author: RAY THORNTON, Justice. Annabelle Clinton Imber, Justice,

text:
    CENTRAL & SOUTHERN COMPANIES, INC. v. Richard A. WEISS, Director of Finance & Administration
    98-407
    3 S.W.3d 294
    Supreme Court of Arkansas
    Opinion delivered October 28, 1999

      Rose Law Firm, A Professional Association, by: Ronald M. Clark and Michael N. Shannon, for appellant.

      Malcolm P. Bobo, for appellee.
   RAY THORNTON, Justice.

The court of appeals certified stice. involves substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly, and because it is a matter of first impression. The issue is whether the deduction for charitable contributions should be applied against the consolidated income of the affiliated companies in a consolidated tax return, or whether each separate affiliated corporation should take such deductions separately prior to consolidation as contended by Appellee, the Department of Finance and Administration (the Department).

Appellant, Central and Southern Companies, Inc., the parent corporation of ten affiliated companies, filed a consolidated state tax return applying deductions after consolidation. Based upon the Department’s interpretation of Ark. Code Ann. § 26-51-805 (Repl. 1997), and because four of appellant’s ten affiliated companies did not have net taxable income in one or more of the taxable years, some charitable contributions which were allowed in the federal return were not allowed on the Arkansas return. This resulted in an assessment of $60,234.22 for the tax years 1991, 1992, and 1994. Appellant paid this assessment under protest and challenged the assessment in chancery court.

Motions for summary judgment were filed in chancery court by appellant and the Department. Both parties agreed that there were no issues of material fact in controversy. The only issue for the chancellor to determine was whether the deduction for charitable contributions for Arkansas corporations filing consolidated returns is allowed at the consolidated entity level, as provided by federal rules, or computed at the individual corporation level and then aggregated, as urged by the Department. The chancellor granted the Department’s motion for summary judgment and dismissed appellant’s complaint, finding that “the state statute mandates a consolidation of net incomes or losses of the group members, while the federal code consolidates the gross taxable income of the group members and then applies consolidated deductions.” It is from this finding that appellant appeals. We hold that the statutory provisions are ambiguous and that the legislative intent was to adopt the concept of filing federal consolidated returns. Accordingly, we reverse and remand.

In its point on appeal, appellant argues that the chancellor’s finding, that Ark. Code Ann. § 26-51-805 requires that charitable contributions must be deducted at the individual level by thé separate corporations before a consolidated tax return is filed, is erroneous based on the pertinent statutory scheme. Specifically, appellant argues that the language in Ark. Code Ann. § 26-51-805(g) indicates that the statute should be interpreted in light of the federal income-tax rules, and that based on the federal concepts for filing federal consolidated income-tax returns, deductions for charitable contributions are taken at the consolidated level. Appellant bases this contention on the following language:

(g) This section is specifically designed to clarify the filing of consolidated corporate income tax returns with the Revenue Division of the Department of Finance and Administration and is to amend the Arkansas Income Tax Act, § 26-51-101 et seq. This section is based upon the concept of filing federal consohdated income tax returns.

Ark. Code Ann. § 26-51-805(g).

However, the Department contends that the language of subsection (f) of Ark. Code Ann. § 26-51-805, which provides for a computation of net income or loss before allocating income to Arkansas, requires that the deductions for charitable contributions must be taken before consolidation. That statute states:

(f) In computing Arkansas consolidated taxable income or loss to which the tax rate is applied, the separate net income or loss of each corporation which is entitled to be included in the affiliated group shall be included in the consolidated net income or loss to the extent that its net income or loss is separately apportioned or allocated to the State of Arkansas in accordance with the provisions of § 26-51-701 etseq.

Ark. Code Ann. § 26-51-805(f).

In addressing the issue on appeal, we must interpret Ark. Code Ann. § 26-51-805. When no factual findings are at issue, we review issues of statutory construction de novo; it is for this court to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). We are not bound by the decision of the trial court; however, in the absence of a showing that the' trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal.

Id.

As a guide for our review, we look to the rules of statutory construction. The basic rule of statutory construction is to give effect to the intent of the legislature. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id.

The first question we must address is whether the Arkansas statutory scheme is ambiguous. We have determined that a statute is ambiguous where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997).

It appears that the provisions of subsections (f) and (g) are inconsistent. Subsection (g) states that the statute “is based upon the concept of filing federal consolidated income tax returns.” The federal system for filing consolidated income-tax returns provides that deductions for charitable contributions are to be taken at the consobdated level. The federal government has oudined the proper procedure for affliated groups to fobow when calculating taxable income at the consobdated level. The Treasury Regulations in relevant part state:

(a) the consolidated taxable income for a consobdated return year shall be determined by taking into account:
(1) The separate taxable income of each member of the group;
(2) Any consobdated net operating loss deduction;
(3) Any consolidated charitable contributions deduction.

26 CFR § 1.1502-11 (a) (1999)(emphasis added). Relying upon subsection (g) and applying the federal concept to the Arkansas statute, one interpretation of the statute would be that the deductions for charitable contributions are to be calculated at the consobdated level and not at the individual level.

However, the Department strongly contends that the language of the federal rules uses the phrase “taxable income” and argues that this differs from the language of subsection (f) which uses the phrase “separate net income.” The use of these different phrases is offered as the justification for imposing a different rule for computation of Arkansas taxes, than that used in computation of federal taxes. The distinction in meaning between “net income” and “taxable income,” upon which the Department rebes, is not made clear in the Arkansas statutes. “Net income” is defined as “the adjusted gross income of a taxpayer less deductions abowed by this act.” Ark. Code Ann. §26-51-403(a) (Repl. 1997). This statute does not resolve the question as to what deductions are to be abowed, or whether the “taxpayer” is the corporation that files a consobdated return, or each affliated company that joins in the consobdated return.

In both the state and federal returns, as filed by appebant, the incomes of the affihated companies were consobdated before deductions such as net operating losses and the deduction for charitable contributions were taken. Deductions for charitable contributions are correctly taken from consobdated taxable income for the purpose of federal returns. As to what deductions are to be allowed under the Arkansas statutes, we have not been referred to any definition of “deductions for charitable contributions” except for Ark. Code Ann. § 26-51-419 (Repl. 1997), which reads as follows:

Section 170 of the Internal Revenue Code of 1986, as in effect on January 1, 1997, regarding deductions for charitable contributions, is hereby adopted for the purpose of computing Arkansas income tax liability. ....

Ark. Code Ann. § 26-51-419.

Looking to other provisions of the Arkansas Code is useful in our analysis. With regard to “net operating losses,” the General Assembly has provided in Ark. Code Ann. § 26-51-427 (Repl. 1997) that:

(D) As used in this section, the term “taxable income or net income” shall be deemed to be the net income computed without benefit of the deductions for income taxes, personal exemptions, and credit for dependents.

Ark. Code Ann. § 26-51-427 (emphasis added). While this statute does not specifically address charitable contributions, we note that the General Assembly has not clarified the differences, if any, between the phrases “taxable income” and “net income.” Because the meaning of the phrases is uncertain, we conclude that the statute is open to two or more constructions, or is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. We therefore hold that Ark. Code Ann. § 26-51-805 is ambiguous.

When a statute is ambiguous, we must interpret it according to the legislative intent. ACW, Inc., supra. Our review becomes an examination of the whole act. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. We also look to the legislative history, the language, and the subject matter involved. The manner in which a statute has been interpreted by executive and administrative officers may also be considered, and will not be disregarded unless clearly wrong. Id. We must also remain mindful of a final rule of statutory construction ;in the area of taxation cases. Specifically, when we are deciding any issue involving the levying of taxes any and all doubts and ambiguities must be resolved in favor of the taxpayer. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994); Leathers v. A & B Dirt Movers, Inc. 311 Ark. 320, 844 S.W.2d 314 (1992); Dunhill Pharmacies, Inc. v. State, 295 Ark. 483, 749 S.W.2d 660 (1988).

In our determination of legislative intent, we examine the whole act. At the outset we note that section one of Act 708 of 1979, codified as Ark. Code Ann. § 26-51-805, allowing corporations to file consolidated income-tax returns, reads as follows:

SECTION 1. PURPOSE OF THE ACT. This act is specifically designed to clarify the filing of consolidated corporate income tax returns with the Division of Revenue of the Department of Finance and Administration and is used to amend Act 118 of 1929, as amended. This Act is based upon the concept of filing Federal consolidated income tax returns.

Act 708 of 1979 (emphasis added). We note that this enactment was a clear expression of the legislative intent, or purpose of the entire act, and that its later compilation as subsection (g) does not detract from that expression of legislative intent. Moreover, requiring federal returns to be attached to state returns is a further indication of legislative intent to conform state returns to the requirements of federal concepts. We also note that Arkansas Code Annotated § 26-51-401 (Repl. 1997), provides in part that “a taxpayer must calculate his Arkansas income tax liability using the same accounting method for Arkansas income tax purposes as used for federal income tax purposes.” We conclude that an examination of the whole act so as to make its provisions consistent, harmonious, and sensible supports an interpretation that the legislative intent is for concepts of federal taxation to apply to Arkansas taxes unless a different treatment is prescribed by Arkansas law.

Our review next turns to a consideration of how the statute has been interpreted by executive and administrative officers. We note that the Department has applied an interpretation of Ark. Code Ann. § 26-51-805 that is consistent with the (federal rules with regard to consolidated net operating losses. Specifically, the Department has adopted a regulation that reads as follows:

1. There shall be allowed as a deduction from gross income on a consolidated return of an affiliated group, a consolidated net operating loss carryover under the following rules:
***
(C) The Consolidated Net Operating loss shall include the separate net income or loss of each member corporation separately apportioned or allocated to Arkansas and shall be subject to net operating loss adjustments provided in Section 13 of Act 118 of 1929 as amended. Net operating loss deductions shall not be taken into account in computing separate net income or loss.

DFA Reg. 1980-1 (1980)(emphasis added). This method of determining the net operating loss used by the state is identical to the method used in the federal system. Treasury Regulation 1.1502-12 states:

The separate taxable income of a member is computed in accordance with the provisions of the Code covering the determination of taxable income of separate corporations, subject to the following modifications:
(h) no net operating loss deductions shall be taken into account;
***
(1) no deductions under section 170 with respect to charitable contributions shall be taken into account.

26 CFR § 1.1502-12 (1999). While the state regulation is consistent with the federal regulation for net operating losses, the Department disregards the federal regulation as it applies to deductions for charitable contributions. The Department’s application of Ark. Code Ann. § 26-51-805 leads us to the conclusion that it has interpreted the statutory language to require the taxpayer to look to the federal concepts in the area of filing Arkansas consolidated tax returns for some but not all deductions.

Under the federal statutes, both deductions for charitable contributions and those for net operating losses are to be taken at the consolidated level. The statutory provision relied upon by the Department to justify a different treatment for charitable contributions is ambiguous, and in the absence of a clear distinction between these deductions, the same rules should be applied to deductions for charitable contributions as are applied to net operating losses. While the interpretations by the Department are internally inconsistent, it is clear that the Department has adopted the federal concept with regard to allowing net operating losses as deductions from the consolidated return.

The intent to impose a tax must be clearly expressed, and when the taxing statute is ambiguous the statute must be given that interpretation most favorable to the appellant taxpayer. See Leathers v. Active Realty, Inc., 317 Ark. 214, 876 S.W.2d 583 (1994).

Based upon all of these considerations, we conclude that the legislative intent is to follow the federal concept of allowing deductions for charitable contributions to be taken at the consolidated-entity level. Accordingly, the finding of the chancellor is reversed, and the matter is remanded for disposition in accordance with this decision.

Reversed and remanded.

Brown, J., not participating.

Special Associate Justice JAY SHELL joins.

IMBER, J., dissents.

Annabelle Clinton Imber, Justice,

dissenting. I cannot agree ice, majority’s holding that the language in subsections (f) and (g) of Ark. Code Ann. § 86-51-805 is ambiguous.

A cardinal principle of statutory construction is that we look first at the plain language of the statute and give the words their plain and ordinary meaning. See ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). Section 26-51-805 (f) simply states that the “separate net income” of each corporation in the affiliated group is to be included in the “consolidated net income” when computing the “consolidated taxable income” of the affiliated group of corporations. Therefore, the key question is whether the term “separate net income” refers to income after deductions or income before deductions. If that term refers to income after deductions, the deductions must be made prior to consolidation. The term “net income” has been defined previously by this court in Morley v. Remmel, 215 Ark. 434, 221 S.W.2d 51 (1949), as “the gross income of a taxpayer, less the deductions and exemptions allowed by law.” More significantly, the General Assembly has defined “net income” as “the adjusted gross income of a taxpayer less the deductions allowed by this act.” Ark. Code Ann. § 26-51-403(a) (Repl. 1997). Based upon these definitions and the plain language of the statute, it is quite clear that deductions are to be made separately from each corporation’s income before the incomes of the several affiliated corporations are consolidated and taxed. The meaning of the term “separate net income” is, thus, not ambiguous. It has been clearly defined by the legislature, and we should adhere to that manifestation of legislative intent. After all, the goal of statutory construction is to give effect to the intent of the legislature. ERC Contr. Yard & Sales v. Robertson, supra.

Nonetheless, the majority suggests that the definition of “net income” at Ark. Code Ann. § 26-51-403(a) “does not resolve the question as to what deductions are to be allowed, or whether the ‘taxpayer’ is the corporation that files a consolidated return, or each affiliated company that joins in the consolidated return.” Again, the majority ignores the plain language of the statute. “Net income” refers to income after all deductions allowed by law. Under section 26-51-805(f), it is the “separate net income” of each corporation in the affiliated group that is included in the “consolidated net income” of the affiliated group filing a consolidated tax return. The plain language in section 26-51-805(f) could not be clearer. There is simply no ambiguity.

The majority then posits that Ark. Code Ann. § 26-51-805(f) and Ark. Code Ann. § 26-51-805(g), which states that “[t]his section is based upon the concept of fifing federal consolidated income tax returns,” appear to be inconsistent. According to the majority, section 26-51-805(g) requires that charitable contribution deductions for a corporation filing an Arkansas consolidated income tax return be calculated in the same way that the Internal Revenue Service calculates such deductions, which is at the consolidated level. However, the legislature did not expressly adopt the pertinent provisions of the federal tax code as it has done in other tax statutes. See, e.g., Ark. Code Ann. § 26-51-419 (stating: “Section 170 of the Internal Revenue Code of 1986, as in effect on January 1, 1999, regarding deductions of charitable contributions, is hereby adopted for the purpose of computing Arkansas income tax liability.”) (Emphasis added); Ark. Code Ann. § 26-51-404 (b)(l)-(3), (11)—(21), (24) (stating that various provisions of the Internal Revenue Code of 1986 are either “adopted” or “hereby adopted”). If the legislature had intended to adopt the federal method of calculation in this situation it would have done so by expressly adopting specific provisions of the federal tax code.

As the majority points out, it is a rule of statutory construction that statutes should be construed so that meaning and effect are given to every word in the statute if possible. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). Therefore, the last sentence of Ark. Code Ann. § 26-51-805(g) must construed so as to give it meaning and effect. As previously stated, that sentence does not manifest an express adoption of a federal tax code provision. Rather, it says that section 26-51-805 is “based upon the concept of filing federal consolidated income tax returns.” The concept of filing federal consolidated returns is not limited to the ability of taxpayers to take deductions after the incomes of various affiliated corporations are consolidated. In fact, one of the primary advantages of filing a federal consolidated income tax return is the ability to use the losses of one or more members of the affiliated group to reduce the taxable income of other group members. 14A Fletcher Cyclopedia of the Law of Private Corporations, Taxation § 6970.187 (1991). That advantage remains, regardless of how or when deductions are calculated. “The privilege of making a [federal] consolidated return does not have anything to do with specific items of income or deduction, but only with the form of the return and the grouping of gains and losses.” 47B C.J.S. Internal Revenue § 1049 (1999). Consequendy, Ark. Code Ann. § 26-51-805 is still “based on the concept of filing federal consolidated income tax returns,” even though the legislature did not expressly adopt the federal method of calculating deductions.

Finally, the majority suggests that because the Department calculates net operating losses at the consolidated level, consistent with the federal method of calculation, “the same rules should be applied to deductions for charitable contributions as are applied to net operating losses.” I have only one response to that assertion. The Department’s treatment of net operating losses is not at issue in this case. The resolution of that issue remains for another day.

The trial court properly ruled that Ark. Code Ann. § 26-51-805 mandates that corporations filing Arkansas consolidated income tax returns must compute their charitable contribution deductions at the individual corporation level before the affiliated corporations consolidate their income. In order to reverse that ruling, the majority completely ignores the plain language of the statute, especially the words “separate net income or loss of each corporation which is entided to be included in the affiliated group.” Ark. Code Ann. § 26-51-805(f). The majority also attempts to create an inconsistency or ambiguity where none exists. Finally, the majority interprets the phrase “based upon the concept” to mean “adopt” in order to superimpose federal law in a wholesale manner onto the income tax laws of the State of Arkansas.

For these reasons, I respectfully dissent.

       Under applicable federal rules, the deduction for charitable contributions is limited to ten percent of the consolidated income. Arkansas has specifically adopted the federal limitation of ten percent as set out in section 170 of the Internal Revenue Code.

       “[Tjhis act” in Ark. Code Ann. § 26-51-403(a) refers to the Arkansas Income Tax Act, codified at Ark. Code. Ann. §§ 26-51-101 — 26-51-1903 (Repl. 1997 and Supp. 1999).

       Deductions for charitable contributions are allowed by Ark. Code Ann. § 26-51-419 (Repl. 1997).

       The filing of a federal consolidated tax return on behalf of affiliated corporations does not make the group the taxpayer; the individual corporations remain the taxpayer. Helvering v. Morgan’s, Inc., 293 U.S. 121 (1935).

       It should be noted that, in addition to net operating loss deductions and deductions for charitable contributions, Treasury Regulation 1.1502-12 contains a laundry list of modifications to the separate taxable income of each member of the group. 26 C.F.R. § 1.1502.12 (a)-(r) (1999). Likewise, consolidated taxable income is determined by taking into account not only those items noted by the majority (the separate taxable income of each member of the group; any consolidated net operating loss deduction; and any consolidated charitable contributions deduction), but also several other deductions. 26 C.F.R. § 1.1502-11 (a)(l)-(8) (1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tulsi K. BHARODIA and Amratben T. Patel v. Norman and Linda PLEDGER
    99-681
    2 S.W.3d 783
    Supreme Court of Arkansas
    Opinion delivered October 28, 1999
    No response.

      Morgan Welch & Associates, by: Lloyd W Kitchens, for appellees.
   PER CURIAM.

Appellees, Norman and Linda Pledger, by AM. attorney, Lloyd W. Kitchens, have submitted a motion to strike appellants’ supplemental brief in the instant appeal. Alternatively, appellees have requested an extension of time to reply to the brief. Appellees’ objections to the brief arise from appellants failure to comply with the requirements of Ark. Sup. Ct. Rules 2-4(f) and 4-1 (1999). Rule 2-4(f) provides that supplemental briefs must not exceed ten pages in length and must also comply with Rule 4-1. Notably, Rule 4-l(a) requires that “[f]ootnote lines, except quotations, shall be double-spaced.” Additionally, the Rule provides the following caution, “Use of footnotes is not encouraged, and should be used sparingly.”

The supplemental brief at issue is ten pages in length but contains twenty-eight single-spaced footnotes, one of which exceeds two full pages of text. Our appellate-court rules are intended to expedite our consideration of the matters before us. Significantly, our prompt and orderly disposition of cases depends, in part, upon those standards that control the length, form, and content of the appeal briefs. See, e.g,, Green v. State, 277 Ark. 129, 130, 639 S.W.2d 512, 513 (1982). Here, stricter compliance with Rule 4-1 would result in a more efficient use of appellants’ counsel’s time and energy, as well as that of this court. See Kirk v. State, 270 Ark. 983, 986, 606 S.W.2d 755, 756 (1980).

Although we deny appellees’ motion to strike the supplemental brief, we refuse to accept the brief in its present form. Accordingly, appellants are directed to resubmit to the Supreme Court Clerk their supplemental brief, in conformity with the requirements of Rule 2-4(f) and Rule 4-1, within twenty days of the date of this opinion. Appellees’ responsive supplemental brief will be due within ten days of the date appellants’ supplemental brief is filed.


author: TOM Glaze, Justice. comes to us on a Annabelle Clinton Imber, Jnot reverse the Commission’s

text:
    Ernest MEISTER v. SAFETY KLEEN
    99-318
    3 S.W.3d 320
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      Michael J. Sherman, for appellant.

      Huckabay, Munson, Rowlett & Tilley, PA., by: Carol Lockard Worley and Julia L. Busjield, for appellee.
   TOM Glaze, Justice. comes to us on a

This workers’ compensation case comes to us on a petition for review after the Commission, by a 2-1 vote, denied appellant Ernest Meister’s claim, and the court of appeals, in a 3-3 decision, affirmed the Commission’s holding. Meister v. Safety Kleen, 65 Ark. App. 259, 987 S.W.2d 749 (1999). The undisputed facts reflect Meister was driving a truck for appellee Safety Kleen, an oil recovery service company. When he climbed on the back of the truck to remove spilled oil, Meister slipped and fell five to six feet onto concrete, landing on his back and right hip. Meister was immediately taken to the Mediquik Clinic, where he was diagnosed and treated for contusion of the lumbar spine and a lumbar myofascial strain. Meister was later sent to a number of medical specialists who conducted various tests.

Although Safety Kleen initially accepted Meister’s injury as compensable, it subsequently controverted his claim, submitting Meister had failed to establish a compensable injury by objective medical evidence as required under Ark. Code Ann. § 11-9-102(16)(A)(i) and (ii) (Supp. 1999). The administrative law judge held a hearing on Meister’s claim and found Meister had established that his back problems were compensable, and he was entitled to temporary total disability benefits. However, in view of the extensive medical treatment by specialists, the judge found that Meister’s condition had improved to the extent possible, and no cause was shown for Meister’s continuing problems other than degenerative changes.

The Commission reversed the administrative law judge’s decision to award temporary benefits. In so holding, the Commission stated as follows:

Although claimant was diagnosed with a contusion of the lumbar spine, there are no objective medical findings such as hematomas, bruises, scratches, scrapes, etc., noted in the medical records to substantiate and corroborate this diagnosis. We are not persuaded that a diagnosis of contusion to an internal body part, without objective medical evidence supporting the diagnosis, satisfies the objective medical requirement. Consequently, affording the statute the strict construction which we are mandated to do, we cannot find that [Meister] has proven the compensability of his alleged injury by objective medical evidence. (Emphasis added.)

It is well settled that, upon a petition for review, we consider the case as though it were originally filed in this court; in an appeal of a workers’ compensation case from the court of appeals to this court, we view the evidence in a fight most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Substantial evidence exists if reasonable minds could reach the same conclusion, and we will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Id. Finally, the issue on review is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.

Safety Kleen’s argument on appeal relies largely on the Commission’s reasoning set out above for denying Meister’s claim. It further states that, in Meister’s attempt to prove that his injury is compensable, Meister overlooks the fact that no physician observed a contusion and that the treating physician’s diagnosis of “contusion of lumbar spine” was based only on Meister’s subjective complaints and description of the fall. Safety Kleen argues that there is “no evidence” that any of Meister’s physicians saw, felt, or otherwise observed through diagnostic testing a contusion or discovered any objective sign of injury. Safety Kleen and the Commission are mistaken in their assertion that no such evidence exists.

In its decision, the Commission stated that it did a de novo review of the entire record and found Meister had provided no objective medical evidence to establish an internal contusion. However, the Commission, in examining the record, overlooked an x-ray examination performed on Meister by orthopedist Dr. Claiborne L. Moseley, II, who examined Meister about one month after his fall. In his report, Dr. Moseley, among other things, reported that his examination revealed “some soft tissue swelling about the hip.” Moseley’s report is certainly consistent with the history contained in it reflecting Meister had taken a bad fall, landed on his back, and had trouble and pain in his low back, buttock, and hip. The report also corroborates the first doctor’s diagnosis of a contusion, whether Meister’s contusion occurred internally or externally. For example, a spinal injury can result briefly from concussion of the spinal cord due to contusion or hemorrhage. The Merck Manual of Diagnosis and Therapy 1464 (16th ed. 1992). Moreover, a contusion is defined as “any injury (usually caused by a blow) in which the skin is not broken” and also as “an injury in which the skin is not broken but underlying blood vessels are disrupted, causing a hematoma under the skin.” Stedman’s Medical Dictionary 348 (25th ed. 1990); 1 International Dictionary of Medicine and Biology 634 (1986).

Subsections ll-9-102(16)(A)(i) and (ii) of the Arkansas Code provide the controlling law here and read as follows:

(A)(i) “Objective findings” are those findings which cannot come under the voluntary control of the patient.
(ii) When determining physical or anatomical impairment, neither a physician, any other medical provided, an administrative law judge, the Workers’ Compensation Commission, nor the courts may consider complaints of pain; for the purpose of making physical or anatomical impairment ratings to the spine, straight-leg raising tests or range-of-motion tests shall not be considered objective findings.

Under the foregoing statutory provisions, Meister had the burden to establish his injury by medical evidence supported by “objective findings,” which are defined as findings that cannot come under the voluntary control of the patient. See University of Ark. Med. Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997); see also Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996) (denied carpal tunnel syndrome injury as compensable because findings based on patient’s description of sensations); Cox v. CSFI Temp. Employm’t, 57 Ark. App. 310, 944 S.W.2d 856 (1997) (denied lumbar strain diagnosis because there were no positive, objective test results and was assessed only on patient’s being unable to bend over more than ninety degrees).

Unlike in the Cox decision where the physician’s diagnosis of lumbar strain was reached without the aid of any objective test results, Meister was examined not only by his initial treating physician, but also by other specialists, including Dr. Moseley. In short, Meister had no voluntary control over the x-ray exam which was consistent with and tended to corroborate the first physician’s diagnosis.

In conclusion, while the Commission found that the record revealed no objective medical findings of a hematoma or bruise (contusion), Dr. Moseley’s x-ray examination was such an objective finding that existed and could well have been considered as corroborating the contusion that Meister’s treating physician originally diagnosed. Thus, Safety Kleen and the Commission are wrong in stating that there was no evidence that any of Meister’s physicians observed through diagnostic testing a contusion or any objective sign of injury. The Commission’s factual error in this respect requires our reversal of its decision. We remand this case to the Commission for its full examination of the relevant evidence presented in this cause. See Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999).

Reversed and remanded.

Imber and Smith, JJ., dissent.

Annabelle Clinton Imber, Jnot reverse the Commission’s

dissenting. We should not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the same conclusion as the Commission. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). If reasonable minds could reach the same conclusion as the Commission, we must affirm. Id. Mr. Meister’s first visit to Mediquik on the day of the accident, was recorded in a narrative report as follows:

Problem: Pain in low back
History: Fell off back of tanker truck onto concrete
Physical Exam: Tender lumbosacral area, no radiation, weakness, paresthesias...
X-Ray: No [fracture] seen
Assessment: 1) Contusion of lumbar spine 2) Lumbar myofascial strain
Plan: Restricted duty, anti-inflammatory med, muscle relaxants

The Commission found that the diagnosis of a contusion of the lumbar spine was not supported by objective medical evidence. Reasonable minds could reach the same conclusion as the Commission and, thus, pursuant to the applicable standard of review, we should affirm.

The majority attempts to cure the narrative report’s deficiency in this case by pointing to an x-ray examination performed by Dr. Claiborne Moseley, II, about one month after the accident, which showed “some soft tissue swelling about the hip.” The majority says that this is an objective finding, and that it is consistent with and corroborates the first physician’s diagnosis of a contusion. I certainly agree with the majority that the x-ray examination is an objective finding. However, it neither corroborates nor is it consistent with the initial treating physician’s diagnosis of a contusion of the lumbar spine. After noting the x-ray examination finding of “some soft tissue swelling about the hip,” Dr. Moseley made an assessment or diagnosis of “[e]arly arthritis in both hips, right worse than left, with possible very early avascular necrosis in the right hip.” There is no indication in the record that these conditions in Mr. Meister’s hips had anything to do with an injury to his lumbar spine. In an attempt to prove Mr. Meister’s case for him, the majority not only makes a leap that is not warranted by the record of this case, but it also ignores our well-settled standard of review whereby we view the evidence in the light most favorable to the Commission’s decision, and we affirm that decision if reasonable minds could reach the Commission’s conclusion. Minnesota Mining & Mjg. v. Baker, supra.

I respectfully dissent.

SMITH, J., joins in this dissent.


author: TOM Glaze, Justice.

text:
    Bobby D. WEAVER v. STATE of Arkansas
    CR 98-33
    3 S.W.3d 323
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      Chandler Law Firm, by: Edward Witt Chandler; and Louis Etoch, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen.; and James Gowen, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of the Rules Governing Admission to the Bar of the Arkansas Supreme Court under the Supervision of Kelly K Hill, Deputy Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Bobby D. Weaver was contice. counts of delivery of methamphetamine and sentenced to ten years’ imprisonment on each conviction to run consecutively. The court of appeals issued a December 18, 1996, unpublished opinion which affirmed Weaver’s case. After-wards, Weaver filed a timely Rule 37 postconviction petition wherein he set out five reasons why his convictions should be set aside, but the trial court rejected each one. Weaver brings this appeal, arguing the trial court erred in its rulings and should be reversed. We take jurisdiction of this case pursuant to Ark. S. Ct. R. l-2(b)(l), (3), (4) and (5) (1999).

Weaver first contends that his trial attorney, Larry Kissee, rendered ineffective assistance of counsel by failing to assert the defense of entrapment. To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. Petitioner must also show the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. In a Rule 37 review, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.

In the instant case, counsel Kissee’s performance was quite reasonable when he chose to try Weaver’s case without raising the affirmative defense of entrapment. It was the State’s case that, on two occasions, February 2 and 4, 1996, Weaver purchased methamphetamine from an undercover officer, Nancy Tucker, and Weaver countered, stating that he could not have purchased the drug on February 2 because he was elsewhere fishing. Two witnesses testified and corroborated Weaver’s alibi.

Our law is well established that, if a defendant denies committing an offense, he cannot assert that he was entrapped into committing the offense. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992); Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989). Nonetheless, Weaver argues Kissee still should have argued that an exception should be made to Arkansas’s law based on the holding in Mathews v. United States, 485 U.S. 58 (1988). There the Supreme Court held that, even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. Our court recognized the rule in Mathews when it decided Morris, and in fact acknowledged two situations where the Arkansas rule could conflict with Mathews. One of these situations is not applicable here; the other would arise when the prosecution’s case contains substantial evidence of entrapment, but the accused denies committing the offense charged. However, the Morris court held that it was not bound by the Mathews decision as it involved the construction of federal criminal procedure law and had no footing in constitutional law. Even though our court has not applied the rule in Mathews, Weaver submits Kissee still should have argued that entrapment should be available as an alternate defense where the State’s case-in-chief contains sufficient evidence of entrapment. See Heritage, 326 Ark. at 847, 936 S.W.2d at 504. Weaver urges that Kissee was particularly obliged to seek such alternate affirmative relief because Kissee was intimately familiar with the Mathews rule, since he was the defense attorney in the Heritage and Morris decisions. However, it was Kissee’s familiarity with those prior decisions which caused him to reject entrapment as a defense. In other words, he knew that Arkansas has not permitted the entrapment defense when a defendant asserts he was innocent of the crime.

In addition, while Weaver now suggests Kissee should have cross-examined State’s witness Nancy Tucker at trial about her sexual relations with him and other men in an attempt to show she induced them to deliver illegal drugs, there is nothing in the record to indicate such concessions or admissions could have been achieved through the cross examination of Tucker. In this respect, the State’s evidence revealed only that Weaver voluntarily participated in committing the two drug sales with which he was charged, and that Tucker never had sex with Weaver. Thus, even assuming that Arkansas were bound by the Mathews rule, there was simply no substantial evidence of entrapment to support the giving of an entrapment instruction.

In short, Kissee was faced with placing the inconsistent defenses of alibi and entrapment before the court when only alibi evidence had been presented to the jury. In these circumstances, he opted to pursue only his alibi defense — an entrapment defense would only have been confusing to the jury. This court has repeatedly held that matters of trial tactics and strategy are not grounds for postconviction relief. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996); see also Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989) (counsel cannot be ineffective for failing to raise an argument that this court has already rejected); Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995) (counsel cannot be declared ineffective for failing to present a defense theory entirely inconsistent with defendant’s denial of committing the crime). Based on the record before us, the trial court in this Rule 37 proceeding was not clearly erroneous in holding Kissee was not ineffective for choosing against the idea of asserting entrapment as a defense.

We next turn to Weaver’s contention that Kissee was ineffective in fading to assert the defense of “outrageous governmental conduct” and in his failure to move to suppress evidence that resulted from such conduct. Again, we conclude the trial court was correct in rejecting those arguments.

Weaver cites the cases of United States v. Russell, 411 U.S. 423 (1973), and United States v. Hampton, 425 U.S. 484 (1976), to support his second point for reversal. In Russell, the defendant was convicted of manufacturing methamphetamine, and the conviction was in part based on the work of an undercover officer who had supplied part of the chemicals necessary for the manufacturing process. In affirming the conviction, the Court declared that “[wjhile we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction, the instant case is distinctly not of that breed.” 411 U.S. at 422. Hampton was more of an entrapment case, in which the defendant was convicted of purchasing heroin from and reselling it to undercover DEA officers. There the Court discussed the issue of the defendant’s predisposition to engage in criminal activity and noted as follows:

[T]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant.... If the result of the governmental activity is to implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission, the defendant is protected by the defense of entrapment.... But the police conduct here no more deprived defendant of any right secured to him by the United States Constitution than did the police conduct in Russell deprive Russell of any rights.

425 U.S. at 490-91. In neither Russell nor Hampton did the Court hold that police conduct in pursuit of a drug conviction constituted “outrageous governmental conduct.”

Although the Supreme Court has not as yet utilized “outrageous governmental conduct” as a defense to bar prosecution, Weaver cites to twelve federal cases he argues support the application of the defense. However, a review of those cases reflects that most of those cases involve entrapment, not “outrageous conduct” situations. Only three of the cases cited involved outrageous conduct that was serious enough to bar prosecution; these situations involved long-term, substantial assistance from the police in contriving the criminal activity. See United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); Commonwealth v. Mathews, 500 A.2d 853 (Pa. Super. 1985). Here, no such police conduct was shown. Thus, even if Kissee was incorrect in his belief that “outrageous governmental conduct” was unavailable as a defense in Arkansas, no evidence had been adduced to bring the conduct of the police into issue. An attorney is not ineffective for failing to raise every novel issue which might conceivably be raised. Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180 (1987); see also Ruff v. Armontrout, 11 F.3d 265 (8th Cir. 1996) (counsel need not raise every single conceivable argument to defeat a claim of ineffective assistance of counsel).

Weaver makes three other arguments for reversal, and first claims error, asserting that the trial court denied Weaver’s attempt to amend his postconviction petition on the day of the hearing. He also contends that the trial court erred in its order denying his application for exculpatory evidence under Rule 37, and in refusing Weaver the opportunity to conduct a polygraph examination of Nancy Tucker so he could use the exam results when cross examining Tucker at the Rule 37 hearing. As to his belated request to amend his petition, Rule 37.2(e) provides that such a petition may be amended with the leave of court. Here the trial court denied Weaver a last-minute effort to insert a due-process claim (based on an outrageous conduct theory) into his petition because the State was unprepared and unable to respond to the new theory without obtaining a continuance. Based on these facts, we are unable to say the trial court abused its discretion.

As to Weaver’s claim bearing on the trial court’s refusal to direct the State to provide exculpatory evidence comprising of a fist of persons undercover agent Tucker had arrested and prosecuted, he simply is in no position to raise this matter in a Rule 37 proceeding. Weaver sought these persons’ names and addresses in a belated attempt to substantiate his theory that Tucker engaged in sexual relations with Weaver and other men in an attempt to induce them to commit crimes involving illegal drugs. For authority, Weaver relies on Brady v. Maryland, 373 U.S. 83 (1963), which requires the State to disclose all favorable evidence material to the guilt or punishment of an individual.

The list of persons, if any, now sought by Weaver, was available at his original trial, but he never sought the information, nor did he claim a right to such information on direct appeal. Weaver does not use this postconviction proceeding to claim his counsel at trial and on appeal were ineffective for falling to obtain the list of names, but instead, he seeks to obtain that information in this postconviction proceeding,, saying he is entitled to it as exculpatory evidence. Rule 37 does not provide for such discovery, and Weaver fails to cite any authority for the proposition. Neither does the Rule provide a remedy when an issue could have been raised in the trial or argued on appeal. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987). Our court has specifically held in Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980), that Rule 37 does not allow a petitioner to raise questions which might have been raised at trial or on the record on appeal, unless they are so fundamental as to render the judgment void and open to collateral attack. If Weaver wanted to challenge the propriety of discovery, he should have done so before now by preserving the issue during his trial and raising it on direct appeal.

Finally, Weaver argues that the trial court abused its discretion in denying his motion to require Tucker to submit to a polygraph examination. Once again, Rule 37 proceedings are not intended to provide a forum for Weaver to present new evidence. Apparently, Weaver seeks the polygraph exam to present evidence to support his “outrageous governmental conduct” claim. Assuming he had a right to obtain a polygraph exam, Weaver had the opportunity to acquire that evidence before or at his trial, and he failed to request it. Again, he does not claim his counsel at trial or on direct appeal were ineffective for having failed to seek this evidence. Flowever, the answer to this issue is made easier since our-court has long held that, absent a stipulation by both parties, polygraph results are inadmissible. See Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990). Thus, besides the fact that Weaver may not use a Rule 37 proceeding as a substitute to raise arguments that should have been raised at trial and on direct appeal, he is unable to show he was in any way prejudiced by the exclusion of a polygraph exam, since such exam results are inadmissible and because they are of no legal benefit to Weaver.

For the reasons above, we affirm.

       Because we hold Kissee was not ineffective for failing to raise “outrageous conduct” as a defense, we need not address whether Kissee erred in failing to move to suppress evidence resulting from, such conduct. Besides, Weaver never mentioned the suppression issue below and cannot do so for the first time on appeal. Hendrix v. State, 291 Ark. 134, 722 S.W.2d 596 (1987).

       While Kissee was trial counsel, Anthony Wayne Emmons was substituted as Weaver’s counsel on direct appeal.


author: DONALD L. Corbin, Justthe of GLAZE, J.,

text:
    Howard DEAN v. STATE of Arkansas
    CR 98-1498
    3 S.W.3d 328
    Supreme Court of Arkansas
    Opinion delivered November 4, 1999

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justthe of

Appellant Howard Dean appeals the judgment of the Perry County Circuit Court convicting him of first-degree murder and sentencing him to forty years’ imprisonment. For his sole point for reversal, Appellant argues that he was denied a speedy trial, in violation of Ark. R. Crim. P. 28. Appellant previously raised this issue in a petition for writ of prohibition, and this court denied the writ. See Dean v. Plegge, 331 Ark. 141, 958 S.W.2d 5 (1998). Our jurisdiction of this appeal is thus pursuant to Ark. Sup. Ct. R. l-2(a)(7). We find no error and affirm.

The record reflects that on June 20, 1995, Michael Keith Samples was killed in his home near Harris Brake Lake in Perry County. Appellant was tried for first-degree murder on February 12, 1996. That trial resulted in a hung jury and a mistrial. Appellant was later tried for the same charge on May 28, 1998, 836 days after the mistrial. Appellant has thus presented a prima facie case for a speedy-trial violation. Rule 28.2(c) provides that when a defendant is to be retried following a mistrial, the twelve-month period for speedy trial shall commence running from the date of mistrial. See also Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). Once the defendant presents a prima facie case of a speedy-trial violation, i.e., that the trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998); Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998).

On appeal, Appellant does not dispute any delays that occurred after the trial date that was scheduled for June 18, 1997; those delays are attributed in large part to his pursuit of the writ of prohibition in this court. Thus, the relevant period of time for purposes of this appeal is February 12, 1996, to June 18, 1997, a total of 492 days. The State asserts that there are two periods of time to be excluded under Rule 28.3, totaling 338 days. Appellant contests the exclusion of both periods of time.

The first excluded time period contested by Appellant is that between July 15, 1996, and February 12, 1997, a total of 212 days. The State asserts that period was properly excluded as a continuance granted at Appellant’s request. It is well settled that delays resulting from continuances given at the request of the defendant are excludable in calculating the time for speedy trial. Eubanks, 334 Ark. 21, 972 S.W.2d 234. Accordingly, if the period of delay resulted from a continuance granted to Appellant, the trial court was correct to exclude it.

The record reflects that on July 11, 1996, six days prior to the scheduled trial date, Appellant filed a motion to dismiss and, alternatively, to continue the trial due to pretrial publicity surrounding the case. The motion was based in large part on an advertisement placed by the victim’s family in the June 26, 1996 edition of the Perry County Headlight. The advertisement, titled “IN MEMORY OF . . . MIKE SAMPLES,” displayed a photograph of the victim holding two fish and contained the following text:

Mike Samples died here, at the water’s edge on June 20, 1995 after fighting for his life. He was fatally shot in his home, made it out the back door and ran 842 feet where he found three kind fishermen who tried to comfort him as he took his last breath of fife. All he spoke was his name and the name of the man that shot him, Howard Dean.
Mike was a great hunter and fisherman. He lived for the outdoors, which is probably why he chose his favorite fishing spot as a place to die.
His family prays that his murderer will be convicted and justice served. No one should die at the hand of another. Michael Keith Samples, age 32, left behind his daughter, 2 years, wife, mother, grandmother, two brothers, and many more family and friends.

Appellant asserted that the advertisement was prejudicial, and that it directly solicited potential jurors to vote to convict him.

The trial court denied Appellant’s motion, finding that the opinions in Perry County, which has a relatively small population, were not likely to change with the passage of a few months. The trial court then gave Appellant the option of trying the case in Pulaski County to avoid any potential jurors with knowledge or opinions of the case. After discussion with counsel, Appellant elected not to try the case in Pulaski County. The trial was set to proceed as scheduled on July 17, 1996.

Four days later, on July 15, 1996, the prosecutor, Larry Jegley, and the deputy public defender, Bret Qualls, approached the trial court regarding the unavailability of a witness. The brief colloquy is as follows:

The COURT: So your medical examiner can’t be there?
Mr. JEGLEY: He’s got Chicot County and Drew County all week long, Your Honor.
THE COURT: So we’re going to grant Bret’s motion for continuance, are we?
Mr. JEGLEY: That’s what I thought we’d do. I really — I talked to Joan, Joe Ray’s case coordinator down there and she didn’t see any way that they could accommodate us.
The COURT: That will be fine. If you can’t have a witness, you can’t have a witness.
Case Coordinator: I guess y’all want me to reset it don’t you? Well, you’re going the 21st of October for Judge Ward. Of course, they’re probably expecting civil up there, but we could always —
Mr. Jegley: That’ll work.
Mr. QUALLS: My calendar is in the car. Let me go get it. I didn’t know we were going to reset it.
The Court: Well, it’s y’all, you can just talk to Melissa about resetting it.
Mr. QUALLS: October, it sounds like the date I’ve got Woody Davis. It’s a capital case, but I’m not sure.
The COURT: Well, y’all can just work that out. [Emphasis added.]

Subsequently, the trial was set for February 12, 1997, exactly one year from the date of the mistrial.

Appellant asserts that it was error to exclude this period of time because it was the State’s witness who was unavailable. The State contends that Appellant’s argument ignores the fact that the trial court specifically stated that it was granting defense counsel’s motion for continuance. The State contends further that Appellant has waived this argument because no objection was made at the time of the ruling. This court’s recent case law supports the State’s argument.

In Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995), this court affirmed the trial court’s denial of Mack’s speedy-trial motion in part due to defense counsel’s failure to contest the trial court’s ruling that the continuance was charged to him. This court held:

[T]he trial court ruled that the time was tolled while Mack’s competency was being determined. Mack’s counsel did not contest this ruling in any form or fashion. That was the time to raise the issue, and the trial court was entirely correct in alluding to this lapse when it denied the motion to dismiss at the subsequent omnibus hearing.

Id. at 550-51, 905 S.W2d at 844 (emphasis added).

Subsequently, in Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996), this court reaffirmed the holding in Mack, but refused to extend it to a situation where the trial court continues the case on its own motion, outside the presence of either party. This court explained:

In Mack, we said that “the time to raise the issue” of whether a certain period was excludable was at the hearing where the excludability was discussed. The time at issue was the period needed for a second mental evaluation. There are substantial differences between Mack and this case. It is clear from the record in Mack that appellant’s counsel was actually in attendance at the hearing where the excludability of time was discussed. That is not the case here.

Id. at 43, 918 S.W.2d at 169.

It is thus clear from these holdings that a contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. The need for such a contemporaneous objection was perhaps best explained in the concurring opinion in Tanner.

Speedy-trial objections must be raised in the trial court and prior to the trial date in order to preserve the issue for review. This issue is not an exception to the contemporaneous-objection rule.
The reason for our contemporaneous-objection rule is that a trial court should be given an opportunity to know the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. It is understandable that a defendant would not wish to call the trial court’s attention to an erroneous ruling on the excludability of time for purposes of speedy trial; however, Mack, supra, requires that a defendant do so[.]

Id. at 45, 918 S.W.2d at 170-71 (ROAF, J., concurring) (citations omitted).

Here, the trial court plainly stated that it was granting Appellant’s motion to continue. Defense counsel did not object in any form or fashion to the continuance being charged to Appellant. Under the holdings in Mack, 321 Ark. 547, 905 S.W.2d 842, and Tanner, 324 Ark. 37, 918 S.W.2d 166, the time to object was at the time the trial court made its ruling, not in the subsequent speedy-trial motion. Had defense counsel made a contemporaneous objection, the trial court would have had the opportunity to explore other possible remedies. For instance, the prosecutor may have been able to make arrangements to have another member of the medical examiner’s staff testify on his behalf. By failing to make a timely objection, however, Appellant removed that opportunity from the trial court. Accordingly, we affirm the trial court’s ruling that this period of time (212 days) was properly excluded from the time for speedy trial. Subtracting this period from the total time of 492 days, it is clear that Appellant’s trial was scheduled within the twelve-month period for speedy trial. It is thus not necessary to address the other excluded period.

Affirmed.

GLAZE, J.,

concurs because the trial court was correct in finding that the State’s medical witness was unavailable for trial and constituted good cause for speedy-trial purposes.

       The record reflects that two circuit judges, The Honorable Chris Piazza and The Honorable John B. Plegge, heard various motions at different stages of the case. We refer to them collectively as the “trial court.”