entertain any other conclusion are courts justified in ruling sworn testimony inherently unbelievable and impossible. [Emphasis added.]

Dr. Malak’s opinion that temperature increases when the body is drained of blood from multiple stab wounds may seem implausible to some, even against the decided weight of medical opinion, but we cannot say that it is so clearly and irrefutably contrary to the laws of nature as to be inherently impossible. Dr. Malak did not state, so far as we can determine, the degree of increased temperature, or its duration. Nor, for that matter, did he indicate that his opinion (that death occurred at a much earlier hour than advanced by the opposing experts) was dependent on the assumption the victim’s bodily temperature first increased before it began to wane. It was, he said, simply one of many factors to be considered. The fact that three experts called by the appellant held opposing views on that issue tells us little or nothing as to the certitude of the premise.

We think the trial court was right to reject the motion for a directed verdict of acquittal.

II

The Circuit Judge Erred in Denying Defendant’s Motion for a New Trial

At a pretrial suppression hearing a number of proffered exhibits were held to be inadmissible. Nevertheless, through inadvertence or mistake, the excluded materials and the admitted exhibits were intermingled and submitted en mass to the jury for perusal during deliberations. These materials included segments of a report of luminol testing performed throughout the Larimore home some two months after the homicide; a letter from June Larimore to Greg Larimore, referred to as “The Christmas Letter;” correspondence between defense counsel and the trial judge relative to the luminol testing; proposed exhibits involving an FBI psychological profile of the killer, which was intended, according to appellant, to show that the Blytheville police had furnished false information concerning Greg Larimore to the Bureau. These materials could have fostered the inference that Larimore’s arrival at work was earlier than usual, that he may have used cocaine, that he spoke to the investigators only momentarily before requesting an attorney and exercising his Miranda rights, that the Larimores may have had some disagreement on the previous evening when they left the home of friends.

The insinuation of the excluded materials into the jury room came to light when two jurors, not otherwise identified, called the prosecutor and defense counsel within hours after the verdict, asking about information contained in the “exhibits” but not mentioned during the trial. The two jurors made reference to the Christmas letter, the use of drugs and the fact that the Larimores may have been having disagreements over drug use.

Both attorneys promptly and properly reported these conversations to the trial judge and a hearing was held on a Monday following the verdict on Friday. No testimony was taken at the hearing, but the hearing resulted in an order finding that the excluded materials were interspersed with the admitted materials, were placed in the jury room, by carelessness rather than intent, and that the materials were reviewed by the jurors during their deliberations. However, the trial court concluded that the time of death was the sole issue of fact presented by the evidence and since the extraneous materials were not relevant to that issue, they could not have affected the jury’s deliberation.

Having reflected on the matter, and for reasons to be explained, we conclude that where no motive was educed, no direct proof of guilt established and such circumstantial proof of guilt as did exist was in sharp dispute, a verdict tainted by the introduction of a mass of materials into the jury room which should not have been there must be set aside. Given the circumstances in their entirety, we are persuaded that a new trial is preferable to a trial encumbered by doubt and should have been ordered.

While we no longer presume error, Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985), we have held, consistent with what we believe to be the prevailing view, that where the jury’s verdict is tainted by information which came before it improperly, a new trial will be warranted if there is “a reasonable possibility of resulting prejudice.” Borden v. St. Louis S.W. Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985). More recently in St. Louis S.W. Ry. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990), we said:

When a new trial is requested because of juror misconduct, pursuant to ARCP Rule 59(a), the moving party must show that his rights have been materially affected. This means the moving party has the burden of proving that a reasonable possibility of prejudice has resulted from the misconduct. Borden v. St. Louis Southwestern Ry. Co., supra. The vast majority of courts agree that prejudice is not presumed in such situations. See Annot., 11 A.L.R.3d 918, § 3 at 928; see also Kirby v. Rosell, 133 Ariz. 42, 648 P.2d 1048 (1982).

To the same effect see United States v. Castello, 526 F. Supp. 847 (W.D. Tex. 1981); Farese v. United States, 428 F.2d 178 (1970); United States v. Howard, 506 F.2d 865 (1975), citing Holmes, “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907).

Applying those principles to the case at bar leads us to conclude that prejudice cannot be ruled out. The suggestion that some hostility existed between the Larimores on the night preceeding the murder, of the possible use of cocaine by Larimore and his wife’s objections, and of his refusal to talk to the police by invoking his rights to counsel and to remain silent could hardly have failed to impact on the jury.

While it is true, as the trial court observed, that these factors did not bear directly on the question of when the homicide occurred, they could well have influenced the jury to decide inversely that appellant was guilty and, therefore, the evidence that the homicide occurred before Larimore left home was more persuasive than the opposing proof.

The state submits the appellant failed to demonstrate an abuse of discretion by the trial court in that the defense presented no testimony in support of its motion for a new trial. Ark. R. Evid. 606(b). However, that burden was lifted by the express findings of the trial court that the materials were improperly before the jury and, more important, that the jury did in fact review the materials. That, we believe, is sufficient in the context of this case.

Ill, IV and V

No extended comments are required by appellant’s remaining points. His due process argument (III) is rendered moot by our decision to reverse. As to the introduction of photographs and video tape of the victim and crime scene (V), we are not persuaded the trial court’s broad discretion was abused. As to the luminol testing (IV), it is not clear what appellant is asking us to review. Appellant’s brief states that “most of the luminol evidence was suppressed on chain-of-custody grounds” but that “limited use of luminol” was allowed when there was no confirmatory test, thereby violating Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The state points out in response that in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), this court declined to adopt the Frye standard, preferring a more liberal approach in which reliability is the determinant. Whether this issue is likely to recur on remand, we cannot say, but we are reluctant to tie the hands of the trial court on retrial in matters addressed to its discretion. Appellant’s brief does not specify what part of the luminol testing was admitted and the record is too voluminous for us to make that determination on our own. Suffice it to say that we have not been shown what portion of the luminol test was admitted or why such admission was erroneous, hence, appellant has failed to demonstrate the error.

For the reasons stated, the judgment appealed from is reversed and the case is remanded for retrial.


text:
    STATE of Arkansas v. Jody TORRES, David Geater, and Patsy Dunahay
    91-316
    831 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered May 26, 1992

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

      Alan Dishongh and Herbert T. Wright, Jr., P.A., for appellees.
   Steele Hays, Justice.

In August of 1991 the appellees, Jody Torres, Patsy Dunahay and David Geater were charged in the Faulkner County Circuit Court with the offense of operating a gambling house, as defined in Ark. Code Ann. § 5-66-103(a) (1987). A felony information alleged that appellees Torres and Dunahay unlawfully operated the Lucky Spot Bingo establishment in Conway. Appellee Geater was charged with operating Dabbers Bingo also in Conway.

The appellees filed similar motions to dismiss the charges and the trial court agreed to decide the motions simultaneously. The appellees argued that Ark. Code Ann. § 5-66-103(a), which prohibits keeping or operating a gambling house, or a place where gambling is carried on, is unconstitutionally vague and over-broad. They also challenged Ark. Code Ann. § 5-66-101 (1987), which provides that statutes prohibiting gaming are to be liberally construed, as violative of their constitutional due process guarantees. Following oral argument, the trial court granted appellees’ motion to dismiss, finding both statutes unconstitutional.

This appeal is lodged by the State of Arkansas pursuant to Ark. Sup. Ct. R. 29(l)(c) and Ark. R. Crim. P. 36.10(b-c). Arkansas Sup. Ct. R. 29(l)(c) gives this court appellate jurisdiction of appeals in which the constitutionality of an act of the General Assembly is questioned. Arkansas R. Crim. P. 36.10(b-c) allows the State to appeal following either a misdemeanor or felony prosecution “[i]f the attorney general ... 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 by the Supreme Court. . . .” The State alleges two points of error on appeal.

In its order the trial court found “that Ark. Code Ann. § 5-66-101 (1987), the construction statute and Ark. Code Ann. § 5-66-103 (1987) are vague in that [sic] provides no definition of “gambling” or “gaming house” so that the defendant could not be properly informed as to what conduct would be considered criminal and it is therefore unconstitutional.”

Arkansas Code Ann. § 5-66-103(a) (1987) provides:

Every person who shall keep, conduct, or operate, or who shall be interested, directly or indirectly, in keeping, conducting, or operating any gambling house or place where gambling is carried on, or who shall set up, keep, or exhibit or cause to be set up, kept or exhibited or assist in setting up, keeping, or exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house shall be deemed guilty of a felony and on conviction shall be confined in the State Penitentiary for not less than (1) year nor more than three (3) years.

Our review of challenges to the constitutionality of statutes begins with the principle that statutes are presumed to be constitutional. Clinton v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991). The burden of proving a statute is unconstitutional is upon the party challenging it. Id. If it is possible to construe a statute as constitutional, we must do so. Id.

The norm by which we determine when' a statute is void-for-vagueness is whether it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). The law must give fair warning in definite language of the prohibited act. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983). In addition to the fair warning, a statute is also void-for-vagueness if it is so broad that it becomes susceptible to arbitrary and discriminatory enforcement. Id. Nevertheless, flexibility, rather than meticulous specificity or great exactitude, in a statute is permissible as long as its reach is clearly delineated in words of common understanding. Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). Moreover, impossible standards of specificity are not constitutionally required, even in criminal statutes. Id. A statute will meet constitutional muster if the language conveys sufficient warning when measured by common understanding and practice. Id. Additionally, it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise. Id.

The state argues that the words “gambling” and “gaming” are not unconstitutionally vague because the Arkansas Supreme Court, by case law, has previously defined the terms in Howell v. State, 184 Ark. 109, 40 S.W.2d 782 (1931); Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W.2d 161 (1930); and, Portis v. State, 27 Ark. 360 (1872). This court has said that whenever the definition of general words in a criminal statute, passed pursuant to police power, may be adequately determined through reference to judicial decisions construing the statute, it is not void-for-vagueness. Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973). Uncertainty may also be cured by judicial construction discoverable by search of legal precedent other than decisions construing the statute in question. See 3 Sutherland, Statutory Construction § 58.02 (1986 & Supp. 1992); J. Jeffries, Legality, Vagueness, and The Construction of Penal Statutes,! I Va. L. Rev. 189, 207-208 (1985).

In Portis v. State, supra, gaming was defined as “the risking of money, between two or more persons, on a contest or chance of any kind, where one must be loser and the other gainer. Some games depend altogether on skill, others upon chance, and others are a mixed nature. Billiards are an example of the first, lotteries of the second and backgammon of the last.” Id. at 362 (citing 2 Bouvier’s Law Die., 553) (emphasis in the original). This definition, previously set forth by the court, which comports with the common understanding of the term “gambling,” prevents the statutes in question from being void-for-vagueness. The appellees, who operated bingo establishments where money and risk were plainly involved, had fair warning that their actions were prohibited.

Additionally, the appellees assert that § 5-66-103(a) is unconstitutionally overbroad, however, the trial court did not rule on that point. The appellees had the burden of obtaining a ruling on that issue and failure to do so precludes them from raising it on appeal. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990).

The Faulkner Circuit Court also found that § 5-66-101 impinges on the appellees’ due process rights because it directs courts to give a liberal construction to the statutes prohibiting gaming in favor of the prohibitions and against the offender, as opposed to following the rule that penal statutes are to be strictly construed.

We decline to address this issue because it was unnecessary to resort to the construction statute after finding no ambiguity in § 5-66-103.“. . . [T]here is no occasion to construe a penal statute strictly or otherwise if the statute is devoid of ambiguity.” W. LaFave & A. Scott, Jr., Substantive Criminal Law § 2.2(d) at 109 (1986).

Error declared.