text:
    Kimberly L. SMITH v. STATE of Arkansas
    CR 94-1300
    918 S.W.2d 714
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Sandra Tramck Berry and BJ. Maddox-Cook, for appellant.

      Winston Bryant, Att’y Gen., by; Clint Miller, Deputy Att’y Gen. and Sr. Appellate Advocate, for appellee.
   DONALD L. Corbin, Justice.

Appellant, Kimberly L. Smith, appeals the judgment of the Mississippi County Circuit Court entered on August 24, 1993, pursuant to a jury verdict, convicting her of one count of first-degree murder and sentencing her to imprisonment for forty years at the Arkansas Department of Correction. This court previously granted appellant’s motion for belated appeal. Smith v. State, 319 Ark. 51, 888 S.W.2d 663 (1994) (per curiam). Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). For reversal, appellant asserts two points of error. We find no error and affirm.

1. Sufficiency of evidence

Appellant’s first argument for reversal is that the state failed to present substantial evidence that it was her purpose to cause the victim’s death. Ark. Code Ann. § 5-10-102 (a)(2) (Repl. 1993). The state contends this point is procedurally barred because appellant’s trial motion was not sufficiently specific to apprise the trial court of her argument. We agree that the sufficiency argument is procedurally barred, but for a different reason than that argued by the state.

At the close of the state’s case, appellant moved for a verdict of acquittal “on the grounds that the prosecution has failed in their burden of proof with the charge of murder in the first degree.” After hearing the state’s response, the trial court ruled that a prima-facie case of first-degree murder was made. Then the defense presented its sole witness, appellant, and both sides rested. No motions were made or renewed by appellant at the close of all the evidence.

Appellant’s motion for a verdict of acquittal at the close of the state’s case is equivalent to a motion for a directed verdict challenging the sufficiency of the evidence. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994). Our rules of criminal procedure provide that, in a jury trial, the defendant’s failure to move for a directed verdict because of insufficiency of the evidence at the close of the state’s evidence and at the close of the case constitutes a waiver of any question pertaining to sufficiency of the evidence to support the jury’s verdict. Ark. R. Crim. P. 36.21(b). In this case, appellant failed to move for a directed verdict because of insufficiency of the evidence at the conclusion of all the evidence and thereby waived the issue on appeal. Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995).

2. Settlement of record

Appellant’s second argument for reversal is that the trial court committed reversible error by failing to record or transcribe three specific incidents at the trial that cannot be reconstructed and therefore render the record on appeal insufficient to permit a full review of the trial proceedings. Pursuant to a writ of certiorari to complete the record, Mississippi County Circuit Court Judge David Burnett, who presided over the trial on August 23 and 24, 1993, conducted a hearing on August 16, 1995, to settle the record of the trial proceedings. Appellant’s appellate counsel, Ms. Sandra Berry, appellant's trial counsel, Ms. P. J. Maddox-Cook, the deputy prosecuting attorney who tried the case, Mr. Bruce Harlan, and the trial court reporter, Ms. Barbara J. Fisher, attended the hearing. The certified transcript of the hearing is included in the record on appeal.

The first incident concerns appellant’s request for a transcription of a comment that she alleges was made to her prejudice by Judge Burnett regarding the length of time for trial. At the hearing to settle the record, Ms. Cook recalled the comment as follows:

THE COURT: Ms. Cook, what is it you’re asking? I want you to —
MS. COOK: If it please the Court, it is my recollection that after the jury had been selected, your Honor gave — ah, made comments to the jury regarding, ah, your expectations of them and then —
THE COURT: Now wait a minute. Be specific please.
MS. COOK: To my recollection you had said that there was — that we have two days for the trial and that on the third day you had another trial scheduled and they had two days for this trial and that they would reach a verdict in the case if they had to stay here all night, something to that effect.

At the hearing, Judge Burnett, Mr. Harlan, and Ms. Fisher each stated that it was common for Judge Burnett to preliminarily inquire as to the expected length of trial. Although neither Mr. Harlan nor Ms. Fisher recalled the comment described by Ms. Cook, when Mr. Harlan asked Ms. Fisher if she would have transcribed the comment had it been made as described by Ms. Cook, Ms. Fisher answered affirmatively and stated: “I don’t recall him saying we’ll be here all night.” Ms. Fisher testified that if the comment was made during the jury “indoctrination,” she would not have recorded it, and that if the comment was made during voir dire, she would not have transcribed it because no objections were made during voir dire and no party had requested a transcription of voir dire. At the hearing, Ms. Berry confirmed that appellant is not requesting a transcription of the jury impanelment or voir dire.

Our rules of appellate procedure provide that if no report of the trial proceedings was made or a difference arises as to whether the record truly discloses what occurred in the trial court, the parties’ proposed statement of the unreported proceedings or the parties’ difference, respectively, shall be submitted to and settled by the trial court. Ark. R. App. P. 6(d) and (e). At the hearing, Judge Burnett settled the record as follows:

THE COURT: Well, I made no statements similar to what Ms. Cook said —• period. This Court is not going to agree to it. Y’all can agree to put in the record whatever you want to, but I certainly didn’t say anything of the kind. I might have made the comment about having three days to try the case. Seems like I do recall having something about another case, but that fell through and the attorneys were made aware of that, that they had a full additional day if they needed it.
THE COURT: I don’t think it happened the way you said at all. I am willing to concede that I might have inquired of counsel as to how long the trial would take. I probably did, if that helps your record and if the State’s agreeable to it, I’ll say that I said that whether I did or not.
MS. COOK: I understand that —
THE COURT: I’m sure I made an inquiry as to the length of time of the trial. I don’t know whether I made that before the first juror was called or after they were all there. In all probability if I did it, it was when the whole panel was out in the courtroom before we called the jury. I don’t even remember if I did it.
MS. BERRY: It’s on the record now.
THE COURT: Okay.

Thus, the trial court reconstructed this incident consistent with the rules of procedure. As to the prejudicial effect, if any, of Judge Burnett’s comment, we find that appellant may not argue this issue for the first time before this court. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). Appellant admits that she failed to object below to Judge Burnett’s comment, but citing Russell v. State, 288 Ark. 255, 704 S.W.2d 161 (1986), she argues that no objection should be required where it would have been futile. This argument is not persuasive. In Russell, this court reversed a conviction by bench trial and remanded the case for retrial where the trial judge announced the accused’s guilt and then commented about his failure to testify, thus indicating to this court that the trial judge found there was no alternative to a finding of guilt. In Russell, this court dismissed the state’s argument that no objection was raised below because it was obvious that an objection would have been futile. On the facts of the present case, however, Russell is not controlling because there is no indication here that a timely objection to Judge Burnett’s comment at the commencement of the jury-trial proceedings as to the expected length of the trial would have been futile.

The second incident concerns appellant’s request for a transcription of an in-chambers conference regarding proposed jury instructions. It is undisputed that the conference was not recorded. Appellant contends that, at the in-chambers conference, she objected to the proposed jury instructions and proffered alternate instructions. Consistent with the trial court’s responsibility to make a complete record of the trial proceedings, appellant argues her in-chambers objection and proffered instruction should have been recorded and transcribed.

We agree that the trial court’s failure to make a verbatim record of the in-chambers conference was error. That failure violated our Administrative Order No. 4, which provides:

Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.

Accord Ark. Code Ann. § 16-13-510 (Repl. 1994). Had the trial court followed this procedure, we would not have this issue before us. However, in this case, the record was settled by the trial court.

At the hearing to settle the record, the following colloquy occurred concerning the in-chambers conference:

THE COURT: In an effort to settle the record — and, Mr. Harlan, you listen too. As I recall, when the jury — when the presentation to the jury was completed by both the prosecution and the defense, we took a recess. We went to the back. I looked at submitted instructions from both parties, sorted them out. We might have discussed them off the record back there. I don’t recall. That’s not uncommon to do. And then we came back in here and an opportunity was made for a record on any objections to the instructions that were to be given to the jury. I don’t know whether Ms. Cook made any objections or not.
Did you? I don’t remember.
MS. COOK: Your Honor, I don’t believe I made an objection at the time. But we had had a heated discussion on — I had tendered my own instructions regarding first degree murder. And then we — the prosecution had another instruction and we had argued for some time on those instructions, and then the prosecuting attorney proffered a new instruction which included accomplice liability, and we had a heated argument about whether that was appropriate, and your Honor determined that ah — to use the prosecution’s ah — ah — ah instruction rather than — and I did object at that time.
But . . . when we came back in here, your Honor had already made your rulings on all the instructions.
MR. HARLAN: Oh, I understand that [the court reporter wasn’t even present], your Honor. I’m assuming as your Honor is like we normally do, go back there and talk about them and then come out here and —
THE COURT: Then both sides are given an opportunity to state objections for the record, and then I give my instructions.

Judge Burnett settled the record as follows: “I don’t remember any heated discussions on jury instructions in this case.” Appellant concedes that, outside the in-chambers conference, she did not raise any objection to the jury instructions nor did she proffer any alternate instruction.

The third incident concerns appellant’s request for a transcription of a couple of questions that appellant contends were put to Judge Burnett by the jury after it had retired to deliberate, together with the trial court’s response. Ms. Cook testified that she could not recall exactly the jury’s questions, but believed part of it dealt with the purpose to cause death or the burden of proof. Ms. Cook testified that she could not recall exactly what had been Judge Burnett’s response, but part of it was that he had reread the instruction. Neither Judge Burnett nor Mr. Harlan recalled the incident, and Ms. Fisher testified that such an incident was already in the transcript or it did not occur.

We conclude that appellant has not demonstrated that the state of the record has prejudiced her.

The judgment is affirmed.

       Repealed and replaced, effective January 1, 1996, with Ark. R. App. P. Crim. 5(a) incorporating Ark. R. App. P. Civ. 6(d) and (e), which track former Appellate Rule 6 without change.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    David Ricky PUCKETT v. STATE of Arkansas
    CR 95-1256
    918 S.W.2d 707
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Kelly A. Procter, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant David Ricky Puckett appeals a judgment against him for rape and a sentence of 40 years. He raises multiple issues, including insufficiency of the evidence, prosecutorial misconduct, and various rulings of the trial court which he contends prejudiced his case. We hold that no reversible error transpired, and we affirm the judgment.

Nina Graves, age seventy, was a widow who lived in Fort Smith. Around October 1, 1994, she was at the home of Mary Frances Dixon, who was a friend, and she saw Puckett. Graves had met Puckett through Dixon several months earlier. She again saw Puckett some days later as she was walking into a liquor store on Sixth and Division Streets in Fort Smith. After she finished her business there, Puckett walked her home, which was two blocks away. When they arrived at her house, they sat on the steps and talked. Puckett did not enter her house and eventually left. A few days later, he returned to the home and asked if Graves had any work for him to do. She told him “no,” and he left.

On Friday, October 7, 1994, Puckett came by Graves’s house and visited with Graves and a person named Teresa from the Area Agency on Aging. At about four o’clock, Teresa left, but Puckett remained. He helped Graves retrieve a package from the Post Office and drove her car because she was having trouble with her balance due to an inner ear problem. Graves testified that Puckett then drove to the liquor store against her wishes because she felt ill. When she was cross-examined at trial, Graves testified that she went to the liquor store with Puckett because he had threatened her with her gun which he had found. Puckett bought a six-pack of beer. She admitted that she did not try to get help while at the liquor store. When they returned to her house, Puckett helped Graves inside because she was feeling “wobbly.” Graves testified that she wanted to go to bed, but Puckett would not leave.

According to her testimony, Puckett then became upset because he thought that Graves had been flirting with him. He forced Graves into the back bedroom. He hit her twice in the head with his fist and kicked her in the ribs, breaking three. He threatened to kill her with her pistol, if she made a wrong move. Graves testified that after she was struck and intimidated with the gun, Puckett made her take her clothes off. When she was down to her brassiere, he cut it off with a kitchen knife because she was not removing her clothes quickly enough. He then forced Graves to perform “oral and normal sex” with him. Graves testified that she was forced to have sexual intercourse with him three times and oral sex once before he left at around 11:00 a.m. on Saturday morning. She testified that she and Puckett slept in the same bed, but that she did not try to escape.

After Puckett left, Graves called Mary Dixon to learn her assailant’s last name. She also eventually called her niece, Faye Holmes, on Sunday morning, and after Holmes came over, Graves told her what had happened. Holmes urged Graves to report the incident, and Graves ultimately acquiesced and went to the Fort Smith Police Department. She did not go to Sparks Hospital in Fort Smith until the next day, Monday, at which time she learned that her ribs were fractured. Graves later identified Puckett as the culprit in a photo line-up.

Mary Dixon and Faye Holmes confirmed Graves’s rendition of events. Mary Dixon added that when Graves called on Sunday night to tell her what had happened, Puckett was at her house. Dixon stated that after she finished talking to Graves, Puckett acted nervous. When confronted with Graves’s story, he told Dixon, “That’s a damn lie.” Dixon testified that she called the police on November 5, 1994, because she found a bag containing a gun next to a pecan tree near her home. She testified that at Graves’s behest, she took Graves to see the police detectives who in turn asked Dixon to take Graves to the hospital.

Randy Cook, a former Fort Smith Police Officer, testified that in investigating the rape of Graves, he collected a kitchen knife, a brassiere with a cut strap, and bed sheets. He also testified that Graves picked Puckett out of a photographic lineup. Graves, according to his assessment, was in obvious pain. Jane Parsons, a forensic serologist with the State Crime Laboratory, testified that she tested the sheets for semen, and the test proved positive. She also testified that Graves’s rape-kit swabs tested negative for semen.

The defense case included testimony by Fort Smith Police Officer Tom Judkins, who stated that he did not observe bruises on Graves’s head when she came to the police station and that Graves did not show any outward appearance of having been beaten. He further testified that Graves told him she had been threatened with a knife. By way of video deposition, Lina Shaffer, an emergency room nurse at Sparks Hospital, testified that Graves denied any oral or anal penetration by her assailant. Shaffer observed bruises on her and found that Graves had fractured ribs. Phillip Spears of Ace Liquor Store testified that Puckett tried to sell him a gun or borrow some money from him using the gun as collateral. Spears declined. According to Spears, an older lady was with him.

The jury found Puckett guilty of rape. His sentence was fixed at 40 years.

I. Sufficiency of the Evidence

We first consider Puckett’s contentions that (1) the trial court erred in denying his motion for a directed verdict, and (2) the evidence was insufficient to sustain his conviction. A motion for directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only the evidence supporting the conviction need be considered. Id.

In his motion for directed verdict, Puckett challenged the sufficiency of the evidence as it related to the element of forcible compulsion. Forcible compulsion is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1993). Here, there is ample evidence of forcible compulsion. Graves testified that Puckett held a gun on her, told her to undress, and then forced her to engage in “oral and normal” sexual intercourse. She further testified that he hit her twice in the head and kicked her in the ribs. Other testimony substantiated the fact that Graves was in pain and that her ribs were fractured. Additionally, Graves testified that Puckett cut her brassiere off with a kitchen knife when she did not remove it fast enough. The knife and the cut brassiere were introduced into evidence. A liquor store clerk saw him with the gun, which was also introduced into evidence. Clearly, there was sufficient evidence to compel a conclusion that Puckett used physical force as well as the threat of physical force to rape Graves.

Puckett further argues that there was insufficient evidence to sustain the conviction. The thrust of this argument is that there was no corroboration of Graves’s testimony about the rape. We have held many times that the testimony of the rape victim alone suffices and need not be corroborated. See, e.g., Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Graves’s testimony constitutes substantial evidence. To the extent there were inconsistencies in her testimony, this was a matter of credibility for the jury to resolve. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

II. Prosecutorial Misconduct

Puckett next argues that the prosecuting attorney made improper comments during closing argument. The relevant argument and resulting colloquy follow:

Those of you who have heard all your live[s] about women who do not report rapes — I think can understand why. After seeing and hearing what you have today, you know, you can’t imagine why anyone would make a report and come in and get to tell all this dirty little stuff that’s happened to you, and you come in here and hear yourself air your life in front of two children. Why would anyone want to go through that?
DEFENSE COUNSEL: Your Honor, I object. I don’t think there’s any comparison made to anything else like this.
THE COURT: Well, I think it’s counsel’s statement, and not evidence. You will base your decision on the evidence.

After his objection, Puckett’s counsel sought no further relief.

This court has held that the failure to seek relief in the form of an admonition or motion to declare a mistrial precludes this court’s consideration of the issue. See Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Littlepage v. State, supra. Here, Puckett sought no relief. Instead, the trial court, acting sua sponte, instructed the jury to base its decision on the evidence.

The trial court has broad discretion in controlling closing arguments and is in a better position to decide the issue of prejudice because of its first-hand observation. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). We have held that, in the absence of manifest or gross abuse, we will not reverse the action of the trial court in matters pertaining to its control and supervision of counsel’s arguments. Id. Indeed, a reversal of a judgment due to remarks made by counsel during closing arguments is rare and requires that counsel make an appeal to the jurors’ passions and emotions. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In the event an improper statement has been made, an admonition to the jury usually cures any prejudice unless the argument is so patently inflammatory that justice could not be served by continuing the trial. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

Puckett contends that in this case the “golden rule” argument made by the prosecutor was reversible error. See, e.g., King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958). In King, we discussed what comprises a golden-rule argument:

The “golden rule” argument suggests to jurors that they place themselves in the position of a party or victim. The golden rule argument is impermissible because it tends to subvert the objectivity of the jury. It is seen as an attempt to dissuade the jurors from their duty to weigh the evidence and instead to view the case from the standpoint of a litigant or party. The rule is applied to criminal cases as well as civil cases.

King, 317 Ark. at 293, 877 S.W.2d at 586 (citations omitted).

We affirm on this point for two reasons. The closing argument of counsel at issue here falls short of suggesting to the jurors that they place themselves in the posture of the victim. But, more importantly, the trial court immediately instructed the jury to disregard the argument, and defense counsel requested no additional relief. The trial court did more than it was requested to do. There was no error.

III. Motions for Mistrial

For his last point, Puckett urges that the trial court erred in failing to declare a mistrial in two instances. The first motion to declare a mistrial occurred before testimony was taken and after the first prospective juror was called. Puckett walked into the courtroom with his attorney and this exchange ensued:

DEFENSE COUNSEL: Your Honor, at this time the defense would make a motion for a mistrial. The reason would be because we were late coming into the courtroom and I walked in with David [Puckett], and the name Sarah Edminston was being called at that time. So for that reason, because-
THE COURT: Do you want to have another trial because you were late? The court was set for nine, why were you not here?
DEFENSE COUNSEL: Your Honor, he didn’t have his pants.
THE COURT: Did you make any arrangements to confirm the status of the defendant to see if he was ready for court?
DEFENSE COUNSEL: No, your honor, I did not.
THE COURT: That motion will be denied.

The court asked if appellant wanted anything else that had not been done, and defense counsel responded, “no.”

A mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision to deny a motion for a mistrial will not be disturbed. Stewart v. State, supra; King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). Furthermore, a mistrial will be granted only where any possible prejudice cannot be removed by an admonition to the jury. Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995); Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993).

Puckett contends in his brief on appeal that the mistrial was appropriate because he walked in late in “obvious custody” of the Sheriff’s Department which signaled to the jury that he was in jail. Thus, according to the argument, he was prejudiced. We do not agree. First, Puckett did not make this specific argument to the trial court, and the record does not reflect that the jury was made aware that Puckett was in custody. But, in addition, any prejudice resulting from Puckett’s tardiness could have been cured by an admonition to the jury. See Trull v. State, supra. None was requested. There was no reversible error.

Puckett’s second motion to declare a mistrial occurred during voir dire. Voir dire examination was conducted in panels of three. During the voir dire of Twila Burnett, Harry Scarlet, and Rex Legrand, the trial court excused Burnett for cause. The prosecuting attorney then asked Scarlet if he could be fair, and he responded:

I’m the manager of a grocery store here in town, and the lady that’s with you has done shopping in my store for several years, and I would have tendency to agree with her more than I would anyone else.

Counsel for Puckett approached the bench, and moved that the trial court declare a mistrial. The trial court ruled:

Well, the court has to hear a reason to excuse a juror. . . . He’s just being honest with the court, as a human being, saying that people are familiar with that. I’m going to overrule. I don’t think the other jurors will take anything other than he’s acquainted with this person, and might have some difficulty and he is going to the ultimate in trying to bend over backwards to say, “I might be unfair. I don’t know, I might lean,” so I’m going to deny your motion.

Defense counsel then responded: “I’m sure the court will instruct the jury they will make their decision solely on the evidence and they are the sole judges of credibility of the witnesses.” Scarlet was dismissed for cause, and Legrand was accepted as a juror. No further relief from the trial court was requested. At the conclusion of the evidence, the trial court did instruct the jury that they were the sole judges of the credibility of the witnesses.

In Stewart v. State, supra, the defendant moved for a mistrial during voir dire after a potential juror stated that the defendant was probably guilty since there were five counts against him. The potential juror stated that he did not think he could follow the presumption of innocence. This court affirmed the trial court’s denial of the motion. As part of our reasoning, we relied on the fact that no curative instruction had been requested by defense counsel and no proof was offered to show that the statement was heard by other jurors or venire persons. After noting that the jurors are presumed to be unbiased, we held:

We find that no reversible.error was committed by the trial court in denying appellant’s motion for a mistrial where no prejudice has been shown and [the venireman making the remark] did not serve on the jury that was ultimately selected.

Stewart, 320 Ark. at 80, 894 S.W.2d at 933.

Similar to Stewart, the trial court concluded that any prospective jurors who might have heard Scarlet’s statement most likely took it to mean that Scarlet knew the witness and could not be objective. In addition, Arkansas Model Criminal Instruction 2d 104 on the credibility of the witnesses was given at the proper time, and that instruction, in light of the negligible influence of Scarlet’s statement, cured any possible prejudice. The trial court did not err in denying the motion to declare a mistrial.

Affirmed.


author: ANDREE LAYTON Roaf, Justice. ROBERT L. Brown, Justice,

text:
    Patricia Ann HOWARD and Richard Scott Howard v. THE DALLAS MORNING NEWS, INC.
    95-938
    918 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Rose Law Firm, by: James H. Druff, for appellants.

      Ronquillo & DeWolf, L.L.P., and Wright, Lindsey & Jennings, by: Gregory T. Jones and Ainsley H. Lang, for appellees.
   ANDREE LAYTON Roaf, Justice.

Patricia and Robert Howard sued Dallas Morning News, Inc. (DMN), a newspaper publisher, for injuries Patricia suffered in April, 1991, when she was struck by a truck while she was walking in a pedestrian crosswalk at the Litde Rock Municipal Airport. The driver of the truck was making delivery of the Dallas Morning News to the airport at the time of the accident. The Howards also sued Robert Mitchell, the driver, and Delivery Systems, Inc. (DSI), the regional distributor for the Dallas Morning News. The Howards appeal from an order granting summary judgment in favor of DMN, contending that 1) the trial court incorrectly applied the law of agency in finding that they were required to show that Mitchell and DMN intended to and did enter into a contractual relationship, and that, 2) even if they were so required, there was ample evidence from which an agency and contractual relationship might reasonably be inferred. We agree that the trial court erred in granting the summary judgment and reverse.

Í. Facts

In July of 1989, DMN contracted with DSI to serve as distributor of the Dallas Morning News in the Little Rock and Hot Springs area. The contract was titled “Independent Distributor Agreement” and specified, in addition to such matters as prices and quantities of papers to be sold to distributor, terms of payment, area of distribution, and place of delivery, that the distributor would “make efficient and prompt delivery of the newspaper to purchasers in a manner satisfactory to them,” which was defined as reaching the reader by or before 6:30 a.m. each day, “prevent the insertion in copies of the newspaper of any advertising and other printed material,” and “obtain new purchasers of the newspaper” through reasonable solicitation and promotional methods. The agreement further provided, in a clause captioned “Independent Contractor Relationship”:

It is agreed that the means of accomplishing the foregoing objectives are wholly within the selection and control of Distributor, that all facilities and personnel used in the work shall be under the sole control and direction of Distributor or his sub-contractors, that the Publisher shall have no right or voice with respect to the means employed by Distributor in accomplishing the foregoing objectives, the selection, control or direction of the persons engaged by Distributor in performing the work or the mode, manner or method used by Distributor in the performance of this Agreement, and that the legal relationship created by this Agreement and by the actions and conduct of the parties in the performance of this Agreement is that of independent contractor. Distributor shall have no authority, and is hereby forbidden to employ or contract with any person on behalf of Publisher, and any and all contracts or arrangements made by Distributor in respect of the work contemplated by this Agreement shall be in the name of Distributor and for his account.

The distributor was also required to keep and make available to DMN, accurate and complete records with respect to all purchasers of the newspaper, all employees and subcontractors of distributor, and all other information needed by DMN to comply with rules of the Audit Bureau of Circulations. Although the agreement was for one year and automatically renewed from year to year, it could be terminated by either party with or without cause, upon 10 days’ written notice.

In December of 1989, DSI contracted with David Mitchell to serve as a “carrier” for DSI, by the execution of two separate documents, an “Independent Contractor/Carrier Agreement” and a “Delivery Systems Carrier Lease.” The Agreement provided that Mitchell, as carrier, would procure from DSI and promptly deliver newspapers along a specified route, and further recited:

The means and facilities used for such purposes shall be selected and operated solely by the Carrier under his/her sole supervision, control and direction, and at his/her own cost and expense to the best interest of the Company and the faithful performance of this agreement. It is expressly agreed that the Carrier is not an employee of the Company and he/ she at all times occupies the position of an independent contractor in his/her relationship with the Company. The Company is looking to the Carrier solely for the desired result of prompt receipt and delivery of newspapers.

The Agreement also required Mitchell to provide a substitute carrier when he was unable to deliver the newspapers, prohibited him from making alterations or insertions to the newspapers, and allowed him to engage in other business pursuits if they did not interfere with his contractual obligations to DSI. The Agreement was for 30 days, automatically renewed from month to month, and could be terminated by Mitchell upon 20 days’ written notice or at will by DSI without notice.

The Lease Agreement required Mitchell to lease from DSI vending machines and a list of subscribers for his delivery route, and contained clauses similar to the Independent Contractor/Carrier Agreement regarding Mitchell’s status as an independent contractor. The lease agreement further required Mitchell to provide information weekly to DSI regarding each retailer and vending machine on his route and to fill out forms provided by DMN and necessary for DMN to comply with regulations of the Audit Bureau of Circulations.

At the time of the accident, Mitchell was also delivering the Wall Street Journal, National Sports Daily, Barron’s, and the New York Times pursuant to his agreement with DSI, and he was engaged in a separate lawn-maintenance business. Sometime after the accident, DMN learned that Mitchell had destroyed or discarded 130 copies of the paper when he could not complete his route. DMN indicated to DSI that Mitchell should be terminated. DSI’s response was to terminate its contract with DMN.

After the trial court denied DSI’s motion for summary judgment, DMN also moved for summary judgment, asserting that no contract existed between Mitchell and DMN, nor was Mitchell in an employment relationship with DMN. In support of its motion for summary judgment, DMN submitted the agreements between Mitchell and DSI and the agreement between DSI and DMN, affidavits of several employees of DMN and the depositions of Joe Fox, President of DSI, and a number of DMN employees. The Howards submitted portions of the deposition of Mitchell, several of the same depositions of DMN employees submitted by DMN, and the depositions of two employees of DMN’s predecessor.

After granting DMN summary judgment, the trial court also granted the Howards’ motion for entry of final judgment pursuant to Ark. R. Civ. P. 54(b), so that they could appeal the dismissal of DMN prior to trial. DMN takes issue with the finality of this order and asks that this appeal be dismissed.

2. Finality of Order

We first address DMN’s contention that the appeal should be dismissed because there is not sufficient grounds for certification under Ark. R. Civ. P. 54(b).

In Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992), we said that under Rule 54(b) the trial court “must factually set forth reasons in the final judgment, order, or the record, which can then be abstracted, explaining why a hardship or injustice would result if an appeal is not permitted.” Id. at 412, 825 S.W.2d at 814. However, we have clarified this holding to require that the factual underpinnings supporting a 54(b) certification must be set out in the trial court’s order, see Davis v. Wausau Ins. Cos., 315 Ark. 330, 332, 867 S.W.2d 444, 446 (1993), and that the factual findings must be abstracted. See Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841 (1995).

In this case, the trial court’s findings of facts contained in the 54(b) order are abstracted as follows:

(1) Significant discovery remains to be done. Based on past events, if DMN’s dismissal is reversed on appeal, it will doubtless want to re-depose experts whose depositions were taken without its participation. (2) Any subsequent trial against DMN would be protracted and largely duplicative of the first trial. DMN would be entided to relitigate virtually all issues raised in the first trial. A protracted retrial of the same issues is highly inefficient and raises an unseemly possibility of divergent verdicts arising from identical facts. The court finds this situation indistinguishable from that in Franklin v. OSCA, Inc., 308 Ark. 409, 412, 825 S.W.2d 812 (1992), in which the Supreme Court held an immediate appeal was warranted to avoid a duplicative trial. (3) To deny the motion would not insure there would be only one appeal, since the parties would likely appeal from both trials. To certify this appeal would avoid the prospect of multiple appeals from possibly divergent verdicts.

The trial court has not merely tracked the language of Rule 54(b). Here the abstracted order reflects that the trial court has stated facts sufficient to justify the entry of a final, appealable order.

3. Misapplication of Law

The Howards first argue, in essence, that the trial court made both procedural and substantive errors of law in the order granting the summary judgment. The summary judgment order provided in pertinent part:

The bulk of the Howards argument focuses on the factors to be scrutinized in determining whether a relationship is one of agent or independent contractor. This, however, avoids the threshold issue of whether there was a contract between the parties. Irrespective of whether Mitchell was an agent or independent contractor, both required there to be a contractual relationship.
Agency encompasses several types of relationships wherein the one referred to as the agent has agreed with the one referred to as the principal or master to act for the principal or master, subject to his control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation. See Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968); AMI 701.
The Howards’ argument assumes that Mitchell, in some way, contracted with DMN to perform the work, yet it provides no proof of this. Even if it could be argued that the agreement is implied from the conduct of the parties, this does not relieve the Howards from providing some proof as to the intent of the parties to be so bound. Clearly, Mitchell contracted with DSI, but that is not to say that it did so with DMN. (Emphasis added).

The Howards take issue with the underlined portion of the order. They contend that the trial court, by requiring them to prove as a threshold to agency liability, a contractual relationship between Mitchell and DMN, both incorrectly shifted the burden of proof from DMN to them, and also incorrectly stated the law of agency. They also contend that the trial court similarly erred by stating that they must provide some proof of the intent of Mitchell and DMN to be bound, for the agreement to be implied from the conduct of the parties.

The Howards correctly state that the burden of proving there is not a genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. See Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993). However, once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof showing a genuine issue of material fact. Cash, supra. Thus, if the trial court determined that DMN made a prima facie showing that it was entitled to summary judgment as a matter of law, it was proper to require the Howards to come forward with proof by showing a genuine issue of material fact, and this would not be an improper shifting of the burden of proof to them.

Also, although the trial court seems to have used the terms contract and agreement interchangeably in the order, and characterized the existence of a contract between Mitchell and DMN as the “threshold issue,” the order correctly stated that an agency relationship requires an agreement for the agent to act for the principal, or master, and that the agreement may be oral, written, or implied from the conduct of the parties. Crouch, supra. However, we do agree that the trial court misstated the law by further declaring that the Howards must also provide proof that the parties intended the relationship to result, where the agreement is implied.

We have adopted the Restatement definition of agency in a number of cases. See Crouch, supra; Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). The Restatement (Second) of Agency, § 1, cmt. b (1957) provides that “the relationship of agency does not depend on the intent of the parties to create it, nor the belief that they have done so. To constitute the relationship there must be an agreement, but not necessarily a contract, between the parties; if the agreement results in the factual relationship between them to which are attached the legal consequences of agency, an agency exists although the parties did not call it agency and did not intend the legal consequences of the relationship to follow.”

The Restatement further provides that the “relationship of master and servant can be created although there is no mutual agreement to give and receive assistance. It is only necessary that there be submission by the one giving service to the direction and control of the one receiving it as to the manner of performance.” Restatement (Second) of Agency § 221, cmt. c (1957).

On the other hand, we have defined an independent contractor as one who, exercising an independent employment, contracts to do work according to his own methods and without being subject to the control of the employer, except as to the results of the work, and have held that the right to control and not the actual control determines whether one is a servant or an independent contractor. Wilson v. Davison, 197 Ark. 99, 122 S.W.2d 539 (1938).

In Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990), we listed ten factors to be considered in determining whether a master-servant relationship or independent contract existed, as found in § 220 of the Restatement (Second) of Agency, and stated that the right of control is the principal factor to be considered in making the determination. The intent of the parties is not included among these factors. See also Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 868 S.W.2d 476 (1994).

Nevertheless, the trial court’s misstatement of the law alone is not a sufficient basis for reversal. We have repeatedly stated that a trial court’s ruling will be affirmed if correct, even if the reason given for the decision is wrong. Higginbottom v. Waugh, 313 Ark. 558, 856 S.W.2d 7 (1993). It is unclear whether the trial court considered the proof submitted by the Howards as evidence, however, we cannot say that the trial court erred merely because he misstated the law of agency in his order. We must further consider the evidence submitted by the parties to make this determination.

4. Evidence of Agency

The Howards next argue that even if they were required to establish the existence of a contractual relationship between Mitchell and DMN, there is sufficient evidence from which to infer that Mitchell was in fact both DMN’s agent and its contractual employee. We agree that the Howards have provided proof of a genuine issue of material fact.

The Howards suggest there are numerous instances of control exerted on Mitchell by DMN, as evidenced by DMN’s contract with DSI and from the deposition testimony provided with the response to DMN’s motion. This evidence and the Howards’ characterization of it may be summarized as follows: DMN admitted its strong interest in how Mitchell performed because the newspaper could not function without timely delivery. DMN planned Mitchell’s business. The contract between DSI and DMN contains provisions which can only be described as controls over the scope and manner of delivery: territorial routes were assigned, insertion of other materials was prohibited, strict record-keeping was required and substitution of carrier was required if Mitchell could not perform. Through DSI, DMN supplied Mitchell with virtually all the supplies, forms and equipment he needed, with the exception of his vehicle. The paperwork supplied by DMN was extensive and complicated. DMN’s district manager acknowledged that he rode with Mitchell on one occasion on certain routes to service his racks. DMN roadmen would visit from time to time and follow carriers to observe the manner and method of distribution in order to verify performance of the contract. DMN structured the system under which Mitchell was paid what amounted to a salary. DMN effectively terminated Mitchell when it became dissatisfied with his performance. DMN confirmed its controlling role in delivery by delivering Mitchell’s route after causing his discharge.

DMN counters these contentions with the following assertions: There was no evidence that DMN provided any form of compensation to Mitchell, or paid any insurance or other employment benefits. Mitchell was free to deliver the paper by whatever method he chose. Mitchell chose where to locate and service racks. There was no evidence that DMN had an interest in how Mitchell performed his job or that DMN planned Mitchell’s business. DMN’s contract with DSI is not evidence that DMN exercised control over Mitchell. Mitchell never perceived himself as an employee of DMN. There is no evidence that DMN provided any supplies direcdy to Mitchell and, the carrier route list was not furnished by DMN to Mitchell. A DMN employee would ride with DSI’s carrier only on occasion, to either monitor compliance by DSI with the terms of its contract, or to analyze rack-sale performance for DMN’s own benefit or at the request of the independent distributor. DMN did not terminate Mitchell; DSI terminated the contract because DSI feared that DMN might terminate it for poor performance, not because DMN learned Mitchell was still delivering the paper. DMN assumed delivery of the paper in Little Rock upon DSI’s termination of the contract in order to assure service to readers while DMN arranged for a new contractor.

The Howards rely on Karcher Candy Co. v. Hester, 204 Ark. 574, 163 S.W.2d 168 (1942), to support their contentions that Mitchell was DMN’s agent. In Karcher, Hester’s son was employed by Karcher’s driver to aid him in delivering beer with Karcher’s permission, and Karcher paid the driver one cent more per case to enable the driver to pay the helper. We determined that this was sufficient evidence to show that the relationship of master and servant existed between Karcher and the driver’s helper, stating:

The relation of master and servant between two persons may be shown by proving that the one performs services for the other, [citation omitted] Indeed, it would be difficult, in most of these cases, to prove the relation of master and servant except by the fact that the one is known to perform service for the other, or from their course of dealings.
* * * *
The relationship may be created by express contract, but this is not essential; it may be created as well by conduct which shows that the parties recognize that one is the employer, or master, and that the other is the employee or servant. Moreover, when one is sought to be held responsible for the tortious act of another under the principle respondeat superior, the question of responsibility will not depend entirely upon the existence of some actual contractual relationship of master and servant. It is sometimes allowable to prove the relation of master and servant by the fact that one performs service for another.

Karcher, supra.

However, in Jumper v. L & M Transport. Inc., 296 Ark. 319, 756 S.W.2d 901 (1988), this court concluded that the driver of a tractor-trailer rig was not an employee or agent of L & M, but was an employee of Jimmy Sellers, who leased the rig to L & M because: (1) Sellers owned the truck and leased the truck to L & M; (2) Sellers employed the driver; (3) Sellers was responsible for qualifying the driver; (4) L & M had no authority to hire or fire the driver; (5) L & M did not pay the driver’s wages or social security; and (6) Sellers told the driver the routes he was to drive.

Although we have not previously considered whether a newspaper carrier is an agent of the publisher, a number of other jurisdictions have addressed this issue. In Murrell v. Goertz, 596 P.2d 1223 (1979), the Oklahoma Court of Appeals held that a newspaper publisher would not be liable for damages resulting from an assault and battery by a carrier hired as an independent carrier salesman by a friend who was himself an independent contractor of the publisher. Although the publisher had ultimate control over territorial boundaries of the paper route, required that deliveries be completed by 6:00 a.m., set policy that all papers were to be held by rubber bands, and provided that customers missed by the carrier were to call the publisher, the independent contractor of the publishing company testified that he had hired the person charged with assault as an independent carrier salesman, and that the carrier was responsible only to him for delivery of the newspaper and was in no way under the supervision, dominion, and control of the publishing company. However, the publisher in Murrell, unlike DMN, had no direct contact with the carrier and had no knowledge of his employment.

Although agency is a question of fact ordinarily determined by the trier of fact, where the facts are undisputed, and only one inference can reasonably be drawn from them, it becomes a question of law. Evans, supra. Here, the Howards presented evidence of control by DMN not only as to the results to be achieved — timely delivery of the newspapers, but also as to certain details of the work. We cannot say that only one inference could reasonably be drawn from the proof submitted by the Howards as evidence of the extent of control DMN exercised over Mitchell.

Reversed and remanded.

Dudley, J., not participating; Glaze and Brown, JJ. dissent.

ROBERT L. Brown, Justice,

dissenting. The central issue in this case is whether David Mitchell was an employee or an independent contractor of the Dallas Morning News. The threshold determination in such cases is whether Mitchell had the authority to act for the publishing company. See, e.g., McMahan v. Berry, 319 Ark. 88, 890 S.W.2d 242 (1994); Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994); Jumper v. L & M Transp., Inc., 296 Ark. 319, 756 S.W.2d 901 (1988); Johnson v. Timber Corp., 295 Ark. 622, 752 S.W.2d 241, set aside on rehearing on other grounds, 295 Ark. 663-A, 758 S.W.2d 415 (1988); Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987); Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985); Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). Our law in Arkansas is absolutely clear on that point.

In 1968, this court adopted the Restatement of Agency standard of what is required to create an agency relationship. See Crouch v. Twin City Transit, supra. We acknowledged that an agency relationship is created as a result of conduct by two parties manifesting that one of them is willing to have the other act for him subject to that party’s control, and the other party consents to act. Absent an agreement, there must be conduct evidencing this relationship. The majority and I agree on this point, and caselaw in this state bears it out. See, e.g., Schuster’s, Inc. v. Whitehead, supra; Evans v. White, supra; Karcher Candy Co. v. Hester, 204 Ark. 574, 163 S.W.2d 168 (1942); see also AMI Civ. 3d 701 and 707.

Where the majority opinion falls short, in my judgment, is in its failure to identify proof of conduct by Dallas Morning News and David Mitchell to create such a relationship. What the majority does instead is present circumstances that might prove some control by the Dallas Morning News over Mitchell. Whether Dallas Morning News was interested in results and effective delivery of its papers rather than control over the details of the work is debatable. See generally Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990). But even assuming for purposes of summary judgment review that these circumstances manifest some control, that analysis does not satisfy whether the publisher’s conduct evidenced that Mitchell was acting for it and conduct by Mitchell that he consented to act for the Dallas Morning News.

The contractual arrangements in this case certainly give no indication that an agreement was struck between Dallas Morning News and Mitchell. Dallas Morning News contracted with Delivery Systems, Inc. to serve as its distributor in the Litde Rock area. The Independent Distributor Agreement between the parties stated that Delivery Systems would have “sole control” over its personnel, including their selection and their work performance. It further stated that Delivery Systems was an independent contractor and added:

Distributor [Delivery Systems] shall have no authority, and is hereby forbidden, to employ or contract with any person on behalf of Publisher [Dallas Morning News]. . . .

Delivery Systems then contracted with David Mitchell as a carrier and entered into an Independent Contractor/Carrier Agreement as well as a Delivery Systems Carrier Lease. The Independent Contractor/Carrier Agreement specified that Mitchell operated solely under his own supervision as an independent contractor and that Delivery Systems was only interested in the “desired result of prompt receipt and delivery of newspapers.”

Mitchell did destroy 130 newspapers, and when Dallas Morning News found out about this, the publishing company was upset. According to Joe Fox, president of Delivery Systems, the “impression” was left with him that if Delivery Systems wanted to keep the contract with Dallas Morning News, it would have to terminate the contract with Mitchell. Rather than do this, Fox ended the contract with Dallas Morning News. But in discussing these circumstances in his deposition, Fox made it clear that the Dallas Morning News knew that it did not have the authority to terminate Mitchell. And Mitchell made it clear in his depositions that he worked for Delivery Systems.

The majority appears to hinge its opinion on Comment C to Restatement (Second) of Agency § 221 (1958), which requires that there be submission by the one giving service to the directions and control of the one receiving it as to the manner of performance. Comment C to §221 further states that if one manifests consent that another shall be his servant and work is in fact done upon his account, the one employed is the servant of the one employing, although there is no intent to receive the service. Again, there is no proof of conduct in this case on Mitchell’s part to submit to the directions and control of Dallas Morning News, and no conduct by Dallas Morning News consenting to the fact that Mitchell was in its employ.

The one case cited in the majority opinion which had approximate facts stands for the point that no employment relationship existed. See Murrell v. Goertz, 597 P.2d 1223 (1979). In Goertz, there was a tier of two independent-contractor relationships, as in the instant case. In short, the majority has presented no precedent for eliminating the necessity for some implied agreement based on conduct. But that is what the majority opinion does by inferring an agency relationship solely based on aspects of control exercised by Dallas Morning News. Again, whether Mitchell’s conduct proved in any form or fashion that he submitted to this control is not even addressed. And the record reveals there is no such proof.

On the Howards’ second cause of action, the circuit judge denied summary judgment to Delivery Systems, and their case against that party will go to trial. In the case against Dallas Morning News, however, I cannot see eliminating one essential factor for determining agency and employment which has been the law in Arkansas for decades and which the Restatement on Agency contemplates.

For these reasons, I would affirm.

Glaze, J., joins.

       Presumably, this occurred after Mitchell’s accident with the Howards, but that fact is unclear from the record.


author: ANDREE Layton Roaf, Justice.

text:
    Elvester Keith WALKER v. STATE of Arkansas
    CR 95-1174
    918 S.W.2d 172
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      William R. Simpson, Jr., Public Defender, by: Andy O. Shaw, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ANDREE Layton Roaf, Justice.

The appellant, Elvester Keith Walker, was convicted of first-degree murder for the shooting death of Johnny B. Jones and was sentenced to 40 years’ imprisonment. Walker argues that there was insufficient evidence to convict him of murder in the first degree. We affirm the conviction.

Johnny Jones, the victim in this case, and Anthony McDowell lived together in a mobile home. Jones was a student and also worked at a fast-food restaurant. On the evening of the shooting, Jones arrived home from work to find a party in progress. The guests, including Walker, were drinking and dancing. Jones went to the kitchen and began ironing clothes to wear to school the next day.

While Jones was so engaged, Walker apparently got into an argument with another guest, pulled a gun, and fired shots into the ceiling and the couch of the residence. Jones then came out of the kitchen and told Walker to stop shooting up the furniture and take that shooting outside, or words to that effect. Jones then began dancing with a guest, Tammy Russey. At Walker’s trial, Russey testified that they danced for about fifteen to twenty-five minutes and that while they were dancing, Walker approached Jones and stated “Punk, I know you ain’t talking to me.” Jones did not respond and simply ignored Walker. Walker then walked up, tapped Jones on the shoulder, and shot him in the right side of his head.

Charles McDowell, a friend of Jones, testified that he was standing right beside Jones when he was shot and saw Walker point the gun at Jones’ head. Rena Watson testified that she saw Walker with a gun on the evening of the party but did not see Jones shot. A number of witnesses testified that there was a lot of drinking going on and that Walker had been drinking both before and after arriving at the party.

After the shooting, Walker left in a car with people who had brought him to the party. A witness testified that Walker was crying in the car and stated that the shooting was an accident and that someone had pushed his hand. Eric Gore, a friend of Walker’s, testified that he believed the incident was an accident and that Walker did not mean to shoot Jones. Another witness testified that Walker was ten to twenty feet away from Jones when he shot him.

At trial, the medical examiner testified that Jones was killed by a single gunshot wound to the right side of his face, and that powder marks surrounding the wound indicated that he was shot at close range.

Walker’s sole contention on appeal is the trial court erred in finding sufficient evidence to convict him on the charge of murder in the first degree. He asserts that the state did not prove that he shot Jones with the purpose or intent of causing his death. At the conclusion of the evidence, the jury was instructed on first-degree murder and the lesser included offenses of second-degree murder, manslaughter, and negligent homicide.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In determining the sufficiency of the evidence, this court reviews the evidence most favorably to the appellee, and considers only the evidence that tends to support the verdict. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994).

Circumstantial evidence may constitute substantial evidence. To be sufficient to sustain a conviction, however, circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This court will affirm if there is any substantial evidence to support the verdict. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995).

“A person commits Murder in the First Degree if, with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). The culpable mental state is “purposely” causing the death of another. “A person acts purposely with respect to his conduct or result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (Repl. 1993). Intent is seldom capable of proof by direct evidence. Usually it must be inferred from the circumstances of the killing. Akbar, supra. The intent necessary for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). It is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Akbar, supra.

Walker challenges the credibility of the state’s witnesses and contends the jury had to rely on speculation and conjecture in order to find him guilty of this offense. We do not agree. This court has continuously stated that the determination of matters of credibility of the witnesses and conflicting testimony are issues left to the trier of fact. Wilson, supra. Finally, the evidence when viewed in the light most favorable to the state indicates that Walker was shooting a gun in Jones’ home. When Jones asked Walker to stop or to take the gun outside, Walker became angry. Walker then confronted Jones and fired one shot at close range into Jones’ forehead. There was substantial evidence, both direct and circumstantial, for the jury to conclude that it was Walker’s conscious objective to engage in the conduct which resulted in the death of Jones.

Affirmed.


author: Per Curiam.

text:
    Roger BRADFORD v. STATE
    CR 96-172
    918 S.W.2d 719
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Louis Etoch, for appellant.
    No response.
   Per Curiam.

Attorney Louis Etoch has filed an objection to his appointment as counsel and request to withdraw from representation of appellant, Roger Bradford, with respect to this appeal from the judgment and commitment order of the Arkansas County Circuit Court, Southern District, trial docket number CR 92-1, filed on July 12, 1995, convicting appellant of possession of cocaine with intent to deliver and sentencing him to a term of life imprisonment at the Arkansas Department of Correction. The notice of appeal and transcript have been filed in this court. By order of the trial court filed on August 2, 1995, Louis Etoch was appointed to serve as appellant’s counsel with respect to the state’s cases against appellant docketed: “CR-92-A11.”

Louis Etoch requests withdrawal on the grounds that the illness of his father and senior law partner, Mr. Mike Etoch, has created a substantial backlog in their three-person law firm, and that Louis Etoch is also representing appellant, pursuant to his appointment by the circuit court, in eight other pending criminal cases. Under these circumstances, Louis Etoch asserts that he cannot provide effective representation to appellant in this appeal.

We find that Louis Etoch has stated good cause to grant his request. The request to withdraw is, therefore, granted.

Our review of the transcript reveals that, prior to Louis Etoch’s appointment, the trial court appointed attorney Robert Remet to serve as appellant’s counsel by order filed on August 17, 1994, and appointed attorney Dennis Molock to serve as appellant’s counsel by order filed on May 1, 1995. The transcript fails to reveal that any order relieving Mr. Remet or Mr. Molock as appellant’s counsel has been entered. Inasmuch as the trial court has lost jurisdiction of this case, we hereby release and discharge Mr. Remet and Mr. Molock as attorneys of record for appellant as to this appeal.

We appoint attorney Garry Corrothers to serve as counsel for appellant in this appeal.

Dudley and Newbern, JJ., dissent.


author: PER CURIAM.

text:
    Gina Felicia FLEMINGS (Foster) v. Darryl A. LITTLES
    96-293
    918 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996
    Pulaski County Child Support Enforcement Unit, by: Kimberly D. Burnette, for appellant.
    No response.
   PER CURIAM.

Appellant Gina Felicia Flemings (Foster), by the Pulaski County Child Support Enforcement Unit, has filed a motion to dismiss the appeal of Darryl A. Littles. The basis for the motion is that Littles did not timely file a notice of appeal; therefore, this Court is without jurisdiction. We deny the motion to dismiss.

The order being appealed was entered in Pulaski County Chancery Court on November 14, 1995. On December 8, 1995, appellant Flemings filed a notice of appeal; appellee Littles was served with the notice of appeal on December 13, 1995. Littles filed a document styled “notice of appeal” on December 22, 1995; however, the notice was filed in circuit court. The “notice of appeal” was not filed in chancery court until December 27, 1995.

Ms. Flemings contends that if Littles’s appeal is designated a direct appeal, then the notice of appeal was thirteen days late pursuant to Rule 4(a) of the Rules of Appellate Procedure. If Littles’s appeal is designated a cross-appeal, Flemings submits it was filed two days late under Rule 4(a). Rule 4(a) provides that a notice of appeal must be filed within thirty days from entry of the judgment. However, a notice of cross-appeal must only be filed within ten days after receipt of the notice of appeal.

Although Litdes’s notice is styled “notice of appeal,” we have recognized that a cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court. Boyle v. A.W.A., Inc., 319 Ark. 390, 892 S.W.2d 242 (1995). Thus, Litdes’s appeal is a cross-appeal, and his notice had to be filed within ten days after December 13, 1995, the date of receipt of Flemings’s notice of appeal.

The notice of appeal which Litdes filed on December 22, 1995, was not filed with the clerk of the court that entered the judgment; therefore, it had no effect. See Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). However, the notice of appeal which was filed December 27, 1995, was timely filed with the clerk of the court that entered the judgment. December 23, 1995, was the tenth day after receipt of Flemings’s notice of appeal, but it was a Saturday. Rule 9 of the Rules of Appellate Procedure provides that whenever the last day for taking action falls on a Saturday, Sunday, or legal holiday, the time for such action shall be extended to the next business day. December 23 was a Saturday, December 24 was a Sunday, and December 25 and 26 were legal holidays; therefore, December 27 was the next business day.

Motion denied.


author:
PER Curiam.
      Tom Glaze, Justice,

text:
    Johnny Charles HENLEY v. H.A. TAYLOR, Circuit Judge
    CR 96-297
    918 S.W.2d 713
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      John F. Gibson, Jr., for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for respondent.
   PER Curiam.

Johnny Charles Henley petitions for certiorari and mandamus contending the Lincoln Circuit Court improperly denied his motion for pretrial release. Certiorari is the proper remedy to review a circuit court’s determination of the availability of bail. Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).

Mr. Henley was charged with attempted murder and aggravated assault on February 14, 1996. On February 16, 1996, Circuit Judge Fred Davis, without conducting a pre-trial release inquiry, ordered Mr. Henley held without bond. Mr. Henley moved to set bond. The motion was heard by Judge H.A. Taylor.

Shordy after Mr. Henley filed his motion to set bond, the State moved the Circuit Court to commit Mr. Henley to the Southeast Arkansas Mental Health Center for a mental examination. The examination was to be “for the purpose of determining whether or not the Defendant is a clear and present danger to himself, to others, or both, as defined in Ark. Code Ann. § 20-47-207(c).” Judge Taylor granted the motion.

In a report filed in the Circuit Court, Dr. Malik of the Southeast Arkansas Mental Health Center observed that Mr. Henley has a long history of violence and he tends to become violent when he uses drugs and alcohol. For those reasons, Dr. Malik concluded Mr. Henley was a danger to others.

Mr. Henley’s petition states that based on Dr. Malik’s opinion, Judge Taylor refused to set any conditions for his pretrial release, and in doing so stated, “I am familiar with Rule 9.3 of the Arkansas Rules of Criminal Procedure, but if any judge is going to release Mr. Henley, it’s not going to be this judge.” Mr. Henley argues that under A.R.Cr.P. 9.3, Judge Taylor did not have the option to refuse his pretrial release. We agree.

Article 2, § 8, of the Arkansas Constitution provides that “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great.” Stated another way, a criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail. Reeves v. State, 261 Ark. 385, 548 S.W.2d 822 (1977), See also Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992). If the defendant is determined to be dangerous, Rule 9.3 sets forth the conditions a judicial officer may place upon a defendant’s bail if he is determined to be dangerous:

Prohibition of Wrongful Acts Pending Trial.
If it appears that there exists a danger that the defendant will commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer, upon the release of the defendant, may enter an order:
(a) prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order shall be deemed to prohibit any lawful and ethical activity of defendant’s counsel;
(b) prohibiting the defendant from going to certain described geographical areas or premises;
(c) prohibiting the defendant from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating liquors or in certain drugs;
(d) requiring the defendant to report regularly to and remain under the supervision of an officer of the court.

As can be seen from the constitutional provision and the criminal procedure rule, a non-capital defendant’s absolute right to bail may only be curbed by the setting of certain conditions upon his release, and not its complete denial. Although the mental examination provided Judge Taylor with a basis for setting stringent conditions on Mr. Henley’s release, it did not give him the option of refusing to release him from incarceration.

Although a probate court may in some instances, after appropriate hearings, involuntarily commit for an extended period a mentally ill person who is dangerous to himself or herself or others, Ark. Code Ann. §§ 20-47-201 through 20-47-228 (Repl. 1991 and Supp. 1995), the jurisdiction of a circuit court with respect to criminal defendants thought to be mentally ill is limited. See Schock v. Thomas 274 Ark. 493, 625 S.W.2d 521 (1981).

We grant the writ of certiorari and remand to the Circuit Court for further hearing and orders consistent with this opinion.

Glaze and Corbin, JJ, dissent.

Tom Glaze, Justice,

dissenting. Noting Johnny Henley’s long history of violence and a psychiatric evaluation reflecting that he is a danger to others, the trial judge denied Henley’s release prior to trial. The trial court is mandated to conduct a pretrial release inquiry in felony cases where the prosecutor does not stipulate to a defendant’s release, and the trial court did so in this case. However, contrary to the majority per curiam opinion, the trial court is not required to release the defendant after such an inquiry is conducted. In fact, A.R.Cr.P. Rule 9.1 provides that “the judicial officer may release the defendant . . . upon an order to appear.” (Emphasis added.) See also Ark. Code Ann. § 16-84-110 (Supp. 1995) (before conviction, the defendant may be admitted to bail). Consistent with Rule 9.1, A.R.Cr.P. Rule 9.3 provides as follows:

If it appears there exists a danger that the defendant will commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer, upon the release of the defendant, may enter an order:
(a) prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order shall be deemed to prohibit any lawful and ethical activity of defendant’s counsel;
(b) prohibiting the defendant from going to certain described geographical areas or premises;
(c) prohibiting the defendant from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating liquors or in certain drugs;
(d) requiring the defendant to report regularly to and remain under the supervision of an officer of the court. (Emphasis added.)

The majority reads Rule 9.3 to read the trial judge must enter an order releasing a defendant, and in doing so imposes applicable restrictions (a) through (d) above. Such a reading is erroneous.

Obviously, the restrictions in Rule 9.3 are worthless if, for example, you have a defendant like Henley, who suffers from mental disease and an addiction which would likely cause him to be a danger to others. The judge voiced that concern here, the record supports his concern, and therefore, he clearly did not abuse his discretion in denying Henley’s request to be released.

In conclusion, I am vitally concerned when this court interprets its own rules to permit dangerous defendants to assimilate into society with no more than a paper court order to protect people. Trial courts, after appropriate inquiry, should be given authority and discretion to make difficult release decisions, and the appellate court’s review should be limited to determining if the lower court abused its discretion in making its decision. In my view, telling a trial court it has no discretion to deny a dangerous defendant a release is irresponsible on this court’s part.

CORBIN, J., joins this dissent.

        Reporter’s note: Also published at 922 S.W.2d 681 (1996).


text:
    Dinzel NORMAN v. STATE of Arkansas
    CR 95-361
    918 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      George J. Stone, for appellant.
    No response.
   PER CURIAM.

Counsel, George J. Stone, requests a continuance for filing appellant’s brief. Counsel’s reason is that his law license was suspended on March 8, 1996, because of a deficiency in continuing legal education hours. He states that he expects to cure the deficiency on March 29, 1996, and have his license reinstated shordy thereafter.

Counsel’s motion is granted for thirty days. The clerk is directed to set a briefing schedule after the thirty-day period has run. The court forwards this per curiam to the Professional Conduct Committee for its consideration.


author: PER Curiam.

text:
    Pamela F. SKOKOS v. Theodore C. SKOKOS
    93-1079
    94-952
    918 S.W.2d 721
    Supreme Court of Arkansas
    Opinion delivered April 1, 1996

      Henry Hodges and Robert L. Robinson, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, PA., by: Karen McKinney, for Joseph Gelzine.
   PER Curiam.

Joseph Gelzine seeks access to records of trial in two cases decided by this Court, Skokos v. Gray, 318 Ark. 571, 886 S.W.2d 618 (1993) (Case No. 93-1079), and Skokos v. Skokos, 322 Ark. 563, 909 S.W.2d 653 (1994) (Case No. 94-952). Mr. Gelzine states he is a litigant in a separate case brought against him by Pamela F. Skokos involving evidence contained in the records requested. Ms. Skokos has responded to Mr. Gelzine’s motion for release of the transcripts to the effect that she has no objection.

In our per curiam order in Case No. 94-952 we granted a motion to chronologize and consolidate the records in the two cases. We remanded the consolidated case to the Trial Court and appointed Chancellor Jim R. Hannah to replace Chancellor Alice S. Gray who had recused.

The consolidated record sought in this motion is in the possession of Chancellor Hannah who is using it to conduct further proceedings in the case. Mr. Gelzine may make whatever arrangements Chancellor Hannah may permit for temporary access to and copying of the record.

BROWN, J., not participating.


author: Bradley D. Jesson, Chief Justice. Tom GLAZE, Justice,

text:
    James H. YOUNG v. Tammy Lynn HONEYCUTT
    95-1209
    919 S.W.2d 216
    Supreme Court of Arkansas
    Opinion delivered April 15, 1996

      Pryor, Barry, Smith, Karber & Alford, by: Ben T. Barry, for appellant.

      Jones, Jackson & Moll PLC, by: Kendall B. Jones and J. Scott Hardin, for appellee.
   Bradley D. Jesson, Chief Justice.

The jury returned a defendant’s verdict in this case involving an automobile accident on a highway bridge. The trial court granted the plaintiff’s motion for new trial, from which the defendant appeals. We affirm.

Shortly before 5:00 p.m. on June 3, 1994, appellee Tammy Lynn Honeycutt was driving westbound on the Midland Avenue bridge from Van Burén to Fort Smith. Due to rainy conditions, she was traveling under the 40 m.p.h. speed limit. She could see with the use of her windshield wipers, which were operating at normal speed. Honeycutt was in the right-hand lane when her car hydroplaned, slid into the left lane, hit the concrete divider on the bridge, and came to a stop. She looked in her rear-view mirror a.nd saw a white car pull up behind her and turn on its flashers. Honeycutt then activated her flashers so that the person behind her would know she wanted to exit her car. She had turned her car off and pulled up the emergency brake when the white car behind her was rear-ended by appellant James H. Young’s truck, forcing the white car into hers. It was Honeycutt’s testimony that Young apologized to her after the accident, told her that he had not seen her, had not touched the brake, and never slowed down. Young explained to her that he was trying to clear some water off his windshield that had splashed over from the opposite side of the bridge.

Officer David Thomas of the Fort Smith Police Department investigated the accident. Though it was raining on his way to the scene, he stated he had no problem seeing while driving with the aid of his windshield wipers. He testified that the accident occurred 500 feet from the crest of the bridge. According to Thomas, there was nothing obstructing Young’s view from the crest of the bridge to the stopped vehicles. Young told Thomas that he had been traveling in the left lane and that water had splashed over the concrete barrier from the other lanes onto his windshield, preventing him from seeing the vehicles stopped in front of him until the collision occurred. However, he told Thomas that he continued at a steady speed and did not see any reason to slow down. While Thomas saw flashers on Honeycutt’s vehicle, he did not recall seeing flashers on the white car. Because the rear end of the white car was smashed, Thomas opined that the damage could have caused the flashers not to operate.

Regarding damages, Honeycutt stated that while she was not hurt in any manner from the initial contact she made with the bridge, her head hit the seat-belt latch after the white car was knocked into hers, causing her car to turn completely around. She described an “egg-size” knot on the back of her head, and stated that her neck, back, and left collarbone were also hurting. The same evening of the accident, she went to the hospital, where she underwent x-rays and was given muscle relaxers and pain pills. Three days later, Honeycutt was experiencing pain in both legs, headaches, and soreness. She was referred an orthopedic surgeon, who diagnosed cervical and thoracic strain. Honeycutt completed approximately three weeks of physical therapy. In her negligence claim against Young, she sought damages for personal injuries, past and future medical expenses, past and future mental anguish, and lost income. She prayed for $30,000, including $5,203.57 in medical expenses and $208.84 for 23 hours of lost wages.

After the trial court denied Young’s motion for directed verdict, Young testified that it was raining very hard at the time of the accident, and that he caught the hardest part of the rain on the bridge. He estimated his speed at 30 m.p.h. or slower because of the weather. It was Young’s testimony that he got caught in the inside lane because of traffic and could not change lanes. According to Young, he did not see anything or slow down before he hit the white car, and he did not see any emergency flashers on the white car or on Honeycutt’s vehicle.

At the close of all the evidence, various AMI instructions were submitted to the jury, including the burden of proof for damages based on negligence, proximate cause, the common law rules of the road, and comparative negligence. The jury returned a unanimous verdict for Young, who appeals from the trial court’s granting of Honeycutt’s motion for new trial.

Young first contends that the trial judge’s order granting the new trial is deficient because it does not include a “finding” that the jury’s verdict was clearly contrary to the preponderance of the evidence. Before the Uniform Rules for Circuit and Chancery Court were abolished in 1988, see In Re: Abolishment of the Uniform Rules of Circuit and Chancery Courts, 294 Ark. 664, 742 S.W.2d 551 (1987), Rule 16 required judges to state, with particularity, the specific reasons for their decision in their order granting the new trial. If they failed to do so, there was a presumption on appeal that the jury’s verdict was correct. See e.g., Stephens v. Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987); Brant v. Sorrels, 293 Ark. 276, 737 S.W.2d 450 (1987). There is no such requirement present in Arkansas Rules of Civil Procedure; thus, Young’s argument is without merit.

Young next contends that the trial court abused its discretion in granting a new trial because the jury’s verdict was not clearly against the preponderance of the evidence. Rule 59(a)(6) of the Arkansas Rules of Civil Procedure provides that a new trial may be granted to all or any of the parties on all or part of the issues on the application of the party aggrieved when the verdict or decision is clearly against the preponderance of the evidence. The trial court has limited discretion in the matter, as it may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995); Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994). However, the trial court may grant a new trial when a miscarriage of justice has occurred. Brant v. Sorrells, supra. In reviewing the trial court’s granting of a motion for new trial, the test is whether the judge abused his or her discretion. Bristow v. Flurry, supra; Richardson v. Flanery, supra. We have further described this standard as requiring a showing of “clear” abuse, see Brant v. Sorrells, supra; Saber Mfg. Co. v. Thompson, 286 Ark. 150, 689 S.W.2d 567 (1985), or “manifest” abuse by acting improvidently or thoughtlessly without due consideration. See Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987); Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). A showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Bristow v. Flurry, supra; Richardson v. Flanery, supra.

In Bristow v. Flurry, supra, defendant Bristow, a cab driver, approached the intersection of Garrison and Ninth Street in Fort Smith when his passenger, plaintiff Flurry, reached over the seat to pay her fare and stated, “Here.” Bristow claimed that, when he last looked, the light in the intersection ahead was green, so he turned to collect the money from Flurry. However, when he turned back, he was in the intersection, at which point he saw a truck a moment before colliding with it. Bristow claimed the truck was speeding. The jury returned a verdict in Bristow’s favor, but the trial court granted Flurry’s motion for new trial. We affirmed, noting that Bristow had conceded he was not paying attention to the road as he entered the intersection prior to the collision.

We likewise affirmed the trial court’s granting of a new trial in Richardson v. Flanery, supra. In that case, defendant Richardson was driving her car on a feed-on lane, attempting to access Highway 107. She failed to yield and collided with the Flanerys’s car, which was traveling south on the highway. The jury returned a general verdict in Richardson’s favor, but the trial court granted the Flanerys’s motion for new trial. We held that the trial court did not abuse its discretion in granting the new trial because the overwhelming weight of the evidence was that Richardson’s failure to yield had been the cause of the accident. In so holding, we recognized that the only evidence tending to disprove the allegations of negligence against Richardson was her own testimony regarding the cause of the accident.

In Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), we again affirmed the trial court’s granting of a new trial. Defendant Turrise was the driver of a van that ran off the road, overturned, and injured the plaintiff passengers. The trial court granted a new trial, finding that Turrise’s testimony regarding another vehicle causing him to run off the road was at variance with the physical evidence and the testimony of independent witnesses. In affirming the trial court’s decision, we observed that the only evidence tending to excuse Turrise’s failure to keep the van on the road was his own sudden emergency testimony, and concluded that the physical evidence showed a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency.

We recognize that in our decision Bristow v. Flurry, supra, we thought it significant that the jury was not instructed on comparative fault. While the jury was so instructed in the present case, we cannot conclude that the trial court abused its discretion in ordering a new trial. By his own testimony, Young admitted he never slowed down or applied his brakes before he hit the white car. This was so even though he “didn’t see anything but water.” Honeycutt and Thomas offered similar testimony. Particularly, Thomas testified that Young told him that after water splashed on his windshield, he continued at “steady speed.” Moreover, there was a distance of approximately 500 feet from the crest of bridge to accident site. According to Thomas, there was nothing obstructing Young’s view from the crest of the bridge to the stopped vehicles. Thus, we must conclude that this evidence demonstrated a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency.

The trial court read AMI 901 to the jury, which describes a driver’s duty to lookout for other vehicles, to keep his vehicle under control, and to drive at a speed that is reasonable and prudent under the circumstances. As it is uncontroverted that Young did not decrease his speed when water splashed on his windshield, we cannot agree that the trial court erred in concluding that a new trial was warranted on the basis that the negligence of Honeycutt, if any, was exceeded by the negligence of Young. It was also uncontroverted that Honeycutt sustained a muscle strain and lost nearly a full day of work as a result of the accident. Under these circumstances, recognizing that Young will have the opportunity to prevail at another trial, we hold that the trial court did not abuse its discretion in granting a new trial.

Affirmed.

Glaze, J., dissents.

Tom GLAZE, Justice,

dissenting. This court requires that before a trial court may substitute its view of the evidence for that of the jury, the jury’s verdict must be clearly against the preponderance of the evidence. A.R.C.P. Rule 59(a)(6). To determine whether the trial court abused its discretion, it is helpful to examine the order granting a new trial to determine the rationale for the trial court’s substitution of its view for that of twelve jurors. Here, the order reflects only that it was the trial court’s opinion that the negligence of Honeycutt, if any, was exceeded by the negligence of Young, and that Honeycutt suffered damage as a result of the automobile accident. Without more explanation, it is impossible to ascertain whether the trial court abused its discretion without properly examining the evidence. In reviewing the evidence and instructions to the jury, I submit the record fails to support the trial court’s substituted and conflicting opinion that the jury’s verdict was clearly against the preponderance of the evidence. Therefore, I must dissent from the majority’s opinion upholding the trial court’s ruling granting Honeycutt a new trial.

The majority opinion recites evidence in support of the trial court’s finding that Mr. Young was a negligent participant in the present case. This dissent does not contest that there was evidence whereby the judge or jury could have found Young negligent. However, the majority’s analysis falls short in its failure to recognize that there was evidence presented in the present case whereby the jury could have concluded that Honeycutt was equally, if not more, negligent than Young.

Evidence of Honeycutt’s negligence is found where she admitted that she lost control of her vehicle when she hydroplaned across two lanes of traffic and struck the concrete divider. The majority recites that Honeycutt testified that she was driving under the speed limit, when in fact she testified that she was probably driving under the speed limit because it was raining, but that she did not look at her speedometer and was unsure as to whether she was driving over or under the speed limit, only that she thought she was driving more slowly than she would have been on a normal day. Regardless, it was uncontroverted that Honeycutt hydroplaned into the concrete wall where her car came to rest. From this testimony alone, the jury could have concluded that Honeycutt was negligent pursuant to AMI 901(B) and (C) for having failed to maintain control of her car and driving at an unsafe speed. The judge also gave AMI 305(b), which instructed the jury that it was the duty of both persons involved in the occurrence to use ordinary care for the safety of others and their property. Under this instruction, the jury could also have found Honeycutt negligent when she chose to leave her car stopped on the bridge, as Honeycutts own testimony included that her car was not rendered immovable by either accident.

This court has reversed trial courts’ granting of new trials as an abuse of discretion when the jury had before it evidence of a substantial or independent nature which, if accepted by the jury, could support the verdict and which was at least the equivalent of any countervailing evidence. See Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993); Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990); Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989); Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988). Such is the instance in the present case. The majority opinion cites cases where this court affirmed the lower court’s granting of a new trial, but these cases simply do not reflect the type of evidence required to reverse.

For example, in Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), the trial judge, unlike in the present case, gave no comparative fault instruction to the jury. There, the only allegations of another’s negligence was Bristow’s own testimony. Moreover, Bris-tow conceded that he was not paying attention to the road as he entered the intersection prior to the collision. In Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994), no independent evidence was presented to show that the defendant Richardson was not solely at fault. The Richardson court said, “We recognized that the only evidence tending to disprove the allegations of negligence against Richardson was her own testimony regarding the cause of the accident.” Last, in Turrise, 303 Ark. 576, 798 S.W.2d 684, the only evidence tending to excuse Turrise’s failure to keep the van on the road was his own testimony of a sudden emergency. Testimony and physical evidence presented showing Turrise was at fault, along with the lack of any independent evidence beyond Turrise’s own testimony to show that he was not at fault gave rise to this court’s determination that the trial court was found not to have abused its discretion in granting a new trial.

In my view, the cases relied upon by the majority opinion involve proof that is considerably distinguishable from the evidence before the jury in the present case. Here, evidence of a substantial and independent nature was presented to the jury, which it accepted as evidence that Young and Honeycutt were at least equally negligent. For this reason, I would reverse the trial court’s decision, since I believe it erred in finding the jury’s verdict was clearly against the preponderance of the evidence.