text:
    Michael WALKER v. STATE of Arkansas
    CR 93-60
    855 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from Michael Walker’s conviction on first degree murder charges and sentence to life imprisonment for the shooting death of Shawn Walls on November 1, 1991, at approximately 10:30 p.m. On appeal, Walker claims the evidence was insufficient to support his conviction and that the trial court erred in failing to grant his motion for mistrial based upon the trial court’s failure to delete certain irrelevant prejudicial and misleading questions contained in his statement to the police after his arrest. We disagree and affirm.

Testimony at trial revealed that Shawn Walls was shot in the forehead in the driveway of his uncle’s home where he lived. Walker was present when the shooting took place; however, in his statement to the police, he asserts that Shawn committed suicide. In taking his life, Walker claims Shawn simply stated, “Well, Mike, man, I’m gone dude.” Then Shawn pointed a gun up to his forehead and pulled the trigger. There were no other eyewitnesses.

SUFFICIENCY OF THE EVIDENCE

Walker made timely motions for directed verdict as provided by Ark. R. Crim. P. 36.21 (b) which were denied by the trial court. Directed verdict motions are treated as challenges to the sufficiency of the evidence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

On appeal, we review the evidence in the light most favorable to the State and affirm the verdict if it is supported by substantial evidence. Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992); Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). We recently said:

The general rule with respect to sufficiency of the evidence is:
The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Igwe v. State, 312 Ark. 220, 222, 849 S.W.2d 462 (1993). See Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993); Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992); William v. State, 298 Ark. 484, 768 S.W.2d 539 (1989).

The trial record reflects that the day after the shooting, Walker made a statement to the police that Walls had committed suicide in his presence. On appeal, he argues that this explanation of Shawn Walls’ death is just as plausible as the State’s position that he murdered Shawn Walls. To the contrary, there is simply no evidence favorable to Walker’s allegation of suicide. All evidence supports the proposition that Walker purposely killed Walls.

Shawn Walls was shot on the night of November 1, 1991. The shooting took place in the driveway of his uncle’s home where he lived with his sister and grandmother. Shawn’s uncle, Edward Walls, testified that he answered the door about 9:30 p.m. and found Reginald Johnson at the door wanting to see Shawn. Although Reginald Johnson was the only one at the door, he could see other young men out in the driveway. Shawn went outside. Some ten to fifteen minutes later Shawn’s sister, Chrishawanda Walls, informed her uncle that her brother had been shot. The uncle went outside and found him laying in the driveway with a bullet wound to the forehead. He testified that he had never seen Shawn with a gun, and that he did not know of any guns in the house.

Chrishawanda Walls testified that she had been in her brother’s room listening to music with him when her uncle called him to the door. She stated that she did not see her brother with a gun, that she had been in his room many times and had never seen a gun, that he did not have a gun with him when he went to the door, and that he did not pick up anything as he left his room to go to the door. Afterwards, Chrishawanda went to a window and saw several boys talking to him. About five to ten minutes later she heard a gunshot and what sounded like a person running through the leaves along the side of the house. As a result, she went outside and found her brother had been shot. No one else was around.

Officer Mike Henderson arrived at the scene within a few minutes after the shooting and found Shawn with a gunshot wound to the forehead. He secured the area but found no evidence, gun, or shell casings. He further stated that there was no blood trail, and it appeared the body had fallen where it had been shot. Mickey Holloway, an officer with the crime scene unit of the Little Rock Police Department, arrived a few minutes later. He also testified that a search of the scene turned up no gun or evidence. Holloway went to the hospital where Shawn had been taken and collected evidence from his hands for a gunshot residue test which was sent to the. state crime lab. Gary Lawrence, a detective with the trace evidence section of the crime lab, testified that he examined the gunshot residue kit and found none of the chemical elements at the levels consistent with gunshot residue which are normally found on the hands of a person who has fired a gun. •

Dr. David DeJong, the medical examiner who performed the autopsy on Shawn Walls, testified that there was nothing to indicate that he committed suicide, and from the manner of death it was his conclusion that this was a homicide. Shawn’s uncle had earlier testified that Shawn was right-handed. Dr. DeJong stated that it would have been very difficult for a right-handed person to shoot himself based on the trajectory of the bullet and the location of the entry wound. Dr. DeJong further stated that there was nothing to indicate that this was a close contact wound, and that it was probably a distant shot.

The day after the shooting Walker was questioned by the police and gave a statement. His statement was taped, and the tape was played to the jury.

In his statement, Walker said that he had been with Reginald Johnson and two other boys at the victim’s house, and he (Walker) left with them in a car. A few minutes later he was let out of the car because he wanted to go to a nearby store to talk to a friend. Rather than go to the store, he returned to the house and found Shawn still outside. According to Walker, the victim had a gun and after a short conversation said, “Well, Mike, man, I’m gone dude,” and pointed the gun up to his forehead. Walker stated that he caught the victim’s hand with the gun in it, and that the gun went off. Walls dropped to the ground and Walker walked off. Walker stated that he did not know what happened to the gun.

After the shooting, Walker stated that he walked over to Cedric Ford’s house and obtained a ride home; however, he did not tell Cedric or “any of them” that Shawn had killed himself. In his statement to the police he said he called Carolyn Green on the phone later that night and told her that Shawn had killed himself and that it was an accident. However, at trial, Ms. Green testified that she did not recall talking to Walker on the night in question, nor did she remember his telling her that Shawn had committed suicide. Other than the statement made by Walker to the police, there was no evidence presented at trial to indicate the deceased had committed suicide.

In contrast to Walker’s suicide theory, there was substantial evidence to support Walker’s conviction in the form of circumstantial evidence. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). By his own admission, Walker was alone with Shawn Walls when he was shot. Shawn’s sister and uncle testified that Shawn did not have a gun. No gun was ever found by the sister and uncle who went outside immediately after the shooting or by Officers Henderson and Holloway who arrived at the scene within minutes. Obviously, if the deceased had committed suicide and Walker had simply walked away from the scene as he said he did, the gun would have been there with the body. Also, the autopsy revealed that the angle of the bullet which killed Shawn indicated a homicide had occurred rather than a suicide since it would have been extremely difficult for a right-handed person to shoot himself at this angle. No gunshot residue was found on the Shawn’s hands indicating that he had fired a gun.

It is the responsibility of the jury to determine credibility, and the jury was not required to believe the testimony of any witness, even Walker. Furr v. State, 308 Ark. 41, 822 S.W.2d 380 (1992); Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). A jury may consider and give weight to any false, improbable, and contradictory statements made by an accused explaining suspicious circumstances. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). Thus, the probability or improbability of Walker’s statement was additional evidence available to the jury to assess his truthfulness.

Walker was charged with having purposely caused the death of Shawn Walls. One acts purposely with regard to his conduct or a result thereof when it is his “conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (1987). Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the killing. Williams v. State, 304 Ark. 509, 513, 804 S.W.2d 346, 348 (1991). Furthermore, the intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id. In this case the victim was shot once right between the eyes. The conclusion of the medical examiner was that the manner of death indicated a homicide. The purposeful intent of Walker can be inferred from this manner of death and the location of the wound.

In sum, there was sufficient evidence from which the jury could find that Walker was guilty of first degree murder.

MISTRIAL

Walker further complains that the trial court committed error in not granting his motion for a mistrial based on the fact that he objected to the admission into evidence of three questions that were part of the taped police statement, and he argued they were highly prejudicial.

We do not reach this issue since Walker did not move for a mistrial at the time the tape was played to the jury. Instead, Walker waited until the State had put on three more witnesses and had rested its case before he moved for a mistrial. It is well established that in order to preserve an argument for appeal, the appellant must make an objection at the first opportunity. Williams v. State, supra. Since this issue was not properly preserved, we need not address it.

ARK. SUP. CT. R. 4-3(H) REVIEW

Under Ark. Sup. Ct. R. 4-3(h) (formerly Rule 11 (f)), when a sentence of life imprisonment is imposed, we must review all errors which appear prejudicial to the appellant. In examining the trial court’s rulings which were adverse to Walker, we find that the issue of admissibility of the three questions which were the subject of the motion for mistrial were also raised by Walker before and during trial, thus, requiring a further examination of this issue under Rule 4-3(h).

Before trial, Walker made a motion in limine to have three questions the police asked Walker deleted from the tape. He renewed his objection at trial before the tape was played, challenging the questions on the grounds of relevancy and prejudice. The trial court denied the objection on the basis that the questions and answers were not prejudicial to Walker, but were merely part of a longer statement made to the police which was relevant to the case.

When Walker was taken into custody for questioning in connection with the murder of Shawn Walls, he gave a taped interview to the police. Based on statements previously taken from other potential witnesses, the police asked Walker if he had ever made a statement that he was going to “put one in him,” if he had ever made the statement that he was “insane,” and if he was a gang member. Walker simply responded “no.” The questions appear to have been asked in good faith and were only asked once with no follow up. In addition, these questions were part of a series of questions and answers that were nine typed pages and were given no particular emphasis by the prosecutor in his closing argument.

Walker argues that the mere fact that these questions were asked could lead the jury to believe that there was a basis to believe their substance. However, this same reasoning could apply to all the questions to which Walker answered no. The trial court found that the entire statement made by Walker was relevant and admissible. The jury heard the questions but also heard Walker’s denials. The trial court stated that it might be more unfair to Walker to cut the tape up or end it in an inappropriate place, either of which might indicate to the jury that something was being withheld. Although admissibility of this portion of Walker’s statement is somewhat questionable, the trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice. Ark. R. Evid. 403; Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). The unfair prejudice, if any, resulting from these questions and answers was not so drastic as to warrant an assignment of error. The trial court’s decision in this regard will not be reversed absent a manifest abuse of discretion. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). Here, there was no such abuse.

An examination of the balance of the record under Rule 4-3(h) fails to reveal any other rulings adverse to Walker which appear to involve prejudicial error.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Carl E. HEMPEL, et ux v. Dewayne BRAGG and Black, Corley & Owens, P.A.
    92-1176
    856 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993
    [Rehearing denied September 13, 1993.]

      Charles A. Brown, Jr., for appellants.

      Wright, Lindsey & Jennings, for appellees.
   Robert H. Dudley, Justice.

The general contractor on a home construction project filed suit against the owners of the home for a progress payment that was due under the terms of the contract. The owners filed a counterclaim against the contractor and a third-party complaint against the architects who designed the home. The chancellor decided all of the issues in favor of the general contractor and the architects. We affirm all of the rulings of the chancellor, except one that awarded the architects the balance of their fee, and we reverse that one ruling because the architects did not file a counterclaim or ask for any affirmative relief.

The facts, viewed in the light most favorable to the appellees, as we must do, are as follows. In early 1990, appellants, Carl and Betty Jo Hempel, decided to build an expensive home in the Hidden Valley Estates subdivision in Benton. On June 12,1990, they hired the appellee architectural firm of Black, Corley and Owens to provide the architectural services. They filled in the blanks on a form entitled “American Institute of Architects Owner-Architect Agreement.” Under the express terms of the agreement the owners were to “furnish surveys describing the physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include . . . boundaries and contours of the sites. . . .” In short, it was the duty of the owners to provide the architects with a boundary survey and a topographical survey of the lots on which the house was to be located. The owners provided a copy of the recorded plat of the subdivision, but, unfortunately, it was based on an earlier erroneous survey made for the subdivision developer. In addition to the plat based on the erroneous survey, owner Carl Hempel showed one of the architects the erroneous north boundary line of the lots, showed the architect survey pins that erroneously divided his lots from the neighbor’s lot, and said his lot extended to the pins which were on the line maintained by a neighbor. The architect relied on the plat, survey pins, maintained line, and statements of the owner as establishing the boundaries of the lots. The owners did not provide a topographical survey. On June 13 and 14, the architects used the boundaries given them to set out stakes and shoot elevation levels on the lots. That information was then taken back to their offices where it was overlaid on the boundary survey and developed into a topographical survey. The purpose of the topographical survey was to show the building contractor where and how to locate the house on the lots and to show the excavation contractor where to remove and move soil. Ultimately, the erroneous boundaries supplied by the owners to the architects caused the topographical survey to be in error. In August the owners supplied the architects with a copy of the erroneous survey that they had acquired at the time they purchased the lots from the developer of the subdivision. The survey shows a “pin” and “one iron pin” that are the pins the architects had located earlier, and they were at the precise location they are supposed to be according to the survey the owners gave the architects.

The owners chose the low bidder, appellee Dewayne Bragg, to be the general contractor for the project, and in January 1991 the owners and Bragg signed a form entitled “American Institute of Architects Owners-Builders Contract.” In February 1991, as the contractor was shooting levels and staking out the house on the partially cleared lots, he found that the elevations at the rear of the lots were not as depicted on the topographical survey. He notified the architects, and the architects decided that modifications would have to be made in the plans in order to keep the house at the elevation planned. The changes required additional excavation work in a courtyard area, a lengthening of the driveway, and an extension of a retaining wall. The architects did not notify the owners of the changes at the time because the owners were in Minnesota, and the architects did not think the modifications affected either the function or aesthetics of the home. A part of the owner-architect contract provides: “The architect’s decision on matters relating to aesthetic effects will be final as consistent with the intent expressed in the contract.” At this time the architects had not discovered that the topographical survey error was a result of the error in the plat and survey supplied by the owners, but instead thought the error was due to some unknown mistake of their own. Consequently, the architects told the owners that they would pay the additional expense caused by their mistake, and owner Carl Hempel responded that he was “not going to stick it to me [the architect] for that.” It was only after this suit was filed that the architects discovered the true cause of the error in their topographical survey, and, after discovering that cause, they testified that they did not feel they owed the additional expenses. The architects testified, and the trial court found, that the architects explained the modifications to the owners immediately upon their return to Benton.

The owners made no objection to the recommended remedial excavation, to the lengthening of the driveway, or to the extension of the retaining wall. Beginning on March 22, 1991, the owners visited the construction site from time to time. They were present when the floor slabs were poured. They took video recordings of the construction. They paid a progress payment submitted by the contractor on April 10, 1991. They paid another progress payment on May 5,1991. During all of this period they never said anything about the changes in the excavation, to the lengthening of the driveway, or to the extension of the retaining wall. On June 5, 1991, the owners refused to pay the third requested progress payment and stated that the reason was, in part, because of the errors the architects made in the topographical survey.

Since he was not paid the progress payment, the contractor ceased work on June 17,1991, and filed suit against the owners on July 9,1991, for the amount due. He also asked that a material-man’s lien be imposed and, if not satisfied, for foreclosure of the lien. The owners filed a counterclaim against the contractor and pleaded that he breached their contract by not informing them of the survey errors and the resulting changes. The owners additionally filed a cross-complaint against the architects and pleaded that they had breached their contract by not informing them of the changes and that they were guilty of negligence in performing the topographical survey. After a five-day trial the chancellor, on disputed facts, found in favor of the architects and the contractor. The chancellor found that the architects were not guilty of negligence in relying on the plat, survey pins, and established property line in the preparation of the topographical survey and did not breach their contract with the owners because the architects informed the owners of the changes as soon as reasonably practical and the owners, without comment, allowed the construction with the changes to continue. The chancellor found that the contractor had not breached his contract, and that under the terms of the contract, the contractor was entitled to $112,936.00 plus interest at the rate of 10%, plus costs, and attorneys’ fees. The chancellor further ruled that the pleadings should be amended to conform to the proof and awarded the $900.00 remaining due to the architects under their contract with the owners. There were various posttrial motions, and the ones that become material to this opinion are set out as they are discussed.

The appellant owners’ primary argument on appeal is that the chancellor erred in his finding of facts. The owners ask us to reverse the judgments in favor of the architects and contractor and instead to award judgments to them against the architects and contractors. They divide this part of the argument in their brief into three separate points of appeal, with one of the points being subdivided into five subpoints, and both points having many additional untitled subarguments. We treat all of the arguments involving the findings of fact in this one part of our opinion. As a preliminary matter, we note that the chancellor heard all of the testimony, weighed that testimony, addressed the owners’ arguments, and found the disputed facts against the owners. We must give due deference to the superior position of the chancellor, and we will not reverse the findings of the chancellor unless they are clearly erroneous. Magnolia Sch. Dist. No. 14 v. Arkansas State Bd. of Educ., 303 Ark. 666, 799 S.W.2d 791 (1990). We cannot say that any one of the findings of fact that determines the outcome of this case was clearly erroneous.

The first of these arguments about the findings of fact is that the chancellor erred by failing to find that the architects were negligent in their preparation of the topographical survey. Viewing the evidence most favorably to the appellees, the architects relied on the plat furnished by the owners and relied on statements made by the owners about the location of the boundary line, then confirmed the correctness of the plat and of the owners’ statements by finding established survey pins and observing the maintained property line, and later confirmed the plat with the survey furnished by the owners. We cannot say the chancellor erred in finding that the architects were entitled to rely on the accuracy of so many concurring factors.

The owners argue that the chancellor erred in finding the architects were not liable for breach of contract because the owners waived the changes in the plans. Their argument is partially based on their factual argument that they did not know about the changes and therefore could not have waived the contractual agreement requiring a written change order. The testimony was in direct conflict on this issue. The chancellor found that the owners “were made aware by” the architects “of the situation as soon as practical.” The chancellor also found that the owners “knew of the said situation in the early stages of construction and allowed same to continue through a substantial portion of the construction and waived any right to complain thereof.” There was direct testimony from which the chancellor could make such findings.

The owners additionally argue that the chancellor erred in finding a waiver of the changes made by the architects because paragraph 13.4.2 of the contract contains a provision that “[n]o failure to act. . . shall constitute a waiver of a right . . . under this contract, nor shall. . . failure to act constitute approval. . .except as may be agreed in writing,” and the waiver by the owners of the changes made by the architects was not in writing. The argument is without merit for either of two reasons. First, the paragraph cited by the appellant owners as not allowing a waiver unless it is in writing, paragraph 13.4.2, is from a paragraph in the A.I.A. “General Conditions of the Contract for Construction,” which in turn is a part of the A.I.A. “Standard Form of Agreement Between Owner and Contractor.” However, the cited paragraph is not a part of the contract between the owners and the architects. Second, the general rule of law applicable to these facts is set out in American Jurisprudence 2d as follows:

Although stipulations in building or construction contracts requiring written orders or agreements for extra work or alterations are valid and binding so long as they remain in effect, it is equally well settled that they may be avoided by the parties to the contract. The courts have adopted various theories of avoidance, which may be classified as those of independent contract, modification or rescission, waiver, and estoppel.
A waiver of such stipulation by the owner is the theory on which it is most frequently avoided. Among the acts or conduct amounting to waiver are the owner’s knowledge of, agreement to, or acquiescence in, such extra work, a course of dealing which repeatedly disregards such stipulation, and a promise to pay for extra work, orally requested by the owner and performed in reliance on that promise.

13 Am. Jur. 2d Building and Construction Contracts § 24 (1964) (footnotes omitted).

While we have not been cited a case of our own with a holding directly in point, our case of U.S. Rubber Co. v. Northern, 236 Ark. 381, 366 S.W.2d 186 (1963), implies that we would follow the general rule if presented with the requisite facts. See also Rad-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

The appellant owners make an additional number of arguments about the findings concerning the contractor. They contend that the chancellor erred in finding that the contractor built the home according to the plans and in finding that he built the home in a workmanlike manner. We need not detail all of the testimony on these issues. The architects testified the contractor built the house according to the plans, and the contractor testified to the same. An independent architect testified the plans were “first class,” and an independent builder testified that the quality of the construction, the material, and workmanship were “excellent” and “as good as we can get.” The owners contend that the evidence did not support the amount of the contractor’s judgment, $112,936.00. The contractor testified this amount represented the cost of materials and labor he supplied to the job, plus his profit. We cannot say an award of this amount was clearly erroneous.

After the chancellor rendered his findings of fact and conclusions of law and had caused a judgment to be entered, the owners filed a “Motion for Special Findings of Fact and Conclusions of Law.” The motion was, in substance, a set of interrogatories that the owners propounded to the chancellor. The chancellor refused to answer the interrogatories. The owners contend the refusal to answer their questions amounts to reversible error. The chancellor’s original findings of fact constituted an adequate explanation of the ruling in accordance with A.R.C.P. Rule 52, and we certainly will not require that a trial judge answer all questions that might be propounded by a losing party.

The appellant owners make other arguments about other findings of fact, but it is not necessary for us to address those arguments. An example is the chancellor found the changes were “insubstantial.” The owners argue that they were, in fact, substantial changes. There is no reason for this court to decide the issue because, whether substantial or insubstantial, the owners knew about them and tacitly approved them.

The owners argue that the chancellor erred as a matter of law by attaching a materialman’s lien to their property for the value of some materials that were purchased for the home, but are stored off-site. See Meek v. Parker, 63 Ark. 367, 38 S.W. 900 (1897). The owners admit the point “may be somewhat irrelevant.” The owners have posted a supersedeas bond for the entire amount of the judgment, including any amounts that would not be subject to the materialman’s lien, and, consequently, neither the materialman’s lien nor the judgment lien will be foreclosed. Since the point is moot, we do not address it.

The appellant owners’ next assignment of error is that the chancellor erred by awarding excessive attorneys’ fees to the architects and the contractor. The crux of the argument is that the awards for attorney fees included some items of expense that were not properly allowable. This is an assignment of error that we cannot reach because the record does not contain the proof that was before the trial judge when he decided the matter. The motions and rulings which are in the record indicate that the architects’ attorney and the contractor’s attorney mailed itemized statements of fees to the owners’ attorney, but those itemized statements are not in the record. The owners’ attorney filed a response after receiving the itemized statements, which is in the record, and set out objections to some specific items as not being allowable. Later, the chancellor apparently had before him the itemized statements, but made the fee awards in gross. The order reflects only that the attorney for the contractor was awarded $11,725.00, plus $73.01 costs, and the attorneys for the architects were awarded a fee of $26,484.00. The owners do not object to the costs awarded to the contractor’s attorney. We have no way of knowing the original amounts requested by the attorneys, or what specific items of expense might have been included in the final gross award, and, as a result, cannot address the assignment of error.

The owners’ next point of appeal involves the rate of post judgment interest awarded. The chancellor awarded ten percent interest. The owners filed a “Motion to Amend the Findings and Amend the Judgement” which, in material part, provides:

Paragraph 5 is objected to as being the wrong conclusion of law and fact, and more specifically objected to because the post-judgment interest on an action ex contractu is contrary to the Arkansas Constitution in that the 10% interest rate per annum exceeds the Constitutional Usury Limitations on the date this judgment is to be entered. Article 19, Sec. 13, Arkansas Constitution.

The cited constitutional provision provides that interest on a contract shall not be more than five percent above the Federal Reserve Discount Rate. In their brief the pwners ask us to take judicial notice of the fact that, on the date the judgments were entered, the discount rate was three and one-half percent. As a result, the owners argue that the rate set by the chancellor was excessive by one and one-half percent. We decline to reverse on the point. The chancellor was never informed that the applicable discount rate was three and one-half percent, nor was he asked to take judicial notice of the fact. Rule 201 of the Arkansas Rules of Evidence provides that it is discretionary whether a court takes judicial notice of some adjudicative fact when the parties do not mention the matter. It is only mandatory that a court take judicial notice if requested by a party and supplied with the necessary information. The appellants cite no cases to us that would cause us to reverse a trial court for failing to take judicial notice of some adjudicative fact that was not brought to the trial court’s attention.

The last of the owners’ arguments that we find necessary to address is one that has merit. After being sued by the contractor, the owners filed a cross-complaint against the architects. The architects filed an answer and pleaded affirmative defenses, but never filed a counterclaim against the owners. During the contested five-day trial, the attorney for the owners introduced into evidence, on two different occasions, the architects’ bill for services rendered. The architects were questioned about the amount of their bill, and the proof showed that the architects claimed that the owners still owed them $900.00 for services rendered. The architects’ attorneys did not move to have the pleadings conform to the proof. See A.R.C.P. Rule 15(b). Even so, the chancellor awarded the architects a judgment of $900.00 against the owners. We reverse that award. The applicable part of Rule 15(b) provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of either party at any time, even after judgment; but failure to so amend does not affect the result of the trial of those issues.

As noted by the court of appeals in Shinn v. 1st Nat’l Bank of Hope, 270 Ark. 774, 606 S.W.2d 154 (Ark. App. 1980), this rule has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, but the cases permitting it have done so only where it was clear that all of the relevant evidence was in the record, or the issue was clearly one the parties contemplated as being before the court. Here, the evidence clearly established that the architects claimed this amount was due them, but it does not appear that the owners contemplated the issue as being before the court, as evidenced by the fact that they did not cross-examine the architects about the reasonableness of the amount. Since there was no motion to have the pleadings conform to the proof, no indication that the architects were seeking this amount, and it does not appear that the parties contemplated the issue as being before the court, we hold that the trial court abused its discretion in awarding this particular judgment to the architects. Accordingly, we reverse the award of . the $900.00 judgment to the architects. We do not remand or dismiss this claim, since it has never been pleaded, and we make no determination about whether it constituted a compulsory counterclaim. See A.R.C.P. Rule 13.

Affirmed in part, reversed in part.


author: Robert H. Dudley, Justice. Glaze and Corbin, JJ.,

text:
    Harold HUBBARD v. The SHORES GROUP, INC., 1st Service, Inc. and Mid-Arkansas Tom’s
    92-983
    855 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993
    [Rehearing denied July 19, 1993.]

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for appellant.

      Robinson, Staley & Marshall, P.A., by: Robert L. Robinson, Jr., for appellees.

      Brown, J., not participating.

   Robert H. Dudley, Justice.

The trial court granted a default judgment for appellant Harold Hubbard against appellee Mid-Arkansas Tom’s and set damages in the amount of $56,345.40. Later, appellee Mid-Arkansas Tom’s moved to have the default judgment set aside. The trial court granted the motion, set aside the default judgment, and also dismissed appellant’s complaint with prejudice. Appellant Hubbard appeals. We affirm the order setting aside the default judgment and the dismissal of the complaint, but modify it to a dismissal without prejudice.

Mid-Arkansas Tom’s is the distributor for Tom’s peanuts and other snack food in central Arkansas. It contracted with multiple employer welfare associations, first with Dual Plus, and then, in July 1990, with The Shores Group, Inc., for group health insurance for its employees. The group program was administered by 1st Services, Inc. Appellant Harold Hubbard worked for Mid-Arkansas Tom’s until his retirement on March 16,1990. For the last few years of his employment, Hubbard and his wife, Opal, were covered by the program, and after Hubbard retired, he continued to pay the premiums as they became due. His wife became ill, and they incurred substantial medical bills. In April 1991, Hubbard sued Mid-Arkansas Tom’s, The Shores Group, Inc., and 1st Service, Inc. in the Circuit Court of Desha County. According to his complaint, before his retirement, in early March 1990, he “inquired into the availability of continued health insurance coverage,” and “[i]n response, plaintiff was informed by a representative ■ of Mid-Arkansas Tom’s responsible for administering that company’s group medical insurance plan that plaintiff [appellant Hubbard] and his wife’s insurance coverage would be continued for eighteen months after the date of retirement if plaintiff paid the full amount of all premiums.” Hubbard’s complaint additionally stated that after he had incurred the medical bills The Shores Group, Inc., the insurer, informed him “that coverage under the above referenced insurance policy would not be accepted since Mid-Arkansas Tom’s had less than twenty employees and was, therefore, not eligible to offer continuation benefits to the plaintiff under the Consolidated Omnibus Budget Reconciliation Act of 1985 (‘Cobra’).” Count I of the complaint asked damages against Mid-Arkansas Tom’s for an alleged breach of contract, and Count II asked relief because of Mid-Arkansas Tom’s alleged fraud. Counts III through VII asked judgment against The Shores Group, Inc. and 1st Services, Inc., under the terms of the insurance policy, for breach of contract, and for fraud.

Hubbard’s attempts to have service of process on The Shores Group, Inc. and 1st Services, Inc. were unsuccessful. On June 3, 1991, service of process was had in Pulaski County on Jerry Wardlaw, president of Mid-Arkansas Tom’s, Inc. Service was made by a private process server. Wardlaw testified that earlier he had asked The Shores Group to pay Hubbard’s claim since it was valid and asked not to be involved since all he did was forward the premiums to the Shores Group. He further testified that just five days before being served, he learned that his wife of twenty-seven years had breast cancer that would require surgery and extensive post-surgical treatment. On the day he was served, his bank called and told him of an overdraft. He subsequently discovered that an employee had stolen $6,000 in deposits. Wardlaw testified that he was trying to have the employee arrested, and was in the process of leaving his office, when the process server walked in and handed him the summons and complaint. He testified that he saw it was styled “Harold Hubbard vs. The Shores Group, Inc.” and that he did not look below that and see the names 1st Service and Mid-Arkansas Tom’s. He stated he thought that Hubbard was suing the insurance company, and, under all the circumstances, he forgot about the summons and complaint.

Due to Mid-Arkansas Tom’s failure to answer the complaint, appellant moved for default judgment. On August 30, 1991, the Circuit Court of Desha County entered a default judgment against Mid-Arkansas Tom’s in the amount of $56,345.40. On September 23,1991, Mid-Arkansas Tom’s filed a motion to set aside the default judgment. On January 31, 1992, the trial court granted the motion and set aside the default judgment. In addition, the trial court dismissed with prejudice the complaint against Mid-Arkansas Tom’s. Hubbard had moved for a nonsuit against 1st Service, and on January 13,1992, the trial court dismissed that part of the complaint without prejudice. Hubbard had moved for a default judgment against The Shores Group, Inc. on September 6,1991, but the trial court denied the motion and dismissed this complaint on January 13, 1992. Hubbard appealed the dismissal, but dismissed the appeal. Thus, Hubbard and Mid-Arkansas Tom’s are the only parties remaining in the case, and Hubbard appeals from both the order setting aside the default judgment and the dismissal with prejudice of his complaint.

The order dismissing the complaint with prejudice is a final and appealable order. See Ark. R. App. P. 2(a)(2). An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the final order. Ark. R. App. P. 2(b). Thus, we have jurisdiction of both the order dismissing the complaint and the order setting aside the default judgment, and it is not necessary for us to address the question of whether the order setting aside the default judgment after ninety days would, by itself, be a final order. See Schueck Steel, Inc. v. McCarthy Bros., 289 Ark. 436, 711 S.W.2d 820 (1986), but see also 1990 Amendments to ARCP Rules 5 5 and 60 and Addition to Reporter’s Notes concerning the amendments.

In the motion to set aside the default judgment, Mid-Arkansas Tom’s pleaded, among other things, “Moreover, the process server, Don Schaber, a Little Rock private investigator, is not an authorized party under Rule 4(c)(2) of the Arkansas Rules of Civil Procedure. He was not appointed as such by the Circuit Court of Desha County to serve process in the case.” Appellant Hubbard responded: “Service of Process was made by Don Schaber, an authorized process server in Pulaski County. See authorization card which is attached, marked Exhibit “A” to this response. Rule 4(c)(2) of the Arkansas Rules of Civil Procedure contemplates that service may be made in a county other than that from which process issues.” The authorization card marked as exhibit “A” shows that Schaber was not issued the process server’s card until June 17, 1991, or two weeks after he served the process on Jerry Wardlaw, the president of Mid-Arkansas Tom’s. This defect renders the attempted service invalid, and, as a consequence, the default judgment is void. Wilburn v. Keenan Cos., 298 Ark. 461,768 S.W.2d 531 (1989). If the judgment is void, it is not necessary for the party seeking to have it set aside to plead a meritorious defense. ARCP Rule 55(c).

Appellee Mid-Arkansas Tom’s asks that we affirm the trial court’s ruling setting aside the default judgment for this reason. In his reply brief Hubbard argues that Schaber’s authority to act in Pulaski County “was not challenged, there was no reason for Hubbard to make proof beyond that which was made,” and it would be unfair for this court to affirm on this basis. Clearly, we can, and often do, affirm a trial court for a reason different than the one given by the trial court. See, e.g., Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). We could do so in this case, but we need not decide whether it would be fair or unfair to affirm the order setting aside the default judgment on this basis, because, even if we did not use this basis, we can affirm on the basis of excusable neglect under Rule 55(c)(1) of the Rules of Civil Procedure. It is hard to imagine a more compelling set of facts than those of this case for a finding of excusable neglect. We have no hesitancy in affirming the trial court’s ruling on the basis of excusable neglect.

When a default judgment is set aside because of excusable neglect, the party having the judgment set aside must demonstrate a meritorious defense. ARCP Rule 55(c). Mid-Arkansas Tom’s has demonstrated such a defense, failure to state facts sufficient to state a cause of action. The rendition of a default judgment on a complaint which fails to state facts sufficient to state a cause of action is reversible error. Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987). Correspondingly, demonstrating that the complaint fails to state facts sufficient to state a cause of action is the demonstration of a meritorious defense.

The trial court ruled that the complaint failed to state a cause of action. Appellant Hubbard does not contend on appeal that the trial court erred because he had, in fact, stated a cause of action for breach of contract or fraud, but rather relies entirely on having stated a cause of action under COBRA. In the argument part of his brief he writes: “The basis for plaintiffs claim for continuation of benefits under the health insurance plan was dependent upon the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). That is a statutory right and is the basis for the assurances given to Mr. Hubbard by the employees of Mid-Arkansas Tom’s that his benefits would be continued for a period of 18 months. Being a statutory right, there is no writing between the parties which would memorialize that right.” In his reply brief he again states that his claim is based on COBRA, and while Mid-Arkansas Tom’s addresses the issue of the fraud claim, he does not.

We could affirm the dismissal of the complaint on a number of grounds. First, appellant did not argue to the trial court that he had stated a cause of action under COBRA. Instead, he argued to the trial court that he “states a cause of action for breach of an employment contract.” We do not reverse on an issue not presented to the trial court. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). Second, before COBRA would be applicable to Mid-Arkansas Tom’s, it would be necessary to plead, among other things, that Tom’s had twenty or more employees “on a typical business day during the preceding calendar year.” 29 U.S.C. § 1161 (b) (1988). This was not pleaded, and, accordingly, a cause of action under COBRA was not stated. We do not imply that is all there is to stating a cause of action under COBRA, which is a part of the federal Employee Retirement Income Security Act of 1974, or ERISA. In sum, the trial court correctly ruled that appellant Hubbard failed to state facts sufficient to state a cause of action.

Moreover, ERISA preempts state laws to the extent that they relate to employee benefits which are not exempt from federal regulation. See 29 U.S.C. § 1144 (1988); Brock v. Primedica, Inc., 904 F.2d 295 (5th Cir. 1990) (where the court found state law claims for mental anguish, emotional distress, and additional financial hardship arising out of rejection of a claim for benefits preempted by ERISA); Dependahl v. Falstaff Brewing Corp., 633 F.2d 1208 (8th Cir. 1981) (where the court found a state law claim for tortious interference with contract regarding benefit plans preempted by ERISA). Federal courts have exclusive jurisdiction over some kinds of COBRA claims, and there is concurrent jurisdiction over other kinds, see 29 U.S.C. § 1132(e) (1988), and we make no determination about concurrent jurisdiction of this case under the act. In sum, the trial court correctly ruled that appellant Hubbard failed to state facts sufficient to state a cause of action.

The trial court dismissed the complaint with prejudice under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. ARCP Rule 12(j) provides that a trial court is to notify the attorneys of any action taken, and “if appropriate, the court will designate a certain number of days in which a party is to be given to plead further.” Appellant Hubbard was not given the chance to plead further. Under such circumstances, we modify the dismissal to one without prejudice and remand. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).

Affirmed as modified and remanded.

Glaze and Corbin, JJ.,

concur with that part of the opinion holding that the default judgment was void because of invalid service and agree in whole with that part affirming without prejudice.

Brown, J., not participating.


author: Steele Hays, Justice.

text:
    Robert D. GUNTER, Jr. v. STATE of Arkansas
    CR 92-1222
    857 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Christopher O’Hara Carter, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Robert D. Gunter, Jr. appeals from his conviction for rape. Gunter testified in his own behalf, admitting that sexual intercourse occurred but maintaining that it was consensual. In Gunter’s first trial the jury was unable to agree on a verdict. On retrial, the jury returned a verdict of guilty and sentenced Gunter to a term of forty years in the Department of Correction. None of the six errors ascribed to the trial court are persuasive and, accordingly, we affirm the judgment entered on the conviction.

On June 6, 1991, the prosecutrix and Judy Smyser met for dinner at the Watertree Inn outside of Mountain Home. They knew the waiter, Matthew Bennett, who also worked as a bartender at the Red Fox, a private club at the Holiday Inn. Bennett invited the two women to come there later, which they did.

The events of that evening are partially disputed. The testimony established that when the prosecutrix returned to her seat after dancing, Robert Gunter, the appellant, was sitting in her seat. Apparently, the prosecutrix, Ms. Smyser, Mr. Gunter, and a friend of Gunter’s, were sitting at the same table. There is disagreement over the amount of contact Gunter and the prosecutrix had with each other and whether they danced and drank together.

At approximately 1:00 a.m. the bar was closing and the prosecutrix was looking for her car keys. Although Gunter denied it, witnesses testified that he stood by the door and jingled the car keys, which he evidently obtained from her purse while she was dancing. They then walked out to the prosecutrix’s van and got into the van with Gunter in the driver’s seat. The women testified that they were under the impression that Gunter was going to drive Ms. Smyser to her car and get some cigarettes and then the prosecutrix would drop him off at his house or at the Red Fox. After dropping Ms. Smyser off, and getting cigarettes, Gunter drove down Cranfield Road and went to the Cranfield campgrounds. The prosecutrix testified that at this point Gunter became violent and would not take “no” for an answer. The parties agree that sexual intercourse occurred. However, Gunter insists it was consensual and the prosecutrix contends he pushed her to the back seat and forcibly had oral sex and intercourse with her.

The prosecutrix dropped Gunter off at the Red Fox and drove directly to the Mountain Home Police Department.

Officer Tommy Steen met Deputy Kenneth Grayham and the prosecutrix at the Baxter County Regional Hospital where she answered questions and was examined. Deputy Grayham, Dr. Robert Kerr, the prosecutrix’s doctor, and Danette Grayham, a jailer / dispatcher with the sheriffs department who took pictures of the victim, all testified that she was bruised in several places and had a scratch with a bruise around it on her upper arm. Blood was also discovered on the back seat of the van where intercourse admittedly occurred. A warrant was issued for the arrest of Robert Gunter. When the warrant was executed he was found hiding in a closet at the home of his former wife.

I

We first address the argument that the verdict was contrary to the substantial weight of the evidence.

After the State’s case, and again at the close, Gunter moved for a dismissal of the charges on the basis that the State failed to meet its burden of proof. The trial court stated that it found the victim’s testimony convincing and denied the motion.

On appeal, before considering other assignments of error we determine the sufficiency of evidence, including any proof which should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

In rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We have held the testimony of the victim which shows penetration is enough for conviction, and such testimony need not be corroborated to be sufficient. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992).

The testimony of the prosecutrix alone provides substantial evidence to support the conviction. She elaborated on the events at the Red Fox, where Gunter and his friend began sitting at their table. At closing time she was unable to find her car keys, but after a few minutes, Gunter, who was standing by the door, held up her keys and jingled them. The prosecutrix, Ms. Smyser, Mr. Gunter, and Gunter’s friend walked out to the prosecutrix’s van. The friend left but Gunter insisted on getting into the van with the two women.

The prosecutrix testified that she was under the impression that Gunter was going to take her to get cigarettes and come back to the Red Fox, but after they dropped Ms. Smyser off and got the cigarettes he drove to the Cranfield campgrounds. She told Gunter that she needed to go home and check on her daughter and take her medicine but he threw her in the back of the van, got on top of her and held her down with one arm while he took her pants and underwear off with the other. She stated she begged him to stop and not to hurt her. She testified that the appellant then forced her to have oral sex with him, attempted to have anal sex but was unable to complete the act, and then had vaginal sex. She stated that none of these acts were done with her consent.

Deputy Grayham, Dr. Robert Kerr, the prosecutrix’s doctor, and Danette Grayham, a jailer/dispatcher with the Baxter County Sheriff’s Department, all described bruises on the arm, back, inner thigh and legs of the prosecutrix. There was also blood on the seat in the back of the van which would be consistent with the bleeding from a cut which was described as being on the arm of the prosecutrix.

There were minor conflicts in the testimony of some of the witnesses, but where witness credibility is involved, wide discretion is given to the fact-finder which has the opportunity to observe the witnesses. See Hollaman v. State, 312 Ark. 48, 846 S.W.2d 663 (1993); Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Therefore, the evidence was sufficient to support the jury’s verdict.

II

Gunter argues the trial court erred in failing to grant his request to examine the victim’s medical records relating to her osteoporosis and mitral valve prolapse conditions. He claims that because Gunter intended to testify in his own behalf and to call her physician to testify concerning her alleged weakened condition, her ability to bruise easily, and the medication she was taking, he is entitled to her medical records under his constitutional right to confront his accusers under the Sixth Amendment to the United States Constitution and Article 2, Section 10 of the Arkansas Constitution. He claims that such records were necessary and relevant to the preparation of his defense.

The right of confrontation provides two types of protection for defendants in criminal cases: the right to face those who testify against them and the opportunity to conduct effective cross-examination. See George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990).

Here, the trial court merely denied Gunter’s objection to the introduction of medical testimony offered by the State in the testimony of Dr. Robert Kerr, which in no way implicates Gunter’s Sixth Amendment right of confrontation. Dr. Kerr’s name was on the witness list and, from the previous trial, Gunter was aware of the nature of Dr. Kerr’s testimony. Gunter could have deposed the doctor before trial. He could have had a doctor examine Dr. Kerr’s responses and testify at trial regarding the prosecutrix’s medical condition. Gunter was also free to cross-examine the prosecutrix and Dr. Kerr at trial.

Additionally, while Gunter moved to compel discovery of the prosecutrix’s medical and psychological records prior to the first trial, we find no indication that that motion was renewed prior to the second trial. During the second trial counsel for appellant referred to the motion in connection with his objection to a question to Dr. Kerr concerning the prosecutrix’s physical strength and capacity to resist an assault. In the course of that objection, counsel renewed the motion to discover such records, but that came near the end of the State’s case, and certainly it was not incumbent on the trial court to consider a pretrial discovery motion at that late stage in the proceedings.

Finally, appellant has made no showing as to how the prosecutrix’s medical and psychological records would be relevant in determining whether she was forcibly raped.

Ill

A third argument, the trial court erred in allowing the victim to testify as to the psychological effects of the crime without first affording Gunter with access to her psychological records, is similar to the previous argument.

Gunter contends that due to the prosecutrix’s testimony regarding her psychological condition, he should have had access to her psychological records. He points to the testimony of the prosecutrix regarding the medical conditions prior to the rape which had caused her to leave her job and receive Social Security Disability Benefits. The State contends that because it was defense counsel who asked the prosecutrix about her job status and whether she was receiving social security benefits, any error was invited. An appellant cannot base a claim of reversible error upon testimony which he himself chose to introduce. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982).

The pertinent testimony was as follows:

Q. How was your emotional situation following this attack?
A. I was sent to Missouri. I’ve been seeing a psychiatrist.
Q. I’m sorry I didn’t mean it that broadly. I meant on the morning after this attack.
A. On the morning after?
Q. Yes.
A. How was I feeling? Dr. Kerr gave me a shot to knock me out so it could calm me down. I’ve screamed and I’ve cried.
Q. It was emotionally upsetting to you?
A. Yes, sir. (TR. 141-142)

The psychiatrist was not called as a witness nor even identified by name. There was no reference to diagnosis, treatment or number of visits. Moreover, defense counsel had the opportunity to cross-examine the prosecutrix further. In short, we are not persuaded that this passing reference to a psychiatrist, or a claim of being emotionally upset following an alleged rape and sexual assault, must, standing alone, subject the records of the asserted victim to the perusal of the alleged perpetrator. This fragment of testimony was limited in the extreme and provides no basis in our estimation for the opening of records that are particularly sensitive. Ark. R. Evid. 503.

Some six states have addressed the question whether a defendant in a rape case may be entitled to psychological records of the complaining party. Pennsylvania and Massachusetts have held that under the confrontation clause certain psychological records may be made available to the defendant under varying circumstances. See Commonwealth v. Lloyd, 567 A.2d 1357 (Pa. 1989) and Commonwealth v. Stockhammer, 570 N.E.2d 992 (Mass. 1991). Connecticut, Illinois, Minnesota and Missouri have rejected this type of access. See Schmid v. State, 487 N.W.2d 539 (Minn. App. 1992).

In Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the United States Supreme Court addressed the circumstances under which a criminal defendant may gain access to confidential information. In that case, the defendant was charged with various sex offenses against his minor daughter and sought access to records at the Children and Youth Services. The United States Supreme Court reversed the lower court’s decision that the failure to allow the defendant to search the files for relevant information violated the confrontation clause of the Sixth Amendment.

In some of the cases, the appellate court required an in-camera review of the records by the trial judge. However, in State v. Hummel, 483 N.W.2d 68 (Minn. 1992), the Minnesota Supreme Court held that in-camera examinations are not automatic, but that the defendant must make some showing as to the relevancy of the confidential material.

We conclude the trial court was correct in denying access to the prosecutrix’s psychological records.

IV

Appellant argues that Officer Tommy Steen’s testimony regarding the circumstances surrounding Gunter’s arrest should have been suppressed. Officer Steen testified that when he and Officer Alman arrived at the home of Kimberly Gunter, she allowed them to come in and search the house. Mrs. Gunter went with the officers as they searched each room. When they reached the bedroom, Mrs. Gunter stayed in the hall. Officer Steen went in and found Robert Gunter hiding in the closet.

Gunter argues that this testimony was more prejudicial than probative and should not have been admitted under Ark. R. ' Evid. 403. The trial court has discretion in determining the relevance of evidence and in weighing its probative value against unfair prejudice. Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987).

Although the circumstances of the arrest were not vital in this case, the trial judge did not abuse his discretion in allowing such testimony. We have held that flight to avoid arrest may be considered by the jury as corroboration of evidence tending to establish guilt. See Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1993); Ferguson v. State, 298 Ark. 600, 769 S. W.2d 418 (1989); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). In addition, even if the testimony about Gunter’s arrest should not have been admitted, it was harmless error. An appellant must show prejudice because the appellate court will not reverse for harmless error. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). This testimony was not prejudicial and does not warrant reversal.

V

Robert Gunter objects to the prosecutrix’s description of him in her trial testimony as “scroungy.” On direct examination, the following occurred:

Q. Now, did he look then as he does now?
A. No.
Q. How is he different?

At this point an objection was made by defense counsel and overruled.

Q. Go ahead.
A. He’s cleaned up a lot: his hair is a lot shorter, he has a suit on, he was very scroungy looking. (TR. 101)

Gunter argues that the above statements should have been excluded on the basis of Ark. R. Evid. 403 because they unfairly prejudiced and misled the jury. He claims that the only purpose of the testimony was to show that he was somehow an “unclean” or unkept person and he had cleaned himself up for court.

We are not persuaded that appellant’s rights were substantially affected by this reference. Ark. R. Evid. 103. The victim merely used the word “scroungy” in attempting to contrast his appearance in court with the night of the incident. The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice. Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). The trial court did not abuse his discretion in allowing the testimony of the victim.

VI

During the testimony of Officer Steen, the following exchange occurred:

Q. And in terms of this point Mr. Carter was trying to make about her supposedly indicating that he was proposing anal sex and she talked him into vaginal sex, did she portray that as a voluntary sex act?
A. No.
Q. Kind of like where do you want to be poked with a sharp stick, in which eye; isn’t it?
A. That’s correct. (TR. 308).

At this point, defense counsel objected and moved to strike the statement as being inflammatory and irrelevant. The objection was overruled.

The State submits that even if the comment was improper, it was not prejudicial and was harmless error. The remark could have had a tendency to inflame and an admonition may have been warranted. But none was requested. The failure to give an admonitory instruction is not prejudicial error in the absence of a request for such an instruction. Vaughan v. State, 289 Ark. 11, 709 S.W.2d 73 (1989). Because no curative relief was requested at trial, no issue is preserved on appeal.

For the reasons stated, the judgment is affirmed.


author: David Newbern, Justice.

text:
    Leon BRISSETT v. Connie SYKES, Executrix of the Estate of Ruth Brissett
    92-283
    855 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      John Harris, for appellant.

      David L. Eddy, for appellee.
   David Newbern, Justice.

This case involves a dispute between the appellant, Leon Brissett, and the appellee, Connie Sykes, over ownership of a one-half interest in real property which had been conveyed by warranty deed, dated May 8,1986, to Leon and Ruth Brissett “husband and wife.” Leon Brissett claims he and Ruth Brissett entered into a common law marriage and thus he was a tenant by the entirety with a right of survivorship at the time of her death. Ms. Sykes contends there was no marriage, thus half is in Ruth Brissett’s estate. The Chancellor agreed with Ms. Sykes and, based upon Ruth Brissett’s will which in part devised the property to Ms. Sykes,.quieted title to the property in her. We hold the Chancellor was fundamentally correct but went too far in considering the provisions of Ruth Brissett’s will which had not been introduced in evidence. We affirm the decision but modify it to limit it to a determination that Leon Brissett had no survivorship interest in Ruth Brissett’s portion of the property.

In addition to the point about improper consideration of the will, Leon Brissett argues the Chancellor erred by holding (1) residency in a common law marriage state is a prerequisite to validity of a common law marriage, and (2) absent a tenancy by the entirety, there must be a declaration of intent to create a survivorship interest in a deed in order for such an interest to be created.

Leon Brissett testified he and Ruth Brissett agreed to be married in 1977 while they were living in New York and thereafter held themselves out to the public as husband and wife. Although Ruth used the name “Brissett,” the marriage was not formalized. Leon Brissett stated he and Ruth Brissett traveled in a motor home to almost every state in the nation and some Canadian provinces, but maintained their permanent residence in New York until they moved to Arkansas in 1986. He testified they voted, assessed personal property, and paid taxes in New York and Arkansas. He concedes that a common law marriage could not have been created pursuant to New York law during their residency in that State.

The Chancellor determined the evidence was insufficient to establish a common law marriage as the Brissetts had not resided in a state in which a common law marriage may be created. Finding no expression of intent to create a joint tenancy with right of survivorship in the deed, the Chancellor ruled the property was held as a tenancy in common and Ruth Brissett’s one-half interest “will pass under the terms of her will.”

1, Common law marriage

Leon Brissett first argues residency in a state in which a common law marriage may be created is unnecessary for the recognition of the common law marriage in Arkansas. Arkansas Code Ann. § 9-11-107 (1987) provides, however, that “All marriages contracted outside this state which would be valid by the laws of the state or county in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in the state.” (Emphasis added).

Common law marriages may not be created by law in Arkansas, but our courts recognize marriages contracted by law in other states. Walker v. Yarbrough, Admix, 257 Ark. 300, 516 S.W.2d 390 (1974). One seeking to prove the creation of a common law marriage in another state must do so by a preponderanee of the evidence. Allen v. Wallis, 279 Ark. 149, 650 S.W.2d 225 (1983).

From the evidence presented, we cannot determine the Chancellor erred by finding insufficient evidence that the parties actually resided in a common law marriage state. Although Leon alleges he and Ruth made month-long trips to states which recognized the validity of common law marriages, such as Pennsylvania, there was no evidence presented that they made these trips for the purpose of changing their residency from New York or Arkansas. Nor was evidence presented as to the requirements of establishing a common law marriage in Pennsylvania or elsewhere. A party seeking to establish the validity of a common law marriage must show a substantial relationship of long duration in the common law marriage state, Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), and no such evidence was presented.

In Walker v. Yarbrough, Adm ’x, supra, we relied on In Re Binger’s Estate, 63 N.W.2d 784 (1954), and stated:

Parties who live for years in illicit relationship in a state in which they were domiciled will not find themselves married to each other if they happen to sojourn for a short time and hold themselves out as man and wife in a state where common law marriage is recognized.

We agree with the Chancellor’s conclusion that the record did not support a finding that a common law marriage was established.

2. Intent to create a survivorship interest

According to Ark. Code Ann. § 18-12-106(a) (Supp. 1991), a joint tenancy with right of survivorship may be created in real property by conveyance to two or more persons, regardless of their relationship to each other. With respect to conveyances prior to July 15,1991, subsection (c) of the Statute provides that such an estate was created if it was “clearly intended.” The question whether a survivorship interest was intended should be determined from the four corners of the deed. Brewer v. Taylor, 299 Ark. 18, 769 S.W.2d 753 (1989); Wylie v. Tull, 298 Ark. 511, 769 S.W.2d 409 (1989).

We cannot determine the Chancellor erred by refusing to construe the deed to Leon and Ruth Brissett as husband and wife as creating a survivorship interest. In Wood v. Wood, 264 Ark. 304, 571 S.W.2d 84 (1978), we held a conveyance to “Boyd E. Wood and Murtha A. Wood, husband and wife, as tenants by entirety” was sufficient to establish a joint tenancy with right of survivorship. In reaching this decision, we recognized the deed did not stop with describing the purchasers as husband and wife but went further and stated they were to hold “as tenants by the entirety.” Merely describing the purchasers as “husband and wife” is insufficient to establish an intent to create a survivorship interest. See Smith, Adm’x v. Stewart, Adm’x, 268 Ark. 766, 596 S.W.2d 346 (Ark. App. 1980) (“To Wesley Shaw and Dixie Shaw, his wife” held insufficient to create a right of survivorship).

3. The will

The Chancellor considered and attached to his decree a copy of Ruth Brissett’s will of which he had become aware through a probate proceeding. He concluded the will showed there was no intent to create a survivorship interest in the property because Ms. Brissett referred to “my half’ of the property and purported to devise it. The will, however, had not been introduced in evidence in the case before the Chancellor. The Chancellor also stated in the decree that “the property will then be distributed pursuant to the will of Ms. Brissett.”

In effect, the Chancellor took judicial notice of facts in another proceeding. Courts may not take judicial notice of prior or pending litigation in other cases, even if those cases are between the same parties. Dyer v. Ross-Lawhon, 288 Ark. 327, 704 S.W.2d 629 (1986); May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975).

We affirm the decree but modify it to delete reference to Ruth Brissett’s will and to limit its effect to holding that Leon Brissett has no right of survivorship in the real property in question.

Affirmed as modified.


author: Tom Glaze, Justice.

text:
    Brenda OWENS v. STATE of Arkansas
    CR 93-214
    856 S.W.2d 288
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993

      Donald A. Forrest, for appellant.

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

At approximately 3:00 a.m. on the morning of April 25, 1991, Deputy Sheriff Ray Bosewell of the Crittenden County Sheriff’s Office was dispatched to the westbound rest area off of Interstate 40 near West Memphis, Arkansas, to investigate a call concerning a person who reportedly was walking along the freeway. Bosewell saw no one walking along the freeway, but did, upon entering the “Truck Parking” section of the rest area, come across the dead body of Joseph Hamilton. The body was located approximately 17 feet from a nearby shade tree and 173 feet from Hamilton’s tractor-trailer rig in which his wife was sleeping. Investigators discovered several pieces of Hamilton’s personal property as well as blood stains beneath the shade tree. Hamilton’s trousers were down around his knees and a leather belt and buckle were wrapped around his left hand. His boots were off, laying near his body. Hamilton had been stabbed over twenty-eight times; many of the wounds were characterized as “defensive.” Two empty wallets, identified as belonging to Hamilton, were found near his body and a bloody wad of bills was found under his head.

Appellant, Brenda Owens, was charged with the capital murder of Hamilton under Ark. Code Ann. § 5-10-101(a)(l) (Supp. 1991). She was convicted by jury. The State specifically alleged that Owens, “committed or attempted to commit the crime of robbery, and in the course of and furtherance of said felony or in immediate flight therefrom, caused the death of Hamilton under circumstances manifesting extreme indifference to the value of human life.” The death penalty was waived, and the jury set Owens’ sentence at life in prison without possibility of parole. Owens appeals from that judgment of conviction and alleges the trial court erred in the three following respects: (1) by denying her motion for a directed verdict, (2) in admitting into evidence a knife found near the scene, and (3) in instructing the jury on the lesser included offenses of first degree and second degree murder. We find no merit in Owens’ arguments, and therefore affirm.

We must address Owens’ directed verdict contention first because it involves a challenge to the sufficiency of the evidence which must be considered prior to a review of trial errors. See, Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). However, in determining the sufficiency of the evidence, this court need only ascertain that evidence most favorable to appellee, and it is permissible to consider only that testimony which supports the verdict of guilty. Id.

Capital murder under subsection (a)(1) of § 5-10-101 is defined as follows:

(a) a person commits capital murder if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act, §§ 5-4-101 — 5-4-608, involving an actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

Owens’ sufficiency argument is twofold. She first claims there is no substantial evidence which shows her to be the killer; second, she attacks as insufficient, both the evidence indicating that a robbery occurred as well as that reflecting the requisite intent to rob.

We conclude substantial evidence exists to support the jury’s finding that Owens was the perpetrator. Several of Owens’ acquaintances testified at trial. Janet Reeves testified that at some time in April she and her boy friend, Ellis Aldridge, drove to the west-bound 1-40 rest area at about 2:00 or 3:00 a.m. and let Owens out. Although Reeves could not remember the date on which Owens was given a ride, she did recall seeing Owens “the next day or the day after” she and Aldridge provided the ride, and observed scratches, bruises and whelps on Owens’ legs, arms, neck and throat. Most important, Reeves testified that Owens told her that she had been attacked by a truck driver and she stabbed him. Another friend of Owens’, Mary Kat Collins, testified that Owens, Reeves, and Aldridge were at her house on the evening of April 24,1991, and stated she remembered Owens asking Aldridge to drive Owens to a rest stop. Further, she stated that she too saw Owens on the morning of April 25th, and Owens had lacerations on her arm, back and neck, which marks, claimed Collins, were non-existent the previous night. Finally, Collins too testified that Owens stated she had been attacked by a truck driver.

Three other truck drivers had parked their rigs at the rest area on the morning of April 25th, and those drivers, Joseph Weigel, John McCalman and William Johnson, testified that, between 2:00 to 2:15 a.m., they each, in succession, were awakened by a woman banging on the door of their rig. Each asked the woman what she wanted and testified the woman requested money for sex. Each declined the offer and told the woman to get off of his truck, whereby each was then verbally abused by the prostitute. At trial, all three men testified that they were positive it was Owens who had awakened them and offered sex. Weigel testified that the lighting conditions at the parking lot were “good” and Johnson stated that Owens had a “big nose” which was “pretty hard to miss.” In addition, each claimed that Owens wore her hair in braids and remembered Owens as wearing a white dress and a brown/blue reversible jean jacket.

Investigators found a brown/blue reversible jacket underneath the shade tree, and McCalman identified that jacket as the one worn by Owens when she made her offer of sex. At trial, all three men identified the jacket as that worn by Owens. And finally, Collins corroborated the truck drivers’ testimony by stating that she remembered Owens wearing a white dress and “western type” jacket on the night of the 24th.

From the foregoing evidence albeit circumstantial, a jury reasonably determined that Owens was at the rest area on the morning of April 25, and that she stabbed Hamilton to death. We affirm the jury’s decision.

Owens also claims the evidence presented to prove the underlying felony — robbery—and the concomitant mental state — intent to rob — was insufficient to support the jury’s verdict. We disagree. The victim’s wife, Norma Hamilton, testified that at the time of her husband’s death, Hamilton was carrying approximately $650. She further stated that her husband always carried two wallets. Both wallets were found at the scene — one under the victim and the other underneath the shade tree — and both were empty. In addition, a bloody wad of bills, determined to be only $242, was found under Hamilton’s head.

Over the years this court has decided a handful of similar cases where the appellant contended on appeal that the evidence of robbery and intent to rob was insufficient to support a conviction for capital murder. As to proof that a robbery occurred, the recent case of Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992) is controlling. There, this court affirmed, as supported by substantial evidence, the jury’s finding that a robbery took place where the victim’s landlord testified that he had visited his tenant, a bootlegger, on the night prior to discovering his body lying in a pool of blood. Upon finding the body, he also noticed that about six cases of beer, twenty half pints of vodka and whiskey, and some money he had given the victim the night before were missing. The court held the landlord’s testimony alone was substantial evidence that the underlying felony offense — robbery—had indeed occurred. See Also, State v. Patterson, 306 Ark. 385, 815 S.W.2d 377 (1991).

As to the general rule concerning sufficient proof of the necessary “intent to rob,” the principles espoused in Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976), are applicable here. In relevant part the Gribsby court stated the following:

Where the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery, (cites omitted.) The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration, (cites omitted.)
. . .Where the circumstances permit an inference that the killing and the robbery were all part of one transaction, the state is not required to prove intent to commit the felony by direct evidence, (cites omitted).

Grigsby, 260 Ark. at 508-09, 542 S.W.2d at 280-81.

When we consider that Owens was placed at the scene of the crime approximately one hour before police discovered Hamilton’s body and that money which Hamilton previously had in his possession was now missing, we have no problem in concluding that the robbery and murder occurred in close proximity to one another. Consequently, the jury was justified in finding the robbery and murder to be one continuous transaction.

Owens’ next argument is that the trial court erred in admitting into evidence a knife found near the scene of the crime. The objection at trial was based only on relevancy. On appeal, Owens claims the judge erred because, “in short, no link between the knife and the homicide was ever made, nor any link between the knife and Brenda.”

As we have stated many times, the trial court’s ruling on relevancy is entitled to great deference and will be reversed only if the court has abused its discretion. Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991). According to Ark. R. Evid. 401, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

The trial judge allowed admission in this instance because the knife sought to be introduced was discovered by investigators in a ditch which was directly south of Hamilton’s body on the opposite side of the freeway. Testimony was adduced to the effect that at the time of its discovery, the knife was covered in blood. Moreover, the knife’s blade had only one edge. This fact was relevant because Dr. Violette Hnilica, an Associate State Medical Examiner, previously testified that the knife which caused Hamilton’s wounds employed a single-edged blade. Clearly, introduction of the knife was relevant in determining whether this knife was indeed the murder weapon. Moreover, when we consider Janet Reeves’ testimony that Owens confessed to stabbing a truck driver, we find no abuse of discretion because introduction of the knife did tend to connect Owens to a knife found near the situs of the crime. See, Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992).

As her final point for reversal, Owens argues the trial judge erred by instructing the jury on the lesser included offenses of first degree murder [Ark. Code Ann. § 5-10-102 (suppl. 1991)] and second degree murder [Ark. Code Ann. § 5-10-103 (suppl. 1991)] on the premise that she was never charged with the “premeditation and deliberation” portion of the capital murder statute. See, Ark. Code Ann. § 5-10-101 (a)(4) (suppl. 1991). This specific argument is raised for the first time on appeal. At the trial’s conclusion, Owens objected to the instructions on the ground that there was “no basis” for the lesser included offenses. These two contentions are significantly different and as a consequence, the trial judge was never apprised of the argument Owens now makes on appeal. It is well settled that an appellant cannot change his or her argument on appeal. Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991); Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).

Because life imprisonment is the sentence, Rule 4-3 (h) of our Supreme Court Rules comes into play. Although Owens’ abstract does not contain all objections made at trial, the state’s abstract supplements those deficiencies. The record in this case has been examined in accordance with Rule 4-3 (h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


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

text:
    MIC d/b/a Burger King v. Bryan BARRETT
    92-429
    855 S.W.2d 326
    Supreme Court of Arkansas
    Opinion delivered June 21, 1993
    [Rehearing denied July 19, 1993.]

      Rieves & Mayton, by: Martin W. Bowen, for appellant.

      Saxton & Ayres, by: Clint Saxton, for appellee.
   Donald L. Corbin, Justice.

On the evening of March 1, 1988, appellee Bryan Barrett was beaten in the Burger King parking lot on Broadway in West Memphis, Arkansas, by Franco Davis. Appellee and Covey Easley stopped at the Burger King, which was closed, to use the phone. Some employees and Franco Davis, who was not an employee of Burger King, but who was waiting to give an employee, Charles Jordan, a ride home, were inside the restaurant closing up. Mr. Easley approached the door of the restaurant and attempted to get someone inside the restaurant to let him look at a phone book. The employees refused to let Mr. Easley inside. Mr. Easley had an exchange with Mr. Davis about using the phone book. Mr. Easley felt Mr. Davis was being smart with him, although he could not hear him through the door. Mr. Easley made an obscene gesture to Mr. Davis as he returned to appellee’s truck. Mr. Easley did not inform appellee that he had made an obscene gesture to Mr. Davis when he returned to the truck. Mr. Easley asked appellee to pull around to the telephone so he could call information. Elizabeth Franklin, the manager on duty at the time, testified that Mr. Davis was hyper and asked her to let him out. Ms. Franklin said she refused to let Mr. Davis out at that time, but that she, Mr. Davis and the remaining employees all left the restaurant shortly thereafter. When the employees and Mr. Davis exited the restaurant, Mr. Easley was on the phone. Ms. Franklin told Mr. Davis and the others to go on home and that she was going to call the police. Ms. Franklin then got in her car, drove home and called the police. Mr. Davis did not go home, he opened the trunk of Mr. Jordan’s car, which he had borrowed for the day, took out a stick and approached appellee’s truck. Appellee noticed Mr. Davis, Mr. Jordan, and Eddie Carter, another Burger King employee, coming towards his truck, but testified he did not see a stick. Appellee began to pull away, but stopped and got out of his truck when he heard something hit it. As soon as appellee got out of his truck, Mr. Davis began beating him on the head. Although the police arrived soon after the assault began, appellee sustained severe injuries as a result of this beating.

Appellee filed suit against MIC d/b/a Burger King (hereinafter Burger King), Elizabeth Franklin, who was the manager at the time the beating occurred, Charles Jordan, and Eddie Carter. Before trial, Elizabeth Franklin, Charles Jordan, and Eddie Carter were dismissed as defendants. Appellee won at trial and was awarded $507,532.53. Appellant asserts eight points of error on appeal. All eight points of error concern jury instructions which appellant contends were either erroneously given or should have been given but were not.

In order to be timely, objections to instructions must be made either before or at the time the jury instructions are given. Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993); Ark. R. Civ. P.51. “Waiting to object until after the jury has been instructed on the law and has retired is untimely, for it gives the circuit court no opportunity to react to the instructions at issue or to amend them.” Id. at 555, 845 S.W.2d at 512. We will not consider objections which are not timely made. Id. From the record we can determine only that appellant’s objection to AMI 1106 was made as indicated by appellant prior to the jury retiring to consider its verdict. Appellant’s other objections appear in the record to have been made for the first time after the jury was charged and had retired to consider its verdict. While appellant and appellee agree their objections were originally made at an in-chambers hearing before the jury was charged, there is no record of this hearing. Since we are not able to ascertain from the record or abstract the specific objections to the remaining instructions made prior to the jury retiring to consider its verdict, these objections will not be addressed. It is appellant’s duty to demonstrate error in the proceedings below and to bring up a record sufficient to demonstrate error. Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986). Therefore, we will address only appellant’s argument as to AMI 1106 because the record is insufficient to demonstrate error as to its remaining arguments.

Appellant’s first argument as to the modification of AMI 1106 is moot. Appellant argued we should reverse and remand for a new trial because the trial judge failed to include the reason for the modification in the record. This failure was cured when we granted appellees’ motion to settle the record and a supplemental hearing was held by the trial court during which the reason for the modification was put into the record.

Appellant next argues the trial court erred by modifying subparagraph B of AMI 1106 to add the words “and its employees” because it amounted to an incorrect statement of the law. We agree and reverse and remand for a new trial.

AMI 1106(B), which was proffered by appellant, reads:

An owner of property owes an invitee a duty to use ordinary care for his safety. On the other hand, he owes a licensee no duty until his presence on the premises is known or reasonably should be known. Then the owner owes the licensee only a duty not to cause him injury by willful or wanton conduct. If, however, the owner knows or reasonably should know that a licensee is in a position of danger, he has a duty to use ordinary care to avoid injury to the licensee.

As modified by the trial court and submitted to the jury, AMI 1106(B) read:

An owner of property and its employees owe an invitee a duty to use ordinary care for his safety. On the other hand, an owner and its employees owe a licensee no duty until his presence on the premise is known or reasonably should be known. Then the owner and its employees owe the licensee only a duty not to cause him injury by wilful or wanton conduct. If, however, the owner or its employees know or reasonably should know that a licensee is in a position of danger, they have a duty to use ordinary care to avoid injury to the licensee.

(Emphasis added).

As appellant argues, it was an incorrect statement of the law to modify AMI 1106 to provide that employees owe the same duty to an invitee or a licensee as does the owner of the property. A servant or employee is not liable for injury caused by the condition of the land absent proof that his employer has turned over the entire charge of the land to him. Since there was no proof that an employee of Burger King was put entirely in charge of the property, it was error for the court to instruct the jury that Burger King’s employees were held to the same standard of care as Burger King as to an injury resulting from the condition of the property.

While we agree that the addition of the words “and its employees” to AMI 1106 results in a misstatement of the law absent proof Burger King placed any of its employees in complete control of the property, we also note that although neither party raised it, the giving of AMI 1106 was improper in this instance. AMI 1106 refers to the duty of a person to keep his premises in a safe condition, which is not at issue in this case. See Tatum v. Rester, 241 Ark. 1059, 412 S.W.2d 293 (1967) (child injured by car being backed out of carport by property owner). The note on use to AMI 1106(B) provides in pertinent part: “Use paragraph B when the injury was caused by the possessor’s activities and was causally related to a condition of the premises.” AMI Civil 3d, 144. “When the condition of the premises has no causal connection whatever with the injury to the plaintiff, the status of the defendant as an owner or occupier of land is irrelevant.” Tatum, 242 Ark. 271, 412 S.W.2d 293. The act of Franco Davis beating appellee with a stick is not causally related to the condition of the premises. See Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S.W.2d 411 (1961) (employee of bowling alley accidentally shot patron). Therefore, AMI 1106(B) is inapplicable in this case.

Reversed and remanded for a new trial.

Glaze and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. This case turns on a unique set of circumstances. The appellant, MIC d/b/a Burger King, offered an instruction, AMI 1106, which concerns premises liability of an owner and was fundamentally inappropriate for the fact situation at hand. The appellee, Bryan Barrett, sought to modify AMI 1106, over MIC’s objection, to include MIC employees and, thus, add the element of vicarious liability. The trial judge allowed the modification. MIC then proffered an unmodified AMI 1106 as the instruction which should have been given.

AMI 1106, either modified or unmodified, should not have been given in this case. It relates to premises liability of the owner and is appropriate for such matters as hidden defects on the premises, slip-and fall accidents, and the like. It is patently incorrect for situations where an owner’s former employee injures an invitee or licensee by negligent conduct. We have made this distinction in our case law. See, e.g., Tatum v. Rester, 241 Ark. 1059, 412 S.W.2d 293 (1967); Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S.W.2d 411 (1961). Yet, it was MIC that offered the erroneous instruction originally.

Complicating matters further is the fact that we do not have a complete record of objections made on instructions in this case. The record was settled after trial. It is clear, however, that MIC did not object to AMI 1106’s being given in the first place because it offered the same instruction and then proffered it for the record. MIC only objected to the instruction in its amended form.

The problem that confronts us is that the trial judge never was apprised that a fundamentally erroneous instruction was at issue here. Rather, the argument made by MIC, according to the settled record, was that AMI 1106 was appropriate to safety of the premises, but only as it related to the liability of the owner — not to its employees. Barrett countered that liability in this case had to include the negligence of MIC employees. Thus, a modification to include a vicarious liability element was included. Barrett argued our case of Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991) to the trial judge, but that case turned on the duty of ordinary care owed to patrons of a restaurant and had nothing to do with premise liability or AMI 1106.

We have recently said that we will presume prejudice when an erroneous instruction is given at trial which is used to decide a case. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). But we have also made it a fundamental precept for appeals on instructions that an appellant must make an argument before the trial judge, telling the judge why the instruction was wrong, in order to preserve the point for appeal. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). Here, MIC maintained to the trial judge that AMI 1106 was appropriate for this case but only with regard to the owner’s duty to keep the premises safe. That was wrong. Moreover, MIC did not make the precise distinction between an owner’s liability for physical defects on the premises under AMI 1106 and the duty of ordinary care that a restaurant owner and its employees owe to patrons under standard principles of negligence. Because the trial judge did not consider this distinction for the reason that it was not specifically presented to him in that form, we cannot use it as the basis for reversal in this case.

Though it appears that error occurred in the trial of this case and that the error must be presumed prejudicial, we must remain constant and adhere to our foundation principle that we will not scour the record for grounds to reverse but will do so only on the basis of issues presented to the trial judge for consideration. Here, the predicate for the majority’s reversal was not raised to the trial judge.

Accordingly, I would affirm this case.

Glaze, J., joins.