author:
WH. “Dub” Arnold, Chief Justice. Donald L. Corbin, Justice,
      Tom Glaze, Justice,

text:
    Betty Ann PARKER v. David Alien SEBOURN
    02-803
    95 S.W.3d 762
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Griffin J. Stockley, for appellant.

      One brief only.
   WH. “Dub” Arnold, Chief Justice.

This is an appeal from the denial of a motion to set aside an order terminating the parental rights of the appellant, Betty Ann Parker. Arkansas Code Annotated § 16-13-304 (Repl. 1999) permitted the trial court to terminate the parental rights upon the appointment of a guardian ad litem to represent the child. Appellant asserts that the trial court lacked subject-matter jurisdiction to terminate her parental rights and that Ark. Code Ann. § 16-13-304, as applied, violated the public policy of the State of Arkansas against bastardization of children and is, therefore, void. We hold that appellant’s motion to set aside, filed nearly four years after the order of termination was entered, was untimely and affirm the trial court’s denial of the motion.

The history of the case is as follows: Appellee, David Allen Sebourn, filed a petition on March 24, 1998, in Lonoke County Chancery Court, in which he sought to terminate the parental rights of the appellant, Betty Ann Parker. David Sebourn alleged that he and Betty Parker were the parents of Megan Sebourn, born June 6, 1992. He alleged that he and Betty Parker were not married at the time of the birth of Megan and had never married. Mr. Sebourn alleged that he had sole responsibility for the care and custody of Megan. He did not allege that he was seeking to establish paternity or any other underlying cause of action. He alleged that Betty Parker had indicated her desire to terminate her relationship with her daughter. Mr. Sebourn requested that a guardian ad litem be appointed to represent the child’s interests, pursuant to Ark. Code Ann. § 16-13-304. On May 12, 1998, the Court appointed attorney Michael Stuart as guardian ad litem to represent the best interests of the child.

On September 14, 1998, the court issued an order terminating the parental rights of Betty Parker; the order stated that the court was basing its decision on the “pleadings filed herein, the consent to terminate parental rights executed by Betty Ann Parker, the oral report of the attorney ad litem, and all other evidence before the Court.” No appeal was taken. Then, nearly four years later, Ms. Parker filed a motion to set aside the court’s order terminating her parental rights. Ms. Parker alleged that the trial court had lacked subject-matter jurisdiction to terminate her parental rights. Mr. Sebourn responded that Ark. Code Ann. § 16-13-304(d)(l), as then codified, gave the court subject-matter jurisdiction.

On May 20, 2002, the motion to set aside the court’s order was argued to the trial court. Ms. Parker argued that the court’s order terminating her parental rights served to “bastardize” the child and was, therefore, against public policy and that the court did not have subject-matter jurisdiction. Mr. Sebourn, as well as the guardian ad litem, argued that the motion to set aside was not brought in a timely manner, as it was brought nearly four years after the termination order had been entered; they further argued that the original matter of termination was, in fact, “properly before the court” at that time (four years prior) and that, therefore, the court did have jurisdiction to terminate Ms. Parker’s parental rights under the statute.

The trial court denied Ms. Parker’s motion to set aside its order. Ms. Parker now appeals that decision. We affirm.

Appellant is procedurally barred to proceed in this mat^ ter. Rule 60(a) of the Arkansas Rules of Civil Procedure allows that, upon motion, the court may modify or vacate a judgment within ninety days of its having been filed with the clerk. There are, under Rule 60(c), grounds listed for setting aside a judgment after ninety days, but the appellant herein asserts none of those exceptions as a reason for setting aside the order outside of the ninety-day period.

Appellant does assert that the trial court did not have subject-matter jurisdiction. However, we have held that unless one of the seven exceptions listed in Rule 60(c) is asserted and applies, even a motion to set aside for lack of subject-matter jurisdiction must be filed within ninety days from the date the order is entered. See Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994). We have further held that it is only when the lower court lacks jurisdiction in any and all circumstances that the challenging party will be excused from objecting to the jurisdiction in the trial court. J. W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992); Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984).

The trial court indisputably had subject-matter jurisdiction to enter the order of termination in this case. Arkansas Code Annotated § 16-13-304(d) gave the chancery court concurrent jurisdiction to hear termination of parental rights cases. A motion to set aside an order of termination brought some four years after the fact and asserting no exceptions under Rule 60(c) allowing for the motion to be brought outside of ninety days cannot be entertained in this instance because the chancery court was not wholly without subject-matter jurisdiction. Appellant’s motion to set aside was untimely. As appellant is procedurally barred from proceeding on appeal, we need not address the merits of appellant’s public policy argument.

Affirmed.

Corbin, J., concurs.

Glaze, J., dissents; Imber, J., joins.

Donald L. Corbin, Justice,

concurring. I concur in the judgment reached by the majority that Appellant Betty Ann Parker’s challenge to the order terminating her parental rights is untimely. At the time of the termination in this case, Ark. Code Ann. § 16-13-304(d) (Repl. 1999) provided chancery courts with concurrent jurisdiction to hear termination cases; however, where the parties to the chancery court proceedings are also parties to a juvenile proceeding, the juvenile court has exclusive jurisdiction. Because chancery’s jurisdiction over termination cases is concurrent, Parker’s challenge to the court’s subject-matter jurisdiction brought some four years after the fact is barred.

It is well settled that subject-matter jurisdiction may not be stipulated by the parties and, “if lacking, cannot be induced simply because there is no objection.” J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352, 836 S.W.2d 853, 858 (1992). However, that general rule applies only where jurisdiction does not exist under any circumstances. Id. (citing Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984)). In Crittenden County, this court explained:

It is true our cases hold that since jurisdiction of the subject matter cannot be conferred by consent of the parties, the absence of an objection on that basis is not ordinarily fatal. However, it must be said the rule applies only in those instances where such jurisdiction could not, under any circumstances, exist.

Id. at 291, 675 S.W.2d at 633 (citations omitted) (emphasis added). See also Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985). Because section 16-13-304(d) gave chancery courts concurrent jurisdiction to hear termination cases, it cannot be said that the chancery court in this case lacked subject-matter jurisdiction under any circumstances. Accordingly, Parker may not raise this issue for the first time some four years after the fact.

Moreover, I agree with the majority that under Ark. R. Civ. P. 60, Parker was required to file her motion to set aside the order of termination within ninety days from the date that the order was entered. Rule 60(a) provides that the trial court may modify or vacate an order within ninety days of the date that the order is entered. The only exceptions to the ninety-day limit are set out in provisions (b) and (c) of the rule. Provision (b) provides that, after the ninety-day deadline, a court only has jurisdiction to correct clerical errors, while provision (c) enumerates seven different grounds, including fraud and newly discovered evidence, by which a court may set aside or modify a judgment. See also Blackwood v. Floyd, 342 Ark. 498, 29 S.W.3d 694 (2000). None of the seven grounds listed in provision (c) involve an allegation of improper exercise of concurrent subject-matter jurisdiction. As such, under the plain language of Rule 60, the trial court in this case lost the power to vacate the termination order ninety days after it was entered.

A similar issue was considered by this court in Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), cert. denied, 514 U.S. 1065 (1995). There, the father filed a motion to set aside an adoption decree, which was entered four years earlier, on the ground that the probate court lacked subject-matter jurisdiction. This court held that the motion was barred under both Ark. Code Ann. § 9-9-216 (Repl. 1993) (prohibiting any attack on an adoption decree after the expiration of one year) and Rule 60. This court held: “In addition, Summers did not allege that extrinsic fraud occurred which is required in these circumstances in order to vacate or modify a decree which had been entered for more than ninety days. Rule 60(c)(4).” Id. at 406, 878 S.W.2d at 402.

In sum, at the time of the termination in this case, the legislature had specifically empowered chancery courts to hear and determine cases involving a termination of parental rights. Section 16-13-304(d)(l) specifically provided that chancery courts “shall have the power to terminate parental rights in matters properly before the chancery court,” unless the parties to the termination action are also parties to an action in the juvenile division of chancery court, in which case the juvenile court shall have exclusive jurisdiction. Given this concurrent jurisdiction, it cannot be said that the chancery court is ever wholly lacking in subject-matter jurisdiction over termination cases. As such, Parker was required to raise any objection of jurisdiction in the trial court either before the order of termination was entered or, at a minimum, within ninety days from the date it was entered, as provided in Rule 60. Because she failed to do so, I agree with the majority that her argument is now barred.

I disagree with the dissent that under section 16-13-304(d) the chancery court may only terminate parental rights in favor of DHS or a court-appointed attorney ad litem, regardless of whether there is another parent willing and available to take sole custody of the child. The dissent relies on Ark. Code Ann. § 9-27-341 (Repl. 2002), which provides in pertinent part:

(a)(1)(A) This section shall be a remedy available only to the Department of Human Services or a court-appointed attorney ad litem.
(B) It shall not be available for private litigants or other agencies.
(2) It shall he used only in such cases when the department is attempting to clear a juvenile for permanent placement.
(3) The intent of this section is to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile’s perspective. [Emphasis added.]

This section is part of the Juvenile Code and only applies when the termination proceeding is before the juvenile division of chancery court. Because the present case was not before the juvenile court, this section is not applicable.

From my reading, this section provides a remedy available to DHS when a child has been removed from the home, z'.e., as a result of the filing of a family-in-need-of-services (FINS) petition, and DHS is attempting to permanently place the child, z'.e., somewhere other than a foster home. It does not govern termination proceedings brought in the chancery court. For example, this statute would not govern a divorce proceeding in chancery court where one of the parents wished to terminate his or her rights in favor of the other parent. In such a situation, DHS simply would not be involved.

Practically speaking, however, I share the concern expressed by the dissent that Appellee David Sebourn has not legally been determined to be Megan’s natural father or otherwise been appointed as her legal guardian. In this respect, I encourage Parker to file a petition to establish paternity of the child. Arkansas Code Annotated § 9-10-102(b) (Repl. 2002) provides that an action brought in this state “to establish paternity may be brought at any time.” See also Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995). Parker, as the child’s biological mother, may petition for a paternity determination under Ark. Code Ann. § 9-10-104(1) (Repl. 2002). The fact that her parental rights have been legally terminated does not alter the fact that she is Megan’s biological mother. As such, I believe that she may file a petition in the trial court seeking a legal determination that Sebourn is Megan’s natural father and thereby responsible for Megan’s support.

Tom Glaze, Justice,

dissenting. I dissent because the chancery court had no jurisdiction to enter its September 17, 1998, order terminating Betty Ann Parker’s parental rights to her four-year-old daughter, Megan.

This proceeding was initiated by Megan’s putative father, David Allen Sebourn. David filed a petition on March 24, 1998, alleging he had the sole care and custody of Megan and requesting an order terminating the parental relationship between Betty and Megan. David requested the court to appoint a guardian ad litem to represent Megan, pursuant to Ark. Code Ann. § 16-13-304 (1997). In March of 1998, David’s attorney obtained a waiver of service and entry of appearance from Betty, wherein she averred that she had no attorney and she was aware that she agreed to a complete and final order terminating her parental rights. In May of 1998, the chancery court purportedly appointed a guardian ad litem under § 16-13-304, and, on September 17, 1998, granted David’s petition terminating Betty’s parental rights to Megan, stating it was doing so based on Betty’s consent, an oral report of the attorney ad litem, and all other evidence.

On February 2, 2002, Betty moved to set aside the chancery court’s September 17, 1998 order, stating that David had never filed a paternity case giving the court jurisdiction to terminate parental rights. Betty argued that the court’s September 17 order was void and subject to collateral attack. Betty is exactly correct.

When David initiated his action in March of 1998, the chancery court was designated with the power to terminate parental rights in matters properly before it, and the court in such proceedings was required to appoint a guardian ad litem for the juvenile. See Ark. Code Ann. § 16-13-304(d)(l) and (2) (1997). However, the chancery court was given power to terminate parental rights only to the Department of Human Services (DHS) or a court-appointed attorney ad litem. See Ark. Code Ann. § 9-27-341 (a) (B), which expressly provides that such an action “shall not be available for private litigants or other agencies.”

Here, neither the Department of Human Services nor an attorney (guardian) ad litem petitioned to terminate Betty’s parental rights — David did. Clearly, David was a private litigant who sought the termination of Betty’s rights, and the chancery court had no authority to award David such a remedy. Arkansas law, in particular § 9-27-341, is to be used to terminate parental rights only in cases when DHS is attempting to clear a juvenile for permanent placement. Thus, although the chancery court in this matter had statutory authority to terminate parental rights, it was required to do so under the terms provided by law. Here, the chancery court unquestionably exceeded its statutory authority. See State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001); Ark. Dep’t of Human Servs. v. State, 319 Ark. 749, 894 S.W.2d 592 (1995); see also Ark. Dep’t of Human Servs. v. Thomas, 71 Ark. App. 348, 33 S.W.3d 514 (2000).

Our court has the authority to grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Dawson, 343 at 693. That is the situation in the present case, and while this case comes to us on appeal, our court has the discretion to treat an appeal from an order, judgment, or decree which lacks judicial support as if it were brought up on certiorari. Id. Because jurisdiction is the power or authority of a court to hear a case on its merits, lack of subject-matter jurisdiction is a defense that may be raised at any time. Id. Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. State v. Circuit Court of Lincoln County, 336 Ark. 122, 984 S.W.2d 412 (1999).

In sum, the record now before our court clearly reflects the chancery court had no authority to award David the termination-of-parental-rights relief he sought in this case and, accordingly, a writ of certiorari should issue for this reason. See Arkansas Pub. Defender Comm’n v. Greene County Cir. Court, 343 Ark. 49, 32 S.W.3d 470 (2000) (a writ of certiorari granted where lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy); Pope v. Pope, 213 Ark. 321, 210 S.W.2d 319 (1948) (Jurisdiction is defined to be “the right to adjudicate concerning the subject matter in the given case. To constitute this there are three essentials. First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And third, the point decided must be, in substance and effect, within the issue. Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W.2d 22 (1948).

In this case, David not only was (and is) unavailed of the statutory authority to initiate the termination of Betty’s parental rights to Megan, but also his action placed Megan in the precarious position of having no parent legally responsible for her support, health, safety, or welfare. Moreover, while DHS is statutorily obliged to clear a juvenile for permanent placement under § 9-27-341, DHS was never mentioned in this proceeding.

At the very least, this case should be remanded for the trial court to require compliance with the law that provides for a parent’s termination of parental rights, since that court had no authority to render such a remedy to a private litigant like David. Nor was DHS involved as is contemplated by Arkansas law. If David is interested in Megan’s welfare, as a putative father, he can certainly establish his paternity by filing suit under Ark. Code Ann. § 9-10-104 and 109 (Repl. 2002), and, after obtaining such a determination, have his support and custody obligation decided. Under all of the statutory laws mentioned above, Megan’s rights are very much in issue, and as I read Arkansas law, both Betty and David will likely have the legal responsibility to ensure Megan’s best interests and welfare will be met.

Because Megan is before the trial court, the court should direct that DHS be included in any following proceedings to ensure her best interests and welfare will be determined and protected. Although no court-appointed attorney ad litem has petitioned to terminate Betty’s parental rights in accordance with the requirements set out in § 9-27-341, the court should appoint an ad litem to represent Megan’s best interests. See Ark. Code Ann. § 9-27-316 (Repl. 2002).

In conclusion, the concurring opinion states that, under § 16-13-304(d)(l), the chancery court had authority to terminate parental rights, while only a juvenile court had such authority under § 9-27-341. That opinion reveals a misunderstanding of the statutory provisions involved.

Arkansas law only allows termination of parental rights in adoption cases under Ark. Code Ann. § 9-9-220 (Repl. 2002), and in dependent-neglect cases under § 9-27-341. Neither of these statutory procedures empower any courts — chancery, juvenile, or circuit — to award a putative father the relief to terminate the rights of the child’s mother.

Over the years, Arkansas laws, statutory and constitutional, have referred to chancery and juvenile courts as having authority to terminate parental rights, and, more recently, those courts under Amendment 80 to the Arkansas Constitution are now designated as circuit courts. Nonetheless, whatever nomenclature is used to identify our courts empowered to terminate parental rights, none has been endowed with the authority to grant a putative father, or other private litigant, the relief to terminate parental rights. Certainly, the case of Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), relied on by the concurring opinion is inapposite, since it is an adoption case involving a legal father.

Because the chancery court had no statutory authority to grant David the remedy to seek termination of Betty’s parental rights, that court’s September 17, 1998, order was void, and should be set aside.

Imber, J., joins this dissent.

       Notably, neither the abstract nor the record in this appeal contains the documents or record of proceedings to which the trial judge referred in his order.

       This section was amended in 2001, deleting paragraph (d).

       In entering its order, the trial court used the term attorney ad litem for the first time.

       The court of appeals noted the remedy under § 9-27-341 (a), as amended by Act 1227 of 1997, that the termination of parental rights is available only to DHS and a court-appointed guardian ad litem. See M. T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Eugene CATHEY, III v. STATE of Arkansas
    CR 02-318
    95 S.W.3d 753
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Joe Kelly Hardin, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Eugene Cathey was convicted of capital murder and, because the State had waived the death penalty, was sentenced to life in prison for the shooting death of Delone “D.J.” Washington on October 12, 2000.

On appeal, Cathey raises only one argument: Judge Gary Arnold erred in denying his motion for directed verdict, because he had heard only one witness testify during trial. At the conclusion of the State’s case, Cathey moved for a directed verdict, which the presiding judge, Judge Grisham Phillips, denied. At that time, the court recessed, and in the interim, Judge Phillips was called away for a family medical emergency. When the court recpnvened, Judge Arnold presided over the trial. Judge Arnold asked Cathey directly if he understood the situation and if he had any objection to Judge Arnold completing the trial, at least through the guilt-or-innocence phase. Cathey replied that he had no objection.

Cathey called one witness for his case-in-chief, and he then rested. Judge Arnold read the instructions and verdict forms to the jury. The State and Cathey gave their closing arguments, and the jury then retired to deliberate on the guilt phase.

The State then proceeded to make a record of the fact that it had no objection and concurred with Judge Arnold sitting on this case for the guilt/innocence phase and for sentencing if necessary. Cathey made no response. The jury was out for nearly two-and-a-half hours, and then returned with a guilty verdict on the capital murder charge. The jury then retired again to deliberate sentencing. At that point, the following exchange occurred:

The Court: Mr. Cathey, if you and your attorneys will step up here, I know there’s a motion or I want to make sure we make a record on your previous [sic] and the Court recognizes your previous position. But with respect — Mr. Hardin [defense counsel], I’ll let you go ahead.
Mr. Hardin: Your Honor, Mr. Cathey did not agree to you as sitting on the sentencing phase and he does object to having a judge substituted in the sentencing phase for a trial in which another judge tried the actual jury trial.
The Court: Mr. Cathey, I understand what your attorney just said, and do you again acknowledge that you had no objection to my hearing the case through the conclusion of the guilt or innocence phase, you simply object to my hearing the case from this point through the sentencing phase. Is that correct?
Mr. Cathey: Yes, sir.
The Court: Well, your objection is noted and I’m going to overrule that objection, not grant your request, and proceed with the trial through its conclusion, but a record has been made.
Mr. Hardin: And we also would have the record show to renew my motion for a directed verdict on the capital murder charge and that there was insufficient evidence for a deliberated purpose of the killing.
The Court: So noted. Does the State have any response to that?
Mr. Standridge: No, just that Judge Phillips had ruled initially there was sufficient proof to take it to the jury, and we would just renew our argument that there was sufficient proof to take it to the jury.
The Court: I’ll again deny that motion. Please have a seat. We’ll be in recess until the jury returns with its verdict on punishment.

The jury returned shortly thereafter and sentenced Cathey to life in prison.

On appeal, Cathey’s argument states simply that Judge Arnold did not review the earlier trial testimony, which Judge Phillips had heard, and that Judge Arnold could not possibly have made a determination on whether Cathey’s directed-verdict motion should be granted or denied. However, Cathey had failed to renew his motion for directed verdict at the close of his own case, and indeed, he did not renew it until after the jury had already returned a verdict of guilt on the capital murder charge.

Our case law is well-settled that the renewal of a directed-verdict motion is more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant; therefore, it is too late to renew a motion for directed verdict after the jury has been charged. See Rankin v. State, 329 Ark. 379, 386, 948 S.W.2d 397, 401 (1997) (death penalty case in which this court refused to consider a sufficiency-of-the-evidence argument because appellant Rankin did not attempt to renew his motion for directed verdict until after the jury had been charged); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994) (capital murder case involving life imprisonment, in which this court held that Thomas’s sufficiency argument was not preserved for appeal where he did not renew his motion for directed verdict until the jury “was well into the course of its deliberations”); see also Ark. R. Crim. P. 33.1(c). Here, Cathey did not only wait until after the jury had been instructed, and until after closing arguments; he waited to renew his motion until after the jury had already returned a verdict of guilty. Clearly, this issue is not preserved for appellate review.

Finally, we note that Cathey raised one objection that merits mentioning pursuant to Ark. Sup. Ct. R. 4-3(h), although it does not warrant reversal. Cathey specifically objected to Judge Arnold presiding over the sentencing phase of his trial, and Judge Arnold overruled his objection. Although this was an adverse ruling, it does not constitute reversible error because Cathey was not prejudiced by it. Because he was convicted of capital murder, and the State had waived the death penalty, life imprisonment was the only possible sentence he could have received.

Affirmed.


text:
    Dennis James SMITH v. STATE of Arkansas
    CR 02-895
    95 S.W.3d 801
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Gary W. Potts, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Dennis Smith was convicted of aggravated robbery and sentenced to life imprisonment by a Desha County jury on December 18, 2001. The aggravated robbery was the first event in a crime spree that took place on June 22, 2000, when Smith, armed with a handgun, entered a grocery store in the town of Reed in Desha County and demanded money from the owner, George Barnes. At gunpoint, Smith took Barnes’s money bag, and then Smith told Barnes to hand over the keys to his truck. Barnes kept the truck keys, and Smith, still pointing the gun at Barnes, told Barnes to get in his truck. The two men got in the truck, Smith still holding the bank bag, and they proceeded to the nearby Tillar Airport, in Drew County.

Once at the airport, Smith forced Barnes, Wes Lawson, an airport employee, and Judy Quandt, co-owner of the airport’s flying service, into the office. Smith struck Mrs. Quandt in the head with the butt of his pistol, and had her call her husband, Frank •Quandt, and tell him that Smith would kill the three hostages if Mr. Quandt did not return to the airport with his crop duster. When Mr. Quandt returned to the airstrip and exited his plane, he was still wearing hearing protection, and did not hear Smith order him to “stop and get naked”; Smith shot him in the stomach. Smith then shot Lawson in the arm and chest as Lawson ran out of the office. Smith also raped Mrs. Quandt and forced her to perform oral sex on him and on Barnes. State Police were later able to negotiate the release of all of the hostages.

Smith was convicted in Drew County on July 18, 2001, of three counts of kidnapping, two counts of attempted capital murder, four counts of rape, one count of first-degree battery, and one count of vehicular piracy. The Drew County Circuit Court severed the aggravated robbery charge. Smith was then tried for aggravated robbery in Desha County on December 18, 2001, and the jury convicted him and sentenced him to life in prison, which resulted in this appeal.

In this case involving the aggravated robbery, Smith moved in limine to exclude evidence of anything that happened after leaving the grocery store in Reed. He urged to the trial court that the act of putting Barnes into the truck and taking him to the airport implied a charge of kidnapping, with which he was not being charged. The State responded that it needed to offer corroborating evidence that Smith still possessed a firearm when he and Barnes got out of the truck, and that Smith’s brandishing of the firearm was an element of aggravated robbery. The Desha County Circuit Court ruled that, to the extent that the evidence of the gun corroborated an element of the crime of aggravated robbery, it could be used for that purpose. Smith asserted that he just wanted to keep out any mention of the events and crimes that occurred in Drew County at the Tillar airport. The prosecutor replied that he would not use the word “airport,” and would advise Barnes and the State’s other witnesses not to use the word, saying only that Smith took him “to another location.” Smith stated that he would “be open to that.” The witnesses subsequently testified accordingly, with Barnes stating that Smith drove him to “another location,” and Investigator Scott Woodward testified that he recovered the gun used in the robbery at the “other location.”

On appeal, Smith asserts that the trial court erred in denying his pretrial motion in limine whereby he tried to keep out evidence that he forced Barnes into the truck at gunpoint; he contends that this evidence was more probative of kidnapping, with which he had not been charged, than of aggravated robbery, and therefore should have been excluded under Ark. R. Evid. 403. We begin with the observation that trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Thomas v. State, 349 Ark. 447, 69 S.W.3d 864 (2002); Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001).

The trial court’s decision was correct. The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). However, under Ark. R. Evid. 404(b), evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes of wrongs or acts would be relevant and admissible. See Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001); Williams v. State, 343 Ark. 591, 602, 36 S.W.3d 324, 331 (2001).

This court has further made it clear that if the introduction of testimony of other crimes, wrongs, or acts is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Id. Stated another way, the test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000). See also Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002) (prior bad acts independently relevant to prove motive in not contacting police); Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001) (prior crime independently relevant as proof of intent to commit charged offenses); Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000) (escape conviction was not used to show appellant’s character, but was independently relevant to show his consciousness of guilt of the rape offenses).

Here, the evidence suggesting or implying a kidnapping — namely, evidence that Smith forced Barnes into his truck at gunpoint and drove him to another location — is independently relevant to the main issue. The fact that Smith still had a handgun in his possession when he and Barnes got out of the truck tends to prove a material point. A person commits aggravated robbery “if he commits robbery as defined in [Ark. Code Ann.] § 5-12-102, and he ... is armed with a deadly weapon or represents by word or conduct that he is so armed[.]” Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). The State’s evidence that tended to show that a kidnapping also took place was independently relevant in the sense that it showed that Smith had a gun, which was necessary to proving an element of the aggravated robbery with which Smith was charged. During pretrial conference, Smith argued that “anything after the point of what happened in the store would be prejudicial.” Assuming that objection is sufficient to preserve an argument under Rule 403 on appeal, we conclude that the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice. Not only is the evidence independently relevant, but the state is entitled to prove a case as conclusively as possible. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). Therefore, although the trial court did not phrase his decision in any specific terms, the court nevertheless did not abuse its discretion in denying Smith’s motion in limine.

For his second point on appeal, Smith asserts that the trial court should have granted his motion for mistrial. Arkansas State Police Investigator Roger McLemore was one of the officers who investigated the crime scene at Barnes’s store the day after the robbery in Reed. During his testimony, the prosecutor asked him what he had done during his investigation. The following colloquy then occurred:

Prosecutor: Was there a crime scene at that location?
McLemore: Yes, sir, there was a crime scene there.
Prosecutor: Okay. And for what crime?
McLemore: I would say the crime of robbery and a crime of kidnapping.
Prosecutor: And specifically what kind of robbery?
McLemore: It would be aggravated.
Prosecutor: Okay. Did you take any statements?
Defense: Objection, your Honor, May we approach? ... At this point I’m going to have to move for a mistrial based on the fact that the other charge was mentioned and it was at the location of the store, which I was trying to keep out all this time the inference of a kidnapping at the store. Now, he’s saying at the store was the crime scene of the kidnapping. And I move for a mistrial.

The trial court denied the motion. Although Smith initially asked the trial court for a limiting instruction, he almost immediately withdrew the request after agreeing with the State’s suggestion that such an instruction might draw more attention to the kidnapping comment. On appeal, Smith argues that the trial court erred in denying his mistrial motion, contending that the jury could have been more prone to believe that he was guilty of the aggravated robbery because of the implication that he had committed multiple crimes.

This court has held that any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002); Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). However, in this regard, the trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Hamilton, 348 Ark. at 542. This court generally adheres to the rule that a cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur from an inadvertent reference to a prior conviction. Id. (citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991)). An important factor in our analysis is whether the prosecutor deliberately induced a prejudicial response. Id.

Here, the reference was not to a prior conviction, but to another possible crime that was being investigated. The prosecutor asked Investigator McLemore what kind of crime scene it was; the officer replied first that it was an aggravated robbery, and also a kidnapping. McLemore did not, however, state that Smith had been charged with kidnapping, nor that he had been prosecuted and convicted of that offense. McLemore’s statement does not appear to have been a deliberately induced response, but was instead simply an answer that was perhaps more complete and thorough than Smith would have liked. It was not “so patently inflammatory that justice could not be served by continuing the trial.” Hamilton, 348 Ark. at 542. Because the trial court was in a better position to judge the effect of the statement on the jury, see Kimble, supra, we conclude that there was no error in denying the mistrial motion. We additionally note that, because the evidence suggesting a kidnapping was independently relevant to prove an element of the aggravated robbery, as noted in the point discussed above, Smith cannot demonstrate that he was prejudiced by the officer’s reference to a kidnapping crime scene.

Further, Smith explicitly declined to request a limiting instruction. Such an instruction was held sufficient to cure the prejudice in Hamilton. In Kimble, this court pointed out that we have held that an admonition is sufficient to cure a reference a witness made to a defendant’s “previous record.” Kimble, 331 Ark. at 160 (citing Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995)). The Kimble court further held that, in that case, an admonition “would have been sufficient to cure any prejudice . . ., but Kimble never requested one. It was clearly Kimble’s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal.” Id. at 160. Similarly, in the present case, Smith’s decision to decline a curative or limiting instruction precludes reversal on this point.

Finally, Smith asserts that the trial court erred in allowing the State to introduce his convictions arising from the same course of conduct to be used for enhancement purposes during his sentencing at this trial. After the jury convicted Smith of aggravated robbery, the State introduced evidence of Smith’s Drew County convictions for kidnapping, attempted murder, rape, first-degree battery, and vehicular piracy. This evidence was introduced under Ark. Code Ann. § 5-4-501 (d)(1)(A) (Supp. 2001), which provides that a defendant convicted of a Class Y felony involving violence, including aggravated robbery, who has previously been convicted of two or more violent felonies enumerated in the statute, shall be sentenced to a term of not less than life in prison.

Smith asserts that, because these “prior” convictions arose out of the same course of conduct as the aggravated robbery, it was error to admit them in order to sentence him to life in prison as a habitual offender. He relies on Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), to support his claim that the Drew County convictions could not be used to enhance his sentence.

In Tackett, this court reversed a sentence that had been enhanced under the Habitual Offender Act. There, Tackett had caused an automobile accident on March 24, 1983. The accident killed one passenger in the car struck by Tackett; another passenger, Denise Barrentine, went into a coma as a result of her injuries. On March 30, 1983, Tackett was charged with manslaughter and leaving the scene of the accident. He was convicted of both offenses in September of 1983. In March of 1987, Barrentine died, and the State charged Tackett with manslaughter for recklessly causing her death. At this manslaughter trial, the trial court allowed the State to use Tackett’s 1983 manslaughter and leaving-the-scene-of-an-accident convictions, arising from the same incident, in order to enhance his punishment.

On appeal, our court noted first that prior convictions are admissible to enhance punishment pursuant to the Habitual Offender Act, although the conviction was for an offense occurring after the offense on appeal. The Tackett court further stated that the obvious intent of the Act was to enhance the punishment of a party who has a habit of criminal conduct, and that the Act was not designed to act as a deterrent, but was simply punitive. Tackett, 298 Ark. at 25. However, the court concluded that it was error to allow the use of the 1983 manslaughter conviction to enhance Tackett’s punishment for the later death, holding as follows:

The manslaughter charge in connection with the [1983] death . . . and the charge for leaving the scene of the accident for which Tackett was previously convicted and the manslaughter charge in connection with the death of Denise Barrentine in the case at bar all arose from Tackett’s single act of recklessly driving his car into the victims’ car. To utilize these prior convictions arising from one single act to enhance punishment pursuant to the Habitual Offender Act contravenes fundamental fairness and due process. Simply put, there is nothing habitual about the commission of a single criminal act resulting in multiple charges and convictions.

Id. at 26.

Tackett is factually distinguishable from the case at hand. In that case, the two manslaughter charges and the charge of leaving the scene of an accident arose out of the identical act: Tackett’s striking the victims’ car with his truck. In the present case, however, Smith first committed an aggravated robbery by stealing Barnes’s bank bag at gunpoint. He then proceeded to a different location, in a different county, where he committed a series of kidnappings, rapes, attempted murders, a battery, and vehicular piracy. These subsequent crimes, for which he was convicted prior to his aggravated robbery trial, did not arise out of the same course of conduct that culminated in the aggravated robbery of Barnes. Other people were involved; the crimes were in a different county; and the crimes were of an entirely different nature than the aggravated robbery. Simply stated, the multiple crimes did not constitute a “single criminal act” or “continuing course of conduct.” In the case of Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), this court upheld seven separate terroristic threatening convictions arising out of one incident, because there were seven separate victims and because the crime of terroristic threatening was not defined as a “continuing course of conduct.” There, the court noted that, “[i]f Smith had killed seven people, it would hardly be argued that he could only be convicted of one count of murder.” Smith, 296 Ark. at 454.

In the present case, Smith’s multiple criminal acts were not a “continuing course of conduct,” nor did they arise out of the same transaction, as was the case with Tackett’s single car accident from which multiple charges pertaining to different victims arose. Therefore, there was no error in admitting Smith’s earlier convictions to enhance his sentence in this matter.

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.

       Smith failed to request a cautionary instruction, and so he cannot argue that it was error for the trial court to permit testimony on this issue without giving such an instruction.

       Among these violent felonies enumerated in the statute are rape, kidnapping, first-degree battery, and attempted capital murder. See Ark. Code Ann. § 5-4-501(d)(2)(iii), (v), (vi), and (xiii)(a).


author: Donald L. Corbin, Justice.

text:
    Karen BARNES v. John C. EVERETT
    01-1148
    95 S.W.3d 740
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., by: Phillip H. McMath, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Robert L. Henry III and James D. Robertson, for appellee.
   Donald L. Corbin, Justice.

This case involves an allegation of attorney malpractice. Appellant Karen Barnes charged Fayetteville attorney John Everett with malpractice, alleging that Everett was negligent in advising her to settle her claim with an insurance agent, which, in turn, barred her claim against the insurance company. She filed suit against Everett in the Washington County Circuit Court in August 2000, and a jury trial was held in May 2001. The jury returned a verdict in favor ofEverett, and Barnes now brings this appeal. Barnes raises five points for reversal, three of which challenge evidentiary rulings and two that challenge jury instructions. This appeal was certified to us from the Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. 1-2(a)(5). We affirm.

The record reflects that Barnes was in an automobile accident on September 6, 1995, in which her vehicle was struck by another vehicle driven by Jerry Herring. It was later discovered that Herring, who had fled the scene of the accident, was uninsured. Barnes was insured by National Security Fire and Casualty Company, under a policy purchased by her father from Rebsamen Insurance, Inc. Barnes reported the accident and the fact that Herring was uninsured to Rebsamen. Rebsamen informed her that her policy was for liability only and did not provide uninsured motorist coverage. When Barnes inquired as- to the status of her policy, Rebsamen produced a document, purporting to bear Barnes’s signature, showing a written declination of uninsured motorist coverage. After reviewing the document, Barnes informed Rebsamen that the signatures on the documents were not hers, and that her last name had been misspelled three of the four times as “Barens.”

Following her discovery of the forged signatures, Barnes made a claim against Rebsamen and National for payment of her damages. National settled with Barnes on the property damage caused to her vehicle, but refused further payment for her medical expenses.

Barnes hired Everett to represent her in a suit against both Rebsamen and National. Everett filed a complaint on her behalf in the Pulaski County Circuit Court in January 1997. The complaint charged both defendants with fraud and with violating the Arkansas Trade Practices Act. The complaint also alleged that under the doctrine of respondeat superior, National was liable for the acts of its agent, Rebsamen. The complaint alleged further that Barnes was entitled to the full amount available for uninsured motorist coverage from National, which coverage was implied by operation of law because Barnes had never declined the coverage in writing.

Rebsamen answered the complaint, but National did not. A jury trial was scheduled in the Pulaski County Circuit Court in December 1997, before the Honorable Judge John Plegge. Rebsamen appeared for trial, but National did not. That morning, Everett negotiated a settlement for $10,000 with Rebsamen. Everett informed Barnes of the offer and advised her to take it. When Barnes inquired about the effect of the settlement on her suit against National, Everett informed her that her acceptance of the offer from Rebsamen would not impair her suit against National. Barnes accepted the offer. Thereafter, the trial court allowed Everett to proceed against National in a default trial. Because National had defaulted, the jury was only asked to consider the issue of damages. Thereafter, Everett presented his case and asked the jury for compensatory damages of $25,000 and punitive damages of $250,000. The jury returned a verdict of $25,000 compensatory damages and $500,000 in punitive damages.

Following the jury’s award, National appeared before the Pulaski County Circuit Court and moved to set aside the default judgment. National alternatively sought a remittitur of the punitive damages. The trial court denied the motion to set aside, but reduced the award of punitive damages to $250,000. National then appealed.

The Arkansas Court of Appeals reversed and dismissed the judgment against National. See National Sec. Fire & Cas. Co. v. Barnes, 65 Ark. App. 13, 984 S.W.2d 80 (1999). First, the court determined that National was not in default, because Rebsamen’s answer raised a common defense and thus inured to National’s benefit. The court then held that under the theory of respondeat superior, Barnes’s settlement with Rebsamen, the agent, released National, the principal, from liability. The decision was issued on January 13, 1999.

In August 2000, Barnes filed suit against Everett for attorney malpractice in the Washington County Circuit Court. The complaint alleged that Everett was negligent in advising her to accept the offer made by Rebsamen, and that his negligence was the proximate cause of her losing the judgment against National. A jury trial was held in May 2001, before the Honorable Judge Kim Smith.

During the trial, both Barnes and her father, Howard Barnes, testified that they had specifically asked Everett whether settling with Rebsamen would impair the suit against National, and that Everett had assured them that it would not.

Barnes also presented testimony from attorney Jeff Pence, who stated that, in his opinion, a lawyer practicing in Arkansas in December 1997 should have known that settling a claim with the agent, which was premised on a theory of respondeat superior, would have the effect of releasing the principal. Pence stated further that an attorney who faded to advise his client of this would be in violation of the standard of care at the time. On cross-examination, however, Pence acknowledged that the law would not release a principal following settlement with the agent if there was an independent claim still pending against the principal. Pence then admitted that the suit filed by Everett had stated an independent claim against National for breach of contract.

Everett testified that he was knowledgeable about the law of respondeat superior. He also testified that, at the time he advised Barnes to settle her claim with Rebsamen, he knew that the settlement with Rebsamen would release National from any claim of liability under respondeat superior. Everett maintained, however, that he advised Barnes to settle with Rebsamen because he believed that the complaint stated independent claims against National, specifically a claim of fraud and a claim for breach of contract for the uninsured motorist coverage, that would remain viable. Two other witnesses called by Everett echoed his testimony about the viability of the remaining claims against National. The jury found in favor of Everett, and this appeal followed.

We note at the outset that an attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of a client. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997); Schmidt v. Pearson, Evans, and Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996). To prevail on a claim of attorney malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that such conduct proximately caused the plaintiff damages. Id. To prove damages and proximate cause, the plaintiff must show that, but for the alleged negligence of the attorney, the result in the underlying action would have been different. Id. In this respect, a plaintiff must prove a case within a case, as he or she must prove the merits of the underlying case as part of the proof of the malpractice case. An attorney is not liable to a client when, acting in good faith, he or she makes mere errors of judgment. Id. Moreover, an attorney is not, as a matter of law, liable for a mistaken opinion on a point of law that has not been settled by a court of the highest jurisdiction and on which reasonable attorneys may differ. Id.

I. Evidentiary Issues

Barnes raises five points on appeal, the first three of which involve evidentiary issues. The decision to admit or refuse evidence is within the trial court’s discretion, and we will not reverse the trial court’s ruling absent an abuse of discretion and a showing of prejudice. See Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002); Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). With this standard of review in mind, we discuss Barnes’s arguments.

A. Damages Awarded in the Default Trial

Barnes first argues that the trial court erred in refusing to allow her to present evidence of the amount of damages obtained, a total of $525,000, in the default trial against National. She contends that the amount of damages was relevant to her claim of malpractice to show that, but for Everett’s negligence, she would have been successful in her claim against National. She contends further that because the jurors were not informed of the amount of damages previously awarded, they were forced to speculate or guess as to the damages that would have been awarded. The record reflects that this latter argument was not raised in the trial court. This court has repeatedly stated that it will not consider an argument raised for the first time on appeal. See, e.g., Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002); Laird v. Shellnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001). Accordingly, we will confine our review to the preserved issue of the evidence’s relevance.

During a pretrial hearing, Everett sought to exclude this evidence on the ground that it was irrelevant and its admission would be unfairly prejudicial because it was the result of a default-judgment trial, where liability was not an issue and there was no defense at all. Barnes’s attorney argued that while the jury may not be bound by the actual amount of the default judgment, it should be informed of all the facts and of what actually occurred in the underlying case. The trial court found that the evidence of the default judgment had little probative value, and that such value was substantially outweighed by the danger of unfair prejudice to Everett. The trial court explained:

They were unrepresented, and to allow that to stand against this defendant is clearly wrong and not permitted under the law. You certainly will be given your opportunity to prove to the jury what you feel the damages should be under these facts if you prove negligence on behalf of the defendant. But for them to even hear what that jury did is so misleading because there was no one defending, there was only one defendant in there, there' was no defense counsel present to cross-examine the plaintiffs witnesses or to argue on behalf of Rebsamen or National Security that if it was relevant, which I don’t think it is because it’s not given in a fully contested case, it was not brought about by a jury hearing both sides of the case, but by a jury that only heard one side and did not hear anything from the other side. But if it is, has any probative value, then under Arkansas Rule of Evidence 403 that the unfair prejudice and misleading nature of that evidence outweighs any probative value that it might have.

The trial court then stated that Barnes could inform the jury that a favorable judgment was obtained, and that she was only prohibited from telling the jury the amount of the default judgment.

We find no error with the trial court’s ruling. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. See also NationsBank, N.A. v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Columbia Nat’l Ins. Co., 347 Ark. 423, 64 S.W.3d 720; Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999). However, even relevant evidence may be excluded to prevent possible unfair prejudice or confusion “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403. See also Arkansas Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002); NationsBank, 343 Ark. 437, 36 S.W.3d 291. This court has consistently held that the determination of whether the probative value of admitting the evidence is substantially outweighed by its prejudicial effect is left to the sound discretion of the trial court, and that determination will not be reversed absent a manifest abuse of that discretion. Id.; Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).

Here, the trial court found that the evidence of the amount of damages assessed by the jury in the default trial was of little probative value, given that neither Rebsamen nor National defended during the proceeding. The trial court found further that any probative value was substantially outweighed by the danger of unfair prejudice to Everett and the misleading nature of the evidence. Based on the record before us, we cannot say that the trial court manifestly abused its discretion in denying admission of the evidence under the circumstances.

B. Statements Made During Closing Argument in Default Trial

For her second evidentiary point, Barnes argues that the trial court erred in refusing to allow her to present evidence of alleged admissions made by Everett during the default trial as to the value of Barnes’s damages. She argues further that, at a minimum, the trial court should have allowed her to impeach Everett’s, testimony with these statements after he opened the door to this issue by testifying as to what he thought Barnes’s claim was actually worth.

The evidence that Barnes refers to as admissions by Everett were actually statements made during his closing argument to the jury in the default trial. During the hearing below, Barnes’s attorney sought to introduce the statements as substantive evidence of what Everett had previously believed Barnes’s case was worth. In response, Everett argued that such statements could not be construed as admissions on his part; rather, he contended that they were merely part of an argument made on behalf of a client. The trial court agreed that the statements were the product of his zealous representation of his client and could not be considered as personal admissions. The trial court explained:

And as you know, attorneys have a privilege in lawsuits to argue their positions and that of their clients and are free from defamation. You can’t use those statements made in a lawsuit to try. to sue a lawyer or another party for defamation. The law states that those statements are privileged and cannot be used in a defamation context. And I think that’s the same issue we’re getting into that this is an argument of the attorney. It’s not a confession or an admission that is one given outside of the realm of the lawsuit. And over your objection, Mr. Cazort, I’m going to grant his motion as to statements made by Mr. Everett as to what the amount ought to be or what he argued to the jury or requested from the jury the amounts be. I previously ruled those amounts by the jury are subject to the motion in limine because of their frailty and the fact that only one side of the lawsuit was there arguing to receive those amounts. And for the same reasons, this is evidence that should not go before the jury as to what Mr. Everett argued on behalf of his client, and I’ll note your objections to that ruling also.

Barnes now asserts that the trial court’s ruling was erroneous, in large part due to the fact that during his testimony, Everett stated that he felt that $10,000 was a fair settlement of Barnes’s case, because she only had $1,700 in medical bills and she did not “look like she was an injured person.” The problem with this argument is that Barnes did not object to this testimony, nor did she seek to impeach Everett with the statements he made to the jury in the default trial. Barnes’s failure to make any objection below precludes us from addressing the argument on appeal. Arkansas Blue Cross & Blue Shield, 349 Ark. 269, 78 S.W.3d 58; Laird, 348 Ark. 632, 74 S.W.3d 206; Hurst, 347 Ark. 235, 61 S.W.3d 180. We are likewise precluded from addressing Barnes’s argument that the evidence was admissible to challenge Everett’s credibility under Ark. R. Evid. 806, as that argument was not made below. Accordingly, we confine our review to the argument made at trial, that the statements were substantive evidence of what Everett personally believed to be the value of Barnes’s case.

We agree with the trial court that such statements made on behalf of a client and under the duty to zealously represent the client may not be characterized as personal admissions on the attorney’s part. Indeed, statements made by attorneys during opening statement or closing argument are not even considered as evidence at all. See AMI 4th 103(e); AMCI2d 101(e); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). The pertinent statements made by Everett were as follows. On the subject of compensatory damages, Everett said: “I believe that the evidence in this case would support a verdict in favor of Karen Barnes for twenty-five thousand dollars ($25,000) of actual debts.” Regarding punitive damages, Everett said:

I think your verdict should be, on punitive damages, ten times the amount of compensatory damages, two hundred and fifty thousand dollars ($250,000). I think the verdict should be that it’s twenty-five thousand dollars ($25,000) of actual damage that Karen Barnes sustained in this accident, and it costs another two hundred and fifty thousand dollars ($250,000) for this insurance company, because of the way they treated this lady, because of lying about it, because of bogusing up papers, and sending them to her daddy, and lying about what they say, because they forged a name and didn’t do it very well, and then you start checking the boxes after you get caught.

None of these statements is indicative of Everett’s personal belief of the value of Barnes’s claim. They are nothing more than an argument made by a lawyer on behalf of a client. As such, the trial court was correct to exclude them as evidence in this case.

C. Expert Testimony

For her third evidentiary point, Barnes argues that the trial court erred in allowing two witnesses called by Everett to testify that they believed that the court of appeals was in error in dismissing Barnes’s claim against National in National Sec. Fire & Cas. Co., 65 Ark. App. 13, 984 S.W.2d 80. The first witness, Judge John Plegge, who presided over the default trial, was asked if he agreed with the appellate decision, to which he replied: “Absolutely not.” Judge Plegge later stated that “they made the wrong decision.” The second witness, attorney Gail Matthews, was asked his opinion on the correctness of the court of appeals’ decision, and Mr. Matthews replied: “It’s just as wrong as it can be.”

On appeal, Barnes argues that such testimony was objectionable and that the trial court erred in admitting it. Her argument, however, is procedurally barred because she failed to object to the testimony below. It is well settled that to preserve a point for appeal, a proper objection must be asserted at the first opportunity. See Madden, 346 Ark. 405, 58 S.W.3d 342; Seeco, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000). The record here reveals that Barnes never objected to the testimony that she now challenges. Accordingly, she has waived this issue on appeal. Id. Furthermore, Barnes has failed to demonstrate that she was prejudiced, because she opened the door to this line of testimony by asking her own witness, attorney Jeff Pence, whether he agreed with the court of appeals’ decision. See Madden, 346 Ark. 405, 58 S.W.3d 342; Edwards, 335 Ark. 470, 984 S.W.2d 366.

On a similar note, Barnes argues that the court of appeals’ decision was the definitive statement of law that releasing an agent from liability, based on a theory of respondeat superior, thereby effects the release of the principal. She argues that the trial court should have formulated instructions outlining the decision and then instructed the jury that it was bound by this statement of the law. This argument, however, like the previous one, was not raised below. Accordingly, we will not address it on appeal.

II. Jury Instructions

Barnes’s remaining two points raise issues pertaining to the trial court’s rulings on jury instructions. Particularly, Barnes argues that the trial court erred (1) in refusing to give a modified AMI instruction submitted by her, and (2) in giving a non-model instruction requested by Everett. We note at the outset our well-settled law regarding the giving or refusal to give jury-instructions. This court has consistently held that a party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support giving the instruction. See Dodson, 345 Ark. 430, 47 S.W.3d 866; Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997). However, this court will not reverse a trial court’s refusal to give a proffered instruction unless there was an abuse of discretion. Id. When instructions are requested that do not conform to AMI, they should be given only when the trial judge finds that the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002). The model AMI instructions are to be used as a rule, and non-AMI instructions should only be used when an AMI instruction cannot be modified. Id. (citing Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993)). Furthermore, it is not error for the trial court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. Dodson, 345 Ark. 430, 47 S.W.3d 866. With this standard of review in mind, we discuss the individual points.

A. Refusal to Give AMI Civ. 4th 903 as Modified

Barnes argues that the trial court erred in refusing to give a modified version of AMI Civ. 4th 903 that she submitted below. Her proposed instruction would have informed the jury:

You are instructed to assume there was in force in the State of Arkansas at the time of this occurrence a law which provided that a setdement with a[n] agent for any alleged harm by a party suing that agent, automatically releases the principal from any liability, unless it can be shown by a preponderance of the evidence that the principal was guilty of negligence or intentional conduct, independent of and apart from that of the agent.

During the proceedings below, Barnes’s counsel candidly admitted that AMI Civ. 4th 903 is designed to inform the jury of the substance of a statute or code provision, as opposed to a holding from case law, and that he knew his modification was “a little unusual.” The trial court then asked counsel if he had any legal authority stating that the model instruction could be used in this manner, to which counsel responded that he did not.

Ultimately, the trial court concluded that the proffered instruction was not a proper form of AMI Civ. 4th 903. The trial court also found that the instruction was improper because the issue of whether Everett’s conduct was negligent was a matter for the jury to decide based on the expert testimony presented. As Everett points out on appeal, the trial court’s ruling is consistent with AMI Civ. 4th 1512, which was given in this case and provided:

In performing legal services for a client, an attorney must possess and use with reasonable diligence and skill ordinarily used by attorneys acting in the same [or] similar circumstances. A failure to meet this standard is negligence. In deciding whether John Everett possessed and used with reasonable diligence the skill the law required of him, you may consider only the evidence presented by expert witnesses.

We cannot say that the trial court abused its discretion in refusing to instruct the jury as proffered by Barnes. In the first place, AMI Civ. 4th 903 is designed to instruct a jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. Parker, 315 Ark. 307, 867 S.W.2d 436. Barnes’s counsel admitted that his proposed modification was not in line with the design of the model instruction.

In the second place, we agree with the trial court that the issue whether Everett was negligent was for the jury to decide based on the standard in the legal community as testified to by the expert witnesses. Our case law has consistently held that the attorney’s conduct must be measured against the generally accepted standard of practice. See, e.g., Pugh, 327 Ark. 577, 940 S.W.2d 445; Schmidt, 326 Ark. 499, 931 S.W.2d 774. Such a measurement plainly requires expert testimony as to what the standard of practice is, unless the trial court determines that such testimony is not necessary because the case falls within the common-knowledge exception. See AMI Civ. 4th 1512, NOTE ON USE. AMI Civ. 4th 1512 properly instructed the jury on this issue.

B. Giving of a Non-Model Instruction

For her final point, Barnes argues that the trial court erred in giving a non-model instruction proffered by Everett, which provided:

A lawyer’s conduct must be judged in light of all the surrounding circumstances existing before and during the course of litigation and not solely according to the hindsight gained after completion of the litigation.

During the instruction conference below, Barnes’s counsel objected to the instruction because Everett had not offered any Arkansas case law showing that the instruction accurately represents the law in this state. Fie candidly admitted, however, that he did not believe that the proffered instruction was an incorrect statement of the law. The trial judge found that the instruction was a correct statement of the law that was not covered by a model instruction, and he instructed the jury accordingly.

On appeal, Barnes contends that the instruction was improper because it is a deviation from AMI and because the instruction, particularly the language regarding hindsight gained after completion of the litigation, was highly prejudicial because it amounted to a comment on the evidence. This is not the argument made below. It is well settled that an appellant may not change the grounds for objection on appeal, but is limited by the scope and nature of his or her objections and arguments presented at trial. See National Front Page, LLC v. State, 350 Ark. 286, 86 S.W.3d 848 (2002); City of Benton v. Arkansas Soil and Water Conserv. Comm’n, 345 Ark. 249, 45 S.W.3d 805 (2001). Accordingly, we will not address her argument for the first time on appeal.

Affirmed.

Glaze, J., not participating.


text:
    Jerry Lural EDMOND v. STATE of Arkansas
    CR 01-1050
    95 S.W.3d 789
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      David Mark Gunter, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Jerry Lural Edmond appeals the order of the Hempstead County Circuit Court convicting him of first-degree murder. On appeal, Appellant argues that: (1) the trial court erred in admitting a photograph, because its prejudicial nature outweighed its probative value; and (2) there was insufficient evidence to support his conviction. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

On July 4, 2000, at approximately 4:40 p.m., two emergency medical technicians (EMTs) were dispatched to a residence on 2215 Highway 174 South. After arriving at the residence, the EMTs, David Stuard and Jeffrey Ferrand, discovered that there had been a shooting. Two men were standing outside the residence and one of the men, Appellant, was pointing to the residence, stating that he had “shot [his] baby.” Once inside, Stuard and Ferrand discovered a woman slumped over in a living room chair. The woman, later identified as Maxine Turner, had no pulse or heart rhythm. Appellant was subsequently placed under arrest.

A jury trial was held on February 21, 2001. Testifying on behalf of the State was Lieutenant Frank Mcjunkins of the Hemp-, stead County Sheriff’s Department. He explained that on July 4, he was called to Appellant’s residence to investigate a crime scene. Once there, Mcjunkins discovered Turner’s body in a chair in the living room and the murder weapon lying against a living room wall. According to Mcjunkins, the victim had been shot on the left side of the head, just above the earlobe. The weapon found at the scene of the crime was a thirty-eight caliber revolver that contained one spent casing. According to Mcjunkins, the placement of the spent casing just to the left of the chamber indicated that there was only one pull of the weapon’s trigger. Mcjunkins also found one live thirty-eight round on top of a table in the living room that matched the round fired from the weapon. A green cloth case used to store the handgun was discovered in a corner of the couch. Inside the case were ten additional rounds of live ammunition.

Deputy Heath Ross testified that on July 4 he received a dispatch at approximately 4:45 p.m. to assist EMTs who were at Appellant’s residence. When he arrived at the residence, the EMTs, Appellant, and another man were all present at the scene. At that time, Appellant was standing in the front yard with his hands raised in the air. When Ross asked Appellant to identify himself, he responded by stating, “I shot my baby. I shot my friend. I thought the gun was unloaded. I shot her and it was an accident. We was playing and she told me she was leaving. I told her, ‘No, she wasn’t,’ Oh, my God, I shot my baby.” According to Ross, Appellant repeated the statement that he shot Turner two or three times.

Sergeant Brian Russell testified that he assisted in the investigation of the crime scene. Russell first encountered Ferrand, who explained to him that a woman had been shot. He then drew his weapon and went to talk with Appellant. As Russell approached him, Appellant raised his hands in the air and stated, “I shot her. I shot her.” Russell advised Appellant to listen to him as he read him his Miranda rights. Afterwards, Appellant continued to repeat that he had shot Turner.

According to Dr. Steven Ericson, an associate medical examiner with the Arkansas State Crime Laboratory, Turner’s death was the result of a single gunshot wound to the head. Specifically, he stated that the bullet entered her head in the left temple area, passed through her brain, exited the skull on the right side, and lodged in the skin of the right temple. Dr. Ericson opined that the wound was the result of a close-contact shooting. In other words, the gun was placed near the left temple when it was discharged. Dr. Ericson explained that a wound resulting from a close-contact shooting will reveal gun powder that had been driven underneath the skin. Dr. Ericson further stated that the presence of a light soot rim and a deep, dense soot deposition underneath the scalp confirms that the muzzle of a gun was pressed lightly against a victim’s head at the time of discharge. Such a soot deposition was found under Turner’s scalp. According to Dr. Ericson, Turner’s death was a homicide. On cross-examination, Dr. Ericson stated that he had seen self-inflicted gunshot wounds that looked like Turner’s injury, but concluded that this was a homicide based on his physical examination and the investigative materials he received from law enforcement personnel who oversaw this case.

James Looney, a forensic ballistics examiner with the State Crime Lab, also testified. He explained that ballistics tests revealed that the bullet recovered from Turner had been fired from the thirty-eight caliber revolver recovered inside Appellant’s living room. Looney also explained that a conscious act was required in order to fire this particular gun. Specifically, it required thirteen to fourteen pounds of steady pressure to pull this gun’s trigger.

Leroy Gamble testified that he had known Appellant for a long time and that he often lent Appellant money. In exchange, Appellant would give Gamble his thirty-eight caliber revolver to hold as collateral. According to Gamble, Appellant came to him on the morning of July 4 to pick up his revolver at about 11:30 a.m.

Jerry Taylor testified that he, along with Mary Williams, lived next door to Appellant. Turner had stayed with the pair the evening before the shooting, but returned to Appellant’s residence the following morning. Taylor stated that after the shooting, Appellant knocked on his door asking to call 911, because he had shot Turner. Specifically, Appellant stated to Taylor, “he had killed his loved one.”

Mary Williams testified that on July 3, Turner came to her house and wanted to spend the night with her and Taylor in order to keep from arguing with Appellant. The next morning, though, Turner returned to Appellant’s house. Williams stated that on the afternoon of July 4, she heard a shot, and shortly thereafter, Appellant came running to their front door, shouting that he had shot Turner.

Barbara Nixon, Turner’s best friend, also testified at Appellant’s trial. Nixon and Turner had spent July 2 together. According to Nixon, Turner and Appellant would see one another from time to time. She explained that they had known one another for a long time, and would often go through periods where they did not get along. Nixon also stated that Turner had recently started seeing another man. According to Nixon, she and Turner had plans to spend July 4 together. Finally, Nixon stated that Turner had expressed a fear of guns.

Wanda Evans, Turner’s daughter, testified that Appellant came to her mother’s home on July 3 and begged her to go to his house with him. According to Evans, Turner and the Appellant were not dating at the time of her death. Evans stated that her mother and Appellant had broken up in the past, usually after Appellant pulled a gun on Turner. Evans further explained that Turner would still continue to see Appellant, because he would bring her crack. Evans also confirmed that her mother did not own a gun and was very scared of them.

At the close of State’s case, Appellant moved for a directed verdict, arguing that the State failed to prove the element of purpose with regard to the first-degree-murder charge, as well as the elements of any lesser-included offenses. The motion was denied. Appellant then argued that because the case was based on circumstantial evidence, a directed verdict was warranted, as the State faded to disprove other possible explanations for Appellant’s death. The trial court again denied the motion.

Appellant rested without presenting any evidence. The case was then submitted to the jury. Appellant was found guilty of first-degree murder. He was subsequently sentenced as previously set forth. This appeal followed.

Actually raised as his second point on appeal, Appellant challenges the sufficiency of the evidence supporting his conviction. Preservation of Appellant’s right against double jeopardy, however, requires that we consider the challenge to the sufficiency of the evidence before we consider any alleged trial error. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).

We are mindful of the well-established standard of review in cases challenging the sufficiency of the evidence. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Fairchild, 349 Ark. 147, 76 S.W.3d 884; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In other words, if you have two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt which is not enough to support a conviction. Howard v. State, 348 Ark. 471, 79 S.W.3d 273; cert. denied, 123 S. Ct. 606 (2002); Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).

Appellant’s argument on this point is that other reasonable hypothesis were not excluded by the evidence presented in his case; thus, the State’s circumstantial evidence does not rise to the level of substantial evidence to support his conviction. Specifically, Appellant argues that the evidence was not inconsistent with the possibility that he accidentally shot Turner. In other words, Appellant argues that the State failed to prove that he acted with a purposeful mental state. We disagree.

To sustain a conviction for first-degree murder, the State was required to prove that Appellant purposely caused the death of Maxine Turner. See Ark. Code Ann. § 5-10-102(a) (2) (Repl. 1997). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1997). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997). Thus, this court has recognized that the intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id.; Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). This court has held that guilt can be established without eyewitness testimony and evidence of guilt is not less because it is circumstantial. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001); Gregory, 341 Ark. 243, 15 S.W.3d 690.

As previously stated, the longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Fairchild, 349 Ark. 147, 76 S.W.3d 884; Smith, 337 Ark. 239, 988 S.W.2d 492. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). It is also well settled that the question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court’s role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Ross, 346 Ark. 225, 57 S.W.3d 152; Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; rather, the test is one of substantiality. Id.

Here, as the State points out, there was testimony at trial from six different witnesses who heard Appellant admit that he shot and killed Turner. One of those witnesses, Deputy Ross, testified that Appellant told him that Turner stated that she was going to leave, but Appellant would not allow her to do so. Then, Appellant continued to repeat that he had shot her. There was also evidence presented regarding the tumultuous relationship between Appellant and Turner, including the fact that Turner had started seeing someone else. There was also evidence that the two had broken up in the past because Appellant had pulled a gun on Turner. In fact, the night before the shooting, Turner left Appellant and went to stay with a neighbor in order to avoid fighting with him. The very next morning, Appellant went and retrieved his gun from Gamble.

Also supporting the conclusion that this was not an accidental shooting was the forensic evidence presented by the State. According to Dr. Ericson, Turner died as a result of a close-contact wound. Moreover, there was testimony from Looney, the forensics ballistic expert, that a conscious act was required to fire the gun, and that it would take thirteen to fourteen pounds of pressure to fire the weapon. It is axiomatic that a jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. Branscum, 345 Ark. 21, 43 S.W.3d 148; Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). Considering all this evidence in a light most favorable to the State, we are convinced that there was substantial evidence to support the jury’s verdict. Accordingly, we affirm on this point.

Appellant’s remaining argument on appeal is that the trial court erred in admitting a photograph depicting the inside of Turner’s head after an incision was made by the medical examiner. According to Appellant, the photograph possessed no probative value and served only to inflame the jury. Appellant further argued that the photograph would be cumulative and repetitive, as the doctor’s testimony was sufficient to establish his opinion regarding the cause of death. The State countered that the purpose of the photograph was to help Dr. Ericson in his testimony regarding the nature of Turner’s close-contact wound and, thus, was properly admitted. The admissibility of photographs lies in the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. Mosby v. State, 350 Ark. 90, 85 S.W.3d 500 (2002); Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). No such abuse of discretion occurred here; thus, we find no merit in Appellant’s argument on this point.

When photographs are helpful to explain testimony, they are ordinarily admissible. Id. The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. (citing Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999)). Even the most gruesome photographs may be admissible if they tend to shed light on any issue, are useful in enabling a witness to testify more effectively or by corroborating testimony, or by enabling jurors to better understand the testimony. Id; Branscum, 345 Ark. 21, 43 S.W.3d 148. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

In Mosby, 350 Ark. 90, 85 S.W.3d 500, this court recently discussed the admissibility of gruesome photographs, including a picture that depicted a cross-section of the victim’s brain. In that case, the appellant argued that the photograph was unfairly inflammatory and prejudicial. We disagreed, ruling that the picture was properly admitted, because its probative value outweighed its prejudicial effect. Specifically, this court pointed out that the photograph assisted the trier of fact, as it was introduced to corroborate the medical examiner’s testimony about the path of the bullet through the victim’s brain and the fact that the wound contained necrotic tissue. Id.

Likewise, in the present case, this photograph was admitted during the course of the medical examiner’s testimony regarding the nature of the victim’s wound. Out of the presence of the jury, Dr. Ericson explained that it was necessary to make an incision and examine the soft tissue under Turner’s scalp to look for black sooty matter in order to ultimately determine that this was a close-contact shooting. This soot can be discerned in the photograph. Thus, the photograph aided Dr. Ericson in explaining to the jury how he reached his ultimate conclusion that Turner’s death was the result of a close-contact wound. While the photograph may be gruesome, there is nothing to support Appellant’s accusation that it was admitted for the sole purpose of inflaming the jury. Accordingly, we cannot say that the trial court abused its discretion in admitting the photograph.

The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed.