author: David Newbern, Judge.

text:
    Douglas Martin CATES v. STATE
    CR 97-263
    952 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Michael L. Allison, for appellant.

      Winston Bryant, Att’y Gen., by; C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   David Newbern, Judge.

Douglas Cates was convicted of first-degree murder and sentenced to life in prison. He contends the evidence against him was insufficient to have been permitted to go to the jury; thus, his motion for directed verdict should have been granted. He also contends the Trial Court erred in rejecting his contention that he was being tried in the wrong county. As Mr. Cates presented no positive evidence that the crime did not occur in Conway County, and as the evidence against him was clearly sufficient to overcome bis motion for a directed verdict, the conviction is affirmed.

Mr. Cates gave two tape-recorded statements in which he admitted killing Lynn Neeley. According to Mr. Cates, he and Mr. Neeley entered the locomotive cab of the second engine of a freight train in North Little Rock at approximately 8:00 p.m. on February 12, 1996. While on the train, the two men drank whiskey and eventually began arguing. After telling Mr. Cates that he could kill him, Mr. Neeley pulled out a knife. Mr. Cates took the knife away from Mr. Neeley, pushed him against the wall, and stabbed him in the back. When the knife broke, Mr. Cates forced Mr. Neeley to the floor so that Mr. Neeley was lying on his stomach. Mr. Cates then grabbed a hatchet from his pack and hit Mr. Neeley in the head several times as he stood over him. Then, Mr. Cates, who was unable to get off the moving train, drank more liquor and passed out.

Mr. Cates was charged by information on February 14, 1996, in the Conway County Circuit Court with first-degree murder and with being an habitual offender. At a probable-cause hearing held that day, the Trial Court found that the Conway County Circuit Court had jurisdiction of the matter because “the best and only information we have is this [crime] occurred in Conway County.”

During the trial, Charles Norman, the engineer who worked on the train where the homicide occurred, testified that on February 12, 1996, he saw Mr. Neeley’s body and Mr. Cates in the cab when the train stopped between Ozark and Mulberry. He testified that the victim’s skull was visibly crushed.

Jim Freeman, Mulberry Chief of Police, met the train in Mulberry and took Mr. Cates into custody. He testified that the victim was covered in an “extreme amount of blood,” and that he removed from the victim’s body a hatchet which appeared to be covered with fresh blood and hair. A knife blade was also found on the train. Dr. Frank Peretti, who performed the autopsy, testified that the cause of Mr. Neeley’s death was twenty-one multiple shock-force head injuries.

1. Sufficiency of the evidence

A motion for directed verdict is a challenge to the sufficiency of the evidence. Carter v. State, 324 Ark. 395, 398, 921 S.W.2d 924, 925 (1996). In considering whether a conviction is supported by sufficient evidence, we need only consider the evidence that supports the guilty verdict, and we view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. Martin v. State, 328 Ark. 420, 426, 944 S.W.2d 512, 515 (1997); Hicks v. State, 327 Ark. 652, 658, 941 S.W.2d 387, 391 (1997). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997).

The first-degree murder statute provides as follows: “(a) A person commits murder in the first degree if . . . (2) With the purpose of causing death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102 (Repl. 1993).

The confession, the engineer’s testimony, and the medical testimony as to the cause of death were beyond question sufficient to permit the matter to go to the jury.

2. Jurisdiction

Although sometimes referred to as a venue question, the issue of a court’s authority to try a person for a crime is more properly characterized as one of territorial jurisdiction. See Webb v. State, 323 Ark. 80, 83, 913 S.W.2d 259, 261 (1996). “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which a crime shall have been committed; provided that the venue may be changed to any other county of the judicial district in which the indictment is found ...” Ark. Const, art. 2, § 10; State v. Webb, 323 Ark. at 83; 913 S.W.2d at 261. Pursuant to Ark. Code Ann. §16-88-105(b) (Repl. 1993), “[t]he local jurisdiction of circuit courts . . . shall be of offenses committed within the respective counties in which they are held.” At a criminal trial, the State is not required to prove the court’s jurisdiction unless positive evidence is admitted that affirmatively shows it to be lacking. Ark. Code Ann. § 5-1-111(b) (Repl. 1993); Nicholson v. State, 319 Ark. 566, 571, 892 S.W.2d 507, 510 (1995); Findley v. State, 307 Ark. 53, 59, 818 S.W.2d 242, 246 (1991). In Higgins v. State, 317 Ark. 555, 558, 879 S.W.2d 424, 425 (1994), we noted that § 5-1-111(b) created a presumption in favor of jurisdiction in the place where the charge is filed by the State.

The train carrying Mr. Cates and Mr. Neeley was traveling west, from North Little Rock to Van Burén. Mr. Cates was unsure when the argument between him and Mr. Neeley began. In his first statement, Mr. Cates said that he did not know if the argument began when the train was in North Little Rock, but that the last thing that he remembered was going through the tunnel on the west side of Conway. In a later statement, he said that the argument began after the train had passed through the tunnel. Mr. Cates agreed that the argument may have started about ten minutes after the train passed through the tunnel. At trial, there was testimony that the tunnel is located in Faulkner County, approximately three miles east of the Conway County-Faulkner County line.

Mr. Cates presented no positive evidence that the offense occurred anywhere other than in Conway County. Mr. Cates’s jurisdictional claim is thus without merit.

3. Ark. Sup. Ct. R. 4-3(h).

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for erroneous rulings prejudicial to Mr. Cates, and none has been found.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Nobia BENEDICT v. NATIONAL BANK OF COMMERCE
    96-1339
    951 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Depper Law Firm, by: Robert L. Depper, Jr. and Robin J. Carroll, for appellant.

      Compton, Prewett, Thomas & Hickey, P.A., by: William I. Prewett, for appellee.
   Tom Glaze, Justice.

Appellant Nobia Benedict brought this lawsuit against National Bank of Commerce after her house and lot, including a pin oak tree, sustained damages as a result of fire. Benedict’s house and lot adjoined the Bank’s property, which contained a dilapidated structure. The Bank gave written permission to the El Dorado Fire Department to conduct a “controlled burn” of the structure on its property, and the department agreed to burn the structure as a training exercise. Although the department established a “water curtain” between Benedict’s and the Bank’s adjoining properties, Benedict’s house sustained damages to one of her windows, to some melted shingles on its roof, and she also suffered loss of an oak tree and some other vegetation.

Because Benedict concluded that she could not successfully sue the City of El Dorado for its fire department’s negligence, she brought her action solely against the Bank, alleging absolute liability on the Bank’s part, asserting the Bank had engaged in ultrahazardous activity by “ordering the burning.” The parties’ respective cases were tried to the court, and the court issued a letter opinion, holding in the Bank’s favor and dismissing Benedict’s complaint with prejudice. On appeal, Benedict contends the trial court erred in refusing to hold that the Bank’s use of fire was a hazardous activity for which the Bank bore absolute liability. However, we are unable to address the merits of Benedict’s argument because Benedict failed to file a timely notice of appeal.

We first note that the trial court issued its letter opinion on June 27, 1996, and filed it on June 28, 1996. Before the trial court entered its order dismissing Benedict’s complaint, Benedict filed on July 3, 1996 a pleading captioned “Petition for Rehearing.” Without ruling on Benedict’s “Petition,” the trial court entered its order on July 11, 1996, and Benedict delayed in filing her notice of appeal until August 15, 1996 — outside the thirty-day period required for filing a notice of appeal under Ark. R. App. P. 4(a).

Benedict argues that, under Ark. R. App. P. 4(b), her time of appeal was extended because she had filed a petition for rehearing which in substance was a motion for new trial as provided in Rule 59 of the Arkansas Rules of Civil Procedure. The Civil Appellate Rule 4(b) provides that a motion for new trial under ARCP Rule 59(b) may extend the time for filing a notice of appeal if such a timely motion is filed in trial court, and provision (c) of Civil Appellate Rule 4 further provides the time for appeal shall run from the entry of the order granting or denying a new trial. If the trial court neither grants nor denies the new-trial motion within thirty days of its filing, the motion will be deemed denied as of the thirtieth day, and the moving party then must file a notice of appeal within thirty days from when the parties’ motion was deemed denied. See Ark. R. App. P. 4(c).

Even if we were to agree with Benedict that her “Petition for Rehearing” was in essence a new-trial motion and, as such, could possibly extend her time for filing a notice of appeal, Benedict failed to file such a motion no later than ten days after the entry of judgment as is required by ARCP Rule 59(b). See Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (where party filed motion for new trial before the judgment was entered, court held motion was untimely and ineffective under ARCP Rule 59 and Ark. R. App. P. 4(b)); Guinn v. State, 323 Ark. 612, 917 S.W.2d 529 (1996) (court held that to be effective, a motion for new trial under ARCP Rule 59 must be filed within ten days after the entry of the judgment); see also Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992).

Here, Benedict failed to file her motion within the ten-day period provided in ARCP Rule 59(b), so it was ineffective. Consequently, her motion failed to extend her time to file a notice of appeal. In these circumstances, Benedict was required to file her notice of appeal thirty days after entry of the trial court’s July 11, 1996 order, and having failed to do so, we must dismiss her appeal as untimely.

       The Bank’s property had been listed for sale, and the real estate broker handling the Bank’s property determined the property would sell better without the structure. Thus, the broker made arrangements with the El Dorado Fire Department to burn the structure.

       We need not decide whether Benedict’s “Petition for Rehearing” should be considered a motion for new trial for Rule 59(a) purposes, because, even assuming it is a new-trial motion, it was filed untimely, was therefore ineffective, and failed to extend her time for filing a notice of appeal.

       The Reporter’s Note to Rule 59 underscores Section (b) and marks a significant departure firom Arkansas practice, stating that, under this section, a motion for new trial must be filed within ten days after the entry or filing of the judgment.


text:
    Jerry SHERRILL v. STATE of Arkansas
    CR 97-335
    952 S.W.2d 134
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Joe Kelly Hardin, for appellant.

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

Appellant Jerry Sherrill appeals his convictions for the rape of his two biological daughters, R., age 12, and L., age 7. On appeal, he contends the trial court erred in denying his motions for directed verdict concerning each daughter, and in doing so, he argues that, in both cases, there is a lack of credible evidence concerning the element of penetration. Sherrill also asserts the trial court erred in denying his request for a hypnotist. We affirm.

Regarding his first contention, Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1993) provides in pertinent part that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Deviate sexual activity and sexual intercourse are defined in Ark. Code Ann. § 15-14-101(1)(A) and (B) and (9) (Repl. 1993) as follows: Sherrill argues the evidence was insufficient to prove the rape charges, particularly the key element of penetration, because there was no medical or adult testimony to corroborate the testimonies of R. and L. As a consequence, he claims the jury could only speculate regarding whether penetration occurred.

(1) “Deviate sexual activity” means any act of sexual gratification involving:
(A) the penetration, however slight, of the anus or mouth of one person by the penis of another person; or
(B) the penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.
* * *
(9) “Sexual intercourse” means penetration, however slight, of a vagina by a penis.

This court, of course, has repeatedly held that the testimony of a rape victim does not have to be corroborated by other testimony. See Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), this court held that the testimony of a child rape victim, showing penetration, need not be corroborated, nor is scientific evidence required. Here, both children testified in vivid detail how their father, appellant Sherrill, fully penetrated their vaginas with his penis, and how he required them to perform oral sex on his penis, as well. R. said that her father commenced such activity when she was about five years old, and as she grew older, he asked her to perform sexually with him at least once a day. The girls’ brother also testified that on a number of occasions, he had witnessed their father performing sexual acts with his sisters. In sum, the evidence presented at trial was overwhelming and unrebutted, and clearly supported the rape convictions the jury rendered in this case. The trial court’s rulings denying Sherrill’s motions for directed verdict were correct.

Next, Sherrill argues that the trial court erred in refusing to appoint a hypnotist to assist in his defense. He based his request on the claim that it is highly likely that he was under the influence of hypnotic suggestions and not responsible for his actions.

At trial, Sherrill’s counsel abandoned Sherrill’s request in this respect as having no merit, and defense counsel did so even before the trial court denied Sherrill’s request. In any event, a litigant may not agree with a ruling by the trial court and then attack that ruling on appeal. Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990). Thus, Sherrill is precluded from arguing this point on appeal. Furthermore, Sherrill cites no authority nor makes a convincing argument in support of this issue and for this reason, too, we decline to reach the merits of Sherrill’s second argument.

For the reasons above, we affirm.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined in its entirety and no other rulings adverse to Mr. Sherrill that appear to involve prejudicial error were found.

       Although Sherrill failed to abstract his directed-verdict motions and the trial court’s rulings on them, Ark. Sup. Ct. R. 4-3(h) requires our court to review adverse rulings that appear to involve prejudicial error. Therefore, we consider the merits of Sherill’s directed-verdict arguments.


author: Donald L. Corbin, Justice.

text:
    Joe Willie GRAYDON v. STATE of Arkansas
    CR 97-271
    953 S.W.2d 45
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Maxie G. Kizer, for appellant.

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

Appellant Joe Willie Graydon appeals the judgment of the Jefferson County Circuit Court convicting him of rape and second-degree battery and sentencing him to a term of life imprisonment and six years’ imprisonment, respectively. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant’s sole assignment for reversal is that the trial court erred in excluding evidence of prior sexual conduct between himself and the victim, which he offered as evidence of the victim’s consent. We find no error and affirm.

The record reflects that the crimes occurred on September 4, 1995, in Pine Bluff, under a bridge on the Arkansas River. The victim, an eighteen-year-old girl, was taken to the hospital emergency room that same date and later admitted to the hospital with injuries to her face and back, consisting of bruising, swelling, lacerations, and abrasions. There was massive swelling on one side of the victim’s face, such that her eyes were swollen shut, her lips were swollen, and she had blood on her head and face. The victim also sustained a broken cheek bone and a cracked bone in her sinus area. Her injuries required sutures on her right temple, above her right eye, and below her chin. Additionally, officers observed bruised areas on each side of her neck that were consistent with finger impressions.

Prior to trial, Appellant filed a motion pursuant to Ark. Code Ann. § 16-42-101 (Repl. 1994) requesting that the trial court set a hearing to determine the admissibility of evidence that he and the victim had been lovers for a period of time before the date of the alleged incident. Appellant asserted that this evidence was relevant to the issue of consent. A hearing was held, during which both Appellant and the victim testified. Appellant stated that he had been engaged in a sexual relationship with the victim, whom he referred to as “Pee Wee,” for about four months prior to the time of the offense. He stated that every time they had sexual intercourse, the victim was a willing participant. He stated that they would sneak off together and that no one knew about their relationship because he was living with another woman at the time and the victim was much younger than he was. The victim, on the other hand, testified that she did not know Appellant at all until the day of the rape. She stated that she had never had sexual intercourse with Appellant. She stated further that no one calls her “Pee Wee.”

Monica Hadley, the victim’s sister, testified that she and her sister were living together at the time of the crime. She indicated that they were close and that her sister would talk about her boyfriends. She stated that she had never heard her sister mention Appellant’s name or that anyone called her “Pee Wee.”

Wilda Chadick, a teacher at Pine Bluff High School, testified that she had been tutoring the victim after school and that she would often give the victim a ride home after the sessions. She stated that during those rides, she and the victim would talk. She also indicated that she would see the victim every day and would visit with her at ball games and other times. She stated that she had never heard of Appellant until the day of the incident and that she had never heard anyone call the victim “Pee Wee.”

According to the probable-cause statement, which was admitted as an exhibit at the hearing, the victim reported the attack to police while she was in the hospital. She told the police that she had been walking home after work when a vehicle pulled up alongside her. The man in the vehicle asked her for directions to Kentucky Street. Although she knew where the street was, she did not feel that she could give proper directions, so she told the man she did not know how to get there. The man then drove away, and she continued walking. A short time later, the man pulled up alongside her again. This time the man told her that he was from out of town and needed directions to the homes of Tameka Brimmer and Felicia Jones. The man then read to her the written directions he had been given to the Jones home. He asked her if she could show him how to get there and told her he would give her a ride home if she would help him. She agreed and got into his car.

The victim told the police that the man stopped for gas along the way and that she had waited in the car. The man then drove to the north side of a bridge on the Arkansas River. When he drove up under the bridge, she repeatedly told him that he could turn around, as they were apparently not going in the right direction. The man then stopped the car and immediately grabbed her around the neck and began choking her. He put his hand between her thighs and told her not to scream because no one would hear her out there. He then pulled off her shorts and panties and performed oral sex on her. She told him several times to stop. After a short time, the man stopped performing oral sex and asked her if it felt good. She told him that it did not feel good and put her hands between her legs. The man then started choking her again. When he stopped, he took off his pants, crawled on top of her, and began having sexual intercourse with her. When she tried to squeeze her legs shut, the man choked her again and hit her in the face. The man forced her legs open and continued having sexual intercourse again. He then climbed off her, put on his clothes, and walked around to her side and told her to get out of the car. She then dressed and got out of the car. The man then asked for a hug, which she gave him. He told her that the hug was not right and began choking her again. She told the police that she believed it was at that point she passed out and fell to the ground. When she woke up, she walked to the freeway and flagged down a passing motorist, who drove her to the hospital. She told police that she had never seen the man before that date. She was able, however, to provide a detailed description of the man and the car. Two days following the attack, the victim immediately identified Appellant as the assailant from a photographic lineup.

When Appellant was informed by the police that he was a suspect in the rape, he denied any involvement or knowledge of the battery or rape. He told police that on the date of the rape, he had had sexual intercourse with another woman under the same bridge where the attack had occurred. After further interview, however, he recanted that statement and claimed that he had had consensual intercourse with the victim, whom he referred to as “Pee Wee,” under the bridge. He stated that he had initially picked up the girl at the Jiffy “J” convenience store after having received a message from her. He stated that afterwards, he had dropped her off on West 13th Street and then drove home. Appellant then changed his statement again, claiming that after he had dropped off the victim on West 13th Street, he picked her up again and they returned to the bridge and had intercourse a second time. He then stated that after they finished having sex, the victim had asked him for money and that when he refused to give her any, they began to fight. He stated that the victim kicked him in the groin area and that he struck her three to five times in the face with his fist and his elbow. He also admitted that he kicked her in the stomach, knocking her to the ground. He stated that he then got into his car and drove away, leaving the injured girl under the bridge. He claimed that he did not rape the girl and that the two of them had engaged in sexual intercourse numerous times in the past.

Several days after the hearing, the trial court issued a written order denying Appellant’s motion. The order reflected that after hearing the testimony of the witnesses and argument of counsel, it was the court’s judgment that the uncorroborated evidence of prior sexual conduct between Appellant and the victim would not be admissible at trial. Appellant now contends the trial court’s ruling was erroneous. We disagree.

Section 16-42-101, commonly referred to as the rape-shield statute, provides that evidence of a victim’s prior sexual conduct is inadmissible at trial except where the court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994) (citing Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979)). The purpose of the statute is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). The trial court is vested with a great deal of discretion in ruling whether the victim’s prior sexual conduct is relevant. Id. We will not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Id.; Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

Appellant argues that the evidence of the victim’s prior sexual intercourse with him was relevant to show that she consented in the present case. Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979). There must be additional evidence connecting the prior acts to the consent alleged in the subsequent act before the prior acts become relevant. Id. Here, Appellant argues that the evidence connecting the prior acts to the present act is the fact that the victim voluntarily got into his car on the date of the offense. We are not persuaded by this argument, which, taken to its logical conclusion, implies that the act of helping a stranger is tantamount to establishing a previous relationship between two people such that any act of sexual contact would be deemed consensual.

In light of the evidence presented at the hearing, we cannot say the trial court’s decision to deny admission of the proffered evidence constituted clear error or manifest abuse of discretion. To the contrary, the only evidence presented that supports Appellant’s version of events was his own self-serving testimony. There was no corroborating evidence that even linked Appellant with the victim prior to the date of the offense, let alone evidence of their having carried on a clandestine affair for several months. The primary purposes of the rape-shield statute are to protect the victim and encourage rape victims to participate in the prosecution of their attackers. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). Such worthy purposes would surely be thwarted if every defendant in a rape case was allowed to present uncorroborated “evidence” that he and the victim had previously engaged in sexual intercourse over the victim’s denial that she had ever known her assailant before the incident. Particularly in this case, where the victim was badly beaten and injured, the minute probative value of allegations of prior consensual intercourse between the victim and the attacker are clearly outweighed by the inflammatory nature of the alleged evidence. Furthermore, Appellant failed to offer any additional evidence connecting the alleged prior acts to the consent alleged in the present incident.

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal. No such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


text:
    Paul Steven JONES v. STATE of Arkansas
    CR 97-351
    951 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      John F. Gibson, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Paul Steven Jones appeals the judgment of the Drew County Circuit Court convicting him of possession of a controlled substance (cocaine) and sentencing him to a total of ten years’ imprisonment in the Arkansas Department of Correction, with imposition of all but fifty-three months suspended. Appellant asserts that the trial court erred by denying the motion to dismiss for lack of speedy trial. Because this appeal involves an interpretation of our Court Rules, our jurisdiction is pursuant to Ark. Sup. Ct. R. l~2(a)(17)(vi). We affirm.

Appellant was arrested on May 27, 1994. Later, an amended information was filed charging him with possession of a controlled substance (cocaine) with intent to deliver and felon in possession of a firearm. There were four orders entered of record by the trial court, which excluded various periods of time from the calculation of time for a speedy trial. The trial was held on August 17, 1995. Before the jury had been selected, Appellant made an oral motion to dismiss the charges for lack of a speedy trial. The motion was denied, and Appellant was tried on both charges and convicted of possession of cocaine.

Appellant argues that pursuant to A.R.Cr.P. Rules 28.1 and 28.2, he was entitled to be tried within twelve months from the date of his arrest, excluding any periods of delay authorized by Rule 28.3. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Hulsey v. Smitherman, 328 Ark. 234, 943 S.W.2d 568 (1997). Once a defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as “legally justified.” Id. at 239, 943 S.W.2d at 570. It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996). The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Id. Under Rule 28.2, the speedy-trial period commences to run “without demand by the defendantf.]” Id. at 42, 918 S.W.2d at 169.

Appellant was tried on a date eighty-two days beyond the twelve-month constraint of Rule 28.1. He thus established a prima facie case that a speedy-trial violation had occurred. The burden then shifted to the State to show that the delay was the result of Appellant’s conduct or was otherwise legally justified. See Cupples v. State, 326 Ark. 31, 929 S.W.2d 150 (1996). The pertinent inquiry on appeal is whether there were excludable periods of time in excess of eighty-two days.

Rule 28.3(i) provides that all excludable periods shall be set by the court in a written order or docket entry. Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996). A trial court should enter written orders or docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods. Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). However, a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. Goston, 326 Ark. 106, 930 S.W.2d 332.

Rule 28.3 provides that certain periods of time are excludable from computing the time for trial. Notably, Rule 28.3(c) provides:

The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.

We conclude that there were two such excludable periods of time, which totaled 127 days, noted in the present case.

On November 22, 1994, the trial court entered an “Order Excluding Time Under ARCrP 28” revealing that fifty-seven days, from November 22, 1994, to January 18, 1995, would be excluded on motion by counsel for the defendant. Where a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). Goston, 326 Ark. 106, 930 S.W.2d 332. Where the trial court specifically noted that the time period did not apply to speedy trial because the appellant was granted a continuance, and the record clearly demonstrated that these were attributable to the appellant or were legally justified, the appellant could not complain about the delays he requested. Id. We therefore conclude that this time period of fifty-seven days should be excluded from the calculation of the one-year period, as it was a delay granted at Appellant’s request.

On May 1, 1995, the trial court signed another “Order Excluding Time Under ARCrP 28,” which excluded seventy days, from May 4, 1995, to July 13, 1995. As with the previous time period, the court excluded this seventy-day period as being on motion by counsel for defendant. Appellant conceded to the exclusion of this time period at trial, and thus he may not complain of its exclusion on appeal. See Goston, 326 Ark. 106, 930 S.W.2d 332. Accordingly, we affirm the trial court’s denial of Appellant’s motion to dismiss as we conclude that his constitutional right to a speedy trial' was not violated.

Affirmed.


author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    George T. RAINS v. STATE of Arkansas
    CR 97-245
    953 S.W.2d 48
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Buford Gardner, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant George T. Rains appeals the judgment of conviction of the Boone County Circuit Court for six counts of rape, one count of attempted rape, and two counts of first-degree sexual abuse. The trial court sentenced Appellant as a habitual offender to a term of life imprisonment on each count of rape, sixty years’ imprisonment on the count of attempted rape, and two terms of thirty years’ imprisonment on each count of first-degree sexual abuse. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises two points for reversal. We find no error and affirm.

Appellant’s convictions stem from his having engaged in sexual acts with three minor victims, namely his son J.P., his stepdaughter S.D., and his niece D.C. The sexual acts occurred over a period of time from June 1993 through February 1996, during which time J.P. was five to seven years old, S.D. was six to eight years old, D.C. was eight to ten years old, and Appellant was thirty-six to thirty-nine years old. The information charged that on or about February 3, 1996, Appellant committed two counts of rape, one count each against J.P. and S.D. Also on or about February 3, 1996, the information charged Appellant with the attempted rape of S.D. The four remaining counts of rape, charged in the information as having occurred sometime between June 1993 and February 1996, involved two counts against J.P. and two counts against S.D. Specifically, as to the two counts against J.P., the information charged that Appellant had made J.P. place his (Appellant’s) penis in the child’s mouth and that Appellant had also placed his penis in J.P.’s anus. As to the two remaining counts of rape against S.D., the information reflected that Appellant had made S.D. place his (Appellant’s) penis in her mouth and that Appellant had also placed his tongue inside S.D.’s vagina. Lastly, the information charged Appellant with two counts of first-degree sexual abuse for having engaged in sexual contact with S.D. and D.C. on a date sometime between June 1993 and February 1996.

I. Sufficiency of the Evidence

For his first point for reversal, Appellant argues that there was insufficient evidence to sustain his convictions. Fie contends that the children’s testimony was vague and unclear and that his convictions were based upon the jury’s passion, rather than the evidence. The State argues that this point is procedurally barred because the grounds raised in Appellant’s first motion for directed verdict differed from those raised in his motion at the close of all the evidence. It is the State’s contention that because Appellant did not argue the lack of evidence of sexual penetration or deviate sexual activity in his first motion for directed verdict, that argument is not preserved for appeal. We disagree.

It is well settled that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal and are bound by the scope and nature of their objections and arguments presented at trial. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996). Where the defendant’s first motion for directed verdict was specific as to the missing proof, but his motion made at the close of the evidence was merely a general renewal of the first motion, his challenge to the sufficiency of the evidence was preserved for appellate review. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In Durham, the State argued that because the motion made at the close of the evidence was not specific, the defendant waived his challenges to the sufficiency of the evidence on appeal. This court ultimately reached the merits of Durham’s argument because the grounds he raised for reversal were the same as those originally raised to the trial court. Thus, it is the opportunity of the trial court to first hear and address the parties’ arguments that is of importance in determining whether the argument has been preserved for appeal. That both directed-verdict motions are not identical will not bar an appellant’s argument on appeal.

Here, Appellant made specific motions for directed verdict at the end of the State’s case and at the close of all the evidence. The fact that he stated additional grounds in his final motion does not bar our consideration of them. Therefore, because Appellant has not raised any issues on appeal that were not first presented to the trial court, we will reach the merits of this argument.

On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). We view the evidence in a light most favorable to the State and consider only that evidence which supports the verdict. Id. Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. This court does not, however, weigh the evidence presented at trial, as this is a matter for the factfinder. Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996). Nor will this court weigh the credibility of witnesses. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).

A person commits rape if he engages in sexual intercourse or deviate sexual activity with a person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103 (Repl. 1993). “Deviate sexual activity” means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of one person by the penis of another person or the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1) (Supp. 1995). Rape is not defined as a continuing offense; rather, it is a single crime that may be committed by either engaging in sexual intercourse or deviate sexual activity with, as in this case, another person who is less than fourteen years of age. See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). Where the prosecutrix testifies as to multiple acts of rape of a different nature, separated in point of time, there is no continuing offense, as a “separate impulse was necessary for the commission of each offense.” Id. at 195, 710 S.W.2d at 203.

A person commits first-degree sexual abuse if, being eighteen years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen years old. Ark. Code Ann. § 5-14-108 (Repl. 1993). “Sexual contact” means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of another person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (Supp. 1995).

This court has repeatedly held that the uncorroborated testimony of a rape victim, whether adult or child, is sufficient to support a conviction. Evans, 326 Ark. 279, 931 S.W.2d 136; Caldwell, 319 Ark. 243, 891 S.W.2d 42; Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). Likewise, the victim’s testimony need not be corroborated to demonstrate sufficient evidence of first-degree sexual abuse. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). To the extent there may be inconsistencies in the victims’ testimony, this is a matter of credibility for the jury to resolve. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). In cases of sexual abuse, it may be assumed that the defendant had sexual contact with the victim for the purpose of sexual gratification, and it is not necessary for the State to directly prove that he was so motivated. Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). See also McGalliard, 306 Ark. 181, 813 S.W.2d 768; Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989).

It is similarly not necessary for the State to prove specifically when and where each act of rape or sexual contact occurred, as time is not an essential element of the crimes. See Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). It is rare that youthful victims of sexual abuse can provide exactness as to the time an offense occurred, and any discrepancies in the testimony concerning the date of the offense are for the jury to resolve. Yates v. State, 301 Ark. 424, 785 S.W.2d 119 (1990). In order to prove a charge of attempted rape, it must be shown that the defendant’s actions constituted a substantial step in a course of conduct intended to culminate in the commission of rape. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994).

J.P. testified at trial that on at least four occasions, Appellant put his “private” or “wiener” in J.P.’s anus or in his mouth, making J.P. suck on it. He stated that Appellant had also put his (J.P.’s) wiener in his (Appellant’s) mouth and sucked on it. He stated that these acts occurred three times at the trailer near Dogpatch, where he lived with Appellant, his mother, and S.D. He stated that the acts occurred once at his grandmother’s house in Bergman. He stated that Appellant had also put his wiener in S.D.’s private. He stated that sometimes “gooey,” “yellow” stuff would come out of Appellant’s wiener. He stated that the last time such acts had occurred was at his grandmother’s house, while his grandmother was gone and he was alone with Appellant and S.D. He stated that on that occasion, Appellant told him to suck on Appellant’s wiener and that he did as he was told. He stated that Appellant put his wiener into his (J.P.’s) anus and that it hurt, but that he did not cry. He stated that he remembered Appellant “coming” on S.D. while she was on the bed with Appellant. He stated that Appellant made S.D. suck on his (Appellant’s) wiener. He stated that during each incident that occurred at the trailer, Appellant made him put his (Appellant’s) wiener in his mouth, and that S.D. was present each of those three times. He stated that the incident in Bergman was not the only time that Appellant put his wiener in his (J.P’s) anus.

S.D. testified that Appellant was her stepdad and that at one time she had lived with Appellant, her mother, and J.P. in a trailer in Dogpatch. She stated that Appellant made her suck his “thingy,” which she said was her word for penis. She stated that Appellant had made her do this in too many places to remember, but that he had made her perform such acts of oral sex on him on more than three occasions while they lived at the trailer. She stated that when Appellant would make her put his thingy in her mouth she would be dressed and he would be wearing a shirt. She stated that Appellant had also licked her thingy, which she described as being between her legs, where she goes to the bathroom. She stated that on one occasion Appellant tried to put his thingy inside her thingy. She stated that Appellant would get on top of her or put her on top of him, while her clothes were off and he was wearing a shirt, and would rub on her. She stated that stuff would come out of Appellant’s thingy on different occasions at the trailer and at her grandmother’s house in Bergman, and that it had got on her and it felt “yucky.” She stated that when Appellant tried to put his thingy in her thingy, it hurt and it tickled, but that it mostly tickled when he rubbed it against her. She stated that she had also seen Appellant doing the same kinds of things to J.P., putting J.P.’s thingy in his mouth and sucking on it, and making J.P. suck his thingy. She stated that on one occasion while she was staying at her Aunt Marsha’s house, when she was six years old, Appellant had made her and her cousin, D.C., put their hands on his thingy. She stated that the last time Appellant had abused her was at her grandmother’s house about two weeks before her Aunt Marsha questioned her about the abuse.

D.C. testified that Appellant was her uncle and that he had lived with her family at different times. She stated that during one of the times when Appellant was living with them, about two or two and one-half years ago, Appellant had made her and S.D. touch his private part. She stated that her mother had gone to the store and that Appellant had told the two girls to go to bed. She said Appellant later came into their bedroom and made them touch his penis. She stated that Appellant made each of the two girls take turns touching it, and that it got hard at one time and white stuff came out of it. She stated that when her mother started pulling into the driveway, Appellant made the girls get into bed and then went into the living room.

Marsha Douglas, D.C.’s mother and Appellant’s sister, testified that Appellant was married to S.D.’s and J.P.’s mother until February 1995. She stated that while Appellant was married to the children’s mother, they had lived in a trailer in Dogpatch, off Highway 7. She stated that Appellant had lived with her and her family in Bergman on two different occasions, the first being two and one-half to three years ago, and the second being around the end of April 1995. She stated that she became aware of the sexual abuse in February 1996, while she was questioning the children about two events, which occurred at their grandmother’s house in Bergman, involving some of the children performing oral sex on each other. She stated that when she questioned D.C., the child told her that Appellant had made her and S.D. fondle him a couple of years earlier, when Appellant had lived with them. She stated that she then questioned S.D. and J.P. separately and that both children told her about the abuse.

From the foregoing evidence, it is clear that there was sufficient evidence presented to the jury to sustain the convictions against Appellant. Concerning the two counts of first-degree sexual abuse, both S.D. and D.C. stated that Appellant had made them touch his penis. D.C., the older of the two girls, stated that Appellant made the girls take turns touching him and that his penis got hard and that white stuff came out of it. Such testimony is more than sufficient to prove that Appellant engaged in an act of sexual gratification with the girls, who were both under the age of fourteen, involving the direct touching of his penis.

As for the two counts of rape on February 3, 1996, both J.P. and S.D. testified that Appellant made them engage in oral sex with him. Additionally, J.P. stated that on that occasion, Appellant put his wiener in the child’s anus. As to the count of attempted rape, which also occurred on that date, S.D. stated that Appellant had tried to put his thingy in her thingy and that it hurt and tickled. J.P. corroborated S.D.’s testimony by stating that Appellant put his wiener in S.D.’s private. The children’s testimony sufficiently establishes the acts of deviate sexual activity against each child and the act of attempted penetration of S.D.’s vagina.

As for the four remaining counts of rape alleged to have occurred during the time the children lived with Appellant in the trailer in Dogpatch, there was sufficient evidence presented by both J.P. and S.D. to support the convictions. J.P. testified that on at least four occasions, Appellant had made him perform oral sex or had engaged in anal sex with him. On three occasions at the trailer, J.P. stated that Appellant made J.P. suck his wiener. He also stated that the incident in Bergman was not the only time Appellant had put his wiener in J.P.’s anus. S.D. stated that Appellant made her suck his thingy on more than three occasions while they lived at the trailer and that Appellant had licked her thingy. Clearly, this testimony is more than sufficient to sustain the four counts of rape involving deviate sexual activity against both J.P. and S.D.

II. Motion for New Trial

For his second point for reversal, Appellant argues that the trial court erred in fading to have Appellant present for the hearing on his motion for new trial. This point is procedurally barred because Appellant did not fde a timely notice of appeal of this issue.

The record reflects that a judgment and commitment order against Appellant was filed on September 4, 1996, and that Appellant filed his notice of appeal on September 20, 1996. An amended judgment and commitment order was filed on October 2, 1996, of which Appellant filed a second notice of appeal on October 4, 1996. Also on October 4, 1996, Appellant filed a motion for new trial based upon juror misconduct. On February 24, 1997, some 143 days after the motion was made, an order denying the motion was filed. Appellant then filed an additional notice of appeal on February 26, 1997.

Recently, in Harris v. State, 327 Ark. 14, 935 S.W.2d 568 (1997), we held that where a posttrial motion, such as a motion for new trial, is not resolved by the trial court within thirty days from the date of its filing, it is deemed denied pursuant to Ark. R. App. P. — Crim. 2. In that case, the judgment of conviction against Harris was entered on October 5, 1995, and Harris filed a motion for new trial on October 16, 1995, asserting juror misconduct. Fifty-one days after Harris filed his motion, on December 6, 1995, the trial court entered its order denying the motion. Harris filed his notice of appeal on January 2, 1996. We concluded that because Harris’s motion for new trial was filed on October 16, 1995, it was deemed denied thirty days later on November 15, 1995, and that his notice of appeal was thus untimely.

In the present case, Appellant’s motion for new trial was deemed denied as of November 3, 1996. Accordingly, Appellant had thirty days within which to file a notice of appeal from that denial, which expired on December 3, 1996. It is of no benefit to Appellant that the trial court belatedly denied the motion for new trial on February 24, 1997, as the trial court lacked jurisdiction to so rule. Id. Therefore, because Appellant did not file his notice of appeal of the order denying the motion for new trial until February 26, 1997, we dismiss this part of the appeal.

III. Rule 4-3(h)

In accordance with Rule 4-3(h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse ridings objected to by Appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

Glaze and Imber, JJ., concur.

Tom Glaze, Justice,

concurring. I concur in affirming this case, but write to disagree with the majority court’s decision to reach the merits regarding appellant’s motion for directed verdict questioning the sufficiency of the State’s proof on the elements of penetration and deviant sexual conduct. In stating his motion for directed verdict at the end of the State’s case, appellant contended the State had failed to prove rape because the State never showed when and where these events occurred. No mention was made that the State had failed to show the elements of penetration or deviant sexual conduct. It was only after the defense had rested, and at the close of all evidence, that appellant renewed his directed-verdict motion, stating the State had failed to prove the time and place of the rapes and the elements of penetration or deviant sexual conduct.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that the failure of a defendant to move for a directed verdict at the conclusion of the State’s case and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Rule 33.1 further requires the defendant to specify the respect in which the evidence is deficient, and the renewal of a previous motion for a directed verdict at the close of all the evidence preserves the issue of insufficient evidence for appeal.

In Durham v. Stated 320 Ark. 689, 899 S.W.2d 470 (1995), this court made clear that our case law does not militate against the renewal of the same, earlier, specific directed verdict motion at the end of all the proof. However, this court has never intimated that a defendant may omit a reason(s) in defendant’s directed-verdict motion at the end of the State’s case, and later add it when defendant moves for directed verdict at the close of all the evidence. Obviously, if this were the rule, a defendant could simply delay and withhold defendant’s real reasons for directed verdict until after all evidence has been presented.

In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), this court thoroughly discussed and explained the standard for preserving an insufficiency-of-the-evidence argument and set out the practical reasons for requiring that the grounds be specified in a defendant’s directed-verdict motion. One reason is that, in multiple-count cases, it is easy for an element to be overlooked. Another reason given by the Walker court is stated as follows:

The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof.

See also Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).

In the present case, as clearly set forth in the majority opinion, the State’s proof sufficiently proved all elements of the rape counts. However, I am of the view that Rains failed to preserve his argument pertaining to the penetration and deviant sex elements, so I would hold Rains is procedurally barred in arguing those elements in this appeal.

Imber, J., joins this concurrence.


author: Annabelle Clinton Imber, Justice. Tom Glaze, Justice,

text:
    Roger BRADFORD v. STATE of Arkansas
    CR 97-113
    953 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Roger Bradford, appeals his judgment of conviction for delivery of a controlled substance, cocaine, as a habitual offender. He was sentenced to life imprisonment and given a $25,000 fine. For his sole point on appeal, Bradford contends that his right to a speedy trial was violated. We agree and reverse and dismiss.

On March 20, 1992, the Arkansas County Prosecuting Attorney filed an information against Bradford charging him with delivery of a controlled substance, cocaine, as a habitual offender. This charge encompassed a controlled-drug buy conducted in Dewitt on February 28, 1992. The case was styled “CR 92-28” in the Arkansas County Circuit Court, and was initially joined with other charges pending against Bradford on April 14, 1992.

While the record suggests that Bradford’s trial for CR 92-28 was first set for June 10, 1992, what unfolds is a prolonged series of continuances and other delays, almost all caused by the appellant. The trial court granted over fifteen continuances at Bradford’s request. At least seven different attorneys, both retained and appointed, represented Bradford at one point or another. While trial dates approached, Bradford engaged in a recurrent and eventually predictable pattern of attempts to have counsel relieved or fired. During two of several attempts to try Bradford on another charge, he attacked his own counsel. There is also evidence to suggest that Bradford feigned injury by falling down the courthouse stairs in yet another successful attempt at delay. The appellant even escaped from prison on the eve of a trial date.

Ultimately, Bradford was tried and convicted on June 27, 1996, where the jury imposed a life sentence. Bradford now brings the present appeal, arguing that he was denied his right to a speedy trial under Ark. R. Crim. P. 28, and that therefore his conviction should be reversed and dismissed.

For speedy-trial purposes, the time for bringing Bradford to trial began when the information was filed on March 20, 1992. Ark. R. Crim. P. 28.2(a). As it is apparent that Bradford’s trial was held outside of the applicable speedy-trial period found in Ark. R. Crim. P. 28.1, the burden is upon the State to show that the delay was the result of the defendant’s conduct or was otherwise justified. Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996). The period of time between the filing of the information and the commencement of trial is 1,560 days. Thus, by the State’s own calculation, it must exclude 1,195 days. Rule 28.3 provides a number of instances where time is excluded for speedy-trial purposes, including: (1) the period of delay resulting from other proceedings concerning the defendant; (2) the period of delay resulting from a continuance granted at the request of the defendant or his counsel; (3) the period of delay resulting from the absence or unavailability of the defendant; and (4) “[o]ther periods of delay for good cause.”

The calculation of excluded time in this case is made difficult due to the trial court’s failure to maintain a docket sheet or written orders memorializing all of the excluded periods in accordance with Ark. R. Crim. P. 28.3(i). The only docket sheet found in the record is attached as an exhibit to a writ of prohibition filed by Bradford, and the last entry on this docket sheet is dated August 18, 1993.

The trial court should enter written orders or make docket entries at the time a continuance is granted to detail the reason for the continuance, and to specify to a date certain the amount of excluded time. Ark. R. Crim. P. 28.3(c); Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). Adherence to this principle is necessary “[i]n order to provide any impetus behind Rule 28.3 .. . otherwise, there is no need for the rule.” Id. For example, in Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993), the trial court failed to enter a proper continuance indicating the reasons for a trial delay which was not requested by the defendant, resulting in a violation of the appellant’s right to a speedy trial.

This is not to say that written orders or docket entries must always be contemporaneously made in order to exclude time for speedy-trial purposes. Even in Hicks, supra, the court observed that “when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to count as excluded time attributable to the defendant.” (emphasis in original) (citing McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990)). In these situations, the trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. For instance, in Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996), the trial court did make some docket entries attributing a given time period to the appellant for speedy-trial purposes. However, the trial court correctly charged other delays to the defendant without a written order or notation, given that “the record clearly demonstrates that these [delays] were attributable to [the appellant] or were legally justified.” Id. One example of this included a continuance granted at the appellant’s request after he appeared for trial, claiming that the jury panel was tainted because some veniremen had witnessed a disturbance he created in a different case tried weeks earlier. Similarly, in Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993), the appellant filed a pro se motion to dismiss counsel prior to trial, and requested a hearing. The trial court held a hearing where it removed the attorney and appointed new counsel. This pretrial motion caused a delay in the trial, and the Lynch court held that the time period between the original trial date and the date of new counsel’s appointment was properly excluded even without a written order or docket entry. Given that the delay was caused by the appellant and the reasons were contained in the contemporaneous record of the proceedings, the excluded period was “properly memorialized.” Id.; see also Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996) (delay due to sickness of trial counsel); Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978) (continuance granted due to appellant’s attack on counsel).

In short, where the delay is caused by the defendant, this court has demonstrated a willingness to exclude the time when there is at least some contemporaneous record of the proceedings reflecting the delaying act. Bearing this principle in mind, the excludable periods in the present case are as follows:

May 15, 1992, to May 26, 1992 11 days.

The docket-sheet entry for May 15, 1992, shows that an order was entered relieving attorney Kearney. On May 26, 1992, attorney McCullough files a discovery motion on behalf of Bradford. This period, necessitating that Bradford obtain new counsel, is excludable. See Lynch v. State, supra; Foxworth v. State, supra.

The State would also exclude a period of time from May 28, 1992, to July 2, 1992, based primarily upon a chronology of events recited by the prosecutor at a jury trial on July 8, 1993. However, the State’s version is not borne out by the contemporaneous record. The docket entry merely refers to a letter order dated May 29, 1992, resetting the case to July 30, 1992, without attributing the delay to the appellant. Further, since the record contains no copy of the order, we do not have the benefit of the contents of the letter order resetting the trial date. Thus, the contemporaneous record does not demonstrate that this delay in 1992 was attributable to the appellant, and the reasons for delay were not memorialized at the time of the occurrence. See Hicks, supra.

July 1, 1992, to February 24, 1993 238 days.

On July 1, 1992, a docket-sheet entry for case number 92-28 shows that the case was continued at the defendant’s request. In a letter order dated July 2, 1992, Bradford’s trial is reset to November 17-20, 1992, at Bradford’s request. On November 17, Bradford moves to continue, and the trial court issues a letter order dated November 18, 1992, continuing the case to January 28-29, 1993, at Bradford’s request. The trial is later reset at Bradford’s request to February 24, 1993, in a letter order dated January 29, 1993. Given that all of these continuances were granted at Bradford’s request, they are excludable under Rule 28.3(c).

March 4, 1993, to May 20, 1993 — 77 days.

At Bradford’s request, his trial was reset to May 20-21, 1993, in a letter order dated March 4, 1993. This period can be excluded under Ark. R. Crim. P. 28.3(c).

The period of time between February 24, 1993, and March 4, 1993, is the first in a series of small gaps that the State would exclude “because they fall between two continuances at [Bradford’s] request and the record shows nothing to suggest he wanted to go to trial in that. . . gap between his continuances.” However, we axe unable to charge this period of time against Bradford because the record is utterly void of any explanation for the gap.

July 8, 1993, to September 29, 1994 448 days.

Bradford appeared for trial on July 8, 1993, and requested additional time to hire his own attorney. The trial court gave Bradford thirty days, and a letter order dated July 14, 1993, shows that the trial had been reset to September 2, 1993. At a pre-trial hearing on September 1, Bradford states that he is “not prepared to go to trial tomorrow,” and the trial is continued at Bradford’s request. This is followed by a letter order dated September 3, 1993, showing that the trial has been reset to October 7-8, 1993.

On October 6, 1993, Bradford escapes from prison and does not appear for trial on October 7, 1993. Bradford’s trial is continued indefinitely in an order dated October 15, 1993, and the intervening time is charged to him for speedy-trial purposes. In a letter order dated April 21, 1994, Bradford’s trial is reset to July 7, 1994, due to his escape. At a pretrial hearing on July 6, the parties discuss the status of the various pending charges. Bradford requests that a possession charge, CR 92-1, be severed for trial on July 7, and that the other charges be continued. The trial court grants Bradford’s motion to sever and states that the other charges will be “reset as soon as possible.” In a letter order dated August 11, 1994, the case is reset to September 29, 1994.

This time period from July 8, 1993, to October 7, 1993, begins with continuances granted at Bradford’s request, excludable under Rule 28.3(c), and continues with a period of excludable time due to Bradford’s escape. Ark. R. Crim. P. 28.3(e). Once Bradford makes an appearance following his escape on July 6, the case is again continued at Bradford’s request to September 29, 1994. Ark. R. Crim. P. 28.3(c).

October 4, 1994, to November 14, 1994 41 days.

In a letter order dated October 4, 1994, Bradford’s trial is reset at his request to November 1, 1994. On October 12, 1994, the trial court issues a letter order setting the case for November 10, 1994, at Bradford’s request. On November 3, 1994, attorney Pickell was relieved, and on November 14, 1994, attorney Howard filed a motion for discovery on Bradford’s behalf.

The period of time from October 4, 1994, to November 10, 1994, is excludable at Bradford’s request. Ark. R. Crim. P. 28.3(c). The overlapping period between November 3, 1994, and November 14, 1994, can be excluded due to the necessity that Bradford obtain counsel. See Lynch v. State, supra; Foxworth v. State, supra. The record contains no explanation of the gap between September 29, 1994, and October 4, 1994.

November 21, 1994, to December 29, 1994 ■— 38 days.

During this time period, the trial court issued a letter order dated November 21, 1994, resetting the case to December 29, 1994, at Bradford’s request. This is chargeable to Bradford under Ark. R. Crim. P. 28.3(c). Again, it is impossible to glean from the record a reason for the delay from November 14, 1994, to November 21, 1994.

January 4, 1995, to Fberuary 16, 1995— 43 days.

In a letter order dated January 4, 1995, the trial is continued at Bradford’s request to February 16, 1995. Ark. R. Crim. P. 28.3(c). The record contains no explanation for the gap between December 29, 1994, and January 4, 1995.

February 21, 1995, to May 11, 1995 79 days.

In a letter order from the trial court dated February 21, 1995, Bradford’s trial is reset to March 30, 1995, at his request. On March 30, the trial court issued a letter order resetting the case to May 11, 1995, at Bradford’s request. On April 27, 1995, Bradford appears for trial on CR 92-1, where defense counsel Howard explains that he was attacked by Bradford prior to trial. Bradford adds that he is not ready to proceed to trial. The trial court agrees to reset the trial on CR 92-1 to June 22, 1995, and appoints attorney Molock. On June 22, at the trial of CR 92-1, Bradford attacks attorney Molock. Nonetheless, Bradford is convicted. On July 31, 1995, attorney Etoch is appointed to represent Bradford.

Here, the case is continued until May 11 at Bradford’s request. Ark. R. Crim. P. 28.3(c). The State would also exclude a period of time at least from June 22 and extending to July 31, 1995, when attorney Etoch is appointed. However, we are unable to do so because there is no record of an order or hearing where the status of attorney Molock is taken up. Although Molock was attacked during his representation of Bradford at the June 22 trial of CR 92-1, the trial court nonetheless reiterated that attorney Molock would continue to represent Bradford after the trial. There is no subsequent record of whether Molock was relieved at any time before the appointment of attorney Etoch. Without such a record relieving Molock we are left to speculate as to whether there was any period of time during which Bradford was without counsel, thereby necessitating the appointment of new counsel. The gap between February 16, 1995, to February 21, 1995, is once again left unexplained by the record.

June 22, 1995 1 day.

On this day, Bradford was tried and convicted in CR 92-1. This is excludable under Rule 28.3(a).

February 14, 1996, to June 27, 1996— 134 days.

On February 14, 1996, a pretrial hearing was held where the trial court continues the case and charges it to Bradford. In a letter order dated February 15, 1996, the trial court continues the case to June 27, 1996, at Bradford’s request. This time can be excluded under Rule 28.3(c).

In sum, only 1,110 days are excludable under Rule 28.3. Therefore, the State has failed to meet its burden to show that the delay was the result of the defendant’s conduct or was otherwise justified. Accordingly, we are left with no choice but to reverse and dismiss.

Reversed and dismissed.

Arnold, C.J., and Glaze, J., concur.

Tom Glaze, Justice,

concurring. Appellant Roger Bradford is a habitual offender who fought against having a trial, especially a speedy one. He requested and was granted fifteen continuances. He feigned injury to avoid a trial and even escaped from incarceration on the eve of trial to avoid one. He had trouble with seven different attorneys who were retained or appointed to represent him, and he physically attacked one. To say the least, Bradford was uncooperative to those assigned to represent and defend him.

Notwithstanding Bradford’s obvious reluctance to go to trial, this court, relying on its own Speedy Trial Rule 28, Arkansas Rules of Criminal Procedure, dismisses Bradford’s conviction and charges because certain periods of delay had not been specifically documented by the trial judge as ones attributable to Bradford. Whether or not the trial judge failed in documenting the record in this case misses the real issue. Here, Bradford never desired nor requested a speedy trial, and the record reflects ever so clearly his efforts to avoid a trial.

Other justices and I have noted in the past that the United States Constitution does not require the rigid approach taken by this court’s Rule 28. See Weaver v. State, 313 Ark. 55, 852 S.W.2d 130 (1993) (Hays and Glaze, JJ., dissenting); Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991) (Hays, Glaze, and Corbin, JJ., dissenting); Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989) (Hickman, Hays, and Glaze, JJ., dissenting). The foregoing dissenting justices consistently cited Barker v. Wingo, 407 U.S. 514 (1972), and stated their beliefs that when determining a defendant’s speedy-trial rights, this court should adhere to the constitutional principles set out by the Supreme Court rather than follow those directives contained in Rule 28. In Barker, the Supreme Court set out the following four factors to be considered in determining if a defendant had been denied his or her right to a speedy trial: (1) length of delay, (2) the reason for delay, (3) the assertion of his right, and (4) prejudice to the defendant. See also Doggett v. United States, 505 U.S. 647 (1992). As gleaned from Barker, it is clear that to be entitled to dismissal of a criminal charge, a defendant is required to assert his or her right to a speedy trial after the defendant has been duly charged with a crime. Cf. Doggett v. United States, 505 U.S. 647 (1992) (where court held the defendant was denied a speedy trial when, unknown to him, he had been indicted, and more than eight years later he was arrested); see also State v. Tipton, 300 Ark. 211, 779 S.W.2d 138 (1989) (where court found defendant knew of his charges, but held he was denied a speedy trial after he announced ready to go forward with the trial, but was denied the right to proceed).

As discussed by Justice Hickman in his dissent in Asher, he criticized this court’s speedy-trial rule because it ignores the factors in Barker concerning whether the defendant has asserted his right or whether he suffered prejudice due to a delay. He submitted that, in promulgating this court’s speedy-trial rule, the court had overstepped its constitutional authority and adopted a substantive rather than a procedural rule. Hickman noted that, in the federal realm, Congress, rather than the judiciary, had established the law involving speedy trials. That federal law is codified in 18 U.S.C. §§ 3161-3174 (1994), and while § 3161 of that law sets out time limits and exclusions, § 3162 ameliorates any harshness in dismissing charges by giving the trial court discretion whether to dismiss with or without prejudice. In exercising that discretion, the trial court must consider, among other factors, (1) the seriousness of the crime, (2) the facts and circumstances of the case which led to the dismissal, and (3) the impact of a reprosecution on the administration of justice.

Finally, I mention other jurisdictions with laws or rules that make more sense than Rule 28. For example, the Missouri legislature enacted Mo. Ann. Stat. § 545.780 (Vernon 1986) which provides that, if the defendant announces that he is ready for trial and files for a speedy trial, the court then shall set the case for trial as soon as reasonably possible. This speedy-trial request is enforceable by mandamus, but failure to comply with the speedy-trial provision is not grounds for dismissal unless the court also finds the defendant has been denied his constitutional right to a speedy trial.

Wyoming is another example of a simple speedy-trial provision that implements the factors in Barker. See Rule 48 of the Wyoming Rules of Criminal Procedure. Rule 48 requires a trial within 120 days following arraignment and sets out certain excludable periods. But it also provides that a dismissal for lack of a speedy trial shall not bar the state from again prosecuting the defendant for the same offense unless the defendant made a written demand for a speedy trial or can demonstrate prejudice from any delay. For another example of a provision that better follows the balancing test in Barker than Arkansas’s rule, see North Carolina Criminal Procedure Act, N.C. Gen. Stat. § § 15A-702-704 (1993).

In sum, the present case illustrates how this court’s speedy-trial rule can be manipulated by a defendant who simply wants to avoid prosecution. It is time this court rectifies Rule 28’s weaknesses and its failure to meet the real constitutional objectives which are designed to protect those defendants who actually seek and are entitled to a prompt trial.

While I continue to strongly disagree with this court’s speedy-trial rule, that rule remains Arkansas law concerning a defendant’s speedy-trial rights. The majority court’s analysis and result is in compliance with Rule 28’s dictates, thus, I reluctantly join in the court’s holding. Flowever, I hope the court will revisit Rule 28 and make appropriate changes so the court can avoid needless dismissals of serious charges in the future; especially those dismissals of charges against defendants who are as undeserving as Bradford has shown to be in this case.

Arnold, C.J., joins this concurrence.

       Meanwhile, the State attempted to try Bradford on CR 92-1 on July 7, 12, and 21, 1994. However, all of these trial dates were continued at Bradford’s request.

       This court affirmed his conviction in Bradford v. State, 328 Ark. 701, 947 S.W.2d 1 (1997).


author: Ray Thornton, Justice.

text:
    Stephanie DORITY v. STATE of Arkansas
    CR 97-66
    951 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      John H. Bradley, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

This appeal raises the question whether Ark. R. Crim. P. 28.1, which requires that a defendant be tried within twelve months from the time she is charged with an offense in circuit court, applies to a revocation of probation. The trial court found that the rule does not apply because, in a probation revocation hearing, the defendant is not charged with an offense, but is alleged to have violated the terms of a previously imposed sentence on an offense. This is a question of first impression for this court. The reasoning of the trial court is sound, and we affirm.

A felony information was filed against Stephanie Dority, appellant, on May 9, 1993, charging her with second-degree battery, disorderly conduct, and refusal to submit to arrest. She pleaded guilty to the battery charge, and the other charges were dismissed. On November 9, 1993, the trial court entered an order of probation, which required her, among other things, to report as directed to her parole officer, promptly notify the sheriff and probation officer of any change of address, pay $15.00 per month probation fee, and pay installments of $25.00 per month on a $155.00 fine.

Two petitions for revocation were filed; one on March 14, 1994, and one on February 15, 1995. The first petition stated that appellant had failed to pay $155.95 on her fine, costs, and restitution. The second one stated that she had failed to notify her probation officer and sheriff of any change of address or employment, failed to cooperate with the probation officer “and/or” report as directed, failed to pay probation fees, and failed to pay fines and court costs.

A revocation hearing was held on June 24, 1996. Appellant argued that her right to a speedy trial had been violated because the hearing was held more than one year after the petition to revoke probation had been filed. The court agreed that more than one year had passed and that the extra time periods were not excludable. However, it ruled that appellant had no right to a hearing within a year under the provisions of Ark. R. Crim. P. 28.1 because the constitutional right to a speedy trial does not apply to revocation hearings, and proceeded to hear testimony.

Appellant’s probation officer testified that appellant’s records indicated that she had only reported once in fifteen months. She did not meet with an officer in person, but slid a note under his door. He stated that he had attempted to locate her, but she had moved. Appellant did not report any changes of address, and the officer filed a report on February 14, 1995, listing her as a absconder because he could not locate her.

Appellant testified that she hadn’t paid her fees because she only receives $162.00 per month through Aid for Families with Dependent Children. She said that she had not reported to the probation officer because she had “caught” a drug charge and had assumed that she was not supposed to report after that. She said that she had moved three times since she had been put on probation. She admitted that she had not notified the officer of any changes of address. She said that she had been “hiding out” from police since she “caught” the drug charge.

The court found that appellant had inexcusably violated her probation and sentenced her to four years’ imprisonment. Appellant argues on appeal that the trial court erred in determining that the constitutional right to a speedy trial does not apply to a revocation proceeding, and she contends that its finding that she inexcusably violated her probation is not supported by the preponderance of the evidence.

As we consider appellant’s speedy-trial argument, we recognize that the constitutional right to a speedy trial, as embodied in Ark. R. Crim. P. 28.1, is available to an accused in a stage of criminal prosecution. The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. Const, amend. VI. However, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the United States Supreme Court held that a probation revocation hearing is not a stage of criminal prosecution. As we pointed out when considering another issue in Padilla v. State, 279 Ark. 100, 648 S.W.2d 797 (1983), in a probation revocation hearing, a trial has already been held, and the defendant convicted. While a hearing must be held within a reasonable time, there is no absolute right, as in criminal prosecutions, to be heard within twelve months. What constitutes a reasonable time must be determined upon the facts of the particular case. See Moody v. Daggett, 429 U.S. 78 (1976); United States v. Jackson, 590 F.2d 121 (1979); Fed. R. Crim. Pro. 32.1. Appellant does not allege that her hearing did not take place within a reasonable time, but that her right to a speedy trial was violated because her hearing did not take place within a year of her revocation petition. We hold that appellant had no right to avail herself of the provisions of Ark. R. Crim. P. 28.1, which require a trial within twelve months, because her probation revocation hearing was not a criminal prosecution.

Having determined that the constitutional right to speedy trial does not apply to probation revocations, we turn to appellant’s second argument that the trial court erred in determining that she inexcusably violated the terms of her probation. Under Ark. Code Ann. § 5-4-309 (Repl. 1993), a court may revoke a defendant’s probation if it finds by a preponderance of the evidence that she inexcusably violated the conditions of her probation. Id. § 5-4-309(d). We review a trial court’s decision to revoke probation in the light most favorable to the State, and will affirm if the decision is supported by a preponderance of the evidence. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

Here, appellant admitted that she did not notify the probation officer of her change of address and that she purposely failed to report because she was “hiding out” from police after she “caught” a drug charge. The trial court’s finding that these violations were inexcusable is not clearly against the preponderance of the evidence.

We affirm.


author: Per Curiam.

text:
    Colandra S. COVIN v. STATE of Arkansas
    CR 97-1035
    950 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      James R. Marschewski, for appellant.
    No response.
   Per Curiam.

The appellant’s attorney, James R. Marschewski, has filed a motion for rule on the clerk. The attorney, James R. Marschewski, admits that the transcript was untimely filed due to negligence on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Thomas E. MORRIS v. STATE of Arkansas
    CR 97-1003
    950 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Alvin D. Clay, for appellant.
    No response.
   Per Curiam.

The appellant’s attorney, Alvin D. Clay, has filed a motion styled, “Motion for a Rule on the Clerk.” The attorney, Alvin D. Clay, admits that the notice of appeal was untimely filed due to negligence on his part.

We find that such an error admittedly made by the attorney for a criminal defendant, is good cause to treat this motion as one for belated appeal and grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Excel WARREN v. STATE of Arkansas
    CR 97-166
    950 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Zimmery Crutcher, for appellant.
    No response.
   Per Curiam.

On May 5, 1997, we issued an order to counsel, Zimmery Crutcher, to show cause why he should not be held in contempt for failing to perfect the appeal in this case. Mr. Crutcher denied responsibility, so a master was appointed to hold a hearing and to report his findings of fact. That hearing has been conducted and the master’s report was filed on July 3, 1997. Mr. Crutcher filed his objections to the master’s report on July 17, 1997.

From the master’s report, Mr. Crutcher’s objections, and the record tendered herein, we conclude the appellant was convicted on July 3, 1996, and appellant appealed from that conviction on July 18, 1996, even though the conviction judgment had not, as yet, been filed. The delay in filing the judgment was likely caused because a probation hearing for appellant was scheduled for September 16, 1996, but on the September 16 date, Mr. Crutcher informed the trial court he had appealed appellant’s case. Appellant’s conviction judgment was actually dated December 12, 1996, and not filed until December 18, 1996. Mr. Crutcher failed to file his notice of appeal after the December 18 date, and when he tendered the transcript on January 13, 1997, and again on January 22, 1997, the transcript reflected no timely notice of appeal having been filed from the judgment entered on December 18, 1996. For this reason, Mr. Crutcher’s February 13, 1997 motion for rule on the clerk was denied.

It was Mr. Crutcher’s responsibility to file a timely appeal on appellant’s behalf, and we find Mr. Crutcher has failed to do so. We now direct the clerk to accept the transcript herein and to establish a briefing schedule. Because Mr. Crutcher has failed his responsibility in this cause, a copy of this per curiam will be forwarded to the Professional Conduct Committee. Since Mr. Crutcher’s conduct does not show repeated failures or refusals to file a record or briefs in this appeal, we hold his conduct warrants no finding of contempt.

       The transcript tendered on January 10, 1997 was supplemented on January 22, 1997, with the December 12, 1996 judgment containing the December 18, 1996 file mark. This conviction judgment was introduced at Mr. Crutcher’s hearing and made a part of the master’s report.