author: Tom Glaze, Justice. Donald L. Corbin, Justice,

text:
    Jim C. PLEDGER, Director of the Arkansas Dept. of Finance and Admin., and Timothy J. Leathers, Comm. of Revenues v. BALDOR INTERNATIONAL, INC., and Southwestern Die Casting, Co., Inc.
    91-304
    827 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      Beth B. Carson, Revenue Legal Counsel, for appellants.

      Rose Law Firm, A Professional Association, by: Richard T. Donovan, for appellees.
   Tom Glaze, Justice.

This is a use tax case. The appellee, Baldor Electrical Company, manufactures industrial electric motors and grinders, and its corporate headquarters is in Fort Smith. Appellee Southwestern Die Casting Company, a fully owned subsidiary of Baldor, manufactures rotor castings that are a component part of Baldor’s electric motors. The Arkansas Department of Finance and Administration (DFA) assessed a use tax on appellees’ purchases of advertising goods and equipment from out-of-state vendors during the period May, 1980 thru April, 1986. Specifically, the equipment included seven different testing machines and an environmental control system. The appellees paid the tax in protest and requested an administrative hearing. The Board of Hearings and Appeals sustained DFA’s assessments.

Appellees then pursued their challenge in chancery court. The chancellor found that all of the appellees’ advertising goods and equipment were exempt from the use tax assessments and ordered a refund to the appellees for the amount of taxes paid for these items. DFA appeals from that ruling. We reverse the chancellor’s finding of a use tax exemption for the advertising services and the environmental control system and affirm in part and reverse in part his findings that exempted all of appellees’ testing machines.

Before beginning our discussion on the merits of the appellant’s appeal, we recognize the following settled rules of construction used in tax exemption cases. A presumption exits in favor of the taxing power of the state, and a taxpayer has the burden of establishing the right to an exemption beyond a reasonable doubt. Pledger v. Easco Hand Tools, Inc., 304 Ark. 47, 800 S.W.2d 690 (1990). Tax exemptions must be strictly construed against exemption, and to doubt is to deny the exemption. Id. In addition, this court has stated that tax exemption cases are reviewed de novo and the appellate court does not set aside the findings of the chancellor unless they are clearly erroneous. Id.

We first address the appellants’ argument that the chancellor erred in finding that the appellees were entitled to a use tax exemption for advertising services. The appellees used Atkinson Group, a Missouri advertising agency, and argued that Atkinson’s billings clearly distinguished between services and goods. The chancellor agreed with the appellees’ argument that the advertising services were separable from the charges for advertising materials and therefore were exempt from the use tax.

A use tax at a rate of three per cent of the sales price is assessed for the privilege of storing, using or consuming within this state any article of tangible personal property purchased for storage, use or consumption in this state. Ark. Code Ann. § 26-53-106(a) (1987). Sales price is defined as the following in the Compensation or Use Taxes provisions:

Sales price means the consideration paid or given, or contracted to be paid or given, by the purchaser to the vendor for the article of the tangible personal property including any services that are a part of the sale valued in money, whether paid in money or otherwise, and includes any amount for which credit is given to the purchaser by the vendor without any deduction therefrom on account of the cost of the property sold, the cost of materials used; labor or service cost, . . . (Emphasis Added).

Ark. Code Ann. § 26-53-102(1) (1987); Ark. Stat. Ann. § 84-3104(a) (Rep. 1980). The wording of this statutory provision, itself, makes it clear that services that are part of the sale are not to be excluded in the use tax assessment.

Further, the case of Larey v. Dungan-Allen, 244 Ark. 908, 428 S.W.2d 71 (1968), is instructive on this issue. In that case, this court refused to separate a photographer’s services from the materials, holding that it is the exercise of the skill that makes the photograph saleable. The photographer charged a $25.00 hourly rate for his services, but the photographs were sold for $2.00 each. However, we concluded that the photograph should not be priced solely on the basis of its constituent materials, but that such things as invested capital, education or technical training, professional skill labor and overhead expenses can be expected to contribute to the value and selling price of the finished product.

While we note that the Dungan-Allen case involved a gross receipts tax, the same language forbidding the deduction for services from the sales price, as cited in the use tax provisions, is found in the definition of “gross proceeds,” Ark. Code Ann. § 26-52-103 (1987). Thus, we find the rationalein Dungan-Allen applicable to the present case. Here, the professional skills and labor of the advertising agency are necessarily included in the costs of the final product or advertising materials. Therefore, we must reverse the chancellor’s holding on this point.

Likewise, we find merit in the appellant’s second argument that the chancellor erred in holding that the appellees were entitled to a use tax exemption for appellees’ environmental control system. Mike Mann, the Executive Vice President of Baldor, testified that in 1980 Baldor modernized its facility by investing around $10,000,000 in sophisticated equipment like Computer Numeric Control lathes (CNC machines) that cut raw materials within very specific and minute tolerances. When Baldor first purchased the CNC machines, it had no environmental control system, and as a result the machines broke down frequently. After exploring other similarly priced alternatives, Baldor installed an environmental control system only in the manufacturing area of the plant. Although DFA admitted that Baldor’s environmental control system was necessary for the effective operation of Baldor’s CNC machines, DFA’s auditor denied the exemption because the system was not used directly in the manufacturing of Baldor’s product — its electric motor.

Whether an environmental control system is entitled to a use tax exemption is a question of first impression for this court. Under statutory law, the following use tax exemption is recognized:

Machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce and [at] manufacturing or processing plants or facilities in the State of Arkansas. . . .
(a) Such machinery and equipment will be exempt under this section if it is purchased and used to create new facilities within this state or to expand existing facilities within this state;
(c) It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation at any time from the initial state where actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished product. The term “directly” as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semifinished materials into form in which such personal property is to be sold in the commercial market. Hand tools, buildings, transportation equipment, office machines, and equipment, machinery and equipment used in administrative, accounting, sales or other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt. (Emphasis added).

Ark. Stat. Ann. § 34-3106(D)(2) (Repl. 1980).

In interpreting, “used directly in manufacturing”, this court has not required the equipment to directly come into contact with the finished product before qualifying for an exemption. For instance, in Cheney v. Georgia-Pacific Paper Corporation, 237 Ark. 161, 371 S.W.2d 842 (1963), this court allowed a use tax exemption for Georgia-Pacific’s steam turbine generators finding that they performed a dual function — first, they utilized steam to generate electrical energy, and second, in so doing, they reduced the steam pressure and emitted it at certain levels to component parts of the paper manufacturing process where it was used for various purposes, such as cooking, drying and heating. The chancery court concluded that the steam turbine generator was a primary facility in the paper manufacturing process, and if the generator were removed, the manufacturing process would cease.

An environmental control system is clearly different from a steam turbine generator which generates electrical energy that activates the manufacturing process. The environmental control system directly affects the surroundings of the manufacturing area of Baldor’s plant and thereby protects the efficiency and effectiveness of the CNR machines used to produce Baldor’s electric motors. In terms of Arkansas law set out above concerning when equipment may be exempt, Baldor’s environmental control system clearly is not “used directly in producing [or] manufacturing” Baldor’s motors and neither can it be said the system is “utilized directly in the actual manufacturing or processing operation.”

Cases from other jurisdictions support our conclusion. In Indiana Dept. of State Revenue v. RCA Corporation, 310 N.E.2d 96 (Ind. Ct. App. 1974), RCA was denied an exemption for an environmental control system even though the DFA auditor conceded that maintenance of rigidly controlled environment was an integral and essential part of the manufacturer’s color picture tube manufacturing process. In refusing to give such a broad meaning to the words “directly used ... in the direct production” as utilized in the Indiana exemption statute, the court stated the following:

The very name of the equipment, whether “air conditioning” or “environmental control”, signifies that its immediate effect is on the surroundings in which the manufacturing process takes place and only remotely, through the intervening agency of those surroundings, on the tubes or on the process by which they are manufactured.

The Georgia Appellate Court has also addressed this issue. In Blackmon v. Screven County Industrial Dev. Authority, 131 Ga. App. 265, 205 S.E.2d 497 (1974), a manufacturer of synthetic yarn sought a use tax exemption for climate control equipment arguing that the equipment prevented certain fibers from frizzing, curling, or becoming wet. The court stated that the test is not whether the property is essential to the operation of the plant, but whether it is an actual part of the process of manufacture. Under this test, the court found that the climate control equipment had nothing to do with the materials in manufacture, it operates solely on the air which then, as an intervening agency, circulates around the carpet yarn. See also Annotation, Direct Use—Sales and Use Tax Exemption, 3 A.L.R.4th 1129, § 3 (1981).

In the last point, the state argues that the chancellor erred in granting a tax exemption for seven pieces of testing equipment owned by appellees. In finding that the testing equipment should be exempt, the chancellor relied on the following language in Act 492 of 1985, codified as Ark. Code Ann. § 26-53-114(c)(3)(B) (1987):

Further, machinery and equipment “used directly” in the manufacturing process shall include, but shall not be limited to, the following: . . .
(ii) Testing equipment to measure the quality of the finished product.

While Act 492 was not in effect at the time of the state’s assessment, the Act’s preamble states that its purpose is “to clarify the types of property subject to the gross receipts tax and the compensating (use) tax.” Thus, the General Assembly, in enacting the 1985 Act, did not change the prior law but merely intended to clarify it. Accordingly, we agree with the chancellor that this subsequent Act can be considered in deciding this issue. Cf. Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).

We do not agree with the chancellor that all of the appellees’ testing equipment fits under this “testing equipment” exemption. Three of the appellant’s testing machines are located in Fort Smith at a separate facility, Valmont Industries, a manufacturer of irrigation systems. Baldor’s Vice President, Mr. Mann, testified that in order to obtain business from Valmont, Baldor agreed to purchase equipment for a plant it was going to construct in Fort Smith, and ir> return, Valmont agreed to purchase a set number of Baldor motors. The Brinell Tester and the Micromet Tester test the hardness of the cast iron end plates that are parts of the motor. These tests are necessary to insure that the end plates will not crack while the motor is operating. Because the test is destructive to the product tested, it is done on a random basis on the incoming shipments of end plates before they are sent to the production floor. The other piece of testing equipment located at Valmont is the Electric Gear Checker, which is used to test how much time will lapse at a certain stop before the gears in the motor will backlash.

While the appellees argue that Baldor has an integrated manufacturing process that continuously flows through the production cycle, they failed to produce evidence to show that these three pieces of testing equipment located at an unrelated facility were part of Baldor’s integrated manufacturing process or were used directly in Baldor’s manufacturing process. Even if we were to assume that the testing equipment was used to test Baldor motors used at the Valmont plant, the Brinell Tester and the Micromet Tester are used to test the end plates before they are sent to the production floor, and there is no evidence before us to show that the Baldor motors are being manufactured at Valmont. As stated earlier, tax exemptions must be strictly construed against exemption, and to doubt is to deny the exemption. Easco Hand Tools, Inc., 304 Ark. 47, 800 S.W.2d 690. In sum, from our review of the evidence presented on these three machines, we must hold that the chancellor’s finding of exemptions for the three pieces of testing equipment located at Valmont Industries was clearly erroneous.

The other four pieces of testing equipment are used at various stages of Baldor’s manufacturing process. The Automatic Windability Tester stretches copper wire to determine at what point it will break. Copper wire is a component part of the Baldor electric motor. This test is also a destructive test, so it is randomly conducted on the wire when it is received in the raw material receiving warehouse. The I.D.-O.D. Comparator System measures the master gauges to determine that specific tolerances are being held in the manufacturing of the motors. At the Baldor’s subsidiary, Southwestern Die Cast, the Injection Performance Analyzer is used to determine at what force the die cast machine must shoot aluminum into the holes of the end plates to hold the rotor core together. The rotor must be balanced, or the motor will be defective. And the last piece of testing equipment is the High Power AC Motor Test Panel, and it is used on the finished motor to put stress on the motor to test its performance. This machine uses high voltage electricity to test motors for amps, voltage and various other electrical needs. Again, because this is a destructive test, it, too, is used on a random basis.

From our review of the evidence in the record, we cannot say that the chancellor’s finding that the above four pieces of testing equipment were used directly in Baldor’s integrated manufacturing process is clearly erroneous. Three of the pieces of equipment discussed above test component parts of the motor, and the High Power AC Motor Test Panel tests the finished motor. These tests were essential to insure the quality of Baldor’s electrical motors in their finished state. As stated earlier, we find the clarification contained in Act 492 of 1985 to include testing equipment to measure the finished quality of the finished product illustrative on this issue. Further, in Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835 (1975), we granted a use tax exemption of a beverage bottle inspector, which inspected the bottle before the drink liquid was added. Thus, we have previously recognized an exemption for components of a finished product, since the soft drink bottle is a component part of the finished product, the soft drink.

For the reasons stated above, we affirm in part and reverse in part.

Corbin, J., dissents in part.

Donald L. Corbin, Justice,

dissenting in part. I must respectfully dissent. I would affirm the trial court’s determination that the environmental control system is entitled to a use tax exemption. The sophistication of appellees’ equipment necessitates a controlled environment so as to maintain the computer generated production line. If a computer gets too warm it will not function; and therefore, there would be no production while the production line is down. I fail to see how this system is not directly involved in the manufacturing process.

       Baldor International, Inc. is not a party to this appeal, because Baldor International did not appeal from the chancellor’s upholding of its assessment for corporate income tax.

       While the appellees contend that this issue was not raised below, the location of these three pieces of equipment and how they fit into their integrated plant theory was an essential part of the appellees’ burden of proving their entitlement to a tax exemption. The fact that these pieces of equipment were located in another facility was brought to the chancellor’s attention through the direct testimony and cross-examination of appellee’s witness, Mr. Mann. This evidence, together with the auditor’s general statement that the pieces of equipment did not qualify for an exemption because they did work directly on the product, was sufficient to apprise the chancellor of this issue and to permit the state to argue it in this de novo review.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Jack B. SHANKLE v. STATE of Arkansas
    CR 91-229
    827 S.W.2d 642
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      Honey & Honey, P.A., by: Charles L. Honey, for appellant.

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

Appellant raises six points for reversal of his convictions for first-degree murder and two counts of aggravated assault for which he was sentenced to a total of forty-two years imprisonment. None of his points have merit, so we affirm.

Appellant first argues the evidence is insufficient to support his convictions, but we must hold this issue was not preserved below. As we have repeatedly held, in order to argue sufficiency of the evidence on appeal, the appellant must make a directed verdict motion at the end of the state’s case and again at the end of trial. A.R.Cr.P. Rule 36.21(b). Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Starling v. State 301 Ark. 603, 786 S.W.2d 114 (1990). Here, the record fails to reflect the appellant moved for a directed verdict at the end of the trial. Appellant suggests the court reporter may have in some manner omitted his motion. Even so, the appellant has a duty to provide a complete record from which this court can determine the asserted error. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). If the record failed to reflect what occurred below, appellant could have corrected and had the record modified under Ark. R. App. P. 6(e). Having failed to do so, we are unable to review his claim of insufficiency of evidence.

Although we do not determine appellant’s directed verdict issue, it is still necessary to highlight the pertinent facts so we may address appellant’s other arguments. To prove its case, the state showed that ill will existed between appellant and his nephew, Mikey Shankle. Apparently, Mikey was resentful towards appellant because appellant tried on various occasions to discipline him. Some of these occasions resulted in an exchange of threats and display of violence. Linda Shankle, Mikey’s mother, testified the appellant had threatened to kill Mikey about three months before his death. Another witness, Abigail Kettlewell, related that about two months prior to Mikey’s death, she overheard appellant say, “if he could get away with it, he would kill [Mikey] in a minute.” Linda Shankle and Richard Shankle, appellant’s brother, also testified that, on the Sunday preceding Mikey’s death, appellant threatened to kill Mikey.

On the night of his death, Mikey, his brother Matt, and Brad Reeves, a friend, left Matt’s house at about 9:30 p.m., and were walking two to three feet off the pavement and on a grassy area in single file alongside Sharp Street. They were on their way to a friend’s residence. Mikey was in the rear, and was wearing camouflage clothes. Matt said that Sharp Street crested on a hill behind them where the boys saw the reflection of a vehicle’s lights coming their way. He said the hill was about twenty feet away, and from the time he saw the reflection of the lights, it was ten to fifteen seconds when the vehicle hit them. Matt further said that the vehicle had approached faster and faster and then drove onto the grassy area striking them. The boys had just walked past a street light. The state introduced photographs of tire tracks appearing two to three feet from the pavement and on the grassy area where the victims were hit. The damage to appellant’vehicle was near the middle of the vehicle’s hood, tending to show the appellant and his vehicle were off the pavement when the boys were struck. Appellant was legally drunk when the incident occurred.

Appellant’s second argument challenges the trial court’s admitting Linda Shankle’s and Abigail Kettlewell’s testimony that appellant had threatened Mikey’s life two to three months before his death. These threats, appellant suggest, were too remote in time to be relevant. This court has held that threats are admissible as tending to show ill will and motive. Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975); see also Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). And while the court recognized in Lang that the remoteness in time is to be considered when the interval between the former difficulties and the homicide is so great as to indicate that they had their origin in independent causes, it also pointed out that the court has upheld the admissibility of threats made about a year and one-half before the homicide. Lang, 258 Ark. at 505, 527 S.W.2d at 901; see McElroy v. State, 100 Ark. 301, 140 S.W. 8 (1911).

Here, appellant’s threats were shown directed at Mikey, commencing three months, and continuing up to four days, before his death. These threats bore on appellant’s motive and intent, and the trial court did not abuse its discretion in admitting them into evidence.

Appellant next challenges the trial court’s admissibility of the photographs showing tire tracks leaving the pavement of the street into the grassy area where the victims were walking. He claims a proper foundation was not made showing the tracks were made by appellant’s vehicle. However, after appellant’s objection, the state’s witness, Officer Robert Reeder, who investigated the scene of Mikey’s death, said that the tire tracks were from appellant’s vehicle “because of the location of where his vehicle came out from the grassy area.” Reeder further described that he saw radiator fluid at the end of the skid marks made by appellant’s vehicle, and observed that appellant’s vehicle was leaking radiator fluid. Reeder finally related that appellant’s truck was missing its right front lens cover, and the officers found a lens retainer and plastic cover close to the track marks. Based upon these facts, the trial court ruled the photographs of the tracks taken at the scene were admissible, and on review, we hold the court did not abuse its discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). The weight of the evidence and the credibility of a witness are matters for the jury to resolve. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989).

Appellant’s fourth argument questions the trial court’s allowing Officer Samuel White to testify that, when appellant was administered field sobriety tests at the scene of the incident, appellant became belligerent and cursed the officer. Appellant contends the prosecutor learned at least two days before trial as to how White would testify, and, under A.R.Cr.P. Rule 17.1 (subject to Rule 19.4), the state should have promptly disclosed the substance of any oral statements appellant had made to Officer White. He says he did not learn of White’s testimony until the day of trial. Officer White testified as follows:

After we got to the rear of the vehicle, [appellant] made the statement, “Why are you messing with me? I’m the one that dialed 911.” All the while I was advising him of the field sobriety tests.
* * *
No, I didn’t see [appellant] traumatized. He was arrogant about everything. He was cursing, mostly directing everything at me. Actually, he was cussing my family heritage.

Appellant concedes that the officer’s testimony was the same evidence as was contained in a video tape taken of appellant by the police prior to appellant’s being administered a breathalyzer test. In other words, White’s testimony was not a surprise since it was duplicative of what appeared on the tape. However, appellant argues, the trial court had previously excluded the tape from evidence and therefore White’s testimony should likewise be excluded, especially since it had not been disclosed.

■ The record is unclear regarding why the court excluded the video tape, but the trial court specifically found at trial that statements made by the appellant immediately after the alleged crime were admissible. It further ruled either White’s testimony would be admissible or the video tape would be allowed into evidence in place of White’s testimony. In so ruling, the trial judge offered appellant a continuance to the following Monday, a three-day delay, in order to defend against the evidence. Appellant declined.

Although the trial was nearing its end when the trial court’s ruling was made on this point, appellant fails to show how he had otherwise been prejudiced. Under A.R.Cr .P.Rule 19.2, the prosecutor had a continuing duty to disclose information previously requested by the appellant and such disclosure undoubtedly would have included the oral statements Officer White attributed to appellant. However, Rule 19.7(a) leaves the decision whether to exclude such material or testimony, which was not disclosed, to the sound discretion of the trial court. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). That rule provides as follows:

(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

Clearly, under Rule 19.7(a), the trial judge had the option of offering the appellant a continuance. Here, while appellant complains he was unaware of what Officer White might say, White’s name as a state’s witness was provided appellant prior to trial. In addition, and as previously mentioned, White’s testimony was not new and of no real surprise to appellant. We would also note that appellant testified and actually acknowledged he had acted in an arrogant and belligerent manner. Under these circumstances, we are unable to hold the trial court abused its discretion in allowing White’s testimony. Under this point, appellant also argues error ensued from Officer White’s reference to appellant having cursed the officer by mentioning the officer’s family heritage. However, the trial court sustained appellant’s objection concerning such reference, and appellant never asked for a mistrial or other relief. Because appellant was given all the relief requested, he has no basis upon which to raise the issue on appeal. Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983).

In his fifth point, appellant argues Officer White’s testimony, regarding appellant’s oral statements, was hearsay, and the trial court’s ruling otherwise was error. Appellant, however, made no such hearsay objection below and therefore waives it on appeal. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); see also Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

Finally, appellant assigns as error the trial court’s permitting the state to cross-examine appellant about a statement he made to his attorney while in custody. Although appellant knew he was being videotaped the entire time he was at the police station, he spoke to his attorney by telephone and exclaimed, “[M]y god damn dumb-ass nephew stepped in front of me with his buddy.” After appellant testified repeatedly that he had been in shock after he hit Mikey, Matt and Brad, the prosecutor sought to question him using the foregoing statement. The state argued it should be allowed to test appellant’s credibility with the statement. The trial court agreed. The prosecutor asked appellant if he had made the statement, and appellant answered that he had.

Appellant’s main argument here is that his statement was privileged under Ark. R. Evid. 502(b) as a confidential communication between himself, as client, and his lawyer. He concedes he was aware third parties were present when he made the statement and knew he was being taped. Nevertheless, he says he was handcuffed and in custody and such circumstances should not strip his client-attorney conversation of its confidentiality. Appellant’s argument simply is unsupported by law.

The attorney-client privilege only applies to confidential communications, not to those uttered in public or intended for disclosure to others or in fact disclosed by the client to others. D. Louisell, C. Mueller, Federal Evidence, § 209 (1975). Professor Wigmore wrote on this subject as follows:

One of the circumstances by which it is commonly apparent that the communication is not confidential is the presence of a third person who is not the agent of either client or attorney. Here, even if we might predicate a desire for confidence by the client, the policy of the privilege would still not protect him, because it goes no further than is necessary to secure the client’s subjective freedom of consultation (§ 2291 supra).

8 J. Wigmore, Wigmore on Evidence § 2311, at 601-603 (1961).

In United States v. Gann, 732 F.2d 714 (9th Cir. 1984), the court considered Gann’s argument that the sixth amendment barred the admission of a conversation he had with his attorney.There, Gann’s residence was being searched by officers when Gann was on the telephone, talking with his attorney. A detective overheard the conversation. The court held that, because Gann knew, or should have known, that third parties were present, his attorney-client privilege claim must fail. The court further concluded that the burden of proving that the privilege applies is upon the party asserting it, and Gann failed to show that his conversation with his attorney was made in confidence. See also State v. Vennard, 159 Conn. 385, 270 A.2d 837 (1970), cert. den. 400 U.S. 1011 (1971) (where the defendant was at the police station and his telephone conversation with an attorney was overheard by an officer, the court concluded there was no evidence that the defendant sought to ensure the confidentiality of the conversation).

As previously stated, appellant here was well aware of other parties listening to his conversation with his attorney. Yet, he made no request or effort to ensure his conversation would be secure from third party listeners. Thus, Officer White’s testimony bearing on appellant’s telephone conversation is unaffected by the attorney-client privilege.

For the reasons given above, we affirm appellant’s convictions.


text:
    Felix UILKIE v. STATE of Arkansas
    CR 91-281
    827 S.W.2d 131
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992
    [Rehearing denied May 4, 1992.]

      Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was arrested for driving while intoxicated by Arkansas Game and Fish officer, Jack Collins. His sole issue on appeal is whether Collins had authority to arrest for violations other than those related to game and fish laws. The trial court held the appellant’s arrest was legal, denied his motion to suppress evidence and to dismiss and sentenced him.

Under section 8 of amendment 35 to the Arkansas Constitution, all employed personnel of the State Game and Fish Commission may make arrests for violation of the game and fish laws. However, commission personnel were not specifically named or included as peace officers under Ark. Code Ann. § 16-81-106 (1987), which is Arkansas’s statutory authority that sets out the circumstances and procedures under which an officer may make an arrest for misdemeanors and felonies. That statute provided as follows:

(a) An arrest may be made by a peace officer or by a private person.
(b) A peace officer may make an arrest:
(1) In obedience to a warrant of arrest delivered to him;
(2) Without a warrant, where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony. In addition to any other warrantless arrest authority granted by law or court rule, a law enforcement officer has probable cause to believe that the person has committed battery upon another person and the officer finds evidence of bodily harm, and the officer reasonably believes that there is danger of violence unless the person alleged to have committed the battery is arrested without delay.
(c) A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.
(d) A magistrate, or any judge, may orally order a peace officer or private person to arrest anyone committing a public offense in the magistrate’s or judge’s presence, which order shall authorize the arrest.

In 1989, the General Assembly enacted Act 715, and in doing so, reenacted all of § 16-81-106 as set out above, but added sections (e) and (f) which read as follows:

* * *
(e) For purposes of this section, the terms “peace officer” and “law enforcement officer” shall include full-time wildlife officers of the Arkansas Game and Fish Commission so long as they shall not exercise their authority to the extent that any federal funds would be jeopardized.
(f) The following persons employed as full-time law enforcement officers by the federal government, who are empowered to effect an arrest with or without warrant for violations of the United States Code and who are authorized to carry firearms in the performance of their duties, shall be empowered to act as an officer for the arrest of offenders against the laws of this state and shall enjoy the same immunity, if any, to the same extent and under the same circumstances ás certified state law enforcement officers:
(1) Federal Bureau of Investigation special agents;
(2) United States Secret Service special agents;
(3) Immigration and Naturalization Service special agents, investigators, and patrol officers;
(4) United States Marshals Service deputies;
(5) Drug Enforcement Administration Special agents;
(6) United States postal inspectors;
(7) United States Custom Service special agents, inspectors, and patrol officers;
(8) United States General Services Administration special agents;
(9) United States Department of Agriculture special agents;
(10) Bureau of Alcohol, Tobacco and Firearms special agents;
(11) Internal Revenue Service special agents and inspectors; and
(12) Certified law enforcement officers of the Department of the Interior, National Park Service.

In adding subsection (e) above, the General Assembly apparently intended to extend to full-time wildlife officers the same powers as other peace or law enforcement officers, so long as the wildlife officers did not exercise their authority in a manner that would jeopardize federal funds. However, confusion arose regarding the arrest powers given wildlife officers under subsection (e) of Act 715 because two days after that Act’s passage, the General Assembly enacted Act 846, which again amended § 16-81-106 (1987) and covered the same subject as that contained in Act 715. However, this later Act incorporated all the provisions of Act 715, but deleted subsection (e) of Act 715, thus omitting any reference to wildlife officers. The General Assembly substituted a new subsection (e) in Act 846 which, with some slight modification, had been subsection (f) of Act 715. While Act 846 covered anew the same subject matter contained .in Act 715, Act 846 did clarify and enlarge the prior Act to (1) substitute the designation “certified law enforcement officer” for “peace officer,” (2) add a new subsection (b)(3) to give certified law enforcement officers statewide arrest powers in certain circumstances and (3) add language to the new subsection (e) so as to extend state arrest authority and immunity, if any, to members of the federal, state, county, municipal and prosecuting attorney’s drug task forces.

Appellant’s argument (rejected by the trial court below) is that Act 846 clearly superseded Act 715, and by deleting subsection (e) and omitting any reference to Commission wildlife officers in Act 846, the General Assembly intended to remove the additional arrest powers it previously gave such officers under Act 715. He cites the settled rule of statutory construction that, if two legislative acts relating to the same subject are in conflict with each other, the later act controls. Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981).

The state argues, of course, that the two acts are not irreconcilable, and can be construed so as to give effect to both. It further asserts that courts are required to reconcile statutes on the same general subject matter, construing them together, if possible, in order to implement legislative intent. Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969). This is especially so if two acts on the same subject were enacted during the same general session. Love v. Hill, 297 Ark. 96, 759 S.W.2d 550 (1988). This court has also held that, where two acts were under consideration by the General Assembly at the same time, and were passed at the same session, this strengthens the presumption that there was no intention to repeal one by the other. Merchants’ Transfer and Warehouse Company v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929).

We believe the two rules set out in Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964), are particularly instructive in deciding whether our General Assembly intended to repeal Act 715 by its later enactment of Act 846. The Berry court, quoting from Babb v. El Dorado, 170 Ark. 10, 278 S.W. 649 (1926), stated the following;

One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the latter one which governs the subject matter so far as relates to the conflicting provisions, and to that extent only.
The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.
Where there are two Acts on the same subject, the rule is to give effect to both, if possible, but, if the two are repugnant in any of their provisions, the latter Act, without any repealing clauses, operates to the extent of the repugnancy as a repeal of the first; and, even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first Act, it will operate as a repeal of that Act. (Emphasis added.)

In reviewing Acts 715 and 846 in light of the foregoing rules, it is clear that the latter measure covers the entire subject matter that was previously contained in Act 715, although the subsection (e) provision, granting additional arrest powers to wildlife officers, was not reenacted in the new or later Act. While it may be argued, as the state does, that two acts are not in express terms repugnant, such a showing on the facts here is unnecessary. Here, Act 846 covered the whole subject (and more) of Act 715, and in doing so, the General Assembly showed it intended Act 846 as a substitute for Act 715.

In reaching this conclusion, we necessarily decide Act 846 repealed Act 715. As a consequence, we hold the trial court erred in holding Act 715 was in effect and in determining the Commission’s wildlife officer, Jack Collins, had the authority to arrest the appellant for driving while intoxicated. Because appellant’s arrest was illegal, we reverse and dismiss this cause.

       Subsection (b)(3) of Act 846 has been codified as § 16-81 -106(c) (Supp. 1991).


author: Donald L. Corbin, Justice.

text:
    Darren Jerome CRAWFORD v. STATE of Arkansas
    CR 91-248
    827 S.W.2d 134
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      Durrett & Coleman, by: Gerald A. Coleman, for appellant.

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

Appellant Darren Jerome Crawford urges this court to reverse his conviction of first-degree murder for which he received a sentence of life imprisonment. Because of a number of prior convictions, appellant was sentenced as an habitual offender. On appeal, appellant claims the evidence was insufficient to support the first-degree murder conviction. He also claims that the trial court erred in allowing the state to cross-examine a defense witness about a prior inconsistent statement that the court had previously ruled inadmissible. We affirm.

Appellant’s first and second arguments challenge the sufficiency of the evidence at the close of the state’s case and at the close of all the evidence, respectively. In Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992), we recently held that a defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled, waives any further reliance upon the former motion. Consequently, we decide appellant’s challenge to the sufficiency of evidence as the evidence existed at the close of the case. Id.

We must affirm if we find substantial evidence to support appellant’s conviction. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). In determining whether there is substantial evidence, we consider only the evidence that is favorable to the state and supports appellant’s conviction. Id.

The following evidence was produced at trial. On July 23, 1989, Crawford and two companions, Marlon Malone and Hosea Chestnut, visited the home of Peggy Felton on two occasions. Unica Felton, Peggy Felton’s daughter, who was 13 at the time, testified that her mother was not at home on either occasion, but that her grandmother was at the house during the first visit. Unica informed the men that her mother was not home, and they told Unica they would come back later. The men returned in approximately an hour, after the grandmother had left. Unica Felton, her infant brother, and Jessica King, 17, were in the house when the men returned.

The men brought a gun in a paper sack on their return visit to the house. Marlon Malone testified that the gun belonged to Crawford, and that they had picked the gun up at a friend’s house after the initial visit to the Felton home. Crawford instructed Malone to bring the gun into the house. Crawford and Malone went into the bedroom occupied by Jiles, and Malone left the bedroom while Crawford stayed in the room with Jiles. A few minutes later, a shot rang out, and Crawford came out of the bedroom saying that he shot Jiles and that it was an accident. Hosea Chestnut called an ambulance, and Unica Felton testified that Crawford, Malone, and Chestnut left the house within two to three minutes of the shooting. After leaving the house, Crawford, Malone, and Chestnut drove to Chicago, Illinois.

Crawford and his companions had left when Officer James Liggett arrived at the Felton home to investigate the shooting. Officer Liggett and another officer discovered Jiles in considerable pain in the back bedroom. Liggett noted that Jiles had been shot once in the right rib cage, and that a live .357 shell was laying on the floor. Liggett testified that he asked Jiles what happened, and Jiles informed him that he had been shot by Darren Crawford. Liggett further testified that Jiles stated that he was asleep when Crawford shot him. Jiles died later that afternoon.

Appellant argues that the evidence is not sufficient to prove that he acted purposefully in causing the death of John Jiles. We have noted that intent may be inferred from the circumstances of the case. Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992); Smith, supra. Such circumstances include the character of the weapon used, the manner in which it was used, the nature of the wounds inflicted and the conduct of the accused. In Farris, we recently affirmed the defendant’s capital murder conviction even though the state presented no eyewitnesses, no direct evidence from which to determine a culpable state of mind. We relied on the rule that premeditation and deliberation may be inferred from the circumstances established by the evidence. Farris, supra; Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972).

In this case, the evidence established by the circumstances was sufficient for the jury to infer that Crawford acted purposefully in killing John .files. Particularly important in this case is the fact that appellant used a gun to kill Jiles while Jiles was asleep. Also compelling is appellant’s conduct in returning to the Felton home immediately after retrieving a gun and his immediate flight from the state after the shooting, during which time he disposed of the gun.

From the foregoing circumstances, the jury could logically conclude that appellant acted purposefully. Appellant repeatedly stresses all of the evidence tending to support his theory of an accidental shooting. However, in sufficiency of the evidence challenges, we review only the evidence that supports the conviction and do not weigh it against other conflicting proof favorable to the accused. Farris, supra; Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). As we find sufficient evidence of appellant’s intent, we affirm the trial court’s denial of a directed verdict.

Appellant’s third allegation of error is that the trial court erred in allowing the state to cross-examine defense witness Hosea Chestnut about a prior inconsistent statement.

In Chestnut’s original statement to the police, he stated that he and his companions went to Peggy Felton’s home on July 23, 1989, to “drop some weed off.” The trial court granted appellant’s motion in limine to exclude the testimony. On direct examination, Chestnut gave the following testimony:

BY MR. COLEMAN:
Q. Do you remember the day that Bay-G was shot, John Jiles?
A. Yes, sir.
Q. Were you there?
A. Yes, sir.
Q. When did you get to that house?
A. About 1:00, 2:00, July 23rd.
Q. Could you tell us what happened?
A. We went there to — see, I was on parole and we was taking a gun up to Chicago for protection, right. I told Red I couldn’t ride with no gun. So he was going to drop it offat Peggy’s house to see would she keep it for us ‘til we got back.
We went over there and Peggy wasn’t there the first time. Her mother was there. So we come back, you know, and we decided to leave it there with Jessica and Unica and we was going to take off. [Emphasis added.]

At the conclusion of Chestnut’s direct examination, the trial court granted permission to the state to cross-examination Chestnut about his prior statement that the men went to Felton’s home to “drop some weed off.” Following the state’s cross-examination of Chestnut, the trial court instructed the jury that evidence of a witness’ prior statement should only be considered for the purpose of judging the witness’ credibility and should not be considered as substantive evidence.

Appellant objected to the trial court’s ruling on grounds that it would be unfair to develop a line of questioning about the statement since Chestnut had been told he could not mention anything about dropping the weed off.

A witness’ prior inconsistent statement is admissible under A.R.E. Rule 613 for impeachment purposes. Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991); McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987); Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Under A.R.E. Rule 105, whenever evidence is admissible for one purpose but not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. In this case, the judge’s limiting instruction properly restricted the challenged evidence to its proper scope.

While the appellant objects to the admission on grounds that it was “unfair,” the afore-transcribed exchange reveals that the witness volunteered the inconsistent information upon being asked the general question “What happened?” The state was not even questioning the witness at the time he volunteered the information, and we see no unfairness in allowing the state to impeach his credibility by showing that he previously gave contradictory information.

Accordingly, appellant’s conviction is affirmed.


text:
    John McGEE v. ARMOREL PUBLIC SCHOOLS, et al.
    91-308
    827 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      Mitchell & Roachell, by: Richard W. Roachell, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford, & Watts, P.A., by:
      Brian Allen Brown for appellees.
   Donald L. Corbin, Justice.

Appellant, John McGee, appeals an order of dismissal entered by the Mississippi County Chancery Court. McGee filed his complaint in chancery court seeking equitable relief from actions taken by the Armorel Public School district with respect to the termination or nonrenewal of his contract. The chancellor concluded that pursuant to the Teacher Fair Dismissal Act, McGee was a nonprobationary teacher and as such, his exclusive remedy from the board’s actions was an appeal to circuit court. Accordingly, the chancellor dismissed the complaint for lack of subject matter jurisdiction. This appeal requires our interpretation of part of the Teacher Fair Dismissal Act, specifically Ark. Code Ann. § 6-17-1502 (1987). Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1 )(c). We find the chancellor erred in determining McGee was a nonprobationary teacher, therefore we reverse and remand.

The portions of the Teacher Fair Dismissal Act that are relevant to this appeal provide as follows:

Ark. Code Ann. § 6-17-1502

(a) As used in this subchapter, unless the context otherwise requires:
(2) “Probationary teacher” means a teacher who has not completed three (3) successive years of employment in the school district in which the teacher is currently employed. A teacher employed in a school district in this state for three (3) years shall be deemed to have completed the probationary period; however, an employing school district may, by a majority vote of its directors, provide for one (1) additional year of probationary status.
(b) A teacher who has completed three (3) successive years of employment in the school district in which the teacher is employed on July 4, 1983, or a teacher who has been given credit for a prior service in another district as authorized by subdivision (a)(2) of this section, is deemed to have completed the required probationary period.

Ark. Code Ann. § 6-17-1510 (1987)

(a) Upon conclusion of its hearing with respect to the termination or nonrenewal of a contract of a teacher who has been employed as full-time teacher by the school district for less than three (3) continuous years, the board shall take action on the recommendations by the superintendent with respect to the termination or nonrenewal of such contract. The board’s decision with regard to nonrenewal of a probationary teacher shall be final.
(d) The exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board shall be an appeal therefrom to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board. Additional testimony and evidence may be introduced on appeal to show facts and circumstances showing that the termination or nonrenewal was lawful or unlawful. [Emphasis added.]

McGee’s complaint was filed in chancery court and sought a declaration that the revocation of his resignation was effective and the school board’s acceptance of his resignation was therefore void, a declaration that the school district was in violation of the Teacher Fair Dismissal Act by failing to comply with the notice procedures for nonrenewal or termination of his contract, and an injunction requiring reinstatement to his position for the 1991-92 school year. The school district’s answer asserted that McGee failed to state a claim upon which relief could be granted because his exclusive remedy for the alleged wrongdoing was an appeal to circuit court pursuant to the Teacher Fair Dismissal Act and that McGee did not have a separate cause of action in the chancery court.

After a hearing on McGee’s complaint, the chancellor reviewed the testimony, exhibits, and briefs and entered his order. In his order, the chancellor found:

1. That Plaintiff, John McGee, is a non-probationary teacher as defined by Ark. Code Ann. § 6-17-1502(a)(2), having been employed for two (2) years in Decatur, Arkansas, and having completed two (2) additional years in the Armorel School District, that the second sentence of the statute cited above clearly states that a teacher employed in a school district in this state for three (3) years shall be deemed to have completed the probationary period. The two (2) sentences of the statute are not in conflict, but provide two (2) methods of achieving non-probationary status, i.e., three (3) years in a single district, or a total of three (3) years in school districts in the State of Arkansas:
2. That under Ark. Code Ann. § 6-17-1510(d), “The exclusive remedy for any non-probationary teacher aggrieved by the decision made by the board shall be an appeal therefrom to the Circuit Court. . .”
3. That this Court is without jurisdiction and the case shall be dismissed.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the Plaintiffs Petition for a Preliminary Injunction should be and is hereby denied; it is, also, ORDERED that Plaintiffs Complaint should be and is hereby dismissed at cost to the Plaintiff.

On appeal, McGee argues the trial court erred in dismissing his complaint because he is, as a matter of law, a probationary teacher with the right to address any appropriate forum with his cause of action. He contends there is only one way to achieve nonprobationary status — to complete three successive years of employment in the same school district. Thus, he argues the chancellor erred in “tacking-on” his two years of teaching in the Decatur, Arkansas school district with his two years in the appellee school district to reach the conclusion that he has taught three years in Arkansas schools and is therefore a nonprobationary teacher. The Armorel School District defends the chancellor’s ruling by arguing that any interpretation other than the chancellor’s would render the second sentence of section 6-17-1502(a) meaningless. The appellee school district contends that, as the chancellor stated in his order, the second sentence provides a second method of achieving nonprobationary status — completing three years of teaching in a combination of any school districts in the state. The Act has two reasonable interpretations and is therefore ambiguous.

We must look to rules of statutory construction to determine which interpretation is correct. Where the language of a statute is plain and unambiguous, we give the language its plain meaning. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). However, when the statute is ambiguous, we must give effect to the intent of the legislature in adopting the statute. Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991).

Because the Act is ambiguous with respect to the definition of probationary teacher, we must determine the legislative intent behind the Act. Id, In doing so, we are unwilling to focus on subsection (a) without reference to the remainder of the Act. We determine the intent of the legislature from the language of the whole act. First State Bank v. Arkansas State Banking Bd., 305 Ark. 220, 806 S.W.2d 624 (1991); Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990). As far as practicable, we must give effect to every part of the statute, reconciling the different provisions to make them consistent, harmonious, and sensible. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976).

Considering the entire Teacher Fair Dismissal Act, we conclude the legislature never intended to allow a teacher to combine his or her years of teaching in different school districts to achieve nonprobationary status. There is but one method for achieving nonprobationary status and that is by completing three successive years of teaching in a single school district in this state.

In reaching this interpretation, we do not ignore the appellee school district’s contention that such an interpretation conflicts with the second sentence of section 6-17-1502(a) and renders it meaningless. In fact, it is the last clause of that second sentence that convinces us we have correctly interpreted the statute. The legislature never intended to require a school district which was considering employing a teacher who had achieved nonprobationary status in another district, to employ that teacher on a nonprobationary status. That is the very purpose behind the last clause of the second sentence in section 6-17-1502(a)(2), which allows the employing district to put the nonprobationary teacher back on probationary status for one year. That we have correctly interpreted the General Assembly’s intent with respect to achieving nonprobationary status is confirmed by the reference in section 6-17-1502(b) to “credit for a prior service in another district as authorized by subdivision (a)(2) of this section.” (Emphasis added.)

The chancellor erred in finding that because McGee had completed two years of teaching in the Decatur School District and two years in the appellee district, he had completed three years in “a school district in Arkansas” and was therefore no longer a probationary teacher. McGee had not yet completed his third year contract with the appellee district. Thus, applying the Teacher Fair Dismissal Act, he was a probationary teacher. As a probationary teacher, McGee does not have a statutory right to appeal to circuit court the school board’s decision of nonrenewal of his contract. Head v. Caddo Hills School Dist., 277 Ark. 482, 644 S.W.2d 246 (19982); Nordin v. Hartman Public Schools, 274 Ark. 402, 625 S.W.2d 483 (1981); Section 6-17-1510(d). McGee must therefore pursue any common law remedies he may have. As a chancery court has jurisdiction of a claim for declaratory and injunctive relief where no money damages are alleged, we conclude the chancery court erred in dismissing McGee’s complaint for lack of subject matter jurisdiction.

Reversed and remanded.

Glaze, J., not participating.


text:
    Anthony Ray TERRY v. STATE of Arkansas
    CR 91-258
    826 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine, III, Deputy Public Defender, for appellant.

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

Appellant, Anthony Ray Terry, appeals a judgment of the Pulaski County Circuit Court convicting him of two counts of rape. Appellant was charged by felony information, dated November 14, 1989, for two alleged violations of Ark. Code Ann. § 5-14-103 (1987), in that during May 1989, he engaged in sexual intercourse or deviate sexual activity with two sisters who were less than fourteen years of age. He was tried by a jury, convicted of both counts, and sentenced to two consecutive twenty-five year terms in the Arkansas Department of Correction.

For reversal of the judgment, appellant contends the trial court erred in admitting into evidence a record of appellant’s medical history as taken by the Veteran’s Administration Hospital when appellant was being treated there in 1983. In this fourteen page document, it is reflected that appellant had a venereal disease for which he was treated with an antibiotic shot a few years prior to the giving of the history. This record was obtained by appellant from the hospital and given to the prosecution during discovery.

The prosecution thought this evidence of appellant’s past venereal disease was particularly relevant because the two child victims were both diagnosed with gonorrhea by Arkansas Children’s Hospital in August and September of 1989, after one of the girls was admitted to the hospital for treatment of a swollen and infected shoulder caused by gonorrhea. Thus, when appellant stated on direct examination that he had never had gonorrhea, the prosecution inquired into appellant’s prior history of venereal disease on cross-examination.

Appellant makes three assignments of error in the ruling admitting the challenged evidence. First, he claims the prosecution did not lay a sufficient foundation to admit the hospital records under A.R.E. Rule 803(6), the business records exception to the hearsay rule. Second, he claims he was not given an opportunity to explain or deny the hospital records as extrinsic evidence of a prior inconsistent statement as required by A.R.E. Rule 613(b). Third, appellant claims the admission of the hospital records was more prejudicial than probative and therefore should have been excluded under A.R.E. Rule 403. The first argument has no merit. The last two arguments were not properly preserved for our review. Therefore, we affirm.

We begin this opinion, which deals only with evidentiary issues, by stating that the trial court has discretion in deciding evidentiary issues and its decision will not be reversed on appeal unless it has abused that discretion. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990).

With respect to his first point of error, appellant argues the foundation is insufficient under A.R.E. Rule 803(6) in two respects. First, he argues the record is untrustworthy because it was not shown to be appellant’s and there was no testimony by a person with knowledge of how the record came to be or how it was obtained. Second, appellant argues it was not shown that the record was made at or near the time required by A.R.E. Rule 803(6).

The state responds to this argument by claiming that the business records exception does not require that the custodian of the records be able to explain the specific record-keeping procedures in question. In support of this claim, the state cites Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986).

The business records exception to the hearsay rule has been interpreted as having seven requirements. To be admissible under this exception, the evidence must be (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of a regularly conducted business, (6) which has a regular practice of recording such information, (7) all as shown by the testimony of the custodian or other qualified witness. Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979). A.R.E. Rule 803(6) further provides that business records will not be admitted '‘if the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”

Harriet Behr, chief of the medical information section at the VA Hospital, testified that she was the custodian of the VA Hospital’s medical records and that she brought with her to the courtroom a certified copy of appellant’s medical history. She testified that reports such as appellant’s medical history are kept as part of the hospital’s regularly conducted business activity. Appellant’s challenge to Ms. Behr’s testimony arises from her unfamiliarity with the specific procedure for obtaining the medical history of a hospital patient. However, Ms. Behr did testify that after a patient has been admitted to the hospital, reports such as the one in question are prepared, compiled in a file of the patient’s medical records, and kept under her care and control.

Mary Ann Parsley, acting chief of nursing at the VA Hospital and an employee there since 1970, testified that the standard procedure for obtaining the information in appellant’s medical history is through both patient interview and physical examination depending on the particular question involved. She stated that the information relating to venereal disease is gained by interview, or patient response to questioning by a physician or nurse, rather than by diagnosis from a physical examination. As to the absence of appellant’s signature on the record, Ms. Parsley testified that, when this particular record was taken in 1983, it was not the standard procedure of the VA Hospital to have the patient sign the record.

We agree with the state’s contention that the custodian of a business record need not explain the specific record-keeping procedures in question. In Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark. App. 169, 705 S.W.2d 897 (1986), the court of appeals relied on United States v. Henneberry, 719 F.2d 941 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984), and rejected the appellant’s claim that the witness was not qualified to lay the foundation for the evidence because he could not of his own personal knowledge vouch for the record or the manner in which it was obtained. The Wildwood court concluded that the personal knowledge of the sponsoring witness regarding preparation of the business record goes to the weight rather than the admissibility of the evidence. We agree with this reasoning.

Ms. Parsley’s testimony that the information in question is gained through an interview process where a nurse or physician asks the questions of the patient and records the patient’s answer on the document satisfies the requirement that the record be made at or near the time the act occurred. The record is made as the questions are asked of the patient. That is all that is necessary under Rule 803 (6). Sec Wildwood, 17 Ark. App. at 171, 705 S.W.2d at 899. Furthermore, the record in question here was not prepared in anticipation of the trial or for a specific purpose, therefore the trial court did not abuse its discretion in admitting the record of appellant’s medical history under the business records exception because of the date the medical history was taken. See Parker v. State, 270 Ark. 897, 606 S.W.2d 746 (1980).

We hold that the business records exception does not mandate that the custodian be able to explain the specific record-keeping procedures in question. The testimonies of the two hospital employees satisfy the foundation requirements of A.R.E. Rule 803(6) and do not indicate the record was made at any time other than that which is required or that the source of the record lacks trustworthiness. There was no abuse of discretion in admitting the business record as an exception to the hearsay rule.

Appellant’s second point is that the trial court erred in admitting the hospital record as extrinsic evidence of a prior inconsistent statement without giving appellant the opportunity to explain or deny the statement as required by A.R.E. Rule 613(b). The state does not respond to this argument directly. Rather, the state defends the admissibility of the medical history as a proper impeachment by contradiction.

Although appellant raised approximately twelve objections to the admission of the medical history, including an objection on the basis that he was not shown the prior statement as required by A.R.E. Rule 613(a), he did not make the specific objection relating to the lack of opportunity to explain or deny the prior inconsistent statement as required by A.R.E. Rule 613(b) that he now makes on appeal. We have consistently held that in order to preserve an issue for appellate review, the objection below must be specific enough to apprise the trial court of the particular error about which appellant complains. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Our review of the abstract reveals appellant raises his second point of error for the first time on appeal, therefore, we will not address it. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).

Appellant’s final argument is that, based on A.R.E. Rule 403, admission of the challenged evidence was error because any probative value it may have had was substantially outweighed by the danger of unfair prejudice. He argues that because the two girls had gonorrhea, the admission of the medical history indicating appellant had a venereal disease was highly prejudicial and suggested conviction on an improper basis.

Although one of appellant’s approximate twelve objections to the admission of the hospital record mentioned the word “prejudicial,” we do not find a ruling by the trial court on the prejudice objection. Appellant did not renew the prejudice objection once the final ruling of admissibility was made. It was appellant’s burden to obtain a ruling from the trial court on the prejudice objection. Without a ruling on such an issue, we have nothing to review on appeal. Appellant’s failure to obtain a ruling is fatal. Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991).

Affirmed.


author: Robert L. Brown, Justice.

text:
    STATE of Arkansas v. J.B.
    91-309
    827 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered March 31, 1992

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

      Gibson & Deen, by: Thomas D. Deen, for appellee.
   Robert L. Brown, Justice.

The State appeals a dismissal of a first offense DWI charge relating to the appellee, J.B., and asserts error because the juvenile court lacked subject matter jurisdiction to dismiss the charge on speedy trial grounds. We agree with the State and certify that the dismissal was error under Ark. R. Crim. P. 36.10. We deny the State’s collateral request that the case be transferred from juvenile court to municipal court.

The facts are these. On December 17, 1989, J.B. was ticketed for driving while intoxicated and for his involvement in a traffic accident. J.B. at the time was seventeen. On March 22, 1990, he moved to transfer the case from the Lake Village Municipal Court to the juvenile division of Chicot County Chancery court. The motion was granted without objection from the state. The case then languished in juvenile court until June 6, 1991, when J.B. moved to dismiss the charge based on a denial of his speedy trial rights under Ark. R. Crim. P. 28.1. The State countered that the period between March 22, 1990, when J.B.’s case was transferred to juvenile court, and June 6,1991, when the motion to dismiss was made, was excludable under Ark. R. Crim. P. 28.3 due to lack of jurisdiction in juvenile court.

On August 7,1991, the trial court denied the State’s transfer motion and dismissed the charge for failure to provide a speedy trial with an absolute bar to further prosecution. The State now requests that this court void the dismissal due to lack of jurisdiction in the juvenile court and remand with directions to transfer to municipal court.

This case turns on the jurisdictional point, which is whether the juvenile court has jurisdiction to hear DWI cases. The answer to that question is clear. The Juvenile Code defines a delinquent juvenile as “any juvenile ten (10) years or older who has committed an act other than a traffic offense or game and fish violation which, if such act had been committed by an adult, would subject such adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state.” Ark. Code Ann. § 9-27-303(11) (Sup. 1989). There is no doubt that DWI is a traffic offense with jurisdiction resting in municipal court rather than juvenile court. See Robinson v. Satterfield, 302 Ark. 7, 786 S.W.2d 572 (1990).

Accordingly, the State is correct that the juvenile court was devoid of subject matter jurisdiction over this case. This is so even though the state tacitly assented to the transfer to juvenile court, since subject matter jurisdiction cannot be conferred by consent of the parties. See Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987); Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984). The State is further correct that actions taken by a court without jurisdiction are null and void. See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); Bailey v. State, 284 Ark. 379, 682 S.W.2d 734, cert. denied, 474 U.S. 866 (1985).

J.B. makes the argument that the State should not be permitted to sit idly by and assent to a transfer of jurisdiction to a court that has no authority to act and then take advantage of that situation by arguing that the absence of jurisdiction renders the period of time in that court excludable for speedy trial purposes. The argument may have some merit. Suffice it to say, however, that we do not reach the speedy trial issue because it is not appropriately before us from a court of competent jurisdiction.

We further decline to transfer the case to municipal court, as the state requests. Certain transfers between courts on jurisdictional grounds are authorized by statute. For example, transfers between courts of law and equity are specifically authorized by statute and by rule when appropriate grounds exist. See Ark. Code Ann. § 16-13-401 (1987); Ark. R. Civ. P. 18(b).There is no statutory authority for a transfer from juvenile court to municipal court. Remand of this case to juvenile court with directions to transfer to municipal court would be a futile act, since the juvenile court is without authority to taken any action in this case.

We hold, therefore, that the juvenile court has no authority to act in this case and that the court’s order is void due to lack of subject matter jurisdiction. Because the juvenile court has no jurisdiction, and because there is no statutory authority for the transfer requested, we deny the State’s request for a remand and transfer.

Error Certified.


text:
    Eddie Linn SWAFFAR, Jr., and Billy Gracen Swaffar v. W.C. SWAFFAR, et al.
    91-208
    827 S.W.2d 140
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      J.R. Nash, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, for appellee.
   Robert L. Brown, Justice.

The appellants, Eddie Linn Swaffar, Jr., and Billy Gracen Swaffar, appeal from an order of the probate court finding that Billy Swaffar, who was also known as Billy McKim, was not a legally adopted son of the decedent, Eddie Linn Swaffar, Sr., and, therefore, not a pretermitted heir under the decedent’s will. The issue on appeal is whether Billy Swaffar was legally adopted in 1977 under Act 369 of 1947, which was codified at that time as Ark. Stat. Ann. § 56-101, et seq. (Repl. 1971). We agree with the probate court that he was not legally adopted, and we affirm.

The appellant was born on October 1,1961, and named Billy Gracen McKim. His mother, Peggy McKim, married the decedent, Eddie Linn Swaffar, Sr., on March 23,1964, and they lived in Faulkner County. Later, appellant Eddie Linn Swaffar, Jr., was born of this union. The marriage lasted fourteen years and was punctuated by many separations.

On March 1,1977, the decedent and his wife, Peggy, filed a petition in Faulkner County Probate Court for the adoption of “Billy Gracen McKim, Jr.,” by the decedent. On the same date, a hearing was held at which time the decedent expressed his desire to adopt “Billy McKim.” the appellant was not present. The court inquired, “Do you have the consent of this young man? He’s sixteen.” The decedent’s attorney replied, “Eddie is the only father he’s ever known. He’s agreeable.” The judge then requested an order, which the decedent’s attorney prepared. The interlocutory order of adoption was entered on March 8, 1977.

Before the six-month period expired, Eddie Linn Swaffar, Sr., and his wife separated, and she moved to Saline County with Billy Swaffar. On August 1, 1977, Peggy Swaffar filed a complaint for divorce in Saline County Chancery Court in which she alleged that only one minor child, Eddie Linn Swaffar, Jr., had been born of the marriage. No mention was made of Billy Swaffar in the complaint. The divorce suit culminated, after a three-year separation, in a divorce decree that awarded Peggy Swaffar forty dollars a week for the support of the minor child, Eddie Linn Swaffar, Jr. Again, no mention was made of Billy Swaffar.

On February 17,1989, the decedent executed his will, which placed all assets of his estate in a trust for the benefit of Eddie Linn Swaffar, Jr. and Brandon Heath Swaffar, who had been fathered by the decedent and born out of wedlock. No provision was made for Billy Swaffar, who was not named in the will. W.C. Swaffar was named the executor.

Eddie Linn Swaffar, Sr., died on April 8,1989. On April 12, 1989, appellee W.C. Swaffar, the named executor, filed a petition for probate and appointment of personal representative in the Faulkner County Probate Court. When he learned that he was not mentioned in the will, appellant Billy Swaffar filed petitions to take against the will on grounds that he was pretermitted and, in addition, to contest the will due to undue influence practiced against the decedent by his brother, W.C. Swaffar.

On November 27, 1990, the probate court began a hearing on the petitions, at which time Billy Swaffar made the following statements:

No, there ain’t a handful of people that know me as McKim; just legal documents or, you know, places of employment where I — you know, I though I was supposed to use McKim. I never knew that I was legally adopted.
. . .You know, I knew that the process was goin’ through when we left that last time, but, you know, nobody ever told me that it legally went through or, you know, you’re legally a Swaffar or nothin’ like that, or Fd used the name Swaffar, I’d’a never changed it. When I got married, my wife thought that she was marrying Billy Swaffar. . . . Guarantee it.

When asked how he explained to his wife the name “McKim” on their marriage license, the appellant responded:

Well, I just, you know, told her — I said, “You know, Fve never been legally adopted, that I know of, and to make things legal, I have to change my name back to McKim.”

The appellant’s attorney asked him whether he had signed anything at the time of the adoption proceeding, and he replied:

Well, I don’t really know what I signed. I signed a form, one day, before I went to school, on the kitchen table, and they was talking about, you know, after we get — after you sign this, then we’ll go in front of the Judge, and then you will be legally Ed’s son.

Acknowledging that he never questioned anyone any further about the document, the appellant explained: “No, I didn’t really assume that I was adopted.” Billy Swaffar also confirmed that his mother was under the impression that he had not been legally adopted by the decedent. He then engaged in this colloquy:

Q. When was the first time you ever thought about the possibility that you were legally adopted?
A. After I heard the will. I knew something had to be done, so I went to backtracking.

The appellant testified that he never had asked an attorney to change his name legally to “Swaffar.” During his school years in the Conway school district before the divorce, he went by Billy Swaffar. He had two Social Security cards issued in the Swaffar name and the McKim name. The record also reveals that he was enrolled for the 1978-79 school year in the Bryant school district under the name of “Billy McKim.” As part of discovery and at trial, it was further revealed that his joint checking account with his wife bears the name McKim. He entered vocational-technical school under “Billy McKim,” and his GED certificate and marriage license show him as “Billy McKim.” He is listed in the telephone directory as “Billy McKim,” and his wife and daughter go by the name McKim.

The probate court found in its memorandum opinion dated December 14,1990, that Billy Swaffar “did not change his birth certificate or use the name of Swaffar until after the decedent’s death and it began to appear that it would be profitable to do so.” The birth certificate is dated September 26, 1989. The court further found standing on the executor’s part to defend against Billy Swaffar’s petitions on grounds that he was not the lawfully adopted child of the decedent.

The appellants first argue on appeal that the appellee, as executor, had not standing to challenge Billy Swaffar’s adoption. The appellants, however, are misguided on this issue. The appellee objected to Swaffar’s status as a pretermitted heir on grounds that he was not legally adopted. In doing so, the executor was operating well within his authority to contest the pretermitted status of a petitioner who did not qualify. Indeed, he was obligated to do so as the representative of those provided for in the will. See Clifton v. Guest, 216 Ark. 352, 226 S.W.2d 61 (1950). In short, the appellee had standing to challenge Billy Swaffar’s adoptive status in his capacity as executor, which was a challenge he was required to make to protect the decedent’s distributees mentioned in his will.

The crux of this case is whether the appellant, Billy Swaffar, was legally adopted in the proceedings that took place in March 1977. This court has previously described the powers and jurisdiction of the probate courts that emanated from statutory law:

The probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers (as) are conferred by the constitution or by statute, or necessarily incident to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810. There is no mention of adoption, child custody or visitation rights in the Arkansas Constitution. Jurisdiction of adoption proceedings has been vested in the probate court by statute. Adoption proceedings were unknown to the common law, so they are governed entirely by statute.

Poe v. Case, 263 Ark. 488, 565 S.W.2d 612, 613 (1978). Because they are in derogation of common law, adoption statutes are strictly construed and applied. Norris v. Dunn, 184 Ark. 511, 43 S.W.2d 77 (1931); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980).

The parties agreed at oral argument that the governing statute in effect when the order for temporary adoption was entered was section 8 of Act 369 of 1947, then codified as Ark. Stat. Ann. § 56-107 (Repl. 1971). Section 8 read at that time as follows:

In no case need a child be named as a defendant, nor a guardian ad litem appointed to defend him; but if such child is fourteen [ 14] years old or more when the petition is filed, the adoption shall not be made without his verified consent in writing. The consent of children less than fourteen [14] years of age shall not be necessary.

Billy Swaffar was fifteen at the time of the petition and his verified consent in writing was required under Act 369. There is no proof of record that this consent was ever given. Certainly it was not filed with the petition. And no reference was made to a “verified consent” by the fifteen year old to be adopted in the probate court’s interlocutory order. All that suggests even the remote possibility of such a document is the appellant’s testimony that one day he signed some form he could not identify at the kitchen table before he went to school. That hardly qualifies as a verified consent of record.

The probate court found in its Memorandum Opinion that the file did not contain a written consent from from the appellant and that the adoption statutes must be strictly construed. Though the appellants urge that section 9 of Act 369 of 1947, then codified as Ark. Stat. Ann. § 56-108(b) (Repl. 1971), permits the probate court to dispense with consent, that section only specifies that the court may dispense with consent “as provided in sections 8 and 9.” Section 8 authorizes it only when the child is less than age fourteen.

The issue then becomes what was the effect of Billy Swaffar’s failure to consent. We have held that the jurisdiction of the probate court to order an adoption depends on strict statutory compliance, including the consent of the person legally authorized to represent the minor. Norris v. Dunn, supra. Failure to comply strictly with the Adoption Code denies the probate court jurisdiction. Id; see also, Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930); Morris v. Dooley, 59 Ark. 483, 28 S.W. 30, 430 (1894); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). We have further held that unless all jurisdictional requirements appear in the record, the resulting decree will be void upon collateral attack. Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946).

The absence of Billy Swaffar’s consent is not a mere technicality but rather it goes to the heart of the adoption process in that public policy clearly favors the consent of the person to be adopted. Surely, Billy Swaffar at age fifteen had a legitimate say in whether he wished to be adopted by the decedent. Yet, his consent in writing was not obtained. Nor was he present at the hearing on the adoption petition on March 1, 1977, to voice his opinion. And no mention was made of his consent in the interlocutory order. Can the probate court decide his fate under such circumstances? We do not think so.

We are aware of the argument that any decree of a probate court regarding adoptions should be presumed valid and in compliance with all statutory requirements. The most impassioned advocate of this petition was Justice Frank Smith in his dissent in Minetree v. Minetree, supra, But, again, the consent of the one to be adopted, as required, by statute, must not be presumed. There is no reference in the order to Billy Swaffar’s consent, and no written evidence of record that it was obtained. Because of this, jurisdiction in the probate court was lacking, and the adoption order was void.

Affirmed.

       Actually, Billy McKim was fifteen years old at the time.

       The probate court erroneously found that Act 735 of 1977, now codified as Ark. Code Ann. § 9-9-206(5) (1987), was controlling. Act 735, however, was not enacted until sixteen days after the order for temporary adoption was entered. The parties agree that Act 369 of 1947 controls the consent question.