author: Robert H. Dudley, Justice.

text:
    Allen Rene MOORE v. STATE of Arkansas
    CR 90-133
    798 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Jack M. Lewis, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of the manufacture of a controlled substance, possession of a controlled substance, being a felon in possession of a firearm, criminal possession of explosives, and criminal possession of a firearm. We affirm the judgment of conviction.

Appellant’s first argument is that he was arrested by an officer who did not meet the qualifications of the Commission on Law Enforcement Standards and, therefore, all of the evidence gathered after his arrest should have been suppressed. Appellant was in fact arrested by an officer who did not meet the Commission’s standards. However, that officer only arrested the appellant for a traffic violation. He did not do anything else. All later actions which resulted in obtaining evidence were taken by qualified officers.

Ark. Code Ann. 12-9-108(a) (1987), as written at the time of arrest, provided:

(a) A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

(Emphasis added.) As a direct result of this statute, we have held that a citation which was issued by an unqualified officer was invalid. Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The charging instrument for the felonies now on appeal was a prosecutor’s information, not an officer’s citation, so we are not concerned with the validity of the charging instrument. See also Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), and Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). The issue now before us is whether the exclusionary rule should be applied. Application of the rule would require the suppression of all evidence obtained after the arrest by the unqualified officer.

The exclusionary rule is designed to deter unlawful police conduct. It compels respect for the Fourth Amendment by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217 (1960). Here, we are not dealing with unlawful police conduct which constitutes a violation of the Fourth Amendment and, accordingly, we are not compelled by federal law to apply the rule. Still, we may apply it as a matter of state law if we deem it proper. See State v. Shepherd, 303 Ark. 447, 798 S.W.2d 45 (1990). In this case, we do not think it is fitting to apply the exclusionary rule on state grounds. The goal of the statute at issue is to compel police department administrators to check the backgrounds of those seeking to become officers, and to hire only psychologically qualified persons to serve as policemen. It is a statute which deals with standards for employment. It is not a statute which deals with police conduct. The goal of this statute and the goal of the exclusionary rule are different. Therefore, we decline to apply the exclusionary rule on state grounds. See Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990).

In addition, we are persuaded that the language of the statute mandates the result we reach. The statute provides that action taken by an unqualified person “shall be held as invalid.” It does not indicate that actions taken by others should be held invalid or that an exclusionary rule should be applied. Accordingly, we hold there is no merit in appellant’s primary point of appeal.

Appellant next argues that his arrest for a traffic violation was merely a pretext for an otherwise illegitimate search. See Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). We do not reach this assignment of error as it was not raised below. The appellant filed two motions alleging that his confession should be suppressed because the arresting officer had neither a warrant nor probable cause to arrest him. The trial judge held an omnibus hearing, heard the evidence that the violations were committed in the officers’ presence and declined to suppress the confession on the basis argued. There was neither a motion nor an argument in which the appellant informed the trial court he was claiming the arrest was merely a pretext for an otherwise unlawful search. Naturally, the trial court did not rule on such an issue. As a general rule, we only reverse a trial court for erroneous rulings. Since the issue was not brought to the attention of the trial court, and since the trial court did not rule on it, we will not consider it on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

For his third assignment of error, appellant contends that the trial court erred in refusing to suppress evidence that the State withheld from discovery. He contends that the State failed to produce the arresting officer’s personnel file, failed to produce a consent to search form, and failed to disclose a vial of methamphetamine.

In a puzzling ruling, the trial court held that the appellant could not examine the arresting officer’s personnel file to determine whether the officer met the standards, and then ruled that the officer met the standards. Such a ruling is undeniably erroneous. However, appellant suffered no prejudice as a result of the ruling as he was still able to show through cross-examination that the arresting officer did not meet the employment standard.

Appellant was provided the consent to search form at the omnibus hearing, which was almost seven months before trial. He fails to show how he was prejudiced in any manner by the State’s failure to produce the form prior to that date.

The vial of methamphetamine was admitted into evidence at transcript page 477 over defendant’s objection based on the chain of custody. It was not until much later, at page 520, that appellant objected that the State had not disclosed the vial. The trial judge responded that the vial of methamphetamine was already in evidence. That ruling was correct for two reasons. First, a party has a duty to make a timely and complete objection to the admission of evidence. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). Appellant’s objection on the basis of nondisclosure was not timely. Second, it appears that the State had disclosed to the appellant the information that it had the vial of methaphetamine.

Appellant next argues that the trial court erred in not suppressing his confession. The argument is broken into three sub-parts. One of the sub-arguments is that appellant was not promptly taken before a magistrate in compliance with A.R.Cr.P. Rule 8.1. The argument was not made below and, therefore, is not preserved for appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

The second of the sub-arguments seems to be that appellant did not waive his Miranda rights because he did not sign the Miranda form, rather he only initialed each right. On appellate review, this Court independently reviews the totality of the circumstances surrounding a confession to determine whether an accused knowingly, voluntarily, and intelligently waived his constitutional rights, Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). The trial court’s determination of these matters will be reversed only if it is clearly against the preponderance of the evidence. Branscomb, id. In reviewing rulings on the suppression of evidence, we view the evidence in the light most favorable to the State. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). Here, the Miranda form contained an express waiver of rights and, according to all of the testimony, an officer read the form to appellant, and appellant understood it before he initialed it. We cannot say that the trial court’s finding that the waiver of rights was voluntary was clearly erroneous.

Appellant’s third sub-argument it is that his statement was involuntary because it was given as a result of a false promise. See Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). The officer involved testified that he understood that a third person had a working or active methamphetamine laboratory in the area. The officer stated that such operations were dangerous, and he wanted to find it, arrest the operator, and close it. He told appellant that if he would lead them to the working laboratory no charge would be filed against his wife. Appellant agreed. It does not appear that appellant’s confession was given in response to this offer, but even if it had been, appellant was not misled. He did not take the police to the working laboratory. He only showed the police an empty storeroom where, he said, a laboratory had previously been located. The police did not mislead him with a false promise. Rather, the appellant, a felon, tried to “con” the police. See Davis v. State, id. Thus, the trial court did not err in admitting the confession.

Appellant’s next argument is that he was convicted of a greater offense than that with which he was charged. The factual background for the argument is as follows. The appellant was originally charged by information with manufacture of a controlled substance on February 12, 1989. The prosecutor then amended the information in order to change the alleged date of the crime to September 1988 through February 1989, but by clerical mistake reduced the charge to possession of a controlled substance. Later, he sought to correct his mistake by amendment, but filed another information alleging possession only. The trial court granted the State leave again to amend the charge to manufacture of a controlled substance, but for some reason the State did not do so. The State put on its case as though it had amended again to charge manufacture, and, at the close of the State’s case, the defendant moved for a directed verdict on the charge of manufacture of a controlled substance. The motion was made on the basis of lack of evidence rather than on the offense not being charged in the information. The instructions were prepared and given to the jury on the manufacture of a controlled substance. There was no objection. The jury returned a verdict of guilty of manufacturing. The appellant, for the first time on appeal, argues that he has been convicted of a greater crime than that with which he was charged.

In Dunn v. United States, 442 U.S. 100, 106 (1979), the Court wrote:

To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused. See Eaton v. Tulsa, 415 U.S. 697, 698-699 (1974) (per curiam); Garner v. Louisiana, 368 U.S. 157, 163-164 (1961); Cole v. Arkansas, 333 U.S. 196, 201 (1948); De Jonge v. Oregon, 299 U.S. 353, 362 (1937).

In Cole v. Arkansas, 333 U.S. 196, 201 (1948), the court wrote “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be convict him upon a charge that was never made.” Accord: Robbins, v. State, 219 Ark. 376, 242 S.W.2d 640 (1951); Ark. Code Ann. § 16-89-126(e)(l) (1987). The only question is whether an objection was necessary to preserve the issue. An objection was necessary. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Even constitutional issues will not be considered when raised on appeal for the first time. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Here, defense counsel had an opportunity to object, as he was aware of the instruction and form of the verdict, but he did not do so. Had he done so, the trial court probably would have allowed an amendment of the information by interlineation. Thus, the appellant has suffered no real prejudice.

Appellant’s final argument is that the Double Jeopardy Clause was violated by his conviction for both felon in possession of a firearm and criminal use of a prohibited weapon. The argument was not made below, and we will not consider it for the first time on appeal.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SUNBELT COURIERS and Liberty Mutual Insurance Company v. Joan McCARTNEY
    90-90
    798 S.W.2d 92
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellant.

      Pope, Shamburger, Buffalo & Ross, by: John K. Shamburger and Brad A. Cazort, for appellee.
   Robert H. Dudley, Justice.

In 1986, Daniel McCartney was accidentally killed while acting in the course of his employment with appellant Sunbelt Couriers. Following his death, his widow, appellee Joan McCartney, filed for widow’s worker’s compensation benefits. The Administrative Law Judge upheld her claim. Appellants, Sunbelt Couriers and Liberty Mutual Insurance Company, appealed to the full commission. On January 2,1990, the full commission affirmed the decision of the law judge and mailed notice of its decision to appellants. Ark. Code Ann. § 11-9-711 (b) provides that an order or award becomes final unless appealed “within 30 days from receipt... of the order or award. . . .” Appellants filed their notice of appeal on February 2, 1990, which was within thirty (30) days of the receipt of the order. However, it was thirty-one (31) days after the commission’s decision, and Rule 4 of the Arkansas Rules of Appellate Procedure provides that a notice of appeal must be filed within thirty (30) days from the entry of the judgment. The appellee filed a motion in the Court of Appeals asking that the appeal be dismissed because it was not filed within thirty (30) days from the entry of the judgment. The Court of Appeals declined to dismiss the appeal and asked us to review the matter. The appellants then filed a petition for certiorari. We granted the petition. We affirm the ruling by the Court of Appeals.

If the statute governed the notice of appeal it was timely filed, but if the rule governed, it was not. In her motion to dismiss, the appellee relies on the inherent authority of this court to make rules of procedure, on Act 38 of 1973, which additionally authorized this court to make rules, and on the Supersession Rule, all of which, she contends, make Rule 4 of the Rules of Appellate Procedure govern.

In Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990), we explained that when the purpose of a rule is to provide for the establishment or maintenance of the efficient administration of judicial business, and it does only that, the scope of the court’s rule-making power is supreme. Obviously, if we intended for Rule 4 of the Rules of Appellate Procedure to govern appeals from the Worker’s Compensation Commission, the statute would be superseded.

We did not intend for Rule 4 to govern appeals from the Worker’s Compensation Commission. We intended for the Rules of Appellate Procedure to govern appeals from circuit, chancery, and probate courts; we did not intend it to apply to appeals from state agencies. See Ark. R. App. P. 2(a). One reason is that many agencies and commissions, such as the Worker’s Compensation Commission, do not have an office comparable to a clerk of the court where agency orders are known by the public to be filed and immediately available. There is no known office where agency orders are “entered.” Rule 4(a) provides “a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, . . . .” “Entry” occurs when a judgment or order is filed with the clerk of the court. Similarly, we have held that appeal provisions of the Administrative Procedure Act, instead of the Rules of Civil Procedure, govern the review of an agency decision. Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984).

Accordingly, we affirm the holding of the Court of Appeals and remand the case to that court for a decision on the merits.

Turner, J., not participating.


author: Steele Hays, Justice.

text:
    Robert Junior SMITH v. STATE of Arkansas
    CR 90-8
    798 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Pope & Limmerman, by: Sam Pope, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Robert Junior Smith was convicted of first degree murder for the slaying of sixteen-year-old Evon (“Boo”) Benton. On appeal Smith contends he was denied a speedy trial and the trial court erred on several evidentiary rulings. None of the points warrant reversal.

Appellant first argues the trial court erred by denying his motion to dismiss for a speedy trial violation. Appellant was arrested on April 5,1988, and under A.R.Cr.P. Rule 28.1, should have been tried within twelve months, “excluding only such periods of necessary delay as are authorized in Rule 28.3.” Appellant was not tried until June 6,1989, some sixty-two days beyond twelve months, so unless there were excludable periods appellant was not tried within the time constraints of Rule 28.3.

The trial court found one excludable period of thirty-five days attributable to the pregnancy of the wife of appellant’s attorney. Appellant does not contest this period but does contest a second period, from November 1, 1988, to November 30, 1988, which the trial court also excluded. On October 21,1988, the trial court ordered a hearing for October 31 on a motion by the appellant to suppress evidence. Following that hearing the trial court took the motion under advisement, eventually denying it on December 29,1988. Rule 28.3(a) permits the exclusion of time during which a pretrial motion is held under advisement, not exceeding thirty days, and on that basis the trial judge excluded thirty of the fifty-nine days the motion to suppress was under advisement.

Appellant points out that on the same date the trial court set the suppression hearing (October 21) it also granted a continuance at the request of the state to reschedule a November 1 trial date. The state’s request was due to the crime lab not having completed certain tests. Appellant maintains that because the delay of the trial was attributable more to the state’s motion than to his own, the thirty days his motion was under advisement should not be excluded under Rule 28.3 (a). However, either was a sufficient basis for exclusion under the rule and we can find nothing in the record to sustain an inference that one was more influential than the other. Nothing in the rule expressly addresses this situation, but we note the language of the rule is mandatory: Rule 28.3 reads (before listing the excludable periods), “The following periods shall be excluded.” [Our emphasis]. See McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989) and Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988), where exclusions were without regard to whether the trial date was directly affected.

We believe this result is in harmony with federal cases interpreting an almost identical provision of the federal speedy trial rule. In United States v. Stafford, 697 F.2d 1368 (11th Cir. 1983), the court pointed out that the language of the rule, like our own, is mandatory, adding this observation:

Moreover, a contrary reading would present extremely difficult practical questions of whether a particular motion did or did not actually delay the commencement of a trial. The virtual impossibility of making such a determination and the resulting uncertainty for defendants as to their speedy trial status require the conclusion that Congress could not have intended the statute to be read as appellees suggest.

We conclude that the trial court did not clearly err by excluding the thirty days during which the defendant’s motion to suppress was under advisement.

The appellant next argues that the trial court erred in admitting hearsay statements of a three-year-old child who witnessed the murder of Evon Benton. The victim was the teenage sister of Linda Benton, who lived with the appellant. On the afternoon of April 3, 1988, a Sunday, Evon came over to their house while neither Linda nor appellant was at home. Appellant came home about 5:00 p.m. and found Evon in the house. There was an argument and appellant struck Evon repeatedly with a hammer. The medical examiner testified Evon had been struck twenty-five times about the head. When appellant was sure she was dead he moved her body in his car and placed it in a nearby field.

On the afternoon of the murder, Evon was babysitting Tarri, the three-year-old son of another sister, Dorothy Benton. Tarri was in the house and apparently witnessed the murder of Evon. On Sunday night Tarri was returned to Dorothy’s house by appellant. The next morning Dorothy asked Tarri where Evon was and Tarri told her that “Robert Smith hit Boo in the head with a hammer, hunch her, throw her in some weeds and took her to a doctor.” Tarri repeated this to the police on two more occasions on that same day. The police found the body shortly thereafter and arrested appellant.

A hearing was held on the admission of the statements made by Tarri. The trial court first found that Tarri was incompetent as a witness and then ruled that the statements would be admissible as hearsay under both the “excited utterance” exception, A.R.E. Rule 803(2) and, the “residual hearsay” exception, A.R.E. Rule 803(24). Appellant argues the trial court erred in this ruling and that the admission violated his confrontation right under the Sixth Amendment.

Tarri’s hearsay statements were introduced at trial through the testimony of three witnesses. The first was his mother, Dorothy Benton, who testified that Tarri had made his statement to her first thing Monday morning after the murder. The second and third were the Eudora police chief, Lawrence Webster, and deputy sheriff Samuel Smith, Jr., who both testified that Tarri made the same statement to them, later that day. As we hold the statements were admissible under the excited utterance exception, we find it unnecessary to consider the residual hearsay exception.

In Idaho v. Wright,_U.S._, 110 S. Ct. 3139, 111 L.Ed.2d 638 (1990), the United States Supreme Court discussed the requirements of the Confrontation Clause with respect to hearsay in a criminal trial:

Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause’s prohibitions with the general rule prohibiting the admission of hearsay statements. The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.
In Ohio v. Roberts, we set forth a general approach for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. We noted that the Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformanee with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. [Citations omitted.]

The first factor — a showing by the state that the child witness was unavailable at trial — was met in the finding of the trial court that the child witness, being two and one-half years old, was incapable of communicating with the jury, and, hence, tantamount to being unavailable. See Wright at 3147. (“For purposes of deciding this case, we assume without deciding that, to the extent the unavailability requirement applies in this case, the younger daughter was an unavailable witness within the meaning of the Confrontation Clause.”).

The second requirement, “indicia of reliability,” derives from the “firmly rooted hearsay exception,” i.e., the “excited utterance.” See Wright, supra, which specifically refers to the excited utterance as an example of such an exception:

The basis for the ‘excited utterance’ exception, for example, is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching or confabulation, and that therefore, the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.

Appellant contends that Tarri’s statements would not fall within this exception because of the lapse of time between the occurrence and the statement. We disagree. We first note the basic requirements of the excited utterance exception:

First there must be an occasion which excites the declarant. Second, the Statement must be uttered during the period of excitement and must express the declarant’s reaction to the occasion. In practice, these tend to merge together. If there was a sudden event which startled the declarant, his ensuing utterance will be assumed to be his reaction to the stimulus; if the statement appears to be excited, it will be assumed that the occasion was exciting.

4 D. Louisell, Federal Evidence § 439 (1980).

The interval between a statement and an event is governed by the particular circumstances of each case. D. Binder, Hearsay Handbook § 2.03 (1983). “The general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection or deliberation.” Id. “The trend is toward expansion of the time interval after an exciting event and some courts are more liberal in expanding the time period following an exciting event when the declarant is a child.” Id.

Continuing emotional or physical shock and loss of consciousness, unabated fright, isolation and other factors may also prolong the time, “making it proper to resort to Rule 803(2), despite long lapses of time.” D. Louisell, supra. It is further noted in Louisell on this point, that “sound decisions have found [long lapses of time, on the order of ten hours or more] insignificant” when the statements come from victims of brutal or terrifying crimes, “particularly when the victims are of tender years.”

So in People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982), the court admitted the assertions of sexual abuse made by a three-year-old girl to a social worker, several days after the event, and stated:

Although the temporal interval between the ‘startling event’ and the child’s statement is not without significance, it is not conclusive of the question of admissibility. The element of trustworthiness underscoring the excited utterance exception, particularly in the case of young children, finds its source primarily in the ‘lack of capacity to fabricate rather than the lack of time to fabricate.’ Citing to Fed. R. Evid. 803(2) Advisory Committee Note.

See also Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974) (approving admission of assertion of sexual abuse made by three-year-old girl to mother the morning after the event); State v. Padilla, 329 N.W.2d 263 (Wis. App. 1982) (sexual abuse relayed by ten-year-old girl three days after the incident); State v. Wallace, 31 Ohio St.3d 87, 524 N.E.2d 466 (1988) (five-year-old victim made statements to a social worker, fifteen hours after an attempted murder on her life, child had been unconscious during that time with intermittent periods of consciousness); State v. Novle, 342 So.2d 170 (La. 1977) (admitting four-year-old’s assertion to grandmother two days after rape); Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988) (“the time lapse to be considered... is not simply the time between the abuse and the declaration,” . . . the courts “must also be cognizant of the child’s first real opportunity to report the incident,” with the court noting that “tender years greatly reduce the likelihood that reflection and fabrication were involved”); Newbury v. State, 695 P.2d 531 (Okla. Cr. 1985) (statement of four-year-old to her mother upon waking in the morning, that her babysitter, the murder victim, had left the previous evening with “the television man” was admitted, and finding that similar statements made later that day were merely cumulative).

These considerations are summarized in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980):

The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of 803(2). Nor is it controlling that the [declarant’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. [Citations omitted.]

In this case, the three-year-old declarant witnessed the brutal murder of his aunt. He was returned to his home by the person who had committed the murder, about three hours later, when his mother was not yet at home. The evidence was that he slept fitfully and cried and screamed during the night. The first time he fully awoke, he spoke to his mother and made the statement in question. She stated that he was crying and frightened when he told her what had happened.

Considering the factors discussed in United States v. Iron Shell, supra, in light of the above facts, we are persuaded the trial court did not err in ruling that the child’s statement to his mother was admissible as an excited utterance under 803(2). The same is true of the statement repeated later to the police. See Newbury v. State, supra.

Appellant raises three other points. The first relates to the suppression motion made by appellant to exclude testimony that compared appellant’s tire tracks with an impression of tire tracks discovered where the victim was found on the basis that appellant’s car had been illegally seized and searched while parked at the Eudora police department during appellant’s incarceration there. The second relates to appellant’s request to exclude the same testimony on the basis that the individual making the comparison had not qualified as an expert. However, in light of appellant’s testimony, it is not necessary to consider these two points. Appellant testified at trial that he killed the victim with a hammer, put her in his car and attempted to hide the body. When the evidence of guilt is overwhelming, an error of even constitutional proportions may be found to be harmless beyond a reasonable doubt. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986).

As his last point, appellant contends the trial court erred in admitting two photographs of the victim’s head, both of which were taken by the medical examiner and introduced with his report and testimony. Appellant first insists the state violated a rule of discovery, A.R.Cr.P. Rule 17.1, by failing to notify the defense of these two photos. At trial the state responded that while it had notified the defense of all other photos, the state itself was not aware of these photos until that morning. The trial court then held a brief recess and allowed the defense to view the pictures and question the medical examiner about them. While at the close of this recess, appellant again mentioned the failure of the state’s discovery on this point, there was no request for further time to examine the pictures, or for a continuance. Nor was there any claim to the trial court below, nor is there now to this court on appeal, as to how appellant was prejudiced by the failure to disclose the photos at an earlier time. Absent a showing of prejudice, we will not reverse. Sutherland v. State, 292 Ark. 103, 727 S.W.2d 496 (1987).

Appellant also contends the probative value of the pictures was substantially outweighed by the danger of unfair prejudice. Appellant argues that the pictures include some postmortem changes so that not only are the photos unduly gruesome, but also they don’t accurately portray the wounds of the victim. Appellant contends the state could have introduced an anatomical drawing to accomplish the same purpose of portraying the location and nature of the wounds.

As to the accuracy of the photos, the trial court questioned the medical examiner on this point in chambers, and the examiner stated that while there was some change, it was nevertheless, a “pretty good, accurate demonstration” of the condition of the wounds. As to their probative value, the photos would certainly have assisted the jury to understand just how the murder occurred, and had bearing on the two alternative mental states the prosecution was trying to prove — premeditation and deliberation and circumstances manifesting an extreme indifference to the value of human life.

Even inflammatory photographs are admissible if they tend to shed light on an issue or enable the jury to understand the testimony. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). As we stated in Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990), “Unfortunately, a gruesome and heinous crime such as this one results in grotesque photographs.” The final decision is one that is within the sound discretion of the trial court, Gardner v. State, supra, and we cannot say, after viewing the pictures in question, that there was any abuse of discretion in this case.

Under Ark. Code Ann. § 16-91-113 (1987), as put into effect by our Rule 11(f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.


author: Tom Glaze, Justice.

text:
    Jessie MARSHALL v. Emmet J. GADBERRY, Carolyn Gadberry, Lynnon R. Gadberry and Martha Gadberry, et al.
    90-115
    798 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Rice, Pierce & Ogles, P.A., for appellant.

      Loh, Massey & Yates, Ltd., by: Edmund M. Massey, Gordon & Gordon, by: Allen Gordon-, and Michael Allison, for appellees.
   Tom Glaze, Justice.

This is an appeal from a partition suit involving 18.5 acres in Conway County. Appellant received an undivided one-half interest as a tenant in common in this acreage in her divorce settlement with Isaac Marshall, but the description of this acreage was omitted from the parties’ divorce decree. Isaac Marshall subsequently remarried, and he and his new wife deeded the 18.5 acres to Merlen Watson on July 22,1980. After a subsequent series of conveyances by deeds to and from other parties, the title to this disputed property was eventually transferred by warranty deed on November 10, 1982, to Emmet, Carolyn, Lynnon and Martha Gadberry. All the deeds were recorded, but the Marshalls’ divorce decree was not shown in the chain of title. The appellant never transferred her interest in any of the conveyances concerning this acreage. She alleges that she first found out that the property had been deeded to someone else on November 11,1986, when the Gadberrys’ attorney requested her to execute a quitclaim deed.

The appellant filed a partition suit against the Gadberrys on December 7,1987. In the Gadberrys’ answer, they affirmatively pled, among other things, that the appellant’s cause of action was barred by the seven-year statute of limitations set out in Ark. Code Ann. § 18-61-101(a)(1987). Based upon the Gadberry’s response and argument, the trial court granted a partial summary judgment in their favor. We find no error, and therefore affirm.

Section 18-61-101 (a) provides that an action brought for any lands may not be brought after seven years once the person’s right to commence the suit has accrued. However, appellant contends that no claim of adverse possession was alleged by the appellees that would have invoked the application of this provision, and that she only became aware of such a claim when she received appellees’ quitclaim deed on November 11, 1986. Actually, appellant premises her entire argument on appeal on the line of cases that hold one tenant in common cannot claim adverse possession against a co-tenant by the mere act of occupancy. See Phillips v. Carter, 222 Ark. 724, 263 S.W.2d 80 (1953); Jones v. Morgan, 196 Ark. 1153, 121 S.W.2d 96 (1938). Those cases and rule of law simply are not applicable to the present situation.

Here, as discussed earlier, Isaac Marshall, appellant’s co-tenant, triggered a series of deed conveyances of the disputed acreage to third parties. It is established law that when a co-tenant executes a deed to a stranger to the title, describing the entire land, and such grantee enters into exclusive possession under such deed, then the deed constitutes color of title, and such entry commences the running of limitation in favor of the grantee and against all co-tenants of the grantor. See Watkins v. Johnson, 237 Ark. 184, 372 S.W.2d 243 (1963).

In summary, our review of the record reflects that the property in question was deeded by the appellant’s former husband, Isaac Marshall, to a “stranger in title” on July 22,1980. That conveyance commenced the running of the seven-year statute of limitations. The successors in title, including the Gadberrys, were deeded title to the entire 18.5 acres with no mention of appellant as a co-tenant. Since the July 1980 conveyance, appellees have held possession of the property. The appellant did not file her suit until December 7, 1987, or after the statute of limitations had expired. In view of the foregoing, we are required to affirm the chancellor’s holding that the appellant’s cause of action against the “stranger in title” is barred by the statute of limitations.

       While another claim was still pending, the trial court found no just reason for delaying entry of judgment on this one adverse possession claim from which appellant brings this appeal. We limit our review to the issue raised by the parties, but note that some question exists as to whether appellant’s claim for relief should have been one in ejectment rather than for partition, since this dispute involves a number of deeds to third parties, who hold adversely to her. See Simmons v. Turner, 171 Ark. 96, 283 S.W.2d 47 (1926).


author: Otis H. Turner, Justice.

text:
    Wilfredo GONZALES v. STATE of Arkansas
    CR 90-152
    798 S.W.2d 101
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      La Jeana Jones, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant, Wilfredo Gonzales, was convicted of two counts of delivery of a controlled substance (cocaine) and sentenced to life imprisonment and a $25,000 fine on each charge. On appeal he contends that the trial court committed reversible error in denying his pretrial motion for a continuance and in refusing to exclude testimony revealing the confiscation of a gun and $710 in cash at the time of the arrest.

The manner in which this case was handled gives us a great deal of concern, and, based upon the totality of the circumstances, we are convinced that we must reverse and remand for retrial.

The appellant, a Latin American who speaks little English, resided in an apartment house in DeQueen, along with a number of other Latins. On December 27, 1988, an undercover police officer and a confidential informant allegedly purchased two “dime caps” of cocaine from the appellant. The next day, the officer returned to the apartment complex and again allegedly purchased five more packets of cocaine from the appellant.

On August 21, 1989, some eight months following the alleged buy, the appellant was arrested and charged. The appellant and several other defendants involved in similar activities were arraigned on August 31, 1989.

It is important to note at this point that attorneys Mickey Buchanan and Tom Cooper were at the time partners in the practice of law. On the day of the appellant’s arraignment, Buchanan was present and informed the court that two of the defendants, who were being arraigned, were going to retain him as counsel. The court then appointed Cooper, the public defender, who was not present in court, to represent the other defendants (one of whom was apparently Gonzales). However, the docket sheet on Gonzales reflects that Buchanan was listed as the attorney of record for the appellant.

Two of the counts against the appellant were set for trial on December 1, 1989. On November 30, 1989, the day before the scheduled trial, public defender Cooper, on the appellant’s behalf, appeared before the court seeking a continuance, alleging that there was a misunderstanding regarding which person was to be the attorney for the appellant. Cooper stated that the first notice he received of the trial setting was that very day — November 30. It appears that two of the counts against the appellant were set for December 1,1989, and the other five counts were set for January 17,1990; Buchannan, the attorney of record as reflected by the docket sheet, had been so notified.

The appellant’s attorney, moving for the continuance, also advised the court that the interpreter furnished was not satisfactory and that he had therefore been unable to communicate with his newly discovered client. After assuring attorney Cooper that a satisfactory interpreter would be provided immediately, the court inquired concerning other grounds for continuance; counsel replied that the circumstances might possibly prejudice the appellant or “cause the defense problems.” After then determining that Cooper represented a number of other defendants similarly charged with selling cocaine from the same apartment house under similar circumstances, the court engaged in the following exchange with the attorneys:

THE COURT: Was there any of the others that you’ve done any work on, since you’re appointed on five of them, that you would be more willing to try?
MR. COOPER: I could try this one just as well as any of them.
THE COURT: Well, I know you’ve done work on these others as a group, anyway. Is the undercover man the same?
PROSECUTOR: Yes, sir, it is the same story. We could try them all tomorrow.

Noting that the evidence was basically the same in the entire group of cases, the court observed “I don’t see how you’d be prejudiced as long as we can get you an interpreter,” and then inquired, “Don’t you agree you can transfer what you did on these other cases on this?” Cooper replied, “I can try, Judge.” The motion for continuance was then denied, and the appellant was put to trial the following day.

The denial of a motion for continuance is within the discretion of the trial court, and its ruling will be reversed only for an abuse of discretion. Rodriquez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989). The appellant bears the burden of showing that the trial court’s denial of a continuance was an abuse of discretion, and, in order to show abuse of discretion, the appellant must show that he was prejudiced. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

Here, the appellant moved for a continuance, citing the lack of time for trial preparation in that the public defender, through no fault of his own or that of the appellant, did not know that he was to defend the appellant, and that the case was set for trial the day following counsel’s discovery of his appointment. This lack of preparation time was further compounded by the language barrier existing between the appellant and his appointed counsel and the difficulty in obtaining a competent interpreter in a timely manner.

Where the lack of preparation time for counsel is a primary basis for requesting a continuance, this court considers the totality of the circumstances. Swaim v. State, 257 Ark. 166, 514 S.W.2d 706 (1974). The circumstances existing here require a finding that the trial court abused its discretion in refusing to grant the requested continuance.

It is unnecessary to reach the appellant’s second issue; because, however, the question of the admissibility of the money taken from the appellant at the time of the arrest may again be at issue on retrial, we dispose of the matter now. See Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). The alleged offenses occurred on December 27, 1988, and the appellant was arrested and the money confiscated on August 31 of the following year. The possession of the money is too remote in time to be of any probative value in relation to the activities of the appellant eight months earlier. The money is therefore not admissible as evidence.

Reversed and remanded.


author: Dale Price, Justice.

text:
    Joe D. FARISS v. STATE of Arkansas
    CR 90-90
    798 S.W.2d 103
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Martin Law Firm, P.A., by: Thomas A. Martin, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The issue in this case is whether the double jeopardy rights of the appellant will be violated if he is required to stand trial for incest. Appellant also relies upon res judicata and collateral estoppel as a bar to his prosecution. We hold that jeopardy did not attach by virtue of the prior civil proceeding and the doctrines of res judicata and collateral estoppel do not preclude his prosecution. Accordingly, we affirm the denial of the appellant’s motion to dismiss.

The appellant was charged by information alleging that on or about September 26, 1989, he committed incest with his adopted daughter in violation of Ark. Code Ann. § 5-26-202 (1987). The appellant filed a motion to dismiss the information prior to trial, attaching a copy of an order entered by the juvenile division of the chancery court in a case styled “Arkansas Department of Human Services v. Versalee Fariss, Mother, and Joe Fariss, Father of Cynthia Fariss.” The order provided that the Arkansas Department of Human Services (ADHS) had failed to prove by a preponderance of the evidence its allegations of dependent-neglect, including specific allegations of sexual abuse. This order is the only evidence of the prior proceeding provided us by the appellant. The record here contains a statement by the prosecuting attorney at the pretrial hearing to the effect that the facts and circumstances from the dependent-neglect proceeding were those from which the criminal charge arose. An order was entered by the trial court denying the appellant’s motion to dismiss, determining that the prior civil adjudication did not collaterally estop or bar by reason of res judicata the state from prosecuting the appellant for incest. The appellant contends the trial court erred in refusing to apply res judicata and collateral estoppel to the final order of the court in the dependent-neglect proceeding.

In Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959), we held an order denying a motion to dismiss an information based upon double jeopardy is an appealable decision.

The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). However, where there is no threat of either multiple punishment or successive prosecutions, the double jeopardy clause is not offended. United States v. Wilson, 420 U.S. 332 (1975). Jeopardy denotes risk and is traditionally associated with a criminal prosecution. See Serfass v. United States, 420 U.S. 377 (1975). It has been held that the risk to which the double jeopardy clause refers is not present in proceedings that are not “essentially criminal.” Helvering v. Mitchell, 303 U.S. 391 (1938). Stated another way, the risk to which the term jeopardy refers is that traditionally associated with “actions intended to authorize criminal punishment to vindicate public justice.” United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943).

In the case at bar the appellant, his wife and daughter were parties to a civil proceeding brought by ADHS to determine whether the appellant’s adopted daughter was dependent-neglected. The order provided that the minor child was not dependent-neglected within the meaning of Arkansas law but that she should not be returned to the home of her parents. A dependent-neglect adjudication is a hearing to determine whether allegations in a petition are substantiated by the proof, Ark. Code Ann. § 9-27-303(5) (Supp. 1989), and its thrust is the protection of a juvenile who is at substantial risk of serious harm. We disagree with the appellant’s argument on appeal that his prosecution for incest is barred by the dependent-neglect proceeding inasmuch as the appellant simply was not threatened with multiple punishments and, therefore, the double jeopardy clause is not offended.

The appellant has couched his argument in terms of res judicata and collateral estoppel. Res judicata through the doctrines of merger or bar precludes relitigation of a cause of action. See Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985). We stated in Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988), that:

The claim preclusion part of the doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).

We disagree with the appellant’s contention that these five elements are present in the case before us. We cannot say that both suits involve the same claim or cause of action since the appellant has not provided us with a transcript of the dependent-neglect proceeding, and we are not convinced that both actions involve the same parties or their privies. Accordingly, the appellant’s prosecution for incest is not barred by the claim preclusion part of the doctrine of res judicata.

Collateral estoppel bars relitigation between parties of issues actually determined at a previous trial. In the landmark decision of Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court accorded collateral estoppel constitutional dimension by incorporating it into the Fifth Amendment against double jeopardy. The Court held:

Where a previous judgment of acquittal was based upon a general verdict . . . [the rule of collateral estoppel] requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’

Using the above standard, this court must analyze all of the circumstances surrounding the previous trial and determine upon what issue the trial court’s finding was based. A person claiming estoppel has the burden of proving what issues were necessarily decided in his favor at the prior trial. See Turley v. Wyrick, 554 F.2d 840 (8th Cir. 1977), cert. denied 434 U.S. 1033 (1978).

The doctrine of collateral estoppel in criminal cases requires that the same issue must have been determined favorably to the accused in prior litigation between the same parties. United States v. Friedman, 506 F.2d 511 (8th Cir. 1974), reh’g denied 423 U.S. 885 (1975), citing Ferina v. United States, 340 F.2d 837 (8th Cir.), cert. denied 381 U.S. 902 (1965). Two factors must be present for collateral estoppel to bar a criminal prosecution: (1) both adjudicatory entities must be arms of the same sovereign and (2) a factual issue essential to the first verdict must be an essential element of the second charge. United States v. Kills Plenty, 466 F.2d 240 (8th Cir. 1972), cert. denied 410 U.S. 916 (1973).

In Dranow v. United States, 307 F.2d 545 (8th Cir. 1962), the defendant appealed his convictions of mail fraud, wire fraud and bankruptcy offenses. As an officer of a bankrupt corporation, he allegedly used false statements of the financial condition of the corporation in order to induce third parties to give the corporation credit. The defendant argued that the trial court erred in denying his motion to dismiss his indictment contending prosecution was barred by res judicata or collateral estoppel. A judgment of confirmation had been entered in a prior bankruptcy proceeding, and the defendant asserted on appeal that the litigated factual issues in the bankruptcy case and the issues in the criminal case were identical. The court held the prior bankruptcy proceeding could not be res judicata or an estoppel by judgment to the defendant’s prosecution on the criminal charges because the parties’ plaintiff in the two actions were neither the same nor in privity and the nature of the actions were entirely different. The court stated:

There can be no doubt about the proposition that res judicata and collateral estoppel are applicable in a criminal action although a prior proceeding was civil in character. But that proposition has this qualification: that both actions are based upon the same facts and both have as their object, ‘punishment’. Where the object of the prior civil action and subsequent criminal action is not ‘punishment’, res judicata is inapplicable.

There was no contention by the appellant nor do we find any support for the proposition that the object of the ADHS hearing was punishment.

The appellant’s collateral estoppel argument fails because he has not provided this court with a record of the dependent-neglect proceeding. The ADHS named both Versalee and Joe Fariss as defendants. The ADHS’s final order does not state if the allegations of sexual abuse specifically concerned the appellant, his wife or both, and the ADHS judgment made no specific finding with reference to incest. In appellant’s oral argument, his attorney stated that he was precluded from making the ADHS hearing a part of the record before the trial judge. This is simply not borne out by the record.

The failure to bring up the ADHS record makes it impossible for us to ascertain the issues previously determined in the dependent-neglect proceeding, and the appellant fails to meet his burden of proof. We, therefore, hold that the trial court’s finding that the prior proceeding did not necessarily decide the issues raised in the subsequent incest prosecution was correct. Accordingly, the incest prosecution is not barred by the collateral estoppel rule of the double jeopardy clause.

Affirmed.


text:
    Radcliffe KILLAM, et al., Appellants and Cross-Appellees v. TEXAS OIL & GAS CORP., et al., Appellees and Cross-Appellants v. Joshua S. Cosden, et al., Cross-Appellants.
    90-70
    798 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Pryor, Barry, Smith & Karber, by: John D. Alford, for appellants and cross-appellees.

      Hardin, Jesson & Dawson, by: Bradley D. Jesson, for appellees and cross-appellants Texas Oil & Gas Corp. and TXO Production Company.

      Warner and Smith, by: P.K. Holmes III, for appellee and cross-appellant Thomas C. Mueller.

      Peel and Eddy, by: David L. Eddy, for cross-appellants Joshua S. Cosden, et al.
   Dale Price, Justice.

This case concerns the mineral rights to 280 acres of land in Pope County. A one-half interest in the mineral rights is owned by an individual that is not a party to this case and, therefore, his interest will not be discussed. The other one-half interest is the subject of a lawsuit brought by the Killam family, the appellants herein. In the lawsuit, the Killams alleged that the Cosden family wrongfully executed mineral leases on the 280 acres to Texas Oil and Gas Company/TXO Production (hereafter TXO) and Robert Mueller, despite the fact that the Killams were the rightful owners of the mineral rights. The Killams asked the chancellor to confirm title in them and to assess damages against TXO and Mueller for trespass.

The chancellor declared that the Killams, not the Cosdens, owned the disputed mineral interest. The Cosdens appeal from that ruling. The chancellor also found that TXO and Mueller were trespassers on the Killam property because they leased from the Cosdens while having notice of the Killams’ claim. Mueller and TXO appeal from that ruling. Finally, the chancellor awarded damages to the Killams against TXO and Mueller in the form of back royalties. The Killams appeal the damage award, claiming the “working interest” measure rather than the royalty measure should have been used.

The facts show that the White River Royalty Company, record owner of the mineral rights since 1929, conveyed the same rights to the Cosdens, O. W. Killam and L. O. McMillan. The Cosdens promptly recorded their 1956 conveyance; the Killams, after acquiring McMillan’s interest, did not record until 1985, though their 1943 conveyance was first in time. In 1981, Mueller and TXO leased the mineral rights from the Cosdens and drilled wells on the land. The Killams discovered the wells in 1984 and filed suit in 1985. They claimed below, as they do on appeal, that even though the records did not reflect the 1943 conveyance to the Killams, TXO and Mueller had actual notice or constructive notice and knew or should have known that the Killams had an interest in the mineral rights.

The history of the conveyances to the Cosdens and the Killams shows that in 1943, Eleanor Cosden, president of White River Royalty Company, signed a deed conveying the mineral interest to two men: L. O. McMillan and O. W. Killam. This was the deed that went unrecorded until 1985. In 1944, McMillan conveyed his interest to Killam, giving Killam the entire one-half interest. This deed was duly recorded. The appellants are O. W. Killam’s successors in interest.

The Cosdens acquired their purported interest in the mineral rights when White River Royalty was dissolved in 1956. Company assets were distributed 51 % to Eleanor Cosden and 49 % to others in the Cosden family. This conveyance was recorded in 1958. Among the assets which the company distributed were the mineral rights in the 280 acres. Over the years, various percentages of the Cosden interest passed through assignment or inheritance. The Cosdens also leased the mineral rights on occasion. These transactions were all duly recorded.

Mueller and TXO entered the picture in 1980-1981. They were interested in leasing the mineral rights on the 280 acres and began a title search to determine from whom the leases should be obtained. The county records at that time showed the conveyance from White River to the Cosdens and the various assignments, devises and leases exercised by the Cosdens. The deed from McMillan to Killam was set forth in a title opinion given them by their title attorney, Lawrence Morgan. Although Mr. Morgan called the deed a “wild deed,” he set forth in an advisory that:

Abstract page No. 74 shows a 1944 mineral deed from L. O. McMillan et ux. to O. W. Killam; neither is mentioned elsewhere in the abstract; the deed purports to convey '/t minerals in these lands and the SE/4 NW/4 of the same section; they probably had ¿ void tax deed, as the Examiner knows from examining other titles that these men frequently purchased tax titles.

By deposition, Mr. Morgan also testified that the payment of taxes and recording of such payments by the county assessor would constitute notice if it appeared in the records. The payment of taxes by the Killams was duly recorded. Mueller and TXO had notice of the presence of the 1944 deed from McMillan to Killam. There was no recorded instrument showing title going into McMillan, and no conveyances or any other recorded activity coming out of Killam over the 37-year period. Since the record showed ownership passing from White River to the Cosdens, Mueller and TXO disregarded the “wild deed,” obtained the leases from the Cosdens and made no further inquiry.

We will first discuss the issues raised by Mueller and TXO’s cross-appeal. They argue they were bona fide purchasers without notice of the Killams’ interest; therefore, they were not trespassers on the Killams’ property. This argument is based on two theories: (1) the Killams, by waiting over 40 years to record their deed, are prevented by the equitable doctrines of laches and estoppel from now asserting their interest in the minerals; and (2) the provisions of Ark. Code Ann. § 14-15-404 (1987) give TXO and Mueller a superior claim to the minerals.

Although laches and estoppel defenses were asserted in the parties’ pleadings, they were never brought to the chancellor’s attention for a ruling. In Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987), which was also a chancery case, we said that even though the defense of laches was raised in the pleadings, failure to obtain a ruling from the chancellor precluded our consideration of the matter on appeal.

In determining that Mueller and TXO had sufficient notice so as not to be innocent purchasers of the leases, the chancellor specifically found as follows:

5. As to the claim of TXO that its Leases taken in February of 1981 from the Cosden Group made it a bona fide purchaser for value without notice, the Court finds that TXO had sufficient notice of the Plaintiffs interest so as to not be an innocent purchaser of the Oil and Gas Leases taken from the Cosden Group. The sufficient notice to the Defendant, TXO, is based on the following:
(1) The 1944 recording of the Deed from L. O. McMillan to O. W. Killam conveying an undivided one-fourth C/tth) interest in the subject property.
(2) The abstracts prepared for the Defendant, TXO, which were used in the preparation of the title opinion prepared by Lawrence Morgan.
(3) The title opinion prepared by Lawrence Morgan.
(4) The tax assessment and payment information noted in the Abstracts and on file with the tax assessor’s office of Pope County, Arkansas.
(5) The previous dealings between the Plaintiffs and TXO in other counties and the fact that the Killam family had been active in the oil and gas business.
6. As to the claim of Thomas C. Mueller that as to the Leases taken from the Cosden Group in 1981 that he is a bona fide purchaser for value without notice, the Court finds that Mueller had sufficient notice of the interest of the Plaintiffs such that he is not an innocent purchaser of the Oil and Gas Leases. The sufficient notice is based on the following:
(1) The 1944 recording of the Deed from McMillan to Killam conveying an undivided one-fourth (*/») interest in the subject property.
(2) The title opinion prepared by Lawrence Morgan.
(3) The tax assessments and payment information noted in the abstracts and on file with the tax assessor’s office of Pope County, Arkansas.
(4) The fact that Mueller is active in the oil and gas business.

Ark. Code Ann. § 14-15-404(b) (1987) provides that if an instrument affecting title to real property is not recorded in the clerk’s office of the county where the real estate is situated, then it shall not be valid against a subsequent purchaser of the real estate unless that purchaser has actual notice of the prior interest. It is undisputed that the 1943 deed from White River to McMillan and Killam was not recorded. Therefore, it is ineffective against subsequent purchasers Mueller and TXO unless Mueller and TXO had actual notice of the Killams’ interest.

The Killams contend that TXO and Mueller had either actual notice of the Killam interest (notice in fact), or constructive notice, meaning they were aware of enough facts that they were obligated to pursue and inquire into the possibility of Killam ownership. The burden of proving such notice is on the Killams. Smith v. Olin Industries, Inc., 224 Ark. 606, 275 S.W.2d 439 (1955); Story v. Grayson, 208 Ark. 1029, 185 S.W.2d 287 (1945) (where a purchaser shows payment of valuable consideration in good faith, the burden of showing he purchased with notice is on the party alleging it).

Mueller and TXO did have knowledge of other matters which, as the Killams claim, should have caused them to inquire beyond the entries in the county records. This is the type of notice we spoke of in Massey v. Wynne, 302 Ark. 589, 791 S.W.2d 368 (1990), when we said that a subsequent purchaser will be deemed to have actual notice of a prior interest in the property if he is aware of such facts and circumstances as would put a person of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of these prior interests. This type of notice must be enough to excite attention or put a party on guard to call for an inquiry. Henderson v. Ozan Lumber Co., 216 Ark. 39, 224 S.W.2d 30 (1949).

At the time TXO and Mueller executed the leases and paid consideration therefor, they were aware of the existence of the 1944 “wild deed” from McMillan to Killam. In addition, the court held that, because a search in the records of the county assessor’s office would have showed the Killams assessing taxes on the minerals since 1978, TXO and Mueller should be charged with that knowledge also.

The Killams further contend that the language contained in the “wild deed” should have put TXO and Mueller on notice that the Killams had a legitimate, though unrecorded, interest in the minerals. The pertinent language refers to “certain undivided interests” in the property which have “heretofore been acquired by L. O. McMillan, grantor, and O. W. Killam, grantee.” This language indicates that, at some previous time, McMillan and Killam had acquired these mineral interests.

We find the court of appeals’ decision in Donahou v. Forehand, 14 Ark. App. 281, 687 S.W.2d 864 (1985), to be instructive here. The court found that the purchaser did not take without notice, in part because of the existence of a wild deed.

The Killams also claim that, had Mueller and TXO searched the county tax assessment records, they would have found that the Killams had assessed on the mineral rights since 1978. The Killams cite no case holding that assessment records are notice to a third person. However, the testimony of Lawrence Morgan, noted previously, established that the tax assessments and payments duly recorded would be notice. This should have been sufficient to excite attention or put Mueller and TXO on guard to call for an inquiry.

We review chancery cases de novo, Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988), but will not reverse a chancellor’s finding of fact unless clearly erroneous. ARCP Rule 52(a).

We cannot say the chancellor’s finding that Mueller and TXO had sufficient notice was clearly erroneous.

We will next discuss the issues raised by the Killams in their direct appeal. In awarding damages to the Killams, the chancellor found that the trespass by Mueller and TXO was in good faith. Under that circumstance, the proper measure of damages is the value of the minerals in place in the ground. Ward v. Spadra Coal Co., 168 Ark. 853, 272 S.W. 353 (1925). This means the damages may be measured in either of two ways: the amount that could have been obtained by the Killams had they leased the mineral rights (royalty measure) or the profit that could have been obtained by the Killams had they drilled the wells themselves (working interest measure). The difference in the two is substantial. The royalty measure would award the Killams just over $244,000: the working interest method, over $1 million. The chancellor awarded royalty damages. The Killams contend that, because they possess the capability of drilling and operating a well, the working interest method should have been used. They rely on National Lead Co. v. Magnet Cove Barium Corp., 231 F. Supp. 208 (W.D. Ark. 1964), a case in which the federal court set forth the types of damages awarded for trespass. The court discussed the “mild” rule as follows:

Within the framework of the mild measure, there are two different guidelines to determine the in-place value of ore: first, the royalty value whereby the injured party is allowed as damages an amount equivalent to the value of the privilege of mining and removing the minerals; second, another application of the mild rule allows the injured party to recover the value of the minerals after extraction less a credit to the trespasser of its production costs. The effect of allowing the royalty method as damages is not to punish the nonwilful trespasser, but to compensate the injured party for being deprived of the possibility of extracting the minerals. Alternatively, allowing the injured party to recover the enhanced value of the converted minerals with a deduction in favor of the trespasser for the cost of mining them will also compensate for being deprived of the right of mining the minerals and developing them, while preventing the trespasser from profiting from his wrongdoing. When the royalty method is used in applying the in-place measure of damages, the question of allowance to the trespasser of credit for his expenses in producing the minerals is not reached.

The chancellor’s use of the royalty measure to award damages is proper. In National Lead, the victim of the trespass was a mining company, active at the time of the trespass in the mining business on the particular piece of land in question. There is no doubt that, in that situation, a royalty award would not have compensated the victim. In contrast, the Killams, prior to 1983, did not participate in the drilling of the wells. The evidence showed that, in situations surrounding the time when the TXO and Mueller leases were taken, the Killams followed the practice of leasing their mineral rights for a royalty interest. While it is clear that the Killams may have had the capability of participating in the drilling of wells, as far as their Arkansas properties were concerned, they simply did not do so during the 1980-1981 period. Therefore, since the purpose of these damages is to adequately compensate the victim of the trespass, the more appropriate method is the royalty method. The evidence indicates that, had the Killams had the opportunity to assert their rights at the time TXO and Mueller took the leases, the Killams would have leased for royalties rather than participated in the drilling.

The next issue raised by the Killams in their direct appeal concerns prejudgment interest. The chancellor awarded six percent prejudgment interest from the date the suit was filed. The Killams contend that the market rate of interest rather than six percent should have been used and that the interest should have been awarded from the time of the trespass.

We have said that, under Ark. Const, art. 19, § 13, when no rate of interest has been agreed upon by the parties, prejudgment interest is limited to six percent. This has been applied in tort damage cases as well as contract cases. See Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). Accordingly, we disagree with the Killams’ contention that it was error to award six percent prejudgment interest rather than the market rate of interest.

In Atlanta Exploration, Inc. v. Ethyl Corp., 301 Ark. 331, 784 S.W.2d 150 (1990), a case involving trespass, we held that if a method exists for fixing the exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action, prejudgment interest should be awarded. Here, the chancellor found that the prejudgment interest should run from the date the action was filed rather than the date of the original trespass. We cannot say this finding was clearly erroneous. The amount of damages was ascertainable from the date of the filing of the suit based upon production records entered into evidence. For other cases measuring prejudgment interest from the time suit was filed see Little Rock Crate & Basket Co. v. Young, 284 Ark. 295, 681 S.W.2d 388 (1984); Advance Const. Co. v. Delta Asphalt & Conc., 263 Ark. 232, 563 S.W.2d 888 (1978).

The chancellor found that the Cosdens were not innocent purchasers, and the cross-appeal is from that ruling. The record clearly shows that the Cosdens settled with the Killams, quit-claiming the mineral interest to them and paying them $ 15,000 in full compromise of the Killams’ suit against them. In addition, the chancellor found that Mueller and TXO (should a judgment be had against them) could not have judgment over against the Cosdens. Therefore, the Cosdens are cleared of liability and any appeal in their own behalf is moot.

It is our duty to decide actual controversies. An issue is moot when it has no legal effect on an existing controversy. Frisby v. Strong School Dist., 282 Ark. 81, 666 S.W.2d 391 (1984).

It is possible that the Cosdens appeal at the behest of Mueller and TXO on the theory that, if the Cosdens were innocent purchasers, Mueller and TXO, as lessees, could claim the Cosdens’ bona fide status. None of the parties make this argument on appeal, and no authority is presented to support this theory. Even in a chancery case, an appellant waives an argument not presented on appeal. Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967).

Affirmed on direct and cross-appeal.


author: William G. Wright, Special Justice.

text:
    Lloyd PARKS, Individually and as Administrator of the Estate of Mary Parks, Deceased v. HILLHAVEN NURSING HOME of Little Rock, Arkansas; Dr. John Woolverton; and Little Rock Nursing Center of Little Rock, Arkansas
    89-302
    798 S.W.2d 106
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Willard Proctor, Jr., for appellant.

      Mitchell, Williams, Selig & Tucker, by: T. Scott Clevenger, for appellee Hillhaven Nursing Home.

      Friday, Eldredge & Clark, by: Laura Hensley, for appellees Dr. John Woolverton and Little Rock Nursing Center.
   William G. Wright, Special Justice.

The question raised on this appeal is whether a release specifically identifying certain original tortfeasors “and all other persons, corporations, professional organizations or other entities, of and from any and all claims . . . arising out of the care . . . rendered ... by the parties herein released” is operative to release alleged tortfeasors not specifically identified in the release. The trial court granted summary judgment on the basis the cause of action “. . . was the subject of a prior settlement for substantial consideration and that the release executed in conjunction with the aforementioned settlement agreement prohibits the institution... of the current cause of action.” We disagree with the trial court and reverse and remand.

During an operative procedure on June 16, 1986, Mary Parks sustained brain damage allegedly caused by the negligence of certain health care providers. Because of the brain damage, the appellant, Lloyd Parks, contracted with Hillhaven Nursing Home to provide nursing assistance and care for Mrs. Parks. She stayed there until July 24,1987, when she was transferred to the Little Rock Nursing Home. Mrs. Parks died in the Little Rock Nursing Home on July 29,1987. Thereafter, Mr. Parks reached settlements with the health care providers who allegedly caused the brain injury, and a final release was executed on February 5, 1988, which specifically identified those health care providers to be released. The actions complained of by Mr. Parks against the appellees occurred subsequent to, and independent of, the negligence giving rise to the original claims for which the release was given.

Mr. Parks later filed the present action against the nursing homes and the attending physician for wrongful death and breach of contract. Appellees moved to dismiss pursuant to A.R.C.P. Rule 12(b)(6), on the basis that they had been released by the document executed on February 5,1988. The release was made an exhibit to the motion as one for summary judgment under A.R.C.P. Rule 12(b). However, the trial court erred in granting summary judgment. Our rules of civil procedure provide that summary judgment shall be granted where the moving papers show there is no issue of fact and where “the moving party is entitled to judgment as a matter of law.” A.R.C.P. Rule 56(c). The trial court erred in finding that the release in question was effective to relieve appellees of liability as a matter of law.

The appellees rely upon the following language of the release which they feel specifically reflects the parties’ intent to bar all future claims regarding Mrs. Parks’ death:

“. . . and all other persons, corporations, professional organizations or other entities, of and from any and all claims, demands, damages, causes of action, or suits at law or inequity, or whatsoever kind of nature for or because of any matter or thing done, admitted or suffered to be done by the said parties herein released prior to and including the date hereof and particularly on account of all injuries to Mary Jane Parks, including death, resulting or to result from any and all complaints arising out of the care and treatment rendered to her by the parties herein released.

However, we note that the release contains other language which leaves some doubt as to the parties’ intent, as follows:

I further agree that in the event other parties are responsible, the execution of this agreement shall operate as a satisfaction of any claims against such other parties to the extent of the pro-rata share of the parties herein released. I also agree that the execution of this release entitles . . . [the parties released] and any other potential joint tortfeasors to the benefits of A.C.A. § 16-61-201, et seq., the Arkansas Uniform Contribution Among Joint Tortfeasors Act.

We ruled in Moore v. Missouri Pacific R.R., 299 Ark. 232, 773 S.W.2d 78 (1989), that a release which does not name or otherwise specifically identify the tortfeasors to be discharged does not operate to the benefit of all those who might otherwise seek discharge under its generic language. Consequently, the release relied upon by the appellees and the trial court is ineffective to discharge the appellees from liability. It is specifically limited to the parties herein released” and to the injuries (including death) . . resulting or to result from any and all complaints arising out of the care and treatment rendered to her by the parties herein released.”

Other issues raised by Mr. Parks need not be addressed since we find that the release did not discharge the appellees.

Reversed and remanded.

Special Justices Douglas O. Smith, Ray A. Goodwin and Katherine C. Gay, join in this opinion.

Hays, Glaze, Price and Turner, JJ., not participating.

       The trial court did not have the benefit of Moore at the time of its decision herein. Moore was decided by this court after the trial court entered its order.


author: Per Curiam.

text:
    Robert Eugene JOHNSON v. STATE of Arkansas
    CR 90-201
    798 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Robert Eugene Johnson was convicted on January 15, 1988, of burglary and misdemeanor theft of property. He was sentenced as an habitual offender to thirty years imprisonment. The Court of Appeals affirmed. Johnson v. State, 26 Ark. App. 220, 762 S.W.2d 804 (1989). The mandate was issued on January 31, 1989. On May 8, 1990, appellant filed a petition to correct sentence pursuant to Ark. Code Ann. § 16-90-111 (1987), alleging that the sentence imposed on him was illegal because it was not ordered served consecutively to sentences imposed for prior felony convictions. The trial court denied the petition, and the appellant has lodged the record on appeal. He now seeks appointment of counsel.

The motion is denied and the appeal is dismissed because there is clearly no merit to the appeal. We will not appoint counsel to continue with an appeal which cannot prevail. See Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).

Arkansas Code Annotated 16-90-111 (1987) provides that the circuit court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within one-hundred-twenty days after the sentence was imposed or within one-hundred-twenty days after receipt of a mandate issued upon affirmance of the judgment or dismissal of an appeal of the judgment. Appellant here did not file his petition in the trial court within one-hundred-twenty days of either the date the sentence was imposed or the date the mandate was received upon affirmance. After a lapse of one-hundred-twenty days of the date sentence was imposed or the mandate was received, a sentence may be modified under the statute only if the sentence is illegal on its face. Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Appellant’s contention that his sentence should have been ordered served consecutively to other sentences was not sufficient to show that the judgment entered against him was illegal on its face. As appellant failed to file a timely petition under the rule, he was not entitled to any relief in the trial court.

Motion denied and appeal dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    Unabelle CROWDER v. Eugene CROWDER
    90-133
    798 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      H. Oscar Hirby, for appellant.

      Alice M. Totsch, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the division of real property in a divorce proceeding. The appellant, Unabelle Crowder, challenges the chancellor’s equal division of the proceeds of the sale of the home in which she had lived with her husband, the appellee, Eugene Crowder.

The parties were married on May 10,1947, and on August 18, 1953, they jointly purchased the lot upon which they built their home. In 1962, Mr. Crowder was in an automobile accident, apparently involving alcohol, that resulted in an injury to an unnamed person. On March 6,1962, as the result of his fear of a lawsuit over his accident, Mr. Crowder signed a warranty deed that purported to transfer his interest in the property to his wife.

On December 29,1989, the Crowders were divorced, and the chancellor specifically found in the divorce decree that the subject property was marital in nature and that it should be sold and the proceeds split evenly between the parties. Mrs. Crowder subsequently filed a motion for reconsideration, which was denied, and now alleges four points of error on appeal: 1) that, at law, any deed of conveyance of real property located in Arkansas by a married man to his wife conveys to the wife his entire interest in the property conveyed, 2) that equity follows the law, and the chancellor erred in partitioning the property, 3) that the property was not marital property subject to partition because it was a gift to her, and 4) that Mr. Crowder should be denied relief on the basis of the clean hands doctrine.

We find none of Mrs. Crowder’s arguments persuasive and affirm.

Mrs. Crowder initially contends that, at law, any deed of conveyance of real property located in Arkansas by a married man to his wife conveys to the wife his entire interest in the property conveyed. Mrs. Crowder relies on Ark. Code Ann. § 18-12-401 (1987) for her contention, which provides in pertinent part as follows:

(a) Any deed of conveyance of real property located in this state executed after the passage of this act [signed by the Governor on March 2, 1935, and took effect on June 13, 1935] by a married man directly to his wife or by a married woman directly to her husband shall be construed as conveying to the grantee named in the deed the entire interest of the grantor in the property conveyed, or the interest specified in the deed, as fully and to all intents and purposes as if the marital relation did not exist between the parties to the deed.

In Ryan v. Roop, 214 Ark. 699, 217 S.W.2d 916 (1949), we construed Ark. Stat. Ann. § 50-413 (1947) (the predecessor of section 18-12-401) with respect to estates by the entirety and held that a husband may by direct conveyance transfer to his wife his interest in an estate by the entirety. We did not, however, alter a basic premise in the law of property that a deed is inoperative unless there has been a delivery to the grantee, and in order to constitute delivery it must be the intention of the grantor to pass title immediately and that the grantor shall lose dominion over the deed. Wilson v. McDaniel, 247 Ark. 1036, 449 S.W.2d 954 (1970).

Further, in Parker v. Lamb, 263 Ark. 681, 567 S.W.2d 99 (1978), we noted that the law requires the delivery of a deed as a positive act bringing home to the grantor that he is definitely parting with the ownership of his land. Again, an essential element of a valid delivery of a deed is the grantor’s intention to pass the title immediately.

A presumption of valid delivery of a deed attaches when the deed is recorded. Corzine v. Forsythe, 263 Ark. 161, 563 S.W.2d 439 (1978). However, in Wilson v. McDaniel, 250 Ark. 316, 465 S.W.2d 100 (1971), we stated that while the recording of a duly executed and acknowledged deed, as well as its being found in the possession of the grantee, raised the presumption of delivery, this presumption is not conclusively established when there is proof of other factors pertaining to the deed which may rebut the presumption.

In this case, Mr. Crowder executed a warranty deed on March 6,1962, which purported to convey his interest in his home to Mrs. Crowder. Eight months later, on November 21,1962, Mr. Crowder recorded the deed. The presumption of delivery is countered, however, by Mrs. Crowder’s own testimony as follows:

[Direct examination by Ms. Totsch, attorney for Mr. Crowder]
Q Did he [Mr. Crowder] ever have a wreck where someone was hurt, besides him?
A Yes. I don’t remember who it was, but he had a wreck and he was a worrying about getting out of it, how he was going to get out of it. He was afraid this guy was going to sue him.
* * * *
[Cross-examination by Mr. Hirby, attorney for Mrs. Crowder]
Q Again, did he give you — after that deed was filed, did he give that deed to you to keep?
A I believe so. Part of the time he’d get it and put it in his room. It was in a little box, a little lock box.
Q But you’d go back and get it?
A One night, we had to — I always had to hunt his papers up if he wanted to do anything.
* * * *
[The Court]
Q Mrs. Crowder, tell me why Mr. Crowder deeded your house to you, as far as what you know.
A Well, I figured that he thought that he’d do like that man did to save his place, and I said, ‘Well, I can sign it back to you,’ and we never thought more about [it], I don’t guess.

Additionally, Mr. and Mrs. Crowder continued to live in the home until the divorce proceeding and paid the taxes, insurance, maintenance, and subsequent construction costs on the property from a joint checking account containing contributions from both parties. Ordinarily, the grantor’s continued use of the property and the payment of taxes on it are evidence that would tend to rebut a claim of delivery. See Adams v. Dopieralla, 272 Ark. 30, 611 S.W.2d 750 (1981); Broomfield v. Broomfield, 242 Ark. 355, 413 S.W.2d 657 (1967); Grimmett v. Estate of Beasley, 29 Ark. App. 88, 777 S.W.2d 588 (1989). The same is true under the facts of this case.

Consequently, we find that Mr. Crowder lacked the requisite intent to relinquish dominion and control over his interest in the subject property and that his purported conveyance to his wife of his interest in the estate by the entirety was ineffective. As a result, the property remained an estate by the entirety.

In Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981), we recognized that:

We have traditionally recognized two categories of property in divorce cases. One category has been divided pursuant to the general property division statute which has been codified as [Ark. Code Ann. § 9-12-315 (1987)]. The other category, property held in tenancies by the entireties, has never been divided pursuant to the general property division statute.
Our rule of law on this second category, or entirety property, was well stated in Jenkins v. Jenkins, 219 Ark. 219, 242 S.W.2d 124 (1951).
We have repeatedly held that a decree of divorce cannot dissolve an entirety case. In Heinrich v. Heinrich, supra, we said: ‘An estate by entirety, either legal or equitable, cannot be divested out of the husband and invested in the wife, or vice versa, by the courts. The right to the whole estate by the survivor prevents this. . . .
(Citations omitted.)

Arkansas Code Ann. § 9-12-317 (1987) gives courts the authority to convert marital survivorship estates to a tenancy in common and provides as follows:

When any chancery court in this state renders a final decree of divorce, any estate by the entirety or survivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the court order specifically provides otherwise. In the division and partition of the property, the parties shall be treated as tenants in common.

The chancellor specifically stated in her decree of divorce “[that the marital home located at 205 East 56th Street, North Little Rock, Arkansas, shall be sold and the proceeds split evenly between the parties.” She based this order on her finding that the home was marital property and subject to division of marital property pursuant to section 9-12-315.

Chancery case are tried de novo on appeal, but we will not reverse the finding of the chancellor unless clearly erroneous. ARCP Rule 52; Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). We will also uphold the decision of the trial court if it reached the right result, even if it did not enunciate the right reason. Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989).

The chancellor’s equal division of the proceeds from the sale of the Crowder’s real property comports with the division of property held as an estate by the entirety pursuant to section 9-12-317. Therefore, although the chancellor classified the Crowder’s real property as marital and premised her division of the property on section 9-12-315, her ruling will be upheld because it is not clearly erroneous and she reached the right result.

Mrs. Crowder argues next that equity follows the law, and the chancellor erred in partitioning the property. Again, Mrs. Crowder presupposes valid delivery of Mr. Crowder’s purported conveyance to her of their real property, and this argument fails as a result.

In her third argument, Mrs. Crowder contends that the property was not marital property subject to partition because it was a gift to her. Again, her testimony in this regard is most illuminating:

[The Court]
Q Did you ever at any time believe that he was giving you his interest in this house as a gift?
A Did what?
Q Did you ever believe that he was just giving you his interest in the house?
A I thought he was trying to protect hisself. I didn’t know.

In addition, her reliance on Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984), is misplaced because she persists in presupposing a valid delivery of the purported conveyance to her from Mr. Crowder. There was no delivery in this case.

Finally, Mrs. Crowder contends that Mr. Crowder should be denied relief on the basis of the clean hands doctrine. She is precluded from raising this issue as she did not present this argument below. We have held that arguments not presented to the trial court will not be considered on appeal. Brandon v. Brandon Constr. Co., 300 Ark. 44, 776 S.W.2d 349 (1989).

Affirmed.