text:
    REGIONS BANK & TRUST v. STONE COUNTY SKILLED NURSING FACILITY, INC.
    01-312
    49 S.W.3d 107
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Sandy McMath, for appellant.

      David A. Littleton and Mariam T. Hopkins, for appellee.
   Jim Hannah, Justice.

This case arises from the sexual assault of a semi-comatose quadriplegic nursing home patient, Vicki Elder, by certified nursing assistant Bill McConnaughey. Appellant Regions Bank, the personal representative of Vicki Elder, argues that the trial court erred in granting summary judgment. The complaint alleges claims of negligence in failing to provide Elder the care and attention reasonably required by her condition, negligence based upon respondeat superior, and negligence in supervision of McConnaughey as an employee. Regions argues there are genuine issues of material fact.

The court of appeals, in a 4-2 decision, held that the sexual assault was not committed in the course and scope of employment and, thus, could not give rise to liability based upon respondeat superior. The court of appeals was unanimous in holding that there was a question of fact under negligent supervision as to whether Stone County Skilled Nursing Facility was negligent in permitting unaccompanied access to helpless female patients by male aides who had little or no previous health care experience.

We hold that there is a question of fact as to the issue of negligent patient care regarding whether there was a breach of the duty to use ordinary care in furnishing Elder the care and attention reasonably required by her condition. Stone County Skilled Nursing Facility had assumed responsibility for virtually every aspect of Elder’s well being and was under a duty to use ordinary care to protect her from foreseeable harm. We affirm the trial court on the issues of respondeat superior and negligent supervision of an employee. However, we find that there is a genuine question of material fact on the issue of negligent patient care, the duty to provide the care and attention reasonably required by her condition. This case is affirmed in part, and reversed and remanded in part.

Facts

On November 3, 1996, Elder was a semi-comatose quadriplegic patient at Stone County Skilled Nursing Facility. Her communication was limited to smiling and communicating with her eyes. On this same date, Marlie O’Dell Foster and Bill McConnaughey were certified nursing assistants (CNA’s) working as a team in cleaning and turning patients. They had just completed cleaning and turning Elder, and had placed her on her right side, when another CNA came into the room and asked Foster to assist her in placing a patient in a whirlpool bath.

Foster left McConnaughey in the room with Elder. Their care for her at that time was virtually finished when Foster left. All that had to be done was to pull down her gown and pick up the dirty linen. However, Foster returned to Elder’s room a short time later and discovered McConnaughey sexually assaulting Elder. Foster indicated that Elder had been moved by McConnaughey after she left the room. Elder was repositioned on her back with her legs spread to facilitate McConnaughey’s sexual assault on her with his hand. Foster testified in deposition that she was so taken aback by what she was seeing that she just stood there for some time observing the act. In her deposition, she described the act in graphic detail that leaves no doubt as to what was occurring.

When McConnaughey realized he had been caught, he flushed red and pulled down Elder’s gown. Foster did not confront McConnaughey, but rather first spoke with a fellow CNA who counseled Foster to wait and see if it happened again. However, Foster instead went to the charge nurse, Becky Diaz, and reported what she had seen. Diaz told Foster she would report it to Kathy Baldwin, the director of nursing. However, Baldwin was off that day and Diaz was unable to contact her or the administrator, Vicki Sandage. Diaz did check Elder that evening and found that she was resting peacefully and showed no signs of bruising or injury. Diaz reported the assault to Sandage the next day, twenty-two hours after the assault. Sandage then reported the assault to Elder’s father, Elder’s doctor, and to the police. McConnaughey was suspended.

Prior to these events, McConnaughey originally began work at Stone County Skilled Nursing Facility in housekeeping. He was hired based upon an interview and a recommendation from a local plumber. After two months, he transferred to a CNA’s position. This transfer required McConnaughey to undergo a seventy-two-hour CNA’s course. The first sixteen hours were spent in a classroom, and the remaining hours were spent under instruction while working with patients. Prior to hiring McConnaughey, Stone County Skilled Nursing Facility checked the DNA registry and the abuse hodine. These calls did not reveal any previous problems with McConnaughey.

McConnaughey had been a CNA for about, a month when the assault occurred. Fie had completed a six-and-one-half-page, single-spaced checklist of skills, all showing completion and approval by the same nurse on the same day.

It appears McConnaughey had done well in housekeeping and, until this assault, had done well in nursing, so far as his superiors were aware. They testified in deposition that nothing in his interview, conduct at work, or anything done in his duties caused them concern that he might commit such an assault as this. There was no evidence to put Stone County Skilled Nursing Facility on notice that McConnaughey posed a danger of committing a sexual assault on a patient.

Standard of Review

As we have often stated, summary judgment is to be granted by a trial court if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56; Estate of Donley v. Pace Indus., 336 Ark. 101, 984 S.W.2d 421 (1999); Mashburn v. Meeker Sharkey Financial Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999). Once the moving party establishes a prima facie entidement to summary judgment by affidavits or other supporting documents or depositions, the motion’s opponent cannot rely on a bare denial or contrary allegation but must meet proof with proof and demonstrate the existence of a material issue of fact. Flentje v. First National Bank Of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Rankin v. City, 337 Ark. 599, 990 S.W.2d 535 (1999); George v. Jefferson Hospital Assoc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001).

This case came to us when we granted appellant’s petition for review pursuant to Ark. Sup. Ct. R. 1 — 2(e) (iii). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d 98 (1999); Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).

Causes of Action at Issue

The complaint does not specifically set out the causes of action. Some confusion also arises because Regions chose to use the term ‘negligent supervision’ to refer to both negligent supervision of McConnaughey as an employee and to negligent supervision of Elder’s care as an infirm and helpless patient. However, the complaint contains three basic allegations: that the sexual assault was committed in the course and scope of employment and Stone County Skilled Nursing Facility was thus liable under respondeat superior; that Stone County Skilled Nursing Facility negligently supervised employee McConnaughey; and that Stone County Skilled Nursing Facility failed to provide the proper staffing and staffing policies necessary for the required treatment, attention, and medical services needed by patients. This included an allegation of a failure to properly provide for the protection of patients from criminal assault.

The argument made by Regions to the trial court in opposition to the motion for summary judgment bears out the conclusion that the three claims were at issue in the motion for summary judgment. Although respondeat superior and negligent supervision are discussed in greatest detail, the allegation of the failure to properly provide for patient safety was at issue. At the hearing before the trial court on the motion for summary judgment, counsel for Regions argued, “All of the foregoing provide strong circumstantial evidence which would lead the trier of fact to conclude that there was faulty patient-safety supervision in a facility charged with the custodial care of disabled and infirm patients, some of them, such as plaintiffs deceased, who were totally helpless.” The same argument is found in Region’s brief in opposition to the motion for summary judgment. A review of the trial court’s order reveals that the trial court ruled on all three claims. In the order, the trial court granted summary judgment on the issues of respondeat superior and negligent supervision of an employee and then stated, “The Arkansas Supreme Court has not had occasion to expand the negligent supervision cause of action to include the elements argued by the plaintiff in its memorandum brief.” Clearly the trial court, in granting the motion for summary judgment, was including the negligent patient-care claim.

The wording of the order might give rise to a concern that this court is considering a claim not decided by the trial court. It is incumbent on the appellant to bring to the trial court’s attention the fact that the court has failed to decide a specific claim raised by the appellant. See Oglesby v. Baptist Med. Sys., 319 Ark. 280, 891 S.W.2d 48 (1995). Here, however, the circumstances are different from Oglesby. In Oglesby, the trial court failed to address a separate battery claim in any form or fashion, and the plaintiff/ appellant asked this court to remand that claim for a decision by the trial court. We refused because that party had not brought the battery claim to the trial court’s attention. In the case before us, the trial court did grant summary judgment as to the negligent patient-care claim. Here the scope of the cause of action pled was misconstrued by the trial court, which is different from a trial court’s failure to consider a claim for relief altogether. Admittedly, part of the confusion resulted from the fact that Regions also couched its cause of action in terms of negligent supervision. We do not consider the Oglesby decision to be controlling. We now consider all three causes of action and whether a material question of fact exists.

Negligent Patient Care

Elder was a helpless, semi-comatose quadriplegic. Stone County Skilled Nursing Facility assumed responsibility for her care and required payment therefor. They were therefore under a duty of ordinary care to provide such attention as her condition reasonably required. Dollins v. Hartford Acc. & Ind. Co., 252 Ark. 13, 477 S.W.2d 179 (1972). Given Elder’s total inability to take care of herself, Stone County Skilled Nursing Facility was responsible for every aspect of her well being. Niece v. Elmview Group Home, 131 Wash.2d 39, 929 P2d 420 (1997). This duty should not be confused with that of negligent supervision of employees. The Supreme Court of the State of Washington has done an admirable job discussing and distinguishing these two causes of action in Niece. The Washington Supreme Court there explained:

This argument is based on an incorrect understanding of the duty that gives rise to a cause of action for negligent supervision of employees. The theory of liability for negligent supervision is based upon the special relationship between employer and employee, not the relationship between group home and resident. [Footnote omitted]. Cases like Thompson [v. Everett Clinic, 71 Wash. App. 548, 860 P.2d 1054 (1993),] and Peck [v. Siau, 65 Wash. App. 285, 827 P.2d 1108 (1992)], which define the scope of an employer’s duty to control its employees for the protection of third parties, do not inform the scope of the duty of care owed by Elmview to Niece by virtue of Elmview’s special relationship to her. While an employer generally does not have a duty to guard against the possibility that one of its employees may be an undiscovered sexual predator, a group home for developmentally disabled persons has a duty to protect residents from such predators regardless of whether those predators are strangers, visitors, other residents, or employees.

Niece, 131 Wash.2d at 49, 929 P.2d at 426. The court continued:

Elmview’s duty to protect Niece from all foreseeable harms, including the harm of sexual assault by staff, is much broader than its duty as an employer to control its employees. The same evidence that would establish Elmview’s negligence under a broad theory of negligent supervision will also establish its negligence in failing to protect Niece from all foreseeable harms. Niece’s cause of action for negligent supervision thus collapses into her negligence claim based on Elmview’s breach of its special relationship duty of care. We therefore find it unnecessary to determine whether Niece has presented a factually sufficient claim for negligent supervision.

Niece, 131 Wash. 2d at 52, 929 P.2d at 428.

We hold that Stone County Skilled Nursing Facility bore a duty of ordinary care to furnish Elder the care and attention reasonably required by her condition. See Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), (involving an alleged failure to provide the care and attention reasonably required by the condition of an eighty-nine-year-old resident of a nursing home who left the home unnoticed in his wheel chair and was subsequently struck by a pick-up truck and killed instantly). Such a duty has been established in earlier cases. In Dollins, supra, the issue was whether there was neglect that resulted in injury from a fall where the patient was known to be “confused” and was found on the floor at the foot of the bed. This court stated that it was “the duty of the hospital to see that the patient had such attention as her condition apparently made necessary.” Dollins, 252 Ark. at 18. The care required was “that proportionate to the danger apprehended, judged by the condition of affairs before the accident occurred.” Dollins, 252 Ark. at-18. In Durfee c. Dorr, 123 Ark. 542, 186 S.W. 62 (1916), this court stated that Durfee, as a patient of a hospital, was owed a duty of reasonable care and attention given the necessities of his case. Mr. Durfee was left alone in the room by himself while in “a feverish, nervous, delirious, or unconscious condition.” While in that condition he walked out an upstairs door and fell over a bannister. He died of the injuries. In short, a hospital or, in this case, a nursing home, is required to consider the patient’s capacity to care for himself or herself and to protect the patient from dangers created by his or her weakened condition. Providing a safe environment for patients is within the scope of the professional services of a hospital or nursing home. Sexton v. St. Paul Fire & Marine Ins. Co. 275 Ark. 361, 631 S.W.2d 270 (1982).

Elder could not speak or call out if in need. She was wholly at the mercy of those who saw after her at Stone County Skilled Nursing Facility. If anyone entered her room, there was nothing she could do. As events of recent years have sadly shown, nursing-home residents and hospital patients have been the victims of assault not only by employees but also by others, even persons wandering in off the street. The natural and probable consequence of fading to provide a reasonably safe nursing home or hospital is injury or assault. There is a question of fact on whether the duty of care was breached and an issue of foreseeability to be considered by the trier of fact. Proximate cause is usually a question for the jury. When the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

The alleged breach of duty in this case was discussed by Regions’ expert Pamela Taylor Smith, who opined in an affidavit attached to the opposition to the motion for summary judgment. Smith stated:

It is my opinion that the Stone County Nursing Center was negligent in the care it provided to Ms. Vicki Elder by a policy which permitted unaccompanied access to helpless female patients, such as herself, by male aides with little or no previous health care experience. This policy was not in keeping with accepted nursing practice. Further, and also contrary to accepted nursing practice, the facility failed to supervise its aides, particularly those such as Mr. McConnaughey, who had not been on the job long enough to establish a record of patient care and dependability.

Smith opined that Stone County Skilled Nursing Facility failed to provide Elder the appropriate protection given her condition. Other facts developed in this case show that access to Elder may not have been appropriately controlled and that this posed a danger to her safety. There is evidence that might support a claim that Stone County Skilled Nursing Facility failed to furnish Elder the care and attention reasonably required by her mental and physical condition. In short, in considering the pleadings and evidence, there is a genuine question of material fact as to whether there was a breach of the duty to use ordinary care in furnishing Elder the care and attention reasonably required by her condition. Bailey, supra. See also, Sexton, supra; Dollins, supra; Durfee, supra; Niece, supra. In the case before us, the trial judge failed to appreciate Region’s claim for negligent patient care. The grant of summary judgment is reversed as to this cause of action.

Respondeat superior

The assault was a criminal act undertaken for McConnaughey’s own personal interest. The act itself is evidence it was undertaken for sexual gratification. Farmer v. State, 341 Ark. 220, 15 S.W.3d 674 (2000). The act likely gave rise to liability for rape under Ark. Code Ann. § 5-14-103 (Repl. 1997). Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996). That the assault was undertaken for his own purposes is also made clear by the acts committed by McConnaughey just prior to the assault, which were wholly unrelated to his duties to clean and care for Elder. He and Foster had already cleaned, turned, and placed Elder on her right side. She was positioned in the manner in which they intended to leave her. The only thing left for McConnaughey to do was to pull down Elder’s gown and pick up the dirty linen. When Foster returned, however, she found Elder moved and repositioned on her back, her legs spread, so as to facilitate the sexual assault. This criminal assault did not occur incident to McConnaughey’s employment duties. His act of moving her and assaulting her might have been undertaken by anyone, even a visitor to the home, a delivery person, or a stranger off the street.

In Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997), this court discussed respondeat superior in the context of a sexual assault of a conscious patient during the course of a gallbladder ultrasound. The court found that in such a case we would adhere to the theory of master-servant liability that we have followed since 1910, that an act of an employee, in order to render the employer liable, must pertain to something that is incident to the employee’s duties and which it is his duty to perform or for the benefit of the employer, citing Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S.W. 439 (1910). The court also cited Gordon v. Planters & Merchants Bankshares, 326 Ark. 1046, 935 S.W.2d 544 (1996) and Life & Cas. Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966), wherein we stated:

We think the law as it stands today is fairly summarized in the Restatement of Torts, where it is said that the master is subject to liability for his servant’s intentional tort “if the act was not unexpectable in view of the duties of the servant.” Restatement, Torts (2d), 245 (1958).

Whether the employee’s action is within the scope of the employment depends on whether the individual is carrying out the “object and purpose of the enterprise,” as opposed to acting exclusively in his own interest. Gordon, supra.

Applying these principles to the facts before us, we agree with the trial court that McConnaughey’s sexual assault of Elder was unexpectable. As in Porter, McConnaughey was not, by any stretch of the imagination, acting within the scope of his duties as a CNA when he assaulted Elder. Rather, McConnaughey’s actions were purely personal. Because McConnaughey’s actions were not expectable in view of his duties as a CNA, Stone County Skilled Nursing Facility may not be held liable for the sexual assault and was thus entitled to summary judgment as a matter of law. Porter, supra. See also, Padgett, supra.

Negligent Supervision

Regions argues that the trial court was in error in granting the motion for summary judgment as to negligent supervision in allowing newly hired male aides unaccompanied access to immobile, semi-comatose female patients.

Negligent supervision of employees has been discussed in Arkansas. Foreseeability of the act committed is an element of the tort in this state. In American Automobile Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987), this court stated that an employer who hires two ex-convicts, one of whom is normally drinking, and entrusts to them the job of forcibly ejecting patrons, has a duty to exercise reasonable care to avoid harm to those patrons by exercising supervisory care when the employer knows, or by the exercising of reasonable diligence ought to know, that such employees are about to forcibly eject a patron. Thus, there is a duty of reasonable care in supervision of employees. A foreseeable consequence of using inebriated ex-convict bouncers is that they might use too much force in carrying out their duties in ejecting patrons from a bar. See also, Life & Cas. Ins. Co. of Tenn. v. Padgett, supra (wherein a dispute was not unexpectable where there was an employment duty to collect money).

Decisions from other jurisdictions are helpful in understanding negligent supervision of employees. Negligent supervision of employees creates a limited duty to control an employee for the protection of third parties even where the employee is acting outside the scope of employment. Niece v. Elmview Group Home, supra. See also, Trahan-Laroche v. Lockheed Sanders, Inc., 139 N.H. 483, 657 A.2d 417 (1995). However, an employer is not liable for negligently supervising an employee whose conduct is outside the scope of the employment unless the employer knew or, in the exercise of reasonable care, should have known that the employee presented a risk of danger to others. Thompson v. The Everett Clinic, 71 Wash. App. 548, 860 P.2d 1054 (1993). The Georgia Court of Appeals stated that to create an issue of fact on a claim of negligent supervision, the plaintiff must come forward with evidence that the employer knew or should have known of the employee’s violent or criminal propensities. Heard v. Mitchell’s Formal Wear, Inc., 2001 WL 468776 (Ga. App. 2001). Our own court of appeals has also found that to recover under a theory of negligent supervision, a plaintiff must show that an employer knew or, through the exercise of ordinary care, should have known that its employee’s conduct would subject third parties to an unreasonable risk of harm. Sparks Reg. Med. Ctr. v. Smith, 63 Ark. App. 131, 976 S.W.2d 396 (1998). This is required because foreseeability must be established. Tistworth, supra; Padgett, supra; N.X. v. Cabrini Medical Center, 719 N.Y.S.2d 60 (2001). The court in N.X. stated that “the failure to establish this element renders the tortious conduct unforeseeable as a matter of law.” N.X., 719 N.Y.S.2d at 66. Foreseeability is required. In Arkansas, negligence is the proximate cause of an injury only if the injury is the natural and probable consequence of the negligent act and ought to have been foreseen in the light of attending circumstances. Lindle Shows v. Shibley, 249 Ark. 671, 460 S.W.2d 779 (1970). Foreseeability is an element of a negligence cause of action in Arkansas. Benson v. Shuler Drilling Co., 316 Ark. 101, 871 S.W.2d 552 (1994).

To find a cause of action under negligent supervision of an employee, one must find that the natural and probable consequence of negligent supervision in allowing a newly hired and untried nurse’s aide to care for an immobile, semi-comatose female patient is sexual abuse by that nurse’s aide. As discussed, absent some form of notice that the employee posed a danger, such an act is not foreseeable. Here, there was no indication of a prior criminal record or patient abuse. There was nothing to put Stone County Skilled Nursing Facility on notice that McConnaughey might do such a thing as sexually assault a patient. The fact that McConnaughey was an inexperienced CNA does not give rise to a reasonable probability that he would commit criminal sexual assault. On this basis, it was not foreseeable that McConnaughey would commit criminal sexual assault.

In coming to the conclusion that there is no liability under the claim for negligent supervision of an employee, it should be noted that the cause of action is not as broad as one under the duty to protect Elder from foreseeable harm. Niece, supra. Stone County Skilled Nursing Facility was under a duty to protect Elder from foreseeable harm, including the harm of sexual assault. Thereunder, an assault might give rise to liability whether the assault was committed by an employee, a visitor, or by someone coming in off the street. Niece, supra.

We find on the issue of negligent supervision of McConnaughey as an employee that because there was no notice in this case, the trial court’s decision on this issue is affirmed.

Affirmed in part, and reversed and remanded in part.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Gyronne BUCKLEY v. STATE of Arkansas
    CR 01-644
    48 S.W.3d 534
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Jack Lassiter, for appellant.

      Appellant, pro se.

    No response.
   Per Curiam.

Appellant, Gyronne Buckley, was convicted of two counts of delivery of a controlled substance in Clark County Circuit Court on May 26, 1999. Appellant received two life sentences in that trial. His sentences were reversed by this court in Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000), and we remanded the case for resentencing. Upon remand, appellant was resentenced by a jury to twenty-eight years on each count to run consecutively. On April 16, 2001, the trial court filed its order, and a notice of appeal was timely filed on April 20, 2001.

On June 7, 2001, appellant’s counsel filed a motion to withdraw as attorney of record and lodged a partial record. In his motion, appellant’s counsel states that he seeks permission to be relieved as attorney of record in this case, as appellant and his counsel have reached irreconcilable differences concerning the sentencing stage of his trial. On June 19, 2001, and on June 21, 2001, appellant filed pro se responses to his counsel’s motion to withdraw as attorney of record. On June 29, 2001, appellant’s counsel filed a supplement to his motion.

Rule 16 of the Rules of Appellate Procedure — Criminal provides in pertinent part that trial counsel, whether retained or court-appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. Counsel filed a notice of appeal from the April 16, 2001, order and was thus obligated to represent appellate until such time as he was permitted by the appellate court to withdraw, pursuant to Ark. Sup. Ct. R. 4-3(j)(1). Under Rule 4-3(j)(1), counsel for a defendant who wishes to withdraw from an appeal must abstract and brief all of the rulings that were adverse to his client.

If appellant’s counsel intended to withdraw, he should have filed a brief and a motion to be relieved as counsel, pursuant to Anders v. California, 386 U.S. 738 (1967), and our Rule 4 — 3(j)(1), stating there is no merit to the appeal. In turn, we would have informed appellant in accordance with Rule 4-3(j) that he was entitled to file within thirty days a pro se brief advancing any points for reversal that he wished to raise on appeal.

Because appellant’s counsel has failed to follow the foregoing rules, the disposition of appellant’s appeal has been unduly delayed. Johnson v. State, 345 Ark. 357, 45 S.W.3d 844 (2001). We direct counsel to either file a motion to withdraw with an accompanying brief, pursuant to Rule 4-3(j)(1), or rebrief the issues in this appeal and argue the merits. Counsel has thirty days from this decision to file the appropriate documents.

Rebriefing ordered.

I

ARNOLD, C.J., not participating.


text:
    Timothy HOUFF v. STATE of Arkansas
    CR 01-595
    47 S.W.3d 888
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Sullivan Law Firm, P.L.L.C., by: Kelly J. Adkins, for appellant.
    No response.
   Per Curiam.

Appellant, Timothy Houff, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Kelly J. Adkins, admits in her motion that the record was tendered late due to a mistake on her part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See Ln re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Mark LATTA v. STATE of Arkansas
    CR 01-679
    48 S.W.3d 532
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      McCullough Law Firm, by: R.S. McCullough, for appellant.
    No response.
   Per Curiam.

Appellant, Mark Latta, by his attorney, R.S. McCullough, has filed a motion for rule on the clerk. Following a jury verdict finding Latta guilty of manufacturing a controlled substance, the Saline County Circuit Court sentenced appellant to life imprisonment in the Arkansas Department of Correction. The judgment and commitment order was entered on June 30, 2000. Appellant timely filed a notice of appeal on July 14, 2000, and ultimately tendered the appellate record on February 5, 2001. However, due to a miscalculation in due dates and admitted “inadvertence,” the record was lodged outside the applicable time limits.

Mr. McCullough admits in the instant motion that the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id.


text:
    Raymond Leshay MITCHELL v. STATE of Arkansas
    CR 01-600
    47 S.W.3d 888
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      John H. Bradley, Public Defender, for appellant.
    No response.
   Per Curiam.

John H. Bradley, a state-salaried, full-time public defender for the Second Judicial District, was appointed by the trial court to represent appellant Raymond Leshay Mitchell, an indigent defendant, in these criminal cases. Following a revocation hearing on February 28, 2001, the circuit court revoked (1) a sentence of supervised probation on a charge of delivery of a controlled substance, cocaine, and (2) a suspended imposition of sentence on a charge of felon in possession of a firearm. The court sentenced Mr. Mitchell to concurrent three-year terms of imprisonment in the Arkansas Department of Correction on each revocation, followed by concurrent three-year periods of suspended imposition of sentence. A notice of appeal from the judgments of conviction has been timely filed. Pursuant to our per curiam order entered on June 21, 2001, the attorneys of record have certified to the clerk by affidavit that the transcript is true, accurate, and complete. Accordingly, the record has been lodged with our clerk.

Mr. Bradley now asks this court to relieve him as counsel for Mr. Mitchell in this criminal appeal. As a state-salaried, full-time public defender for the Second Judicial District, Mr. Bradley is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Bradley’s motion to be relieved for good cause shown. Frank Newell will be substituted as attorney for appellant Raymond Leshay Mitchell.


text:
    Dominic SIMPSON v. STATE of Arkansas
    CR 01-684
    48 S.W.3d 533
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Mark S. Frasier, for appellant.
    No response.
   Per Curiam.

Petitioner, Dominic Simpson, by his attorney Mark S. Fraiser, Chief Public Defender, Garland County Public Defender’s Office, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in. Criminal Cases, 265 Ark. 964.


text:
    Dominic SIMPSON v. STATE of Arkansas
    CR 01-684
    48 S.W.3d 533
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Ann C. Hill and Mark S. Frasier, for appellant.
    No response.
   Per Curiam.

Anne C. Hill and Mark S. Fraiser, state-salaried public defenders, move to withdraw as appointed counsel for appellant Dominic Simpson. The Office of the Public Defender for the Eighteenth Judicial District East, was appointed by the trial court to represent appellant Dominic Simpson, an indigent defendant, on a charge of first-degree murder. Steve Oliver, Deputy Public Defender, represented Simpson throughout all proceedings below, including trial. On December 6, 2000, Simpson was convicted of the charge and sentenced to 480 months in the Arkansas Department of Corrections. Her appointed counsel, Oliver, was subsequently sworn in as prosecuting attorney for Garland County.

A notice of appeal was timely filed on January 3, 2001. Counsel for Simpson then made an untimely tender of the record on April 4, 2001. Our clerk directed appointed counsel to file a motion for Rule on the clerk in order to be granted a belated appeal. On June 20, 2001, contemporaneously with this motion to withdraw, appointed counsel filed a motion for Rule on the Clerk. That motion is granted by per curiam today. Accordingly, the record has been lodged with the clerk.

Attorney Hill notes that Dominic’s original appointed counsel, Steve Oliver, can no longer represent her. Ms. Hill also notes that the public defender can no longer represent Simpson because that office also represented Dominic’s two co-defendants. Ms. Hill asks this court to relieve the Office of the Public Defender for the Eighteenth Judicial District East as appointed counsel for Simpson in her criminal appeal. As state-salaried, public defenders for the Eighteenth Judicial District East, none of these attorneys are eligible for compensation by this court for work performed in the appeal of this matter pursuant to our opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant the motion to be relieved for good cause shown. Kent McLemore will be substituted as attorney for appellant Dominic Simpson.


text:
    WAYNE ALEXANDER TRUST, Wayne Alexander, Trustee v. CITY of BENTONVILLE
    01-633
    47 S.W.3d 262
    Supreme Court of Arkansas
    Opinion delivered June 7, 2001

      Jay Carol Miner, Timothy Monroe Weaver, and Charles M. Kester, for appellant.

      Camille Steadman Thompson, for appellee.

       Reporter’s note: This opinion was not made available to the office of the Reporter of Decisions until September 4, 2001.

   Per Curiam.

Appellant, Wayne Alexander Trust, Wayne Alexander, Trustee, appeals from a Benton County Circuit Court order approving Bentonville Municipal ordinance 94-63 ordering the condemnation of seven structures in Bentonville. Appellant requested that the circuit court stay execution of its order until he had an opportunity to file an appeal with our court. The circuit court denied appellant’s request. Appellant now files a motion in our court requesting an emergency motion for a stay of the Benton County order until we have considered the matter on appeal. Because the City of Bentonville has started the process of destroying the structures that were in issue in Bentonville Municipal ordinance 94-63, appellant also requests that we give expedited consideration to his motion to stay.

Appellant requests that we stay the Benton County order pursuant to Rule 8 of the Arkansas Rules of Appellate Procedure— Civil. That rule in relevant part states:

(a) Supersedeas defined; necessity. A supersedeas is a written order commanding appellee to stay proceedings on the judgment, decree or order being appealed from and is necessary to stay such proceedings.
(b) Supersedeas; by whom issued. A supersedeas shall be issued by the clerk of the court which rendered the judgment, decree or order being appealed from unless the record has been lodged with the appellate court in which event the supersedeas shall be issued by the clerk of the appellate court.
(c) Supersedeas bond. Whenever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the trial court.

Id. (emphasis added).

Appellant has filed a partial record with our court. However, we note that appellant has failed to file a supersedeas bond. Accordingly, without reaching the merits of appellant’s request, we must deny his motion to stay the circuit court’s order.

Motion to stay denied.


text:
    Randy Ladon ANDERSON v. STATE of Arkansas
    CR 01-747
    53 S.W.3d 519
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

Appellant, Randy Ladon Anderson, was convicted of capital murder in Chicot County Circuit Court on February 16, 2001. Appellant was sentenced to execution. Appellant was represented by John F. Gibson at trial.

On July 11, 2001, a Motion to be Relieved of Counsel was filed by John F. Gibson, attorney for the Appellant Randy Ladon Anderson. That on or about June 14, 2001, counsel for the Appellant received a letter from the appellant informing him that he decided to hire Mr. Samuel Perroni to handle his appeal.

On July 2, 2001, a Motion for Substitution of Appellate Counsel was filed on behalf of Appellant Randy Ladon Anderson by Attorney Samuel Perroni. In his motion, counsel states that Appellant consulted and retained the attorneys of Perroni & James to assist him in his appellate efforts or post-conviction relief.

We grant John F. Gibson’s motion to be relieved of counsel and grant Samuel Perroni’s motion to be substituted as Appellant’s attorney in this matter.


text:
    Gyronne BUCKLEY v. STATE of Arkansas
    CR 01-644
    53 S.W.3d 518
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      Jack X Lassiter, for appellant.
    No response.
   Per Curiam.

Appellant, Gyronne Buckley, by and through his attorney, Jack T. Lassiter, filed a motion to reset the briefing schedule in this case.

On June 7, 2001, appellant’s counsel filed a motion to withdraw as attorney of record and lodged a partial record. Flowever, appellant did not file a brief, pursuant to Anders v. California, 386 U.S. 738 (1967), and our Rule 4 — 3(j)(1), stating there was no merit to the appeal. In Buckley v. State, 345 Ark. 570, 48 S.W.3d 534 (2001) (per curiam), we ordered appellant’s counsel to “either file a motion to withdraw with an accompanying brief, pursuant to Rule 4 — 30)(1), or rebrief the issues in this appeal and argue the merits.” Counsel had thirty days from the decision to file the appropriate documents.

Appellant’s counsel now requests additional briefing time because the court reporter paid a deposit on the transcript prior to our per curiam order, and she obtained an extension from the trial court to August 26, 2001. Specifically, counsel requests that we extend the briefing schedule to a date subsequent to August 26, 2001, the completion and fifing of the transcript.

We grant appellant’s motion. An appropriate briefing schedule will be set the clerk of this court.

Motion granted.

ARNOLD, C.J., not participating.


text:
    Gregory DAVIDSON v. STATE of Arkansas
    CR 01-779
    53 S.W.3d 46
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      Joel O. Huggins, for appellant.

      Mark Pryor, Att’y Gen., by: O. Milton Pine, II, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Gregory Davidson was convicted of first-degree murder on April 18, 2001. His counsel filed a notice of appeal that same day, although the judgment and commitment order was not filed until April 25, 2001. Counsel also filed a second notice of appeal on April 27, 2001; however, under Ark. R. App. P. — Crim. 2(b)(1), the first notice of appeal, filed April 18, 2001, is treated as having been filed on the day after the judgment was entered, or on April 26. The record was thus due to be lodged with the clerk’s office by July 25, ninety days after the filing of the notice of appeal. See Ark. R. App. P. — Civ. 5(a).

At the time of his sentencing, Mr. Davidson’s attorney had provided him with an affidavit of indigency to fill out, but Mr. Davidson did not return that affidavit to his attorney until the last of June. Mr. Davidson eventually filed his motion to be declared indigent, accompanied by the affidavit, in circuit court on June 20, 2001. On July 5, 2001, Mr. Davidson also filed a motion in the circuit court to extend the time in which to lodge his record with this court. On July 9, 2001, the circuit court entered an order declaring Mr. Davidson to be indigent. However, on that same day, the court also entered an order denying the motion for extension of time to file the record, finding that the requirements of Ark. R. App. P. — Civ. 5(b) had not been met.

Mr. Davidson filed a partial transcript with this court on July 13, 2001, the same day he filed the present motion for emergency relief. In that motion, he asks us to direct the trial court to grant an extension of time to lodge the record, or, in the alternative, for this court to extend the time for the filing of his record; the motion also seeks additional time to request from this court a declaration of indigency.

As the trial court entered its order declaring Mr. Davidson indigent before the partial record was lodged with our clerk’s office, it is not necessary for us to rule on that part of his motion. However, because Mr. Davidson filed his motion for relief with this court within ninety days from the filing of his notice of appeal, we consider the motion timely, see Ark. R. App. P.-~Crim. 4(c) and Ark. R. App. P. — Civ. 5(c), and we hereby grant him an extension of 45 days from the date of this per curiam in which to lodge his record with the clerk’s office.

       On July 24, 2001, the trial court entered an order on the court reporter’s motion, granting a ninety-day extension of time in which to prepare the appeal transcript. However, as Mr. Davidson had already filed his partial transcript with this court, the trial court lost jurisdiction to enter further orders in the case. See, c.g., Forrest City Machine Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993). In response to that order, on August 14, 2001, Mr. Davidson filed with this court a motion for clarification, which we also consider here.


text:
    Don William DAVIS v. STATE of Arkansas
    CR 00-528
    53 S.W.3d 46
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      McCullough Law Firm, by: R.S. McCullough, for appellant.
    No response.
   Per Curiam.

The State of Arkansas has filed a motion to dissolve a stay of execution entered in the case of appellant, Don William Davis.

On March 9, 1992, appellant was convicted of capital murder in Benton County Circuit Court and was sentenced to death by lethal injection. From that conviction, he filed a direct appeal with this Court. On October 4, 1993, we affirmed his capital murder conviction and death sentence. Davis v. State (“Davis 2”), 314 Ark. 257, 863 S.W.2d 259 (1993). Appellant petitioned the United States Supreme Court for a writ of certiorari, but the writ was denied. Davis v. Arkansas, 511 U.S. 1026 (1994).

On June 6, 1994, appellant filed a timely petition for postconviction relief, pursuant to Ark. R. Crim. P. 37. On June 10, 1994, he filed a supplemental petition. On June 29, 1999, after a hearing on the matter, the trial court denied postconviction relief. Appellant sought a stay, and we granted the stay on November 11, 1999.

Appellant filed an appeal with this Court from the June 29, 1999, order. On May 31, 2001, we affirmed the trial court’s decision in Davis v. State (“Davis II’), 345 Ark. 161, 44 S.W.3d 726 (2001). We issued a mandate in connection with this opinion on June 19, 2001.

The State now files a motion to dissolve the stay of execution, which was imposed on November 11, 1999. Specifically, the State is concerned whether the stay remains in effect even though the appeal on which it was premised has been concluded. See Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981) (affirmatively dissolving stay of execution once proceeding is concluded).

Appellant has exhausted all of his remedies recognized by our Court, and the stay was dissolved upon the final disposition of this appeal in Davis II, supra. See Ark. R. App. P. — Crim. 10. Therefore, we grant the State’s motion. The stay is dissolved.

Motion granted.


text:
    Robert Lee FAIRCHILD v. STATE of Arkansas
    CR 01-856
    53 S.W.3d 47
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      Cymber L. Tadlock, for appellant.
    No response.
   Per Curiam.

Cymber L. Tadlock, as a state-salaried, full-time public defender, was appointed by the trial court to represent appellant Robert Lee Fairchild, an indigent defendant, in this criminal case. Fairchild was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. Ms. Tad-lock timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.

Ms. Tadlock now asks this court to relieve her as appellant’s counsel and to appoint new counsel. Ms. Tadlock cites Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), that public defenders cannot be paid separately to file appeals. Accordingly, we grant Ms. Tadlock’s motion to be relieved for good cause shown. Mr. John W. Cone will be substituted as appellant’s attorney in this matter.

       Act 1370 of 2001 provides that part-time public defenders may receive compensation from appellate courts.


text:
    Angel Chevez FLORES a/k/a Andres Garcia Rivera v. STATE of Arkansas
    CR 01-787
    53 S.W.3d 518
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      W. Gary Kennan, for appellant.
    No response.
   Per Curiam.

Appellant Angel Chevez Flores, by and through his attorney, has filed a motion for rule on clerk. His attorney, W Gary Kennan, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Roger ROSS v. STATE of Arkansas
    CR 01-859
    53 S.W.3d 519
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      Wright & Van Noy, by: Herbert T. Wright, Jr., for appellant.
    No response.
   Per Curiam.

[1] Appellant Roger Ross, by and through his attorney, Herbert T. Wright Jr., has filed a motion for belated appeal. The record reflects that Appellant was convicted of several felony drug offenses following a bench trial on September 5, 2000. Appellant was sentenced on December 18, 2000, and the judgment and commitment order was filed on January 3, 2001. On April 6, 2001, Appellant filed a motion for belated appeal in the trial court. The motion was granted by the trial judge on April 9, and the notice of appeal was filed that same date. Pursuant to Ark. R. App. P. — Crim. 2(e), however, all motions for belated appeal must be filed in the Supreme Court, not the trial court. See also Gray v. State, 211 Ark. 442, 642 S.W.2d 306 (1982); Hamman v. State, 270 Ark. 307, 605 S.W.2d 6 (1980). Accordingly, the trial court’s order granting belated appeal had no effect.

Appellant now seeks permission to file a belated appeal from this court. Counsel has accepted complete responsibility for failing to file the notice of appeal on time. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Jacks v. State, 344 Ark. 405, 39 S.W.3d 459 (2001) (per curiam); Donald v. State, 341 Ark. 803, 20 S.W.3d 331 (2000) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Jason Nugene TURNER v. STATE of Arkansas
    CR 01-761
    53 S.W.3d 520
    Supreme Court of Arkansas
    Opinion delivered September 6, 2001

      Katherine S. Streett, Chief Public Defender, for appellant.
    No response.
   Per Curiam.

Katherine S. Streett, as a state-salaried, full-time public defender, was appointed by the trial court to represent appellant Jason Nugene Turner, an indigent defendant, in this criminal case. Turner was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. Ms. Streett timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.

Ms. Streett now asks this court to relieve her as appellant’s counsel and to appoint new counsel. Ms. Street cites Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), that public defenders cannot be paid separately to file appeals. Accordingly, we grant Ms. Streett’s motion to be relieved for good cause shown. Mr. Mark M. Henry will be substituted as appellant’s attorney in this matter.

       Act 1370 of 2001 provides that part-time public defenders may receive compensation from appellate courts.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Rodney E. BARNETT v. STATE of Arkansas
    CR 01-1384
    53 S.W.3d 527
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001

      Daniel G. Ritchey, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

A Mississippi County jury found appellant Rodney Barnett guilty of the capital murder of Lester Frazier for which appellant was sentenced to life imprisonment in the Arkansas Department of Correction. We affirm appellant’s conviction and sentence. In the early morning hours of June 1, 1994, the family of 79-year-old Lester Frazier reported to the Blytheville Police Department that Mr. Frazier was missing from his apartment, and his apartment was in disarray. A member of Mr. Frazier’s family had gone to his apartment to pick him up and take him to his place of departure for a trip he had been planning. On June 4, 1994, Mr. Frazier’s body was discovered floating in the Mississippi River near Osceola. An autopsy by the State Medical Examiner’s Office determined that Mr. Frazier’s death was a homicide, primarily caused by blunt trauma to the head.

Donneitha Bradford, who had previously pled guilty to a charge of murder in the first degree for the death of Lester Frazier and had received a forty-year sentence, testified, among other things, that the appellant solicited her assistance in robbing Mr. Frazier and that she went to Mr. Frazier’s residence with appellant but that when she left the residence, Mr. Frazier was still alive, and she saw Mr. Frazier and appellant leaving the residence together. Another witness, Larry Black, testified that, while he shared a jail cell with appellant, appellant admitted to his participation in the killing of Mr. Frazier.

Appellant raises the following two arguments on appeal from his conviction:

1) The trial court erred by denying his motions for directed verdict because the testimony of his accomplice, Donneitha Bradford, was not sufficiently corroborated; and

2) The trial court erred by unduly restricting his ability to cross-examine Bradford and impeach another prosecution witness, Larry Black,

I. Directed- Verdict Motions

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. See McFarland v. State, 337 Ark. 386, 989 S.W.2d 899, cert. denied, 120 S. Ct. 334 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the fight most favorable to the State. See, e.g., Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999); Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

As he did below, appellant argues on appeal that the prosecution failed to corroborate the testimony of Donneitha Bradford. Arkansas Code Annotated § 16-89-111 (e)(1) (1987) requires the testimony of an accomplice to be corroborated in order to convict a defendant of a felony. For purposes of § 16-89-111 (e)(1), corroborating evidence is sufficient if, without considering the accomplice’s testimony, other evidence at trial independently establishes the offense and tends to connect the defendant with its commission. See, e.g., Davis v. State, 310 Ark. 582, 839 S.W.2d 182 (1992). The corroborating evidence does not have to be sufficient, standing alone, to sustain a conviction. See, e.g., Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). Moreover, corroboration can be provided by the acts, declarations, or testimony of the accused. See, e.g., Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992).

Although appellant did not testify, a statement that he had given to the Blytheville Police Department was offered into evidence and corroborates the testimony of Donneitha Bradford. In his statement, appellant acknowledged being at the scene with Bradford. Fie stated that he left Mr. Frazier’s apartment with Bradford and Mr. Frazier for the purpose of going to the bank to retrieve some money, using Mr. Frazier’s ATM card.

The testimony of State’s witness Larry Black provided additional corroboration. Black testified that, while he shared a jail cell with appellant, appellant told him that Donneitha Bradford asked him to help her rob Mr. Frazier, whom she thought would have some money because he was getting ready to leave on a trip. Although appellant claimed to have initially resisted, he admitted to Black that he later did agree to go with Bradford. The plan was for Bradford to enter the house alone and then later let appellant inside. When the two discovered that Frazier did not have any money, they took him to a bank to have him get money, but he refused to do so. Consequently, appellant told Black, they took Frazier out to the Mississippi River and beat him with a rock and nickel-plated .32 pistol until he was dead. They then pushed his body into the river at Osceola.

Appellant, in effect, concedes that Black’s testimony adequately corroborated Bradford’s, by arguing that the testimony was “totally incredible” and an “outright fabrication.” This argument challenges the credibility of the witness. This Court, however, does not determine the credibility of witnesses because that is the job of the trier of fact. See Harris v. State, 331 Ark. 353, 961 S.W.2d 737 (1998). The principles of appellate review apply equally to cases in which the claimed deficiency in the prosecution’s case is a lack of accomplice corroboration. See, e.g., Henderson v. State, 337 Ark. 518, 990 S.W.2d 530 (1999).

Under these standards, we hold that the evidence at trial was more than, sufficient to corroborate Bradford’s testimony that she and appellant robbed Lester Frazier, kidnapped him, and later killed him.

II. Appellant’s Right of Confrontation, Cross-Examination, or Impeachment of Witnesses

As his second argument on appeal, appellant claims that the trial court violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution with respect to rulings it made concerning his proposed cross-examination of Donneitha Bradford. He also appears to argue under this point that the trial court violated his Confrontation Clause rights a second time by improperly limiting his presentation of evidence that he claims would have further impeached Larry Black.

Before Bradford testified, the prosecution moved in limine to prevent appellant from asking her what sentence she received for pleading guilty to the first-degree murder of Lester Fraizer on the ground that her sentence was irrelevant. Appellant responded that he should be able to impeach her and attack her credibility by exploring why she would plead guilty and accept a forty-year sentence for a murder that she claimed she did not commit. The prosecution, in turn, argued that, if appellant did ask such questions, then the State should be allowed, on redirect, to ask Bradford about having been found guilty by a jury of Frazier’s capital murder, a conviction that was reversed and remanded.

After further discussion, the trial court stated that appellant “[c]ertainly” and “[o]bviously” could ask Bradford why she pled guilty to a crime that she claimed she did not commit. It also ruled that it would not prohibit questions about her sentence, but that if appellant asked questions about' her sentence, then the prosecution would be entitled, on redirect, to ask her whether she accepted such a sentence to avoid receiving a harsher sentence, such as she had received after her jury trial. Appellant responded that, although the court’s ruling allowed him to ask what he wanted, it put him in an “unfair position[.]” During his cross-examination of Bradford, appellant asked her whether she pled guilty to first-degree murder. He did not, however, ask her why she pled guilty to a crime she maintained that she did not commit or what sentence she received. The prosecution did not conduct a redirect examination of Bradford.

On appeal, appellant claims that the trial court violated his Confrontation Clause right to cross-examine Bradford by ruling that, if he asked her about her sentence on cross-examination, then the prosecution could, on redirect, ask her about having been convicted of the capital murder of Frazier. This argument is without merit.

The trial court did not in any way restrict appellant’s cross-examination of Bradford. It ruled, rather, that he could ask her all of the questions he proposed, including why she would plead guilty to a crime she claimed that she never committed or accept a forty-year sentence. Appellant never asked Bradford the former question, even though the trial court ruled that his asking it would not open the door to any questions by the prosecution. His failure to do so was his own strategic decision and did not stem from any alleged error by the trial court.

While the trial court’s ruling concerning the cross-examination of Bradford about her sentence no doubt left appellant with a tough decision to make, the court in no way restricted his cross-examination, much less in violation of the Confrontation Clause. In the case of Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994), this Court assumed, without deciding, that barring a defendant from asking his codefendant what sentence she received after pleading guilty violated the Confrontation Clause. The instant case, however, does not present the question left undecided in Watson because the trial court here did not prohibit appellant from asking Bradford about her sentence.

Appellant is effectively asking this Court to conclude that the Confrontation Clause protects criminal defendants from having to make strategic decisions about the extent of their cross-examination and bars the prosecution from exploring issues raised on cross-examination during redirect. That, however, is contrary to existing authority. See, e.g., United States v. Strothers, 77 F.3d 1389 (D.C.Cir.), cert. denied, 519 U.S. 956 (1996) (holding that district court’s ruling that, if appellants asked about subject on cross-examination, then government could elicit related information on redirect, did not violate Confrontation Clause because appellants’ failure to ask about subject was strategic choice and not limitation on cross-examination); see also generally Delaware v. Fensterer, 474 U.S. 15 (1985) (explaining that Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish[ ]”)(emphasis in original).

Appellant’s claim with respect to his proposed impeachment of Larry Black similarly lacks merit. Three weeks before he was murdered, Lester Fraizer reported to police that a camcorder had been taken during a burglary of his home. During appellant’s cross-examination of Larry Black, he asked Black whether he had ever received a camcorder from Frankie Milton after Lester Frazier’s murder or whether Milton owed him any money around the time of the murder. Black testified that he could not recall receiving a camcorder from Milton, but he denied that Milton owed him money at the time. Appellant called Milton as a witness. Although Milton testified about various matters, the trial court excluded, as collateral, his proffered testimony that, just before Lester Frazier’s murder, he gave Black a camcorder, allegedly Frazier’s, as payment for a debt and that Black, in turn, gave him a ,rock of crack cocaine. Appellant’s only argument for admission of the evidence was that its purpose was to impeach the testimony of Larry Black.

On appeal, appellant claims that the trial court committed reversible error by barring his proposed questioning of Milton because the fine of inquiry was not collateral. Appellant’s argument, however, is not preserved for appellate review because he never challenged below the trial court’s assertion that the proposed questioning of Milton was collateral. See, e.g., Hubbard v. State, 328 Ark. 658, 946 S.W.2d 663 (1997).

For all of the above reasons, we find no error in the trial court’s rulings with regard to appellant’s right to confront witnesses.

III. Rule 4-3 (h) Compliance

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Terri L. BAGWELL v. STATE of Arkansas
    CR 00-208
    53 S.W.3d 520
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001

      James E. Hensley, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Leslie Fisken, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal concerns the jurisdiction of a circuit court to modify the criminal sentence of appellant Terri L. Bagwell after it had been placed into execution. More specifically, it concerns the applicability of Act 1569 of 1999, now codified at Ark. Code Ann. §§ 5-4-301, 5-4-303, 5-4-304, 5-4-306 (Supp. 1999), and whether it applies to offenses that occurred in 1997. We hold that Act 1569 does not apply to the facts of this case. We further hold that the circuit court lacked jurisdiction over Bagwell to modify the original sentence, and we reverse and remand.

The facts are these. On October 6, 1997, Bagwell was charged with possessing drug paraphernalia, a Class “C” felony, and possession of marijuana, a Class “A” misdemeanor. The offense date for both offenses was October 2, 1997. On October 17, 1997, she was charged for the same two offenses, with a second offense date — October 6, 1997.

On June 3, 1998, Bagwell pled nolo contendere to the two felony counts of possession of drug paraphernalia and the two misdemeanor counts of possession of marijuana. In her Plea Statement, she agreed to a five-year suspended sentence and a fine of $500. On that same date, she executed the Terms and Conditions of Suspended Sentence with the circuit court wherein she agreed to that suspended sentence and fine as well as payment of court costs of $150, drug rehabilitation, payment of the costs and fine at a rate of $50 per month beginning sixty days after completion of drug rehabilitation, fifty hours of community service, and regular reporting to her probation officer. Also on June 3, 1998, the circuit court entered an order restricting her driving privileges for six months. On June 19, 1998, the court entered its Judgment and Disposition Order, sentencing Bagwell to five years suspended and one-year probation on each of the two felonies and one-year suspended and one-year probation on each of the two misdemeanors.

On September 17, 1998, the prosecuting attorney filed a petition to revoke and/or show cause. In that petition, the prosecutor alleged that as of that date, Bagwell had failed to attend drug counseling as ordered by the court. Accordingly, the prosecutor asserted that Bagwell had violated the terms and conditions of her suspended sentence. On November 13, 1998, the prosecutor filed an amended petition to revoke and/or show cause, stating the same grounds but adding that on October 30, 1998, Bagwell’s probation officer had requested a petition to revoke due to her failure to report, failure to pay fees, and failure to follow the rules as ordered. After two continuances, the circuit court held a hearing on the petition to revoke on July 6, 1999. At the hearing, Delores Biocic, Bagwell’s parole/probation officer, testified that she had failed to complete a residential drug treatment program, failed to report, and failed to complete an intensive twelve-step program. Bagwell testified that she stopped reporting to the twelve-step program because she was not “feeling good.” She stated that she had several cysts on her ovaries and was to have surgery. She further testified that she was diagnosed a year before and had been in constant pain. She stated that the reason she failed to complete the residential rehabilitation program was due to the fact that she had no one to watch her dog.

At the conclusion of the hearing, the circuit court ruled as follows:

The Court finds that the State has shown by a preponderance of the evidence that you have violated the terms and conditions of your suspended sentence. What the Court is going to do is leave the suspended sentence in force and effect, which will give you an opportunity to take some other steps somewhere down the fine in your fife, but the Court is going to sentence you to the Regional Punishment Facility. You are sentenced to — I believe the maximum time I can do that is a hundred and twenty (120) days, and that is what I’m going to do. I’m going to sentence you to a hundred and twenty (120) days at the Regional Punishment Facility and your suspended sentence will, however, remain in effect.

Bagwell appealed the circuit court’s ruling to the court of appeals as a no-merit appeal. The court of appeals ordered briefing on the effect of Act 1569 of 1999, which empowers a circuit court to modify an executed sentence, on this court’s prior case law. The court of appeals then certified the matter to this court for determination.

The issue for this court to resolve is whether the circuit court had jurisdiction over Bagwell on July 6, 1999, to enter an additional sentence against her of 120 days in the Regional Punishment Facility. Bagwell contends that Act 1569 was effective on April 15, 1999, which was long after her offenses were perpetrated and long after her sentence had been put into execution. Thus, according to her theory, the circuit court was without jurisdiction over her to modify her sentence. The State replies that Act 1569 did not change the sentencing statute. Moreover, the State argues that Act 1569 was in effect on July 6, 1999, when the circuit court modified the sentence. Thus, it contends, there was no retroactive application of the Act.

Act 1569, which, again, was effective as of April 15, 1999, amended § 5-4-301 (d) to empower circuit courts to modify original sentences, following revocation hearings, up to the limits set in §§ 5-4-303, 5-4-304, and 5-4-306. This court has long held that a trial court loses jurisdiction to modify or amend an original sentence once that sentence is put into execution. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); Dehart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) (citing Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987)). We have referred to the jurisdiction lost as subject-matter jurisdiction with respect to defendant’s sentence. See Pike v. State, supra. We have further held that a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction. See id. (citing David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985)). Our holdings are in accord with statutory law. See Ark. Code Ann. § 5-4-301 (d) (Repl. 1997, Supp. 1999).

In the case of Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), this Court reaffirmed its prior holdings and held that a plea of guilty, coupled with a fine, and a suspended imposition of sentence, constituted a conviction, which deprived the circuit court of jurisdiction over the defendant to amend or modify a sentence after it had been placed into execution. We held to the same effect in McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). As a result, the issue before us is one of jurisdiction. Jurisdiction was not raised by Bagwell in circuit court, but a circuit court’s loss of jurisdiction to modify a sentence can be raised by this court on our own motion. See Jones v. State, supra.

We hold that because Act 1569 was not in effect at the time the crime was committed, it cannot be invoked by the State to apply to the facts of this case. See Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995); State v. Galyean, 315 Ark. 699, 870 S.W.2d 706 (1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). Thus, the circuit court had no jurisdiction to modify its original sentence which had been executed. We further observe that Act 1569 did not contain a clause stating that the Act would take effect retroactively. In the absence of such a clause, we have held that we will apply an Act prospectively only. See State v. Galyean, supra; State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). Finally, we note that the constitutionality of Act 1569 was not raised as an issue in this case, and, for that reason, we do not address it.

We reverse and remand this case with instructions to vacate the 120-day sentence in the Regional Punishment Facility. The original Judgment and Disposition Order of June 19, 1998, will remain in full force and effect.

Reversed and remanded.

       The Emergency Clause of Act 1569 of 1999 specifically makes reference to our holding in McGhee v. State, supra.


text:
    Myron Kent GEORGE v. STATE of Arkansas
    CR 01-871
    53 S.W.3d 526
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001

      Appellant, pro se.

      No response.
   Per Curiam.

Appellant 'Myron Kent George moves the court for a rule on clerk and shows this court as follows. Court Reporter Nila Keels was not a certified court reporter at the time of the jury trial in this matter held in Greene County on January 22 and 23, 2001. Following the trial, George was found guilty as an accomplice to manufacturing methamphetamine and possession of the same substance. A notice of appeal was filed February 9, 2001. Thereafter, a motion was filed for a 90-day extension of time for filing the record, and an order was entered extending the time until August 9, 2001. As of this writing, no transcription of the trial testimony has been filed.

On August 8, 2001, George tendered to the Clerk of the Supreme Court the Greene County Circuit Clerk’s record in this case without the transcription of testimony. On that same date, he filed the motion now before us requesting that the partial record from the Greene County Circuit Clerk’s office be filed to comply with the August 9, 2001 deadline. The State does not object to George’s motion but urges this court to follow the same procedure as it did in Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001) (per curiam), where we required the attorneys of record to certify to the Supreme Court Clerk by affidavit that the record was “true, accurate, and complete.” Mitchell, 345 Ark. at 361, 45 S.W.3d at 848.

We first observe that there is no way that the Mitchell procedure can be followed in this case because the tendered record is not complete in that it does not include the transcribed trial testimony. It is imperative that this testimony be transcribed immediately. We direct Judge Victor Hill of the Greene County Circuit Court to take whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter. See Ross v. State, 344 Ark. 623, 42 S.W.3d 483 (2001) (per curiam).

Motion denied.


text:
    Brian GOODEN v. STATE of Arkansas
    CR 00-845
    53 S.W.3d 532
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001

      Appellant, pro se.
    No response.
   Per Curiam.

On April 6, 2001, attorney Gene E. McKissic moved this court to be relieved as of record. On April 24, 2001, the appellant tendered a pro se motion to the clerk of this court in which he asserted that he had paid Mr. McKissic $1,500 to represent him at trial and on appeal. The appellant requested that Mr. McKissic refund the money or assist in the expenses of the appeal. Alternatively, he asked to be declared indigent. On May 10, 2001, we issued a per curiam opinion in which we remanded the matter to the circuit court for a determination as to whether Mr. McKissic had been retained by the appellant to represent him in the appeal as well as the trial and whether he was paid accordingly. We further directed the circuit court to file findings of fact and conclusions of law on this issue.

On July 24, 2001, a record of a hearing held before the circuit court on July 17, 2001, was filed with the Clerk of the Supreme Court. At that hearing, the circuit court found that Mr. McKissic had not been paid anything by the appellant for his representation. That finding resolves the issue that concerned this court.

We deny Mr. McKissic’s motion to be relieved as attorney of record. For purposes of his appeal, we declare the appellant to be indigent, and we appoint Mr. McKissic to represent him in this appeal.


text:
    Eric Z. GRILLOT v. STATE of Arkansas
    CR 01-792
    53 S.W.3d 525
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001

      Ed Webb & Associates, by: Lynn D. Lisk, for appellant.
    No response.
   Per Curiam.

Appellant, Eric Z. Grillot, was convicted of first-degree murder in Van Burén Circuit Court, and a judgment and commitment order was filed on August 30, 2000. On November 17, 2000, Ralph J. Blagg, counsel for appellant, filed a notice of appeal and designated the entire record. On January 16, 2001, the trial court extended the filing of the transcript until June 1, 2001. The transcript was not filed by that deadline, and on July 17, 2001, Mr. Blagg filed a motion to withdraw as counsel, stating that subsequent to the deadline for filing the transcript, appellant retained other counsel. Mr. Blagg has failed to file a motion for rule on the clerk and does not accept responsibility for the untimely filing.

We have held that we will grant a motion for rule on clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Under these circumstances, Mr. Blagg should have filed a motion for rule on the clerk, accepting full responsibility for not having timely filed the transcript. Appellant’s motion to withdraw as counsel will not be granted until Mr. Blagg’s motion for rule on the clerk has been granted.

Mr. Blagg shall file a motion and affidavit in which he accepts responsibility for not timely filing the transcript -within thirty days from the date of this per curiam order, and upon that filing, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

At that time, we will consider the motion for entry of appearance by appellant’s newly retained counsel, and Mr. Blagg’s motion to withdraw as counsel. We defer action on those motions, pending Mr. Blagg’s compliance with this order.


text:
    Alex WARE v. STATE of Arkansas
    CR 01-910
    53 S.W.3d 524
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001

      Gerald A. Coleman, for appellant.
    No response.
   Per Curiam.

Appellant Alex Ware, by and through his attorney, has filed a motion for rule on clerk. His attorney, Gerald A. Coleman, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Oscar STILLEY v. Margaret JAMES, Rick Grinnan, Linda Varnado, and Alban Varnado
    00-1463; 01-88
    53 S.W.3d 524
    Supreme Court of Arkansas
    Opinion delivered September 13, 2001
    [Petition for rehearing denied September 20, 2001.]

      Oscar Stilley, for appellant.

      Mike Spades, Jr.; and Cross, Gunter, Witherspoon & Galchus, P.C., by: Abraham W. Bogoslavsky; for appellees.
   Per Curiam.

Appellant Oscar Stilley has filed a motion requesting each justice on this court to disqualify from hearing the petition for rehearing that he has filed in Stilley v. James, 345 Ark. 362, 48 S.W.3d 521 (2001). He likewise requests each justice to disqualify from the pending appeal in Stilley v. James, No. 01-88. We heard oral argument on the motion on September 13, 2001, at which time Mr. Stilley and Appellees’ counsel, Abraham Bogoslavsky, were heard. After considering the arguments, both written and oral, we deny the motion.

While it is true that judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias, there is a presumption of impartiality, and the party seeking disqualification bears the burden of proving bias or prejudice. See Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000); Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), cert. denied, 121 S. Ct. 1355 (2001). Mr. Stilley has failed to cite any convincing authority or legal argument in support of his motion. Particularly, he has not set forth any reason why any individual justice should disqualify. He has not alleged that any justice has a personal or financial interest in these cases. Nor has he in any way rebutted the presumption that each justice on this court is impartial. In other words, he has failed to demonstrate any bias or prejudice on the part of any justice. We agree with Appellees’ counsel that the mere fact that this court has, on occasion, ruled against Mr. Stilley’s clients does not constitute grounds sufficient to require this court to disqualify from hearing the cases at issue.

Moreover, Mr. Stilley offers his concern over the language in Stilley, 345 Ark. 362, 369, 48 S.W.3d 521, 526, wherein this court stated that “[i]n support of his argument that parol evidence is appropriate in this case, Mr. Stilley cites a single case, Hamburg Bank v. Jones, 202 Ark. 622, 161 S.W.2d 990 (1941).” He asserts that he cited three cases. Suffice it to say that Mr. Stilley cited only one case that was relevant. That case, however, was distinguishable from the facts presented in Stilley, 345 Ark. 362, 48 S.W.3d 521. Accordingly, each justice individually declines to disqualify.

Motion denied.


text:
    STATE of Arkansas v. William Andrew HOOKS
    CR 01-246
    57 S.W.3d 130
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001
    [Petition for rehearing denied October 25, 2001.]

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellant.
    One brief only.
   W.H. “Dub” Arnold, Chief Justice.

The State of Arkansas brings the instant appeal challenging the Saline County Circuit Court’s decision that appellee, William Andrew Hooks, was entided to a self-defense jury instruction on the use of nondeadly physical force although he fired a gun at an occupied vehicle. The State contends that our jurisdiction is authorized pursuant to Ark. R. App. P. — Crim. 3(c) (2001); we disagree and dismiss the appeal.

Background

A jury acquitted Hooks of one count of committing a terroristic act, two counts of first-degree terroristic threatening, and two counts of aggravated assault. Simultaneously, the jury convicted him of the following misdemeanor offenses: (1) fleeing by foot; (2) fleeing by vehicle; (3) driving while intoxicated; (4) first-degree criminal mischief; (5) disorderly conduct; (6) reckless driving; and (7) driving on a suspended license. The trial court sentenced him to a total of fifteen months in the county jail and fined him $2,450.00.

The event underlying Hooks’s conviction took place on April 14, 2000. According to Hooks, he was driving three miles from his home down a “real rough” country road when he slowed his car and drove on the wrong side of the road to avoid potholes. At that point, another vehicle, driven by Andy Sanders, struck him. Although Sanders’s account differs as to who caused the accident, he admits that he lost control of his truck after the impact and landed in a ditch. After Sanders regained control and drove on, Hooks followed him until Sanders’s car died at the end of Delta Drive. Hooks then exited his car, purportedly to survey the damage caused by the collision.

Under appellee’s account, Sanders’s stepfather, Walter Martin, then appeared in another vehicle and blocked his exit. The men exchanged hostile words, and Hooks ultimately retrieved a shotgun from the right-front passenger seat of his car that he had used earlier in the day for turkey hunting. Hooks testified that he got the gun to scare Martin and Sanders and to persuade them to move their truck so. that he could leave the scene. When Martin refused to move the truck and allegedly told Hooks that he “was not going anywhere,” Hooks fired a shot at the front tire. Both Martin and Sanders were in the vehicle when Hooks fired the gun. Sanders then moved the truck. Hooks drove away but was later apprehended by police. Hooks acknowledged that Martin and Sanders were unarmed and that he “took matters into [his] own hands.”

On the other hand, Sanders and Martin testified that Hooks was carrying a shotgun when he staggered to the driver’s window of their car and held the gun to Martin’s face and threatened to kill him. They also reported that Hooks appeared to be intoxicated, was verbally threatening, and struck Martin across the face. Hooks then backed away from the vehicle, aimed the gun towards the tire, and shot.

In light of the conflicting testimony, the State proffered AMCI 2d 705, a jury instruction concerning the use of deadly physical force in defense of a person. Appellee submitted AMCI 2d 704, addressing the use of physical force in self-defense. The State objected to Hooks’s instruction on the basis that appellee employed deadly physical force when he discharged a gun at an occupied car. Further, the State reasoned that no rational basis existed for the trial court to instruct the jury that Hooks was justified in employing nondeadly force.

After reviewing both instructions “under the circumstances,” the trial court disagreed and concluded that Hooks’s instruction was the “better instruction.” The court also noted that AMCI 2d 704 “more closely applies to the facts.” Consequently, the trial court informed the jury that Hooks asserted a claim of self defense to the aggravated-assault and terroristic-act charges. Specifically, the court informed the jury that Hooks would not have been justified in using physical force upon another if he provoked the use of unlawful physical force or he was the initial aggressor.

Jurisdiction

On appeal, the State argues that the trial court’s decision satisfies the jurisdictional requirements under Ark. R. App. P.— Crim. 3(c) (2001), because the asserted error prejudiced the State, and the correct and uniform administration of the criminal law requires our review. Essentially, the State maintains that the trial court erred as a matter of law by finding that an individual firing a gun at an occupied vehicle employed anything less than deadly physical force. Despite the State’s characterization that this case presents an issue of law, the record reveals that the trial court’s decision turned upon the specific facts of this case. We have long held that where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. See State v. Dawson, 343 Ark. 683, 688-89, 38 S.W.3d 319, 322 (2001) (citing State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000); and State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000)). Accordingly, we dismiss the State’s appeal.