text:
    STATE of Arkansas v. Daniel Chester SCHAUB
    CR 92-209
    832 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992
    [Rehearing denied July 20, 1992.]

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

      Compton, Prewitt, Thomas & Hickey, P.A., for appellee.
   Robert H. Dudley, Justice.

The defendant, appellee Daniel Schaub, was charged with driving while under the influence of intoxicants, with refusing to submit to a test to determine the alcohol content of his blood, and with improper display of car license plates. In municipal court he was found guilty of all three charges. He appealed to the circuit court. The charges of DWI and refusal to submit to a blood test were submitted to the jury, and the jury found him guilty of the offense of refusing to submit to a blood test, but not guilty of DWI. After the jury returned its verdict, the defendant’s attorney moved to set aside the verdict and argued that under Gober v. State, 22 Ark.App. 121, 736 S.W.2d 18 (1987), the accused must be found guilty of DWI before he can be convicted of refusing to submit to a blood test. The trial court agreed with the argument and granted the motion to set aside the verdict. The State seeks to appeal. We accept the appeal and take appellate jurisdiction under A.R.Cr.P. Rule 36.10(b) and (c) and under Rule 29(1)(c) of the Rules of the Supreme Court and Court of Appeals, as the case involves the interpretation of the implied consent statute and a constitutional issue involving former jeopardy. We reverse the trial court and reinstate the jury’s verdict.

The defendant admitted that he was intoxicated, admitted that he was arrested for driving while under the influence, and admitted that he refused to take the breathalyzer test after he had been arrested for driving while under the influence. The proof showed that the defendant was in actual physical control of the motor vehicle and that the officer had reasonable cause to believe the defendant was intoxicated. The arresting police officer testified that the dispatcher for the El Dorado police department broadcast a report that a 1987 Chevrolet Blazer was being driven on North West Avenue by a possibly drunk driver. The officer spotted a vehicle fitting that description parked in a shopping center on North West Avenue and turned his patrol car into the shopping center. The officer testified that, as he did so, the Blazer started moving. He turned on his blue lights, the Blazer stopped, and the defendant, who appeared intoxicated, got out of the driver’s seat. He arrested the defendant for driving while intoxicated, and the defendant later refused to take the blood test.

On the other hand, the defendant admitted that he and the other two passengers in the Blazer had been drinking heavily, but that it was the defendant’s brother, and not the defendant, who had been driving the vehicle. Several witnesses testified and supported the defendant’s testimony. They testified that the brother drove the Blazer into the parking lot, parked it, and it was only when the defendant saw the police car turning into the parking lot that he got into the driver’s seat to turn the radio and lights off and to turn the key in the ignition switch to “off.” They testified that the vehicle did not move while the defendant was in the driver’s seat. In sum, there was substantial evidence to show that, in the officer’s presence, the defendant was in the driver’s seat of his operable vehicle, turned the radio and lights off, and turned the key in the ignition switch to “off.” He could have started the car and driven it at any moment. Thus, the proof showed that the defendant was in actual physical control of the car. Roberts v. State, 287 Ark. 451, 701 S.W.2d 452 (1985).

After deliberating a short while, the jury sent a note to the trial judge asking, “Can we find Schaub not guilty on DWI and guilty on refusal to submit to blood or chemical test or in other words can we separate the two charges?” With the approval of the defense attorney and the deputy prosecuting attorney the judge responded, “Yes.” The jury then returned its verdict, and the trial court subsequently set it aside.

The trial judge read the case of Gober v. State, 22 Ark.App. 121, 736 S.W.2d 18 (1987), to stand for the broad-based proposition that in all circumstances a defendant must be convicted of DWI before he can be convicted of refusing to submit to a blood test. We do not read the case so broadly. In that case the court of appeals held, under an earlier version of subsection (a)(1) of Ark. Code Ann. § 5-65-202, that a defendant had to be convicted of DWI before he could be convicted of refusing to submit to a blood test. The case at bar comes under a different subsection, (a)(3), set out below, because the officer had reasonable cause to believe that the defendant was intoxicated and in actual physical control of the motor vehicle.

The applicable statutes, all of which are part of Title 5, Chapter 65, Subchapter 2, titled “Chemical Analysis of Body Substances,” are as follows:

(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or
(3) The person is stopped by a law enforcement officer who has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.

Ark. Code Ann. § 5-65-202 (Supp. 1991) (emphasis added).

The chemical test or tests shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating or in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood.

Ark. Code Ann. § 5-65-203(a) (Supp. 1991) (emphasis added).

If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to. . . [suspend or revoke the operator’s license].

Ark. Code Ann. § 5-65-205(c) (Supp. 1991) (emphasis added).

The quoted language in the implied consent law does not provide that a defendant must be proven guilty of DWI beyond a reasonable doubt before he can be convicted of refusal to submit to a chemical test. Rather, Ark. Code Ann. § 5-65-202(a)(3) provides that anyone who operates, or is in actual physical control of, a motor vehicle has consented to submit to a blood test if he is stopped by a police officer who has reasonable cause to believe the operator is intoxicated. Ark. Code Ann. § 5-65-203(a) provides that the test shall be administered at the direction of the police officer who had reasonable cause to believe the driver was intoxicated, and Ark. Code Ann. § 5-65-205 provides that, if a driver refuses to submit to the request for a test, the trial judge may order the driver’s license suspended or revoked if he finds that the officer had reasonable cause to believe that the driver was intoxicated. The language of the statutes is clear. A violation occurs when the police officer has reasonable cause to believe the operator or person in actual physical control is intoxicated, the police officer directs the operator to submit to a blood test, and the operator refuses to do so. Thus, it was error to set aside the verdict of refusal to submit to the test.

The State asks that we go further and overrule the complete holding of the court of appeals in Gober. We see no need to reach out and do so in light of our holding in the case now before us and also because subsection (a) has been amended since the court of appeals decided that case.

As set out, we hold that it was error to set aside the jury’s verdict. Usually, an appeal by the State results only in a holding by the appellate court that will serve as a guide to future trials. See State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989). The reason is that the Double Jeopardy Clause prohibits any other disposition of the case. However, in this case, unlike the usual case, the jury’s verdict was one of guilt, which the trial court set aside. On appeal, the State argues that the trial court erred as a matter of law in setting the verdict aside and asks that the jury’s verdict be reinstated. Under these circumstances the reinstatement of a verdict does not run afoul of the Double Jeopardy Clause.

[W]here there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. In various situations where appellate review would not subject the defendant to a second trial, this court has held that an order favoring the defendant could constitutionally be appealed by the Government. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted without serious constitutional challenge to appeal from orders arresting judgment after a verdict has been entered against the defendant. Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.

United States v. Wilson, 420 U.S. 332, 344-45 (1975) (citations omitted). Likewise, reinstatement of the jury’s verdict does not run afoul of Art. 2, Section 8 of the Constitution of Arkansas. See State v. Robinson, 55 Ark. 439, 18 S.W. 531 (1892).

Reversed and remanded with instructions to reinstate the jury’s verdict.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Jimmy ISBELL d/b/a Isbell & Son v. ED BALL CONSTRUCTION CO., Inc., and Commercial Union Insurance Company
    91-317
    833 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Larry J. Steele, for appellant.

      Henry, Walden, Davis & Halsey, by: Troy Henry, for appellees.
   David Newbern, Justice.

This is a contract case which was appealed to this Court as one involving statutory interpretation. Rule 29.1.C. We have retained the case for decision although we find no need to interpret a statute.

The appellant, Jimmy Isbell, sued the appellees, Ed Ball Construction Co., Inc., and Commercial Union Insurance Co. for breach of contract. The jury verdict favored the appellees. Isbell contends the Trial Court erred in granting, in part, a motion in limine by which Isbell was prevented from introducing into evidence a separate contract between the parties. He also contends he should have been granted a new trial because the verdict was against the preponderance of the evidence. We hold that the evidence was sufficient and no reversible error occurred.

Isbell hauls dirt and gravel for a living. He has worked in that business 30 years and had worked with Ed Ball and appellee Ed Ball Construction Company under oral agreements on several projects prior to March 4, 1988. On that date they entered their first written contract. Isbell agreed to load, haul, and deliver dirt to the site of an Arkansas Highway Department (AHD) road project which had been awarded to Ball as general contractor. The contract stated Isbell would be paid “$1.53 per yard” and that the hauling was to be done according to AHD specifications. The relevant AHD specification clearly states that measurement is to be by cross section yard.

Isbell asserted the contract term “per yard” meant he was to be paid per “truck load yard.” Ball asserted the term meant “cross section yard” and made a motion in limine to prevent any testimony about truck load yards on the ground that the contract was specific and clear and thus the parol evidence rule applied. The motion was denied except that the Court prohibited Isbell from introducing testimony about a second contract between the parties. The second contract involved a different project, and it specified measurement to be by cross section yard. Isbell wanted to introduce that later contract to show that, had the first contract meant cross section yard, it would have spelled it out other than using the term “per yard” with reference to the AHD specifications.

Testimony established that in the dirt hauling business two methods of measuring the amount of material moved are commonly used. The truck load yard method requires that trucks used to haul dirt be measured to establish the volume they will hold and checked each time a load is delivered. The person doing the checking, called a “spotter,” issues a ticket to the driver of the truck if the load is acceptable. A copy of the ticket for each truck load remains with the spotter and is delivered to the job foreman. These copies are compared and reconciled in the business office with those retained by the hauler. The hauler is paid for the actual volume delivered.

Using the cross section yard method, the site from which the dirt is taken is surveyed and marked establishing the cross section which will be the pit. The hauler loads from the pit and the AHD job supervisor periodically measures the pit or estimates the amount of dirt removed based on projections set out in the bid. Haulers are paid based on these estimates with generally 90 % of the estimated cost being advanced over the life of the job. At the end of the project the pit is again measured and the actual volume of dirt removed less a shrinkage factor forms the basis for payment to the hauler.

When dirt is removed it is less compact than it was, thus a truck load yard contains less dirt than a cross section yard. A hauler must make more trips to move the same amount of dirt if the cross section method of measurement is used than he would make if the truck load yard method is used.

Isbell testified he informed Ball he could not accept the job at $1.53 per cross section yard, and they agreed to the truck load yard system of measurement. Ball testified he clearly informed Isbell that the hauling was to be measured by cross section yard. At the end of the project AHD paid Ball $158,852 for dirt taken from the pit. Isbell was paid $127,387 but claimed that he had hauled 128,033 yards and was owed another $69,665.49 based on his own truck load measurements. Isbell also argued that the AHD had shorted them on measurement of the pit as the result of a surveying error.

Testimony established that there was no spotter and measurements of trucks were not taken on the job, nor were tickets issued to the drivers when hauling began. These omissions showed the truck load yard method was not being used. Isbell kept track of the number of truck loads hauled and kept his own estimates of truck load yardage. He turned these estimates in to the AHD supervisor until he refused to accept them. When Isbell became dissatisfied with the estimates of the AHD supervisor he borrowed equipment from Ball and surveyed the pit himself, first in December of 1988 and then again in June of 1989. Each time the result was substantially similar to the AHD estimate, and after each of these surveys Isbell continued to work on the project and accept payment per the estimates. At the conclusion of the project, however, he billed Ball for his truck load yards.

1. Motion In Limine

Ball’s motion in limine argued that the attempt to use the contract signed approximately 60 days after the one at issue and to present parol evidence concerning the meaning of the term “per yard” represented an impermissible effort to vary the express terms of the first contract, which he characterized as unambiguous.

The contract was not ambiguous. The relevant part is as follows:

Isbill and Son, Hauling agree to Load, Haul and Deliver dirt Located at approx, station 185 + 00 — on property belonging to Mr. Jim Seay. This Dirt will be delivered to the Job Site, in Clay County. The price will be $1.53 per yard. Hauling to be done according to Arkansas Highway Dept, specifications.

The AHD specification for the method of measurement provides in relevant part:

10.11 Method of Measurement, (a) All accepted excavation and borrow will be measured in its original position by the cross section method, either by conventional or photogrammetric procedures, and computed by the average and area method to ascertain the amount of material removed, which measurement will include over breakage or slides not attributable to carelessness ....

When a written contract refers to another instrument and makes the terms of that instrument a part of the contract, the two are construed together as the agreement of the parties. International Graphics, Inc. v. Bryant, 252 Ark. 1297, 482 S.W.2d 820 (1972). Given the clarity of the specification, there was no need for parol evidence. Only when ambiguity exists and the meaning of a contact becomes a question of fact is parol evidence admissible. C. & A. Construction Company, Inc. v. Benning Construction Co., 256 Ark. 621, 509 S.W.2d 302 (1971).

Although the Court erred in denying part of Ball’s motion in limine and admitting testimony which sought to vary the language of the contract the jury reached the correct result finding the contract to specify payment by the cross section method.

2. New trial

On review of a trial court’s denial of a motion for new trial the question is whether the verdict is supported by any substantial evidence. Harper v. Clark Equip. Co., 300 Ark. 413, 779 S.W.2d 175 (1989). Evidence favorable to the appellee is given the benefit of all reasonable inferences permissible under the proof. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).

The literal content of the contract was undisputed. As we hold it unambiguous, we need go no further.

Affirmed.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Tom YOUNTS d/b/a Getta Tan v. BALDOR ELECTRIC COMPANY, Inc., Spirit Manufacturing Company, Inc.
    92-207
    832 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Friday, Eldredge & Clark, by: James C. Baker, Jr., and T. Wesley Holmes, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr., and Brian Allen Brown, for appellees.
   David Newbern, Justice.

This is a products liability case in which the jury returned a $2000 verdict in favor of Tom Younts, the appellant, against Baldor Electric Company (Baldor) and Spirit Manufacturing Company (Spirit), the appellees. Younts argues the Trial Court erred in (1) holding he opened the door for the introduction of evidence of insurance which would be otherwise barred by the collateral source rule, and (2) failing to grant a new trial based on the inadequacy of the damages awarded. We find no abuse of discretion and affirm.

Younts operated a tanning salon and exercise facility known as “Getta Tan” which was located in a renovated mobile home. A fire destroyed the mobile home and its contents. A defective motor in an exercise machine allegedly caused the fire. The motor was manufactured by Baldor and distributed by Spirit.

Younts sued Baldor and Spirit, asserting theories of negligence, strict liability, and breach of express and implied warranty. Younts testified the fair market value of the trailer prior to the fire was approximately $ 14,000, and the value of the contents in the trailer was estimated to be $29,813.74. He spent $1500 to remove debris from the site and $175 to have trees repaired. He also stated he lost approximately $370 a month in profits, resulting in a total profits loss of $14,430. The total damages amount from the fire was estimated to be $59,918.74. This testimony was undisputed.

During direct examination, counsel asked Younts whether the had been able to reopen his business after the fire. Younts stated, “Haven’t been able to afford it.” Defense counsel argued during an in camera hearing that this testimony opened the door for him to show Younts had received an insurance settlement. In response, Younts’ counsel stated he would proffer evidence that his client was underinsured and honestly could not afford to reopen the business. At the in camera hearing, counsel did not present any proof that Younts was telling the truth when testifying he could not afford to reopen.

The Trial Court ruled Younts’ testimony opened the door for defense counsel to question Younts about the $41,500 insurance settlement he had received. The Court reasoned the insurance settlement would show that Younts was substantially made whole and would contradict his testimony that he could not afford to reopen his business. Only after the Trial court determined the evidence admissible, and upon resumption of the trial before the jury, did Younts explain that even with the insurance proceeds he could not afford to reopen because he owed money on the fire-damaged machinery ánd could not afford to purchase new machinery on credit.

The jury returned a verdict in Younts’ favor of $2000. The verdict form indicates the jury originally awarded $3923.74, but that amount was crossed out. The crossed out amount is approximately the difference between the amount of property damages allegedly sustained and the amount of the insurance settlement, Younts’ motion for new trial was denied.

1. Evidence of insurance

We will not reverse a trial court’s ruling on the admission of evidence absent abuse of discretion. See, e.g., Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978). As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980). This principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant. Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984).

When a party testifies about his or her financial condition in a false or misleading manner, however, he or she opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral source rule. See, e.g., Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); York v. Young, supra.

It is important to recognize that Younts’ testimony came when he was being questioned by his own counsel. The question asked was whether he had rebuilt the physical facilities of his business. The question was wholly irrelevant to any question in the case other than possibly that of mitigation of damages which does not appear to have been at issue. The dissenting opinion seems to conclude as a matter of fact that Younts was telling the truth or that he answered in good faith. We have no way to determine that. Appellate courts do not make those decisions. The important point is that Younts’ response that he could not afford to rebuild could very well have been misleading to the jury. In Peters v. Pierce, supra, and in York v. Young, supra, we held that in such a situation the collateral source rule does not prevent introduction of evidence of insurance.

At the hearing on the admissibility of the insurance settlement, Younts’ counsel did not proffer Younts’ testimony or any other evidence to the Trial Court which might indicate that Younts was telling the truth when testifying he could not afford to reopen his business. Thus, when the evidentiary decision was made, the Trial Court did not have the benefit of evidence in support of Younts’ statement. Counsel only stated Younts was underinsured. Even if further testimony had been proffered, we cannot say it would have been improper for the Judge to let the jury decide the issue with all pertinent evidence before it. We certainly cannot hold that the Trial Court abused its discretion in these circumstances.

2. Inadequacy of damages

Younts next contends the Trial Court abused its discretion by not granting a motion for new trial because undisputed testimony showed the damages to be inadequate.

Error in the assessment of the amount of recovery, whether too large or too small, is a ground for new trial even in the absence of other trial error. Ark. R. Civ. P. 59(a)(5); Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985). When the primary issue is the alleged inadequacy of the award, we sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. Fields v. Stovall, 297 Ark. 402, 762 S.W.2d 783 (1989). In reviewing this discretion, an important consideration is whether a fair minded jury might reasonably have fixed the award at the challenged amount, here $2000. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).

Although we have no way of knowing for certain, it is apparent that the jury may well have reduced Younts’ recovery by the amount he recovered from a collateral source, that is, an insurance policy which belonged to him. That is very troublesome to us as we agree with Younts that he had a “substantive right” not to have his recovery so reduced if indeed he recovered from insurance for which he had paid. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986). While Baldor and Spirit do not make the argument, we should mention that nothing in the record before us indicates that Younts requested an instruction to the jury on the collateral source rule.

Other jurisdictions have model instructions to inform the jury of its duty when there is evidence of a collateral source recovery. See, e.g., Wallace v. May, 822 S.W.2d 471 (Mo. App. 1991); Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808 (Fla. App. 4 Dist. 1990). Sample or model instructions on the point appear in G. Douthwaite, Jury Instructions on Damages in Tort Actions, § § 1 -17 and 1-18, pp. 40-45 (2d ed. 1988). While we have no such instruction in the Arkansas Model Jury Instructions, Civil, that would not have precluded instructing the jury on the collateral source doctrine, if it had been appropriate to do so, once the evidence of insurance recovery was admitted.

While it is true that Baldor and Spirit offered no evidence disputing Younts’ testimony about the extent of his loss and his explanation of his statement that he could not afford to rebuild despite the insurance settlement, we have consistently stated an interested party’s testimony is disputed as a matter of law. Gilbert v. Diversified Graphics, supra; Fields v. Stovall, supra. Again, it is for the jury to judge the credibility of witnesses. The jury may not have believed one word of Younts’ testimony about being underinsured and indebted on his equipment. We can hardly find a clear and manifest abuse of discretion in the Trial Court’s denial of Younts’ motion for a new trial.

Affirmed.

Brown, J., dissents.

Glaze, J., not participating.

Robert L. Brown, Justice,

dissenting. I would reverse the circuit court’s decision which allowed evidence of Younts’s fire insurance in this case.

The question and answer giving rise to this issue occurred during Younts’s direct examination:

Q. And have you been able to reopen the business since the August ‘88 fire?
A. Haven’t been able to afford it.

No further comment was made by Younts, and no objection was raised by Baldor Electric at this point. Following direct examination, counsel for Baldor Electric asked for a hearing in chambers, where he argued that Younts, by his answer, had opened the door to interrogation about the insurance proceeds which he received as a result of the fire.

Younts’s counsel rejoined strongly by invoking the collateral source rule and the fact that Younts was underinsured. He then added:

. . .that this gentleman was underinsured, I’ll proffer for the record, and that he was giving an honest answer when he said that it was not affordable for him to reopen his business; that he’s not mislead (sic) the jury in any way by giving that response; that it is hugely prejudicial to my client to mention insurance in that Mr. Sharp’s client can still cross examine Mr. Younts on the feasibility of opening or reopening that business; that the prejudice so far outweighs the probative value of mentioning the insurance.

The circuit court ruled immediately that the insurance issue had been opened by Younts’s statement and added that Younts had been made substantially whole by the insurance proceeds, though he had not yet heard his testimony on this point. No testimony was taken in chambers.

Back in open court, Baldor Electric, on cross examination, pursued the amount of fire insurance paid Younts, which was said to be $41,500:

Q: So actually you made the business judgment not to go back into the Getta Tan business, did you not?
A: A business judgment?
Q: Yes.
A: I could not afford to go back in it.
Q: I see. With the forty-one thousand dollars you couldn’t afford to go back into business?
A: Sir, I didn’t have the forty-one thousand. I owed on the machinery.
Q: Well, if you bought them on credit before you couldn’t buy them on credit again?
A: Not with the amount of the other stuff that I lost in the trailer, no, sir, I couldn’t.

The jury then awarded Younts $2,000 on a $45,423.74 claim. It first had written on the verdict form that the award should be $3,923.74, which is the difference between the $41,500 insurance proceeds and $45,423.74, but it crossed this amount out in favor of $2,000. That the jury bottomed its award in part on the insurance proceeds received is patently obvious.

This is not a case where a plaintiff intentionally misled the jury or where rebuttal testimony is necessary to refute erroneous information. See, e.g., Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). It is a situation where Younts believed what he was saying and could back it up with facts.

The majority, however, artfully dodges the crucial issue and predicates its decision on the failure of Younts to put on live testimony in chambers. This conclusion is reached even though the circuit court had the benefit of counsel’s argument that Younts was being truthful. The court chose instead to rule quickly after arguments by counsel. By doing so, the court interpreted Younts’s comment about non-affordability as deliberately misleading and imbued Younts’s answer with a motive of connivance when there was no factual basis for doing so.

What is really at issue here is the future of the collateral source rule. Simply put, the rule states that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. 22 Am. Jur.2d, Damages § 566, p. 638, et seq. We have endorsed the rule in Arkansas. See Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984). By opening the door to insurance testimony on the flimsiest of pretexts, the majority erodes the rule until it is all but nonfunctional.

Opponents of the collateral source rule argue that it creates a windfall or, at least, the potential for double recovery. That argument, though, is refuted best by Jacob A. Stein in his distinguished treatise on personal injury damages:

As applied to insurance benefits, the collateral source rule expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities. Furthermore, the collateral source rule partially serves to compensate for the large portion of the plaintiffs recovery that ordinarily must be paid to his other attorney under a contingent fee contract, which is an expense of the plaintiff not generally brought to the attention of the jury. Finally, in many insurance cases the rule produces no double recovery because insurance policies increasingly provide for either subrogation or refund of benefits upon a tort recovery.

Stein on Personal Injury Damages, “Collateral Source Doctrine,” § 10:2, p. 416 (2d Ed. 1991).

More was needed than Younts’s truthful comment to justify the overwhelming prejudice that resulted from the insurance testimony in this case. The case should be reversed and remanded for a new trial.


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. Michael BARTER
    CR 91-268
    833 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellant.

      C.D. Mitchell, for appellee.
   Tom Glaze, Justice.

The state brings this interlocutory appeal from the trial court’s partial granting of Michael Barter’s motion to suppress marijuana found in the trunk of the automobile in which he was traveling. A.R.Cr.P. Rule 36.10(a). We concur with the state that the correct and uniform administration of the criminal law requires this interlocutory appeal. A.R.Cr.P. Rule 36.10(c). The state argues that the trial court erred in finding that Barter had a legitimate expectation of privacy in the automobile searched by the police. We agree. On cross-appeal, Barter argues that the trial court erred in denying his motion to suppress his confession and some crack found during a pat-down search. We find no error in the cross-appeal and therefore we affirm.

Barter, Cheyenne Wieneke and three children were traveling in a white 1991 Cadillac from Texas to Indiana. Barter had been driving until they arrived in Little Rock, and at that point, Ms. Wieneke started driving. Driving through Hoxie, Arkansas, they were stopped by Officer Billy Forsyth for driving 68 m.p.h. in a 55 m.p.h. zone. Ms. Wieneke could produce no license or registration for the officer, but she told him her Texas license number. Officer Forsyth called in the license number, the car’s temporary Colorado license plate number and the vehicle’s VIN number. Officer Forsyth testified that Barter and Ms. Wieneke were acting very nervous. Officer Dennis Coggins heard Forsyth’s radio transmission, and Coggins called and informed Forsyth that he remembered a bulletin about a white car carrying contraband. Officer Coggins then joined Forsyth at the scene of the stop.

When Officer Coggins asked Ms. Wieneke if she would sign a consent-to-search form, she told the officers that the car belonged to Barter. At that time, Coggins read Barter his rights and asked him to sign a consent-to-search form. Officer Coggins testified that Barter was acting very nervous and told the police that he did not own the car and was transporting it for a friend. Because of Barter’s suspicious behavior, Officer Coggins became convinced that the car was the one reported in the bulletin as carrying contraband. Coggins told Barter he was going to pat him down for the officers’ safety, and the appellant replied to go ahead, he understood. During the pat-down search, Officer Coggins found a knife and a vial of crack. Barter was read his rights, placed under arrest and transported to the police station. At the station, Barter consented to a search of the car, and forty-five pounds of marijuana was found in the trunk. Barter gave the police a statement that he was paid by a man named J.R. to transport the marijuana to Indianapolis. The police discovered that the Cadillac had been rented from Dollar Rent A Car to a man named Paul Sotello for use in Texas only.

Since the police clearly had authority to stop the vehicle for speeding, the validity of the stop is not in question in this case. The question for the court to answer is whether Barter had a legitimate expectation of privacy in the vehicle so he could raise a fourth amendment argument. This court has repeatedly held that a defendant has no standing to question the search of a vehicle owned by another person. See, e.g., Tippit v. State, 294 Ark. 342, 742 S.W.2d 931 (1988). The proponent of a motion to suppress has the burden of establishing that his own fourth amendment rights were violated by the challenged search and seizure. Rakas v. Ilinois, 439 U.S. 128 (1978). The state alleges that Barter failed to meet this burden at the suppression hearing, because he failed to show that he had legitimate possession of the automobile. We agree.

To assert his fourth amendment rights, the defendant must at least show that he gained possession from the owner or someone with authority to grant possession. United States v. Rascon, 922 F.2d 584 (10th Cir. 1990). At the suppression hearing, Barter testified that he picked up the car from a man named J.R. Swan at a bar in Grapevine, Texas. As stated previously, the police had discovered that the car had been rented to a Paul Sotello by Dollar Rent A Car. Barter presented no testimony at the suppression hearing to show a connection between Sotello, the man who had possessory rights to the car, and J.R., the man from whom Barter received the car. Because Barter failed to show that he lawfully possessed the car, he failed to establish a legitimate expectation of privacy in the automobile searched by police. See Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990); see also U.S. v. Erwin, 875 F.2d 268 (10th Cir. 1989). Thus, Barter cannot argue that his fourth amendment rights have been violated.

On cross-appeal, Barter basically argues that the police officers did not have probable cause for detaining him after the initial stop, pat-searching him, and placing him under arrest. Thus, Barter argues that the trial court erred in not suppressing the crack and his confession as fruits of the poisonous tree. We disagree.

After a lawful stop, the police are permitted to search the outer clothing of an individual and the immediate vicinity for weapons if the facts available to an officer would warrant a person of reasonable caution to believe that a limited search was appropriate. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991); A.R.Cr.P. Rule 3.4. In determining the lawfulness of a search of this kind, this court has recognized two considerations: 1) whether the officer is properly in the presence of the party “frisked” so as to be endangered if that person is armed; and 2) whether the officer has a sufficient degree of suspicion that the

party frisked is armed and dangerous. Wright v. State, 300 Ark. 259, 778 S.W.2d 944 (1989).

Clearly, the officer had the right to stop Barter’s vehicle for speeding, thus the officer was properly in the presence of Barter. Second, the officers testified that Barter had no papers on the car and was acting very nervous and the vehicle matched the description of an automobile known to be carrying contraband. Based on this information, the officers believed Barter was involved in drug transporting. Further, Officer Coggins testified that he felt that any drug transporting person needed to be patted down and placed in the police car for the officers’ safety especially when there is more than one person to watch. Coggins also added that when a person is transporting dope, he or she is usually armed in some fashion. Coggins also had noticed a bulge in Barter’s shirt pocket. From the facts before us, we cannot say that the officer’s suspicion that Barter was armed and dangerous was unmerited. See Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989). The pat-down search of Barter was lawful pursuant to Rule 3.4 to ensure the officers’ safety. After finding the vial of crack, the officers had the authority to arrest him and transport him to the police station. Because we find no improper conduct on the part of the officers, we affirm the trial court’s denial of Barter’s motion to suppress his confession and the crack on cross-appeal.

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


author: Donald L. Corbin, Justice.

text:
    BULL SHOALS COMMUNITY HOSPITAL v. Mark PARTEE
    92-214
    832 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Tatum Law Firm, by: Tom Tatum, for appellant.

      Frank H. Bailey and H. David Blair, for appellee.
   Donald L. Corbin, Justice.

Appellant, Bull Shoals Community Hospital urges us to reverse a jury verdict awarded to appellee Mark Partee in a medical malpractice action. Appellant argues that evidence of insurance was improperly admitted at trial, and for this reason the trial court erred in denying appellant’s motion for a mistrial and a new trial. We disagree and affirm.

On October 31, 1988, Partee arrived at Bull Shoals Hospital complaining of abdominal pain and constipation. Dr. Louis Delnnocentes examined Partee, and performed exploratory surgery later that afternoon. Partee suffered complications as a result of the surgery and was not discharged from the hospital until November 9, 1988. Upon discharge, Partee was instructed to see Dr. Delnnocentes in four days.

On November 13, 1988, Partee went to Baxter County Hospital complaining of pain at the site of his incision. Partee was treated at Baxter County Hospital for a diverticular abscess and for complications resulting from the exploratory surgery performed at Bull Shoals Hospital. Partee spent five days in intensive care, and approximately one week in a private hospital room before being discharged as an outpatient on November 25, 1988.

At all times relevant to this action, Partee was a member of United Health Care Plan, a health maintenance organization (HMO) sponsored and promoted by Bull Shoals Hospital. In order to qualify for payment under the Plan, the HMO required its members to use the staff of Bull Shoals Hospital, except in emergency situations or cases for which Bull Shoals Hospital could not provide treatment.

Partee brought an action against appellant hospital seeking damages for medical malpractice and breach of contract. Partee alleged that Dr. Delnnocentes was the agent and employee of Bull Shoals Hospital, and that the hospital was liable under the doctrine of respondeat superior for the damages sustained as a result of Dr. Delnnocentes alleged malpractice. Partee further alleged that appellant hospital d/b/a United Health Care Plan breached the HMO contract by failing to pay $29,997.69 for Partee’s incurred medical expenses. Prior to trial, the trial court granted Partee’s motion to sever the breach of contract claim from the medical malpractice claim.

During trial on the medical malpractice claim, one of the crucial disputed issues was whether Dr. Delnnocentes acted as the agent or employee of the appellant hospital. See Medi-Stat, Inc. v. Kusturin, 303 Ark. 45, 792 S.W.2d 869 (1990). Accordingly, the trial court allowed appellee to introduce evidence of the HMO contract for the limited purpose of proving that appellant hospital exercised control over Dr. Delnnocentes’ treatment of patients covered by the HMO plan. Pursuant to this ruling, appellee introduced various HMO documents including his group enrollment card, group enrollment application, and group service agreement. After the introduction of each document, the trial court instructed the jury that the document should only be considered for the purpose of determining whether an agency relationship existed between the hospital and Dr. DeInnocentes.

Appellant does not specifically challenge the introduction of the HMO documents on appeal. Rather, appellant argues that a statement by appellee’s wife elicited on cross-examination, entitled appellant to a mistrial because of the cumulative prejudicial effect of this statement and the previously admitted HMO documents. The following exchange occurred on cross-examination of appellee’s wife:

Q. What was his temperature when he was taken to Baxter Regional?
A. About 102 to 103.
Q. But you didn’t make any of those calls to Bull Shoals or Dr. Delnnocentes?
A. I didn’t see why I should____I was taking him to the emergency room.
Q. Did you not enter an agreement with the doctor that discharged him that you would do that?
A. Well, the way I understood the insurance, if it was an emergency, we could take him to the nearest emergency room, so that’s what I did.

At that point, appellant moved for a mistrial on the grounds that Mrs. Partee’s mention of “insurance,” combined with the medical bills and HMO documents in evidence, prejudiced appellant by improperly injecting insurance evidence and the severed contractual claim regarding the nonpayment of the insurance claim.

The court conducted an in-chambers hearing where it denied appellant’s motion for mistrial, stating that the issue of coverage had not been brought to the jury’s attention. The court further noted that Mrs. Partee’s statement was a response to probing by appellant’s counsel, and the court offered to consider issuing a cautionary instruction at the close of the case if one was provided. Counsel for appellant then stated, “I will be requesting the cautionary instruction at the close of the case.... [O]therwise I waive my objection.” At the close of the case, appellant failed to proffer a cautionary instruction.

We do not find an abuse of discretion in the trial court’s refusal to grant a mistrial. First, it is hard to see how the mention of the word “insurance” prejudiced appellant. The reason insurance evidence is generally prohibited is to exclude evidence of a “deep pocket” from the jury. Hacker v. Hall, 296 Ark. 571, 759 S.W.2d 32 (1988). This concern was not implicated in the present case because the “insurance” to which appellee’s wife referred was not the hospital’s liability insurance but Partee’s own health coverage under the HMO policy. In this context, no danger existed that the jury verdict would be influenced by evidence suggesting that a “deep pocket” would be responsible for any liability on the part of the hospital. Second, counsel for appellant explicitly stated that he waived his objection with the unfulfilled stipulation that he would later request a cautionary instruction. We do not consider on appeal objections specifically waived at trial. See Powell v. Bishop, 279 Ark. 365, 652 S.W.2d 9 (1983); see also Nicholas v. State, 268 Ark. 541, 595 S.W.2d 237 (Ark. App. 1980).

Appellant also argues that Mrs. Partee’s response improperly injected the severed contractual claim regarding the nonpayment of Partee’s hospital bills. Again, appellant specifically waived his objection at the in-chambers hearing on his mistrial motion. Furthermore, Mrs. Partee’s statement did not refer to the non-payment of medical bills, but to the guidelines of the HMO contract regarding emergency situations. The trial court correctly noted that appellant’s counsel invited mention of the HMO guidelines by cross-examining Mrs. Partee as to why she did not take her husband back to Bull Shoals Hospital. One who opens up a line of questioning or is responsible for error cannot be heard to complain of that for which he was responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). In this case, appellant questioned Mrs. Partee as to why she did not return her husband to Bull Shoals Hospital for treatment, and Mrs. Partee’s response indicated her belief that the HMO contract allowed for other facilities to provide care in emergency situations.

A mistrial is an extreme remedy to be taken only when it is apparent that justice cannot be served by continuing the trial. Powell v. Burnett, 304 Ark. 698, 805 S.W.2d 50 (1991). The trial judge has considerable discretion in deciding whether to grant a motion for mistrial, and we will not reverse in the absence of manifest abuse. Dickerson Constr. Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 46 (1979). In this case, we find no manifest abuse of discretion.

Appellant’s second argument for reversal is that the trial court erred in denying its motion for new trial. Appellant incorporates the arguments regarding the denial of the mistrial motion, and also asserts entitlement to a new trial based on the testimony of Abija Hughes, administrator of the appellant hospital. On direct examination by appellee’s counsel, Hughes testified as to the hospital’s obligations under the HMO plan. Hughes’ testimony included an admission that the policy required the hospital to provide or arrange for hospital services. Hughes further testified that the HMO plan covered hospital stays regardless of the length of the stay.

While appellant argues that the testimony prejudiced the jury by improperly injecting the contractual claim, we agree with appellee that Hughes’ testimony was necessary to show the extent of the hospital’s control of the treatment of HMO patients. The line of questioning pursued by appellee’s attorney illustrated the hospital’s economic incentive to discharge such patients, and this economic incentive, coupled with the HMO obligation to provide care, was relevant to prove the extent of the hospital’s control over the doctors’ determinations as to when the HMO patients should be discharged. See Medi-Stat, supra. As the agency issue was in dispute, we discern no abuse of discretion in the denial of the motion for new trial.

Affirmed.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    James HARVISON and Maidlene Harvison v. CHARLES E. DAVIS AND ASSOCIATES, INC., a/k/a Davis & Associates, P.A., Charles E. Davis and Jeff H. Watson
    91-286
    835 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Arens Law Firm, by: Gregory R. Bowman, for appellants.

      Davis, Cox & Wright, by: Walter B. Cox and Tim E. Howell, for appellees.
   Donald L. Corbin, Justice.

Appellants, James and Maidlene Harvison, appeal an order of the Washington Circuit Court entering summary judgment and dismissing their complaint for conversion, fraud, and legal malpractice against appellees, Charles E. Davis and Associates, Inc., a/k/a Davis & Associates, P.A., Charles E. Davis, and Jeff H. Watson. The Harvisons allege their causes of action arose from Davis’ and Watson’s representation of the Harvisons in the drafting and enforcement of a land sales contract. The Harvisons assert six points of error in the proceedings below, all of which concern their claim for legal malpractice. We find no error and affirm.

The Harvisons’ complaint alleged Davis and Watson committed malpractice by obtaining a foreclosure of their land rather than following their instructions to repossess the land for them. Davis and Watson moved for summary judgment on the grounds that they attempted to achieve a forfeiture, but forfeiture was not an available remedy to the Harvisons. The trial court entered an order concluding there was no genuine issue of material fact and that Davis and Watson were entitled to judgment as a matter of law.

We address the Harvisons’ first, second, and fourth assignments of error together as they are essentially the same argument — that the trial court erred in granting summary judgment because Davis and Watson did not meet their burden of showing an absence of a genuine issue of material fact or that they were entitled to judgment as a matter of law. On appellate review, we need only to decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991).

With the foregoing standards in mind, we recite the evidence in the light most favorable to the Harvisons. For a purchase price of $55,000,00, with $10,000.00 down and remainder financed at an interest rate of 10% per annum, the Harvisons sold approximately 10.76 acres in Washington County to Charles R. and Vera Howard. The contract was dated June 4, 1982, and directed the Howards to make monthly payments of $594.68 to the escrow agent, First State Bank, Springdale, Arkansas, beginning on July 5, 1982. The contract contained a forfeiture clause, providing that in the event of the buyers’ default for as long as thirty days, the sellers were entitled to declare the entire unpaid balance due within twenty days; if the balance remained unpaid at the expiration of the twenty days, the sellers were entitled to retake possession of the land without legal process and to keep all payments made under the contract as liquidated damages. The contract further provided that in the event of the buyers’ default, the sellers were entitled to waive their forfeiture rights and seek specific performance of the contract.

The Harvisons hired Davis to draft the contract in question. They also hired Davis to handle the collection of the Howards’ default on two occasions, once in 1984 or 1985 and again in 1986. On both occasions, Davis advised the Harvisons of their right to enforce the forfeiture clause. On both occasions, the Harvisons chose not to seek a forfeiture. Instead, they chose to accept the Howards’ late payments and to proceed under the contract. The Howards defaulted again in January 1989. And again, the Harvisons consulted Davis for advice on handling the default. Davis assigned the matter to his associate Watson.

The Harvisons consulted Watson concerning the latest default and informed Watson they wanted to retake possession of the land. As required by the contract, on February 23, 1989, Watson drafted a letter of notice to the Howards notifying them of their default and demanding that the entire balance be paid in twenty days.

By letter dated March 22, 1989, Watson informed the Harvisons that the Howards desired to make up all the back payments and make one payment in advance. The Harvisons instructed Watson that they did not want to accept the Howards’ payments, rather they wanted to enforce the forfeiture clause of the contract. On April 10, 1989, Watson filed a complaint on the Harvisons’ behalf in Washington Chancery Court seeking first a forfeiture of the lands sold under the contract, and in the alternative, a judgment lien and foreclosure. On October 12, 1989, the chancellor entered an order stating that the Howards had acquired an equitable interest in the property and that because equity abhors a forfeiture, a sale of the property to a third party for $115,000.00 was approved. The order distributed the proceeds from the sale so that the Harvisons received the balance due them under the contract of $24,801.48, including principal, interest, costs, and attorneys’ fees. In addition, the proceeds were distributed so that federal income tax liens totaling $72,594.75 against the Howards’ interest and a judgment lien for workers compensation benefits of $5,412.85 against the Howards’ interest were satisfied.

In their motion for summary judgment, Davis and Watson argued that they were not negligent in seeking the foreclosure as an alternative remedy to forfeiture because forfeiture was not an available remedy to the Harvisons. The Harvisons opposed the motion arguing, as they argue on appeal, that if forfeiture was not a remedy available to them it was not because of their own actions but because of Davis’ and Watson’s negligence in drafting or enforcing the contract. Specifically, the Harvisons claim that a forfeiture clause in a land sales contract is enforceable unless the seller acts so as to waive the right to forfeiture and that appellees did not produce evidence that waiver exists in this case.

Davis and Watson clearly met their burden of sustaining the summary judgment. The foregoing evidence was recited from facts which were not disputed by either party. Those material facts reveal that forfeiture was not a remedy available to the Harvisons for a number of reasons. First, the Howards had made payments under the contract for almost seven years amounting to approximately 60% of the purchase price. The Harvisons always accepted these payments, whether timely or untimely. As a result, by the time suit was filed for the 1989 default, the Howards had acquired an equitable interest in the property. Principles of equity abhor a forfeiture of the Howards’ equitable interest under these circumstances, even when the contract expressly provides for the right of forfeiture. Humke v. Taylor, 282 Ark. 94, 666 S.W.2d 394 (1984); Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964). Second, there were two interests other than those of the Harvisons’ and the Howards’ for the equity court to consider. The Internal Revenue Service had an interest based on federal income tax liens of $72,594.75. In addition, Ron McCann had a judgment lien of $5,412.85 for unpaid workers compensation benefits. Third, the value of the property in question had appreciated substantially from $55,000.00 on the date of the contract to $115,000.00 at the time of the 1989 default and the subsequent suit on the contract. The combination of these three factors tipped the scales of equity in favor of the foreclosure sale.

The Harvisons place too great an emphasis on the issue of waiver. We do not ignore, however, their argument that Davis and Watson never informed them that their conduct in accepting late payments would amount to a waiver of their right to forfeiture. Whether or not such a failure was a breach of Davis’ and Watson’s duty, it did not cause the Harvisons any damages because the trial court’s approval of the sale and denial of forfeiture was not based entirely on the Harvisons’ conduct in accepting late payments. There were other factors involved, the most significant factor being the liens against the property. The chancellor considered these liens at the hearing on the motion. From the bench he stated his ruling as follows:

Gentlemen, I think all of you are in agreement that forfeiture clauses are proper, and it’s strictly up to the Court. And, of course, equity abhors a forfeiture, an old maxim that sometimes, or often called by chancellors when the occasion arises. In this particular case, with this lien, judgment lien, IRS lien, against the property, I don’t think any Judge in the State of Arkansas would allow a forfeiture under those particular circumstances. I see no genuine issue of material fact, and I’m granting the defendant summary judgment.

Thus, even in the absence of waiver, forfeiture would not have been a remedy available to the Harvisons.

For the Harvisons to assert that principles of equity should have awarded them repossession of the land now valued at $115,000.00 and allowed them to keep the $30,000.00 paid by the Howards under the contract, while simultaneously ignoring the interests of the Howards, the Internal Revenue Service, and Ron McCann, is to assert that they should have been awarded a windfall at the complete expense of the other interests in the property. Principles of equity would never award such a windfall, especially when presented with an opportunity to completely satisfy all interests in the property.

Davis and Watson met their burden of establishing a lack of a genuine issue of material fact and entitlement to judgment as a matter of law. The Harvisons did not meet this proof that a genuine issue of material fact exists. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). Therefore, we cannot say the trial court erred in granting summary judgment.

As another point for reversal, the Harvisons claim it was malpractice per se for Davis and Watson to not follow their instructions to retake the property and to end the contract. The Harvisons cite us to the Model Rules of Professional Conduct as authority that Davis and Watson committed malpractice by not abiding by their clients’ objectives of representation, Rule 1.2(a), and by not consulting with their clients, Rule 1.2(e), or explaining the matter to them, Rule 1.4(b). They also argue Davis and Watson violated Rule 1.4(a) by failing to keep them informed of the status of the case.

This argument, as phrased in the Harvisons’ brief, is based on the false premise that Davis and Watson did not follow their instructions to retake the property and end the contract. Our review of the record reveals that Davis and Watson followed the Harvisons’ instructions precisely.

The Harvisons argue that instead of initiating steps to retake the property, Watson wrote a demand letter to the Howards and when the demand letter went unanswered, filed a foreclosure action in equity. This is simply not what occurred. It is true that Watson wrote a demand letter to the Howards before taking steps to repossess the property, however, such a demand was required by the terms of the contract, as well as principles of equity. The demand letter was the first step required in the attempt to seek a forfeiture. It is also true that when the demand went unanswered, Watson filed a complaint for foreclosure; however, that same complaint first requested a forfeiture. A foreclosure was requested only as an alternative to forfeiture.

Davis and Watson followed the Harvisons’ instructions to retake the property and end the contract. A complaint for forfeiture was filed and rejected by the trial court, which instead approved a foreclosure sale. The Harvisons received the balance due them under the contract in addition to attorneys’ fees and costs. The contract was ended. We are unwilling to say that because Davis and Watson attempted to but did not achieve the particular result the Harvisons requested, they committed malpractice per se.

As yet another point for reversal, the Harvisons claim the chancellor’s affidavit was immaterial and the trial court’s failure to strike it from the record was reversible error. The chancellor who denied the Harvisons’ request for forfeiture and approved the sale, Judge John Lineberger, did state in an affidavit filed in support of the motion for summary judgment that he “would not permit forfeiture under the facts of the case.” However, nowhere in the record is it revealed that the Harvisons asked the trial court to strike the chancellor’s affidavit from the record before it. By now it should be obvious that we do not address arguments raised for the first time on appeal. Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990).

As their final point for reversal, the Harvisons assert they should have been allowed to engage in discovery to gather the necessary information to rebut the facts asserted in the chancellor’s affidavit. The Harvisons rely on ARCP Rule 56(f).

The continuance granted by Rule 56(f) is a matter within the trial court’s discretion and a refusal to grant such a continuance will not be reversed absent an abuse of that discretion. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). The affidavit in question was merely the chancellor’s statement that under the circumstances of the particular case, he would not have granted a forfeiture. His affidavit did not place any material facts in genuine dispute. Therefore, the trial court did not abuse its discretion in denying the Harvisons’ request to engage in discovery and in entering summary judgment.

In their reply brief, the Harvisons ask us to strike the supplemental abstract in Davis’ and Watson’s brief because it fails to comply with Ark. Sup. Ct. R. 9 in that it is a verbatim reproduction of the record, not written in the first person, and contains matters that are not necessary to an understanding of the questions presented. Appellees’ supplemental abstract does contain verbatim reproductions of some paragraphs of some of the pleadings. However, the nine-page supplemental abstract is nowhere near the equivalent of an extensive verbatim reproduction of the entire 308-page transcript. See Widmer v. Taylor, 296 Ark. 337, 756 S.W.2d 903 (1988). There is no testimony included in the supplemental abstract, therefore there is no need for the abstract to be written in the first person. See Rule 9(d). There is nothing in the supplemental abstract that is not necessary to an understanding of the questions presented. The Harvisons’ request to strike the supplemental abstract is denied.

Affirmed.

Hays and Brown, JJ., dissent.

Newbern, J., not participating.

Robert L. Brown, Justice,

dissenting. I cannot agree with the majority that it was undisputed that forfeiture was unavailable to the parties. On the contrary, the Harvisons submitted an affidavit from an attorney, Randy Coleman, which stated that forfeiture was an available remedy under the facts of this case. That affidavit clearly qualifies as proof for the Harvisons’ position and just as clearly establishes a material issue of fact regarding any underlying facts that might prohibit forfeiture.

In this case there were two such underlying factual issues. The first was whether the Harvisons had waived their right to forfeiture due to an habitual receipt of late contract payments. (According to the Howards, there were eight late payments over seven years.) The second was whether liens against the Howards totalling $78,000 which attached to the Howards’ equitable interest in the land somehow prohibited forfeiture. The trial judge premised his decision on the lien issue and found that the liens were decisive in preventing forfeiture. Why this is so was not stated by the court.

The Coleman affidavit in support of the forfeiture remedy places these underlying factual matters in dispute. Whether the Harvisons implicitly waived their right to forfeiture is clearly a question of fact that should have been resolved at trial. See, e.g., Moore Ford Co. v. Smith, 270 Ark. 340, 640 S.W.2d 943 (1980); Freeman v. King, 10 Ark. App. 220, 662 S.W.2d 479 (1984). The issue of the liens is more troublesome. Assuming that the liens did attach to the land, the land could still have been forfeited to the Harvisons and the liens subsequently satisfied by them. This would have left title in the Harvisons, who stood to gain more than the balance of the contract price due to appreciation in the land’s value.

There is, too, the issue of whether the appellees communicated with their clients. The majority’s conclusion that this is irrelevant since the Harvisons got everything that they wanted simply does not hold water. The Harvisons made it very clear in their affidavit that they wanted the land back. What they got was the balance of the contract price — about $21,000 plus costs and fees. But with forfeiture, they could have retained title and benefitted from the land’s appreciation in value (from $55,000 to $115,000 in seven years) and the potential for greater appreciation in the future.

The appellees admit that they did not communicate the circuit court’s decision denying forfeiture and approving the sale to the third party to their clients. By the time that the Harvisons were made aware of it, the land had been sold. Even if you accept the trial judge’s conclusion that the forfeiture was not an available remedy, the Harvisons still had the right to retain the land and refuse a foreclosure sale. That right was denied them because of lack of communication from the appellees. The trial judge, however, granted summary judgment without making a finding on this pivotal point.

It may well be that, following trial, forfeiture would ultimately be unavailable in this case. But when critical issues of fact remain to be resolved, as was clearly the situation in this case, summary justice is inappropriate. I would reverse for a trial on the merits.

Hays, J., joins.


text:
    Kenny IRVIN, Doug Irvin and Mike Irvin v. Bernice JONES
    91-331
    832 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Howard L. Slinkard, P.A., by: Howard L. Slinkard, for appellants.

      Shults, Ray & Kurrus, by: Robert Shults and Thomas Ray, for appellee.
   Donald L. Corbin, Justice.

Appellants, Kenny Irvin, Doug Irvin, and Mike Irvin, are brothers. Their mother was once married to the nephew of appellee, Bernice Jones. While their mother was married to appellee’s nephew, appellee bought seventeen $10,000 certificates of deposit payable to herself or each of her grandnieces and grandnephews respectively, as joint tenants with right of survivorship. Three of these seventeen certificates of deposit were made payable to appellee or each of the three appellants respectively, and are the subject of this appeal. The three certificates in question stated on their faces that they were “not negotiable — not transferrable — not subject to check” and that they were to be paid on return of the certificate properly endorsed. Appellee purchased the certificates solely with her money on March 12, 1985; the certificates were to mature in 48 months. Appellee cashed the three certificates in question on March 14, 1989, collecting $14,894.03 principal and interest for each certificate. Meanwhile, appellants’ mother and appellee’s nephew had divorced.

Appellants filed suit against appellee for conversion of the proceeds claiming the certificates were gifts inter vivos. Appellee filed a motion for summary judgment contending she only intended for appellants to have the certificates on her death, if she had not already cashed them and that she had never delivered possession of the certificates to appellants. The trial court stated that appellants admitted appellee never delivered the certificates to them and entered an order granting summary judgment because there were no genuine issues of material fact and appellee was entitled to judgment as a matter of law. The order was correct and we affirm it.

In addition to the hearing on the motion for summary judgment, the trial judge had before him affidavits, depositions, responses to interrogatories, and requests for production of documents. There were arguably disputed facts regarding whether or not appellee had the requisite intent to make an irrevocable gift inter vivos. However, neither appellee nor any of appellants dispute that appellee retained sole possession of the certificates at all times and that she never delivered them to appellants.

Our law determining a valid gift inter vivos is well established. The donor must have an irrevocable intent to make the gift and must deliver the gift to the donee. We have stated these requirements in many ways over the years. In Williams v. Smith, 66 Ark. 299, 301, 50 S.W. 513, 514 (1899), this court stated the requirements as follows:

“If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable. Such delivery may be made to a bailee as effectually as to a donee in person. * * * If there be only an intention to give, and no delivery, it will be inchoate and incomplete, however strong the expression of the intention may be; and the property does not pass. . . .”

Almost one hundred years later, in Wright v. Union Nat’l Bank, 307 Ark. 301, 304, 819 S.W.2d 698, 700-01 (1991), we stated those same requirements as follows:

Our law is clear that in order for an inter vivos gift to transpire it must be proven by clear and convincing evidence that (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. See Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971).

Over the years, we have focused on the requirement of delivery. In Baugh v. Howze, 211 Ark. 222, 226, 199 S.W.2d 940, 942 (1947), we quoted from Ragan v. Hill, 72 Ark. 307, 80 S.W. 150 (1904) and stated that:

‘In all gifts a delivery of the thing given is essential to their validity; for although every other step be taken that is essential to the validity of a gift, if there is no delivery, the gift must fail. Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite, without which the gift fails, regardless of the consequences. . . .’

Appellants do not dispute the foregoing recitation of the law of gifts inter vivos. They argue, however, that in this particular case, the foregoing requirements can be met in a less stringent manner. They seem to rely on the language in Williams, 66 Ark. 299, 50 S.W. 513, that there need only be “such delivery as the nature of the property will admit.” As we have consistently applied the foregoing requirements to inter vivos gifts of certificates of deposit, we are not persuaded by appellants’ argument. Appellants also argue that Ark. Code Ann. § 23-32-1005 (1987) vests them with an ownership interest in the certificates of deposit. We are not persuaded that our banking statutes, in particular section 23-32-1005, have any applicability to the law of gifts inter vivos. Moreover, the abstract does not reveal that appellants raised the statutory argument in the proceedings below. Therefore, we do not address the statutory argument as it is raised for the first time on appeal. Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990).

There can be no doubt that a certificate of deposit may be the subject of a gift inter vivos. We have stated that a promissory note, or any chose in action or other evidence of debt, may be the subject of a gift inter vivos and that a certificate of deposit falls into this category. Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979). Likewise, there can be no doubt that the requirements of intent and delivery apply to an inter vivos gift of a certificate of deposit. We have also stated that in order to constitute a valid gift of a certificate of deposit, there must be an intent by the donor that title pass immediately, and a delivery of the certificate. Id.

In Hudson v. Bradley, 176 Ark. 853, 4 S.W.2d 513 (1928), we applied the law of gifts inter vivos to a case with facts very similar to the present case. In Hudson, a father bought certificates of deposit payable to himself or his son. As in the present case, the certificates in Hudson were purchased solely with the purchaser’s money and were not subject to check. The Hudson case held there was not a valid gift inter vivos because the father retained possession of the certificates and never delivered them to his son.

In the present case, appellee stated in her affidavit that she kept physical possession of the certificates in her safe deposit box at all times. Appellants admit that they never had possession of the certificates. Thus, appellants offered no proof of the element of delivery, which the foregoing case law, especially Hudson, establishes is an essential element of the claim of a valid gift inter vivos.

In Short v. Little Rock Dodge, Inc., 297 Ark. 104, 106, 759 S.W.2d 553, 554 (1988), we stated that:

It is proper to grant a summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court interpreted F.R.C.P. 56, which is identical to our rule in every material respect, as permitting a summary judgment when a plaintiff cannot offer proof of a material element of the claim. We agree with the Supreme Court’s rationale that when a party cannot present proof on an essential element of her claim there is no remaining genuine issue of material fact, and the party moving for a summary judgment is entitled to judgment as a matter of law.

As there was no proof that appellee delivered the certificates to appellants or to their agent, there is no proof of delivery, an essential element of appellants’ claim. Therefore, based on our ruling in Short, there is no remaining genuine issue of material fact, and appellee was entitled to judgment as a matter of law. The trial court committed no error in granting summary judgment.

Affirmed.


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

text:
    John Richard LUKACH, Jr. v. STATE of Arkansas
    CR 91-279
    835 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Larry W. Horton, for appellant.

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

Appellant, John Richard Lukach, Jr., appeals from a judgment of the Hot Spring Circuit Court convicting him of the rapes of his two nieces. The informations charging appellant alleged the girls were aged nine and seven years at the time the rapes were committed during the month of August 1990. After a jury trial on August 14, 1991, appellant was sentenced to two life terms in the Arkansas Department of Correction. He raises five arguments on appeal. All five arguments are without merit. We affirm.

SUFFICIENCY OF THE EVIDENCE

The last of the five arguments raised in appellant’s brief is that the trial court erred in denying his motion for directed verdict based on insufficient evidence. We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992). Based on the holding in Burks v. United States, 437 U.S. 1 (1978), that the double jeopardy clause precludes a second trial when a conviction in a prior trial was reversed solely for lack of evidence, we have determined that preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Therefore, we consider appellant’s last assignment of error, the challenge to the sufficiency of the evidence, prior to considering his other assignment of trial error.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). On review, it is only necessary for us to ascertain that evidence which is most favorable to appellee and, if there is substantial evidence to support the verdict, we affirm. Id.

As is. required, we recite the evidence in the light most favorable to appellee. The nine-year-old victim testified that her Uncle Johnny hurt her and her sister. She stated that appellant entered her bedroom late at night without any clothes on and put himself into her. When asked to explain what she meant by that testimony, she stated that “[h]e put his private parts into my private parts.” When asked to explain further, she inquired whether she had “to say the words,” and after being instructed to do so, she stated, “[h]e put his dick into my pussy.” She testified that this happened several times in the summer when she lived with her granny, appellant, and Darrell Pilcher.She also testified that one night she woke up to find appellant with his hands in her panties rubbing up and down; she testified that appellant put his finger inside of her.

Dr. Greg Loyd, a family practioner in Malvern, Arkansas, testified that he conducted a physical examination on the nine-year-old victim in August 1990, the time the information alleged the crime was committed and the time that appellant was living in the same home as the two victims. Dr. Loyd determined that the nine-year-old girl had a perforate hymen which was not intact. Although he could not determine the cause of the three to four millimeter tear in her hymen, he testified that a penis could have caused it.

Darrell Pilcher testified that in 1990 he lived in the same house with appellant, the two victims, and their grandmother. He testified that one night the nine-year-old victim came running to him when he was asleep on the couch and told him appellant had touched her. Pilcher went into her bedroom and found appellant lying in her bed.

The seven-year-old victim testified that when she lived in her granny’s house with Uncle Johnny, he hurt her more than once. She explained that “one night he took his pants off and he put some grease on me.” She stated that he put the grease on her private between her legs and that he put his private in her private.

We have held many times that the uncorroborated testimony of a victim that the defendant committed the rape is sufficient to uphold that defendant’s conviction for rape. See, e.g., Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Such a holding is based in part on the fact that determining the credibility of the witnesses is a determination that lies within the province of the jury. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). It is the jury’s decision whether or not to believe the victim and no corroboration is necessary. Id.

Both victims testified that appellant committed the rapes. The jury judged the credibility of the victims’ testimonies and returned a guilty verdict. The evidence is substantial and therefore sufficient to support the verdict.

MOTION TO SEVER

Appellant alleges the trial court erred in denying his numerous motions, made both prior to trial and during trial, to sever the cases against both victims. Appellant relies on A.R.Cr.P. Rule 22.2(a) and argues he was entitled to a severance as the two cases were joined solely because they were of the same or similar character and were not part of a single scheme or plan. He also relies on A.R.Cr.P. Rule 22.2(b)(ii) and argues he was denied a fair determination of his guilt or innocence of each offense.

Granting or refusing a severance is a matter within the discretion of the trial court. Fisher v. State, 290 Ark. 490, 720 S.W.2d 900 (1986). We have held that where the facts necessary to prove the offenses would almost all be required in each trial if a severance were granted and the evidence would be used in both trials to prove a plan, scheme, motive or state of mind, there was no abuse of discretion in refusing to sever the cases. Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 464 U.S. 835 (1983). We have also held that evidence of sexual abuse with children other than the victim is admissible to show motive, intent, or plan pursuant to A.R.E. Rule 404(b). Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). Thus, as the facts necessary to prove these offenses would be required in both trials and as each of the girls’ testimonies would be admissible in the trial of the other’s rape to show appellant’s intent, motive, or common scheme or plan, the trial court did not abuse its discretion in refusing to sever the two cases.

MISTRIAL OR CONTINUANCE — YOUNGER VICTIM

With respect to the rape of the seven-year-old victim, appellant argues the trial court erred in denying his motion for mistrial or, in the alternative, motion for continuance based on the state’s failure to comply with discovery. The evidence that appellant alleges was not disclosed to him is a medical examination of the younger victim and a taped interview of her with a social worker. Both the interview and medical examination were conducted in Atlanta, Georgia, in August of 1990, when the younger victim went there to live with her paternal grandmother, Alice Roden.

Appellant asserts that although he made a discovery request of all scientific evidence, he first learned this evidence existed when the seven-year-old victim revealed its existence on cross-examination. When asked if she had ever been examined by a doctor for what she alleged her Uncle Johnny did to her, she responded “[y]es, sir. . . . When I was in Atlanta.” At the conclusion of the girl’s testimony, appellant moved for a mistrial, severance, and continuance on the basis that the medical evidence could exculpate him. Ms. Roden then testified in an in camera hearing that the seven-year-old girl had been examined by a doctor in Atlanta at the request of a Fulton County, Georgia, social worker because of allegations of sexual abuse against “her younger son.” Ms. Roden also testified that the seven-year-old girl had been interviewed on video tape by a social worker in Atlanta and that she thought the taped interview was sent to a social worker in Arkansas.

Appellant argues on appeal that knowledge of the existence of both pieces of evidence, the medical examination and the taped interview, were imputed to the state. Thus, when the state did not supply this evidence to appellant pursuant to his discovery requests, the state did not comply with the requirements of A.R.Cr.P. Rule 17.3(a) to use due diligence and good faith to obtain and supply appellant with this evidence. Therefore, argues appellant, he was entitled to a mistrial, or at the very least a continuance in order to obtain the evidence in question.

A.R.Cr.P. Rule 17.3 states as follows:

(a) The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.
(b) If the prosecuting attorney’s efforts are unsuccessful, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel where the material or other governmental personnel are subject to the jurisdiction of the court.

A review of the transcript reveals that the prosecutor had no knowledge of this evidence prior to the time appellant learned of it. However, appellant relies on Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986), Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985), and Dever v. State, 14 Ark. App. 107, 685 S.W.2d 518 (1985), for the argument that knowledge of this evidence is imputed to the state. The cases relied on by appellant involved evidence known to be directly related to the case being tried and known to exist in the hands of Arkansas state agencies so that the evidence could be obtained by the prosecution. That is not so in the present cases.

The testimony presented at the in camera hearing is not conclusive evidence that either the medical report or the taped interview actually exist, and if so that they are known to exist by any state agency. The testimony is also vague as to whether or not these two pieces of evidence relate to the case against appellant for the rape of the seven-year-old girl. The grandmother’s testimony indicates that the medical examination was requested by the Family and Children Services Agency of Fulton County, Georgia, based on allegations of sexual abuse against “her younger son.” Nowhere in the transcript can it be confirmed that “her younger son” is the appellant in this case. It is true, however, that on cross-examination, the seven-year-old victim answered affirmatively when asked if she had seen a doctor for what she said her Uncle Johnny did to her. The grandmother’s testimony also indicates that the taped interview of the seven-year-old girl could have related to a custody matter. The grandmother testified that she had legal custody of the seven-year-old girl, whose mother had kidnapped her and taken her back to Arkansas. There was no clear statement, by Ms. Roden or otherwise, of what the taped interview concerned.

A mistrial is an extreme and drastic remedy and should be avoided except where fundamental fairness of the trial is at stake; the decision of whether to grant a mistrial is within the discretion of the trial court and will not be reversed on appeal absent a showing that the discretion was abused. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987), and 490 U.S. 1075 (1989). Likewise, a continuance is a matter within the discretion of the trial court. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). It is appellant’s burden to show there was an abuse of discretion in denying the continuance. Id. Appellant has failed to meet that burden. Based on the vague and ambiguous evidence presented to it at the in camera hearing, the trial court could have reasonably concluded that the medical examination related to a case occurring outside the jurisdiction of the State of Arkansas against someone other than appellant. Even if there was testimony indicating the medical report related to appellant, there was no testimony indicating the report was in the hands of any Arkansas state agency or was otherwise subject to the jurisdiction of the court as required by A.R.Cr.P. Rule 17.3(b). The trial court could also have reasonably concluded that the taped interview related to a custody matter. Furthermore, if indeed the taped interview related to this case and was in the hands of an Arkansas social worker, it would not be admissible in court. See Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990); Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). Accordingly, we cannot say the trial court abused its discretion in denying appellant’s motions for mistrial or continuance.

CONTINUANCE — OLDER VICTIM

During a pre-trial evidentiary hearing, the following facts were revealed. On July 23, 1991, approximately one week before appellant’s case was first set for trial, appellant learned that the nine-year-old victim had accused an adult male other than appellant of raping her. Appellant’s information was that the accusation was made in Russellville, Arkansas, but after further investigation discovered the accusation was made in Dardanelle, Arkansas. Appellant contacted the Hot Spring County Sheriffs office which stated it would obtain the records for appellant, but failed to do so.

On August 12, 1991, two days prior to appellant’s trial, the trial court granted appellant’s request for an order to produce records. The records appellant sought were provided to appellant by the Yell County officials on August 13, 1991.

The Yell County records confirmed that the nine-year-old victim in this case had accused an adult male, other than appellant, of raping her in 1988. The accused denied any sexual abuse of the girl during a polygraph examination. The polygraph examiner determined that the accused’s answers to questions regarding sexual abuse of the nine-year-old victim were truthful. The records also indicated that the girl was examined by Dr. Hicks at Children’s Hospital. Dr. Hicks’ medical report indicated the nine-year-old’s hymen was intact, without laceration, cut, or tear.

Appellant moved for a continuance arguing that he needed to procure expert testimony concerning this 1988 medical examination. The trial court granted a continuance and allowed counsel to take Dr. Hicks’ deposition, part of which was admitted at trial. Appellant moved for another continuance arguing that because this medical evidence was exculpatory and that the examining physician was not an expert in child sexual abuse, appellant was entitled to a continuance to obtain an expert’s opinion of the 1988 examination. The trial court denied this second motion for a continuance.

Appellant’s argument is that this 1988 medical examination is exculpatory because it indicates that the nine-year-old victim had previously made the same allegation that she did against appellant in the present case, i.e., “he put his private in my private.” However, in the previous case that allegation proved to be false. Appellant claims the prosecution committed a discovery violation by failing to disclose this exculpatory information until two days before trial.

The state defends its conduct by claiming that appellant had an available expert to question about the 1988 examination. This so-called expert is Dr. Greg Loyd, the physician who examined the nine-year-old victim in August 1990, and testified at trial. The state is correct in pointing out that appellant stipulated to Dr. Loyd’s qualifications as an expert. However, the state ignores the fact that Dr.Loyd was only qualified by the court to testify as an expert in the field of family medicine. Dr. Loyd stated he was a general practioner. At no point in the transcript was it mentioned that Dr. Loyd was an expert in child sexual abuse.

As mentioned, appellant claims the 1988 medical examination was material to his case because it was excuplatory. An expert is not needed to determine that the 1988 examination is not exculpatory because Dr. Hicks, the physician who performed the 1988 examination, explained his finding of an intact hymen and stated that penetration of a child’s vagina by a digit or an adult penis might not cause vaginal tearing. Thus, this 1988 medical examination does not necessarily exculpate appellant.

It is appellant’s burden to show that there has been an abuse of discretion in denying the continuance. Cotton v. State, 265 Ark. 375, 578 S.W.2d 235 (1979). Appellant was granted one continuance to obtain Dr. Hick’s testimony. Based on that testimony, the trial court could have concluded the 1988 medical examination was not exculpatory and therefore not relevant and not material to appellant’s case. There is no error in the denial of a motion for continuance to obtain evidence that is not material and not relevant. Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976).

IMPEACHMENT OF OLDER VICTIM

Appellant attempted to recall the nine-year-old victim to the stand as his first witness, but the trial court would not allow this. Appellant then proffered Defendant’s Exhibit #3, which is a transcript of a Dardanelle Police Officer’s interview of the nine-year-old victim concerning the 1988 allegation of rape by a man other than appellant. He argued that the purpose of calling her to the stand would be to establish that she had made prior allegations of sexual abuse which were not supported by medical evidence and to attack her credibility by showing she made prior statements inconsistent with the medical testimony which was already admitted in the case. On appeal, appellant claims the trial court erred in not allowing him to attack the credibility of the nine-year-old girl and thereby violated his right to confront witnesses.

We cannot say the trial court erred in denying appellant’s request to recall the nine-year-old victim. First, as she had already taken the stand as a witness for the state, appellant had ample opportunity to confront her. She testified after Dr. Hicks’ deposition and the admission of his 1988 medical report. Second, the proffer appellant made was nothing more than the transcript of the interview. There was no proffer of the exact alleged inconsistent statement or statements, nor what was intended to be asked or testified to.

In accordance with Ark. Sup. Ct. R. 11(f), appellant and appellee have abstracted all rulings adverse to appellant. We have reviewed these rulings and determined there was no prejudice to appellant.

Affirmed.

Holt, C.J., Dudley and Newbern, JJ., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. I would make short shrift of this appeal by reversing and remanding it for retrial. Granted, a defendant is not entitled to a perfect trial, but he is entitled to a fair trial. See Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

Lukach was arraigned and counsel was appointed by the trial court on July 8, 1991, and the cases against him were immediately set for trial on July 31, 1991.

In an effort to fully represent his client, counsel filed appropriate motions for a bill of particulars, discovery, and inspection including, but not limited to, information or material within the prosecutor’s knowledge, possession, or control which would tend to negate the guilt of Lukach as to the offense charged. On July 21, 1991, Lukach’s counsel learned one of the complainants had accused another man of rape in 1988. Counsel informed the prosecutor of this information who, in turn, referred counsel to the Hot Spring County Sheriff’s Office for assistance in gaining information. Counsel met with little success and, as a result, filed a motion with the court to compel discovery about information concerning the prior rape. Two days prior to the trial, the court entered its “Order to Produce Records.”On the even of trial, the information was furnished to counsel.

A.R.Cr.P. Rule 17.3 states as follows:

(a) The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.
(b) If the prosecuting attorney’s efforts are unsuccessful, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel where the material or other governmental personnel are subject to the jurisdiction of the court.

It is obvious to me that the prosecuting attorney violated Rule 17.3 to the extent that it was necessary for the trial court to issue its order to compel on the eve of trial.

The purpose of this rule and discovery is to provide a procedure whereby defense counsel can obtain sufficient information in order to properly investigate and prepare for trial and, in particular, to provide effective assistance and representation to his client at the trial itself. Whether or not there was a formal showing by Lukach of specific prejudice by the State’s failure to comply is of no moment. The ultimate question is, did counsel receive the requested information in sufficient time to effectively investigate and properly prepare for trial? The simple answer is “no” and, for this reason, prejudice is apparent. Eighty percent of a trial is preparation and the other twenty is presentation.

The State’s indifference and lack of good faith in furnishing information to counsel, and the trial court’s failure to grant sufficient continuances to permit counsel to properly prepare his case, after receiving all information requested in his motion for discovery and to compel, has denied the defendant a fair trial.

I respectfully dissent.

Dudley and Newbern, JJ., join in the dissent.