author: LAVENSKI R. SMITH, Justice.

text:
    Verlon McKAY v. Debra McKAY
    99-617
    8 S.W.3d 525
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Meredith Wineland, for appellant.

      Virginia (Ginger) Atkinson, for appellee.
   LAVENSKI R. SMITH, Justice.

This is a domestic-relations case involving property division and alimony incident to a divorce and comes before this court on a Petition for Review from the Arkansas Court of Appeals. Appellant Verlon McKay (“Verlon”) originally appealed the Saline County Chancery Court’s decision in the divorce action, and Appellee Debra McKay (“Debra”) cross-appealed. The Arkansas Court of Appeals issued a decision in this matter on May 12, 1999, in McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999), affirming the chancellor in part and reversing in part. Debra petitioned this court for review. We accepted the case for review pursuant to Supreme Court Rule l-2(e).

Facts

Verlon and Debra were married on June 8, 1991, and divorced on March 12, 1998, by order of the Saline County Chancery Court. There were no children born of the marriage, but Debra had custody of two sons by a prior marriage. At trial, the parties gave conflicting testimony regarding their property. In particular, they disputed the appropriate disposition of a checking account to which both were signatories and a houseboat purchased in 1997. Following a hearing, the chancellor made the following specific findings. He found that the joint account, which had been solely Verlon’s before marriage, remained separate property because all the funds deposited in the account derived from federal disability checks Verlon received from the Veterans Administration and the Social Security Administration. Additionally, the court found that although the account was held in joint names, Verlon controlled the funds. Accordingly, the court also assigned to Verlon all property purchased through that account. With respect to the houseboat, the court found that it constituted marital property based upon a bill of sale issued in the name of both parties. The court did so even though Verlon purchased the boat with money he received by inheritance. The court found that the bill of sale was evidence of a gift by Verlon to his wife. The court also ordered that the stove, refrigerator, and dishwasher belonged to Debra, and that Verlon could either return those items to Debra or pay her $2,000 within the week. In addition, the court found that the parties would keep their own vehicles and would be responsible for their own payments. Finally, the court ordered that Verlon should continue paying alimony in the amount of $100 per week for the remainder of 1998, approximately nine months, and that the parties should each pay their attorney’s fees.

Subsequent to the hearing and the final order filed on March 13, 1998, Verlon entered a Motion for Reconsideration claiming that the chancellor erred in awarding the temporary alimony because Debra never requested alimony in her complaint. As such, Verlon argued, the court had no jurisdiction to enter the alimony award. Debra answered, and also moved to show cause because Verlon had not only failed to pay alimony, but he had also failed to pay the $2,000 or return the appliances ordered by the court in the divorce decree. Upon consideration of the motion, the court set aside its order for alimony, agreeing with Verlon that Debra did not request the award in her pleadings, and that the court could not grant such an award on its own action.

Verlon then filed his Notice of Appeal on April 13, 1998, and Debra cross-appealed in a timely fashion. Specifically, Verlon argued on appeal that the trial court erred in ordering that the houseboat constituted marital property because he had adduced clear and convincing evidence that he did not intend to make a gift of the property. In her appeal, Debra argued that the trial court erred in ruling that none of the personal or real property acquired during the marriage through the joint checking account was marital property. Furthermore, Debra argued that the trial court erred in setting aside its original motion on the award of rehabilitative alimony, and that the court erred in failing to award payment of her attorney’s fees.

In a decision dated May 12, 1999, the court of appeals affirmed the chancellor’s determinations regarding the houseboat and the joint checking account. However, the court of appeals reversed the chancellor’s order granting the Motion for Reconsideration regarding Verlon’s alimony payments. The court based its holding on Rule 15 of the Arkansas Rules of Civil Procedure which allows for the amendment of pleadings to conform to the proof introduced at trial. Applying this rule, the appellate court held that the evidence presented at trial was sufficient to allow for an award of rehabilitative alimony, and the chancellor erred in finding that he did not have jurisdiction to make such an award. The court of appeals remanded that particular matter to the chancellor to compute the proper amount of alimony due Debra. Finally, the court of appeals found that Debra failed to obtain a ruling on her request for attorney’s fees; as such, the issue was waived. We granted Debra’s Petition for Review.

Standard of Review

When we grant a petition to review a case decided by the court of appeals, we review it as if it was originally filed in this court. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998); Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998) (citing Williams v. State, 328 Ark. 487, 944 S.W.2d (1997)). We hear chancery cases, including division of property cases, de novo on the record, but will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998); Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987). We will defer to the superior position of the chancellor to judge the credibility of witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). A grant of alimony or attorney’s fees are issues within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Debra addresses three main points in her Petition for Review, all of which were raised below. First, Debra argues that the chancellor erred by finding that the bank-account property remained separate property. Second, Debra argues that the chancellor erred in reversing his decision to grant her rehabilitative alimony. Finally, Debra argues that the chancellor erred in fading to award her attorney’s fees and costs due to the disparity between the parties’ incomes and ability to pay.

Verlon argues that the chancellor erred in finding that the houseboat was marital property because there was no evidence which showed that the funds used to pay for the houseboat were ever processed through the joint account. Furthermore, Verlon argues that he changed the title to the boat from one which listed both his and Debra’s names to one which only had his name once he registered the boat. Regarding alimony, Verlon argues that alimony should not have been awarded by the court of appeals after the chancellor vacated his order because Debra did not comply with the Rules of Civil Procedure in pleading her entitlement to ali— mony. As such, the chancellor’s decision to vacate his original award of alimony was proper.

I. Property Division

Any discussion of division of marital property should begin with the relevant statutory provision. Arkansas Code Annotated § 9-12-315 (Repl. 1998) defines “marital property” as “all property acquired by either spouse subsequent to the marriage,” subject to certain exceptions. There is a presumption that all property acquired during a marriage is marital property. McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999); Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987); Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988). The applicable exceptions listed in the statute include:

(1) Property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent.

Ark. Code Ann. § 9-12-315(b).

The general rule in Arkansas is that once property is placed in both spouses’ names, there is a presumption that the property is held in tenancy by the entirety. McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979). Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.3d 28 (1975); Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988); Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). As this court stated in Ramsey, “[t]his presumption is strong, and it can be overcome only by clear and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof....” Ramsey, 259 Ark. at 19-20. In determining whether property remains under the control of one spouse upon divorce, or is the property of both spouses, “tracing” may be used by the court. “Tracing of money or property into different forms may be an important matter, but tracing is a tool, a means to an end, not an end in itself; the fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce.” Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986); Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996).

A. The Joint Bank Account

The chancellor ruled that the bank account was not marital property because “all of the money was derived from either his Veterans Administration compensation disability benefits or from his Social Security disability benefits. The money was placed into an account that was held in joint names, and was under the control of the Defendant.” In other words, the chancellor determined that Verlon succeeded in rebutting the presumption that the account was marital property held as tenants by the entirety. Debra argues that the court erred in so doing. We disagree and hold that the chancellor’s decision was not clearly erroneous.

The chancellor, in part, held that Cole should control under the instant facts. In Cole, the court of appeals upheld the chancellor’s finding that a joint account in both parties’ names was actually the wife’s account because the account was funded by inheritance money received by the wife. Additionally, the chancellor in Cole determined that the wife had complete control over the account, that the husband only wrote four or five checks total from the account and only with his wife’s prior approval, and that the parties also had a separate joint account into which they deposited their paychecks and over which they both had control. The court of appeals, in affirming the chancellor’s decision, found that there was clear and convincing evidence to support the chancellor’s decision, and that that decision was not clearly erroneous.

Due to the nature of this case, a close examination of the facts is in order. Before and after their marriage, Verlon derived his income exclusively from disability benefits directly deposited into a checking account. Prior to the marriage that account was in his name only. After the marriage, Verlon added Debra’s name to the account, thus making it a joint account. However, the account continued to be funded solely by Verlon’s disability income. Debra maintained a separate checking account in her name only which she had prior to the marriage. It is undisputed that all of the funds deposited in Debra’s account came from her employment as a driver for Federal Express. During the marriage, the couple maintained two checking accounts. Debra deposited her paycheck from her job with Federal Express in an account for which she was the sole signatory. Verlon also maintained a savings account held in his name only.

At trial, the parties gave conflicting testimony regarding the joint account’s use and- control. Debra stated her belief that the account was marital property. She testified that she wrote checks on the joint checking account for groceries and to pay Verlon’s portion of their gasoline credit card bills. She indicated that they had an agreement that Verlon would pay for the groceries out of the joint account. She testified that Verlon also paid for the utilities out of the joint account. She testified that if her children had a party, she would pay for that out of her own personal account. She testified that in the last year of the marriage, if she stopped by the store to pick something up and she paid for it out of her own account, “I had him reimbursing me. Before that, I would just pick it up and pay for it.” Debra testified that it was their agreement that Verlon would pay for the groceries out of the joint account. Debra also testified that the house furniture was all paid for out of the joint account and that a bedroom suite for one of her children was bought out of the joint account. Debra acknowledged that she never put any of her paychecks into the joint account, nor did she ever deposit any other money into the joint account. She also acknowledged that the Cifra stock that Verlon bought with funds from joint checking account was in his name only.

Verlon gave a different version of the parties’ ownership and use of the joint checking account. Verlon testified that Debra told him every time that she had written a check on the joint account because “it was understood that that account was mine and hers was hers.” Verlon also testified that he made all of the mortgage payments from the joint account. He stated that he looked through all of his statements on the joint account, and Debra never made any deposits on the account. Verlon testified that Debra probably wrote approximately ten percent of the checks out of the account, but that she never wrote a check out of the account unless she first spoke to him about it. Verlon testified that he paid Debra back for the washer and dryer out of the joint account and produced the checks written to her to support his contention. When Debra filed for divorce, Verlon withdrew the funds totaling approximately $12,800 in the joint account.

On appeal, we defer to the trial court’s credibility assessments. Noland, supra. The trial court heard all of the testimony and assessed the credibility of the witnesses. The trial court’s findings indicate that the court chose to accept the testimony of Verlon that he alone controlled the expenditure of funds from the joint account funded by his disability income and that Debra had agreed to this arrangement. The trial court thus apparently found that when Debra expended funds from the account it was with Verlon’s permission or at his direction. Accordingly, the trial court ruled that Verlon provided clear and convincing evidence that the account funds remained his separate property despite the account existing in both names. We cannot say that the trial court’s decision was clearly erroneous and, therefore, affirm.

B. The Houseboat

In his order, the chancellor determined that the houseboat was marital property subject to a one-half division in the divorce. On appeal, Verlon argues that there was no evidence introduced at the divorce hearing which indicated that the money used for the houseboat came from the joint account, or that the inheritance he received from his mother, totaling $35,809.11, was ever commingled with the joint account to which Debra could attach any interest. Verlon argues that the funds are traceable to the inheritance money, and that he used cashier’s checks, instead of checks from the account, to pay for the houseboat.

While it would appear that the ownership of the houseboat would fall under the second exception to marital property listed in Ark. Code Ann. § 9-12-315(b), Verlon misses the point in that the chancellor found that “the houseboat is marital property because it is in joint names although derived from benefits from inheritance. The Court finds a gift was made.” (Emphasis added.) The chancellor specifically found at the close of the hearing that the bill of sale, which was the only written evidence of the ownership of the houseboat, indicated that it was jointly owned by the parties, despite Verlon’s testimony that he later transferred title into his name only. Verlon did not produce any documentation of a change in the title of the boat. In other words, the chancellor found that while the property could be traced to an inheritance, Verlon made a gift to Debra of an interest in the property. The chancellor thereby found that Verlon did not rebut the presumption that once the property was placed in both his and Debra’s names, the property was then held as tenants by the entirety. See Ramsey, supra, and Lofton, supra.

We discussed the situation of the purchase of property by one spouse with inheritance funds which have been processed through a joint account in Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989). In Jackson, the wife used inherited funds to purchase her sister’s one-half interest in real property to which the wife owned the other one-half interest in her name alone. When the wife received the inheritance, she deposited the money in a joint bank account which she held with her husband, and then several days later wrote a check out of that account to her sister for the property. The real property was titled in the wife’s name only. Upon finding that the real property was not marital property, the court found that the wife merely “poured” the inheritance in and out of the joint account and then, significantly, only titled the property in her name upon purchase. We upheld the chancellor’s finding that the husband never exercised any dominion or control over the funds in the joint account, and that the wife never intended to make a gift of an interest in the property to her husband. Applying the appropriate principles to the instant case, we cannot say that the trial court clearly erred in finding that the houseboat was marital property. While the chancellor’s determinations on the houseboat and the joint checking account may appear inconsistent, they, in fact, underscore the fine factual distinctions that often characterize marital-property divisions.

II. Alimony

Verlon cross-appeals the court of appeals holding which reversed the chancellor’s order denying an award of alimony. Verlon contends that Debra should not be provided alimony because she did not properly plead her claim for alimony under the Arkansas Rules of Civil Procedure. In response, Debra argues that she is allowed the rehabilitative alimony under Arkansas law, and that the chancellor erred in deciding that he did not have jurisdiction tp award alimony. We agree and reverse the chancellor’s ruling that he lacked jurisdiction to award alimony.

An award of alimony is not mandatory but is a question which addresses itself to the sound discretion of the chancellor. Wilson v. Wilson, 294 Ark. 194, 199, 741 S.W.2d 640 (1987). Fault is not a factor in the award of alimony unless it meaningfully relates to need or ability to pay. Murphy v. Murphy, 302 Ark. 157, 159, 787 S.W.2d 684 (1990) (citing Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982)). Below, the trial court’s original decree of divorce ordered Verlon to pay Debra rehabilitative alimony through the end of 1998. Upon Verlon’s motion, the court set aside the award of alimony finding that Debra’s pleadings did not request an award of alimony and “it was therefore without authority to make such award.” However, Rule 15(b)of the Arkansas Rules of Civil Procedure states, “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Furthermore, this rule allows these amendments to relate back to the date of the original pleading when the claim or defense arose out of the conduct, transaction, or occurrence set forth in the original pleading. Rule 15(b) does not require that the claim be pled in writing at the time the parties actually try the issues.

It is apparent on the record that throughout the proceeding below the parties litigated the case with full knowledge of Debra’s desire for alimony. In fact, the trial court originally awarded temporary alimony in the amount of $100 per week at a temporary hearing held on November 21, 1997, with no objection from Verlon. The record reflects that the trial court had before it adequate facts upon which to make a determination of Debra’s entitlement to alimony. Rule 15(b) further provides that if the evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the trial court may nonetheless permit amendment of the pleadings in its discretion. We hold, therefore, that the trial court erred in granting Verlon’s motion to set aside the award of alimony.

III. Attorney’s Fees

Finally, Debra argues that she should have been awarded attorney’s fees and costs due to the disparity in the parties’ incomes and ability to pay these amounts. With regard to attorney’s fees, Ark. Code Ann. § 9-12-309 (Kepi. 1998) controls. Under this statute, the chancellor may award attorney’s fees to either party, and will consider an award of additional fees should one party have to return for the enforcement of alimony, maintenance, and support provided for in the decree. A chancellor has considerable discretion to award attorney’s fees in a divorce case. Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995). In determining whether to award attorney’s fees, the chancellor must consider the relative financial abilities of the parties. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998); Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983); see also, Lee v. Lee, 12 Ark. App. 226, 674 S.W.2d 505 (1984). We hold the chancellor did not abuse his discretion by declining to award Debra attorney’s fees and costs.

Affirmed in part and reversed in part.

       Verlon received VA and Social Security Disability benefits due to an injury he received while serving in the military in 1961. This injury relegated him to a wheelchair.


source: Caselaw Access Project

license: Public Domain

text:
    Steven A. STEGGALL v. STATE of Arkansas
    CR 99-712
    8 S.W.3d 538
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Val P. Price and Scott Nance; and Terry Goodwin Jones, Law Student Admitted to Practice Pursuant to Rule XV(E)(1)(6) of Rules Governing Admission to the Bar of the Arkansas Supreme Court; for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   LAVENSKI R. SMITH, Justice.

Appellant Steven A. Steggall appeals his capital-murder conviction for the death of his three-month-old daughter, Haylee Brianne Stice (“Haylee”), who died of traumatic injuries to her head and body. The trial court sentenced Steggall to life in prison. Hence, we have jurisdiction under Ark. Sup. Ct. R. l-2(a)(2). On appeal, Steggall argues that the prosecution adduced insufficient facts to support a capital-murder conviction, and that his statements to the police should have been suppressed because he requested that an attorney be present during the statements. We find no error and affirm.

Facts

On April 2, 1998, Steggall and Misty Stice (“Stice”), Haylee’s mother, admitted Haylee to the emergency room of a Newport hospital. Steggall initially told investigators he had called 911 after observing bleeding from the child’s nose after he laid her down to sleep. Haylee was transported by helicopter shortly thereafter to Arkansas Children’s Hospital in Little Rock, where she was first seen by Dr. Stephen Schexnayder, a pediatric critical-care and emergency-medicines physician. Dr. Schexnayder testified at trial that upon initial evaluation, he and his team found Haylee to be “a very severely ill child who was in shock.” According to Dr. Schexnayder, she was “severely neurologically injured, meaning she was comatose.”

Dr. Charles Albert James, a pediatric radiologist, conducted several diagnostic tests including a skeletal survey or full-body x-ray, a CT scan of Haylee’s brain, and a bone scan to identify bone abnormalities. Dr. Schexnayder and Dr. James reviewed the test results. Both doctors noted that Haylee had suffered an “extensive skull fracture” on the right side of her head, resulting in hemorrhaging on the brain surface and damage to both frontal lobes of the brain. The x-rays and bone scan also revealed that Haylee suffered two occurrences of rib fractures — one occurrence approximately two weeks before this hospital admission and the other related to the April 2 occurrence. The tests also revealed that Haylee had suffered a fractured forearm, which was healing, indicating that it was over a week old at the time of admission on April 2. Both doctors opined that the old and new injuries were consistent with child abuse. Specifically, they believed the injuries reflected “shaken baby syndrome” and “shake and slam syndrome.” Children’s Hospital reported the incident to the Jackson County Sheriff’s Department as suspected child abuse.

Steggall made three statements to the police regarding the incident on April 2, 1998. The police first questioned Steggall on the evening of April 3, 1998, at Arkansas Children’s Hospital. Chief Deputy David Lucas and Detective Charles Vaughn with the Jackson County Sheriff’s Department conducted the interview, which was audiotaped. Prior to conducting the interview, Lucas had Steggall answer and initial a standard Miranda rights form. The statement was later transcribed. In this first statement, Steggall recounted the events of the night before. He stated that he laid Haylee down in her bed on her stomach and finished some housecleaning. He stated he heard a choking sound, went to check on Haylee, and noticed when he rolled Haylee over on her side that some blood came out of her nose. Steggall stated that when he picked her up she was limp, and he then called 911. Throughout this statement, Steggall denied ever shaking or dropping Haylee.

Steggall again met with the police investigators on the morning of April 8, 1998. State Police Investigator Charles Beall orally advised Steggall of his rights before taking the statement, and Steggall completed a standard Miranda waiver form provided by the police. Steggall indicated that he understood his rights and would waive them. Steggall dictated a statement to Beall which Beall transcribed by hand. In the handwritten statement, Steggall recounted that while he was feeding Haylee by bottle, she began spitting up and formula was coming out of her nose. Haylee vomited, and when she did, her head somehow fell upside down. Steggall stated:

When I noticed that Haylee’s head was upside down I grabbed her by her leg and jerked her up by her leg with my left hand. Haylee’s head went down and popped. When I cleaned her up she started crying. I then a little while later started bouncing her on my knee probably too fast for Haylee. Her head was bouncing around.

Steggall said he noticed blood coming out of Haylee’s nose about five to ten minutes later after he laid her in her bed. It was at that time that he and Stice called 911. Steggall also reported for the first time that Haylee’s head had hit the front of the wood portion of a couch when he jerked her up by her leg, and that he “might have squeezed Haylee by her ribs too hard.”

Lucas and Beall interviewed Steggall for the third time on April 9, 1998, at the Arkansas State Police headquarters in Little Rock. The officers used a standard Miranda form to advise Steggall of his rights before beginning the interview. Steggall, as previously, initialed and signed the form, indicating that he understood his rights and was willing to speak with the officers without counsel. The police videotaped the interview, made an audio tape, and later transcribed it. In that statement, Steggall generally recounted the events of April 2, 1998, again as he had stated in his April 8, 1998, written statement.

On April 14, 1998, the Jackson County prosecuting attorney charged Steggall by Information with battery in the first degree under Ark. Code Ann. § 5-13-201. Haylee died on May 3, 1998, from complications associated with her injuries. On May 5, 1998, the prosecutor amended the Information filed against Steggall to state a charge of capital murder. The Jackson County Circuit Court tried Steggall on December 8, 1998. At the close of the State’s evidence, the defense moved for a directed verdict, arguing that there was insufficient evidence to support a finding that Steggall acted “knowingly” as required under Ark. Code Ann. §§ 5-10-101 and 5-2-202. Instead, the defense argued that only circumstantial evidence existed and that this is not enough if any other reasonable conclusion exists. Here, the defense argued, the evidence could support a finding that Steggall acted recklessly. The court denied this motion, noting that the defendant’s state of mind was an issue for the jury. The jury convicted Steggall of capital murder and sentenced him to life in prison. He filed a timely Notice of Appeal on December 18, 1998.

As noted, Steggall raises two points on appeal. First, Steggall argues that the trial court erred when it denied his motion for directed verdict because there was insufficient evidence to support a capital-murder conviction. Second, Steggall argues that the trial court erred in failing to suppress Steggall’s three statements to police because Steggall contends that he requested an attorney during the interrogations.

Suffidency of the evidence

When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal,when a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Only evidence supporting the verdict will be considered. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). This court makes no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Byrd, supra; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

In his directed-verdict motion, Steggall argued that this case is based on circumstantial evidence alone; therefore, if any other conclusions can be drawn from that evidence, besides that of “knowingly” causing injuries as defined by the statute, then the capital-murder sentence is not warranted. Ark. Code Ann. § 5-10-101(a)(9) (Repl. 1997), the capital-murder statute, states:

(a) A person commits capital murder if:
(9) Under circumstances manifesting extreme indifference to the value of human life, he knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed, provided that the defendant was eighteen (18) years of age or older at the time the murder was committed.

Ark. Code Ann. § 5-2-202 on culpable mental states defines “knowingly” as follows:

(2) “KNOWINGLY.” A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

According to Ark. Code Ann. § 5-2-202 (Repl. 1993): “A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.” A jury need not lay aside its common sense in evaluating the ordinary affairs of fife, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).

In Byrd, we dealt with “shaken baby syndrome” in a case in which a seven-month-old boy died after suffering a blunt-force trauma causing a skull fracture and brain swelling. The child in Byrd had suffered repeated episodes of abuse as evidenced by his medical history, including evidence of multiple healing rib fractures and a leg fracture. In that case, the defendant argued, as Steggall does now, that only circumstantial evidence existed and, as such, a finding of “knowingly” could not be established to support a capital-murder conviction. We especially noted that the medical evidence indicated that the injuries occurred during the time that the defendant was caring for the child, and that the injuries presented “uncontroverted evidence of child maltreatment.” The court in Ladwig also came to the same conclusion in that “shaken baby syndrome” case, finding that the defendant struck and shook the child, knowing that the result would be serious injury or death.

Here, the evidence before the jury certainly provided them with ample evidence, circumstantial and direct, to find Steggall acted “knowingly” in causing the child’s death. At trial, both Dr. Schexnayder and Dr. James testified about their opinions regarding the source of Haylee’s injuries. Dr. James stated that the type of rib injuries Haylee sustained are not generally seen in accidental trauma. He stated:

This site of bone injury is felt to be highly, highly specific for child abuse because we don’t see this fracture in this location hardly ever in other forms of trauma, bad car wreck, bad fall, resuscitation. This site of bone injury is felt to be highly, highly specific that there was intentional trauma to the infant, which is what we term child abuse or non-accidental trauma.

He further stated:

We know from the images now that we have severe force has {sic) been applied, traumatic force has been applied to the infant. We know from being able to age both on the head scan the hemorrhage, the blood, and the healing changes of bone, we have severe traumatic force applied to this child over different time periods, over different organ systems, the brain, the bones scattered throughout the body.

Dr. Schexnayder testified that “given the whole picture of some of the findings I’ve yet to get to, this is consistent with multiple repetitive injuries that were not accidentally inflicted. In other words, this child was abused.” In response to a question regarding whether these findings are consistent with “shaken baby syndrome,” Dr. Schexnayder responded that the skull fracture was actually part of a related syndrome called “shake and slam syndrome.” Dr. Schexnayder stated:

To get this skull fracture, the child had to have a high force impact with some solid object, be it, you know, a table, a fist, a wall, but the child not only had to be shaken but the child had to have some severe impact to the point that it caused a very large skull fracture.

The doctor summarized, stating:

The bleeding in the eyes, the bleeding over the top of the brain, the rib fractures at the back, at the back part of the ribs that were fresh, those are consistent all with shaking. The old rib fractures are consistent with this child being shaken but at a different time, as is that healing rib fracture on the right, but to get that fresh skull fracture on the right, the child had to have a severe impact with something.

The State also offered the testimony of Dr. Charles Paul Kokes, who performed an autopsy on Haylee’s body on May 4, 1998. Dr. Kokes, a specialist in the fields of anatomic and forensic pathology, testified regarding his findings from the autopsy, noting that Haylee suffered an “eleven centimeter long healing skull fracture which extended from the right front part of the skull back over the right side of the skull.” Dr. Kokes also noted the subdural hematoma that Haylee’s treating physicians saw on the CT scan. Dr. Kokes testified that he saw evidence of healing rib fractures on both sides of the chest wall and on four ribs. While Dr. Kokes did not see evidence of the arm or leg fractures, he attributed this to the time that had elapsed, over one month, from the time the injuries occurred to the time he performed the autopsy. Dr. Kokes testified that the injuries Haylee sustained were a result of “a blunt force trauma,” which could consist of the child either being struck very forcibly or compressed in some manner. In Dr. Kokes’s medical opinion, the cause of Haylee’s death was the head injuries with complications, and the manner of death was due to homicide. Dr. Kokes stated:

[I]f you consider in the context of a child with that sort of head trauma, older injuries sufficiently severe enough in different anatomic locations in that same individual at a different time, that simply means that this child was the victim of repetitive physical abuse, had been abused before the time she sustained the head injuries. In that context that makes the likelihood that the injuries were not accidental in nature very strong, and it’s not (sic) likely even under those circumstances without consideration of other factors, that this death is in all likelihood a homicide.

Dr. Kokes further noted in his autopsy report, which was admitted into evidence at trial, the following:

Healing fractures of the ribs and left radius are important in this case, not because they had adversely affected the infant, but because of what they say about the circumstances surrounding the traumatic incident. The initial story regarding what happened to this infant on April 2, 1998 is totally inconsistent with the clinical and pathologic findings. Subsequent statements given by the father, which admit some relatively mild head injuries took place, are also inconsistent with the findings. Mechanisms described by the father could not have caused the degree of head damage that was present. Nor does it explain the presence of healing rib fractures and a left wrist fracture at the time of the presentation to the hospital on April 2, 1998. The presence of healing fractures at that time indicates that this child was a victim of repetitive abuse. The head injuries which occurred on April 2, 1998 were the final injuries in a series of incidents which were sustained in this infant’s short life.

In addition to Steggall’s statements to the police, he also made a fourth statement to Dr. John R. Anderson, Ph.D., a staff psychologist at the Arkansas State Hospital, during a mental examination to determine whether Steggall was competent to stand trial and whether he was competent at the time of the April 2, 1998, incident to understand and conform his actions. Before the examination, Dr. Anderson advised Steggall that the statements he made during the interview would not be privileged. During the examination, when asked about the events of April 2, Stegall first denied he did anything to Haylee, but then recanted and said that she had been injured while he was feeding her. Dr. Anderson quoted Steggall as saying, “I dropped my daughter, I got frustrated and I shook my daughter.” He further stated, “I tried to keep her from hitting the floor, and she hit the couch. When I realized what happened, I got mad at myself.” He also stated, “I realized what I had done and I laid her down in her crib.”

As the State notes, the appellant’s attorney conceded on closing arguments that Steggall had shaken Haylee to death. Steggall’s attorney argued, however, that he did not “knowingly” shake her to death. However, Steggall’s own conduct in giving different versions of the incidents of April 2, 1998, defy this assertion. 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. Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In Thompson, the verdict was based on circumstantial evidence, but the evidence excluded any other hypothesis consistent with innocence. Thompson’s attempts to cover up his connection to the crime were before the jury, and the jury could have properly considered evidence of cover-up as proof of a purposeful mental state. See also, Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Mulkey, supra. Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Williams, supra; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Here, there was ample evidence for the jury to find that Steggall knowingly caused the death of the infant. Therefore, denial of the directed-verdict motion was proper, and the court was correct in allowing the jury to consider the evidence.

Suppression Motion

Prior to the start of trial, the defense moved for suppression of Steggall’s three statements, arguing that Steggall believed he was coerced and was not given the right to counsel. At the suppression hearing, the State presented testimony by the investigating officers regarding the circumstances surrounding the taking of Steggall’s statements. Each officer testified that Steggall orally and in writing waived his rights, and voluntarily agreed to speak to the police regarding the case. The officers testified that Steggall did not seem to be under the influence of any drugs or alcohol, and that he seemed to understand the protections he was waiving. Furthermore, the officers testified that Steggall did not request the presence of an attorney at any time prior to, during, or after making the statements to them. Steggall testified at the suppression hearing that he was advised of his rights at each of the three meetings with the police, and that he voluntarily waived his rights. However, Steggall stated that at the second meeting in Little Rock, he asked for an attorney twice, but that the officers seemed like they “wanted to get it done and over with.” Steggall could not remember exactly what they said, but he stated that he “felt pressure” from the officers. Steggall also testified that he would have requested an attorney at the third meeting on April 9 had he known that he was being videotaped. The trial court denied the motion to suppress the statements at trial.

In his second point on appeal, Steggall argues that the trial court erred in denying his motion to suppress the statements he made to police regarding the events of April 2, 1998. Specifically, Steggall argues that he asked for an attorney when he was questioned by the police on April 8, 1998, and when videotaped on April 9, 1998, and that their failure to stop the questioning and allow him the opportunity to speak to counsel rendered those statements inadmissable. The State responds by arguing that the issue before the trial court was essentially one of credibility, and that the appellate court defers to the trial judge in such matters. Here, the trial judge believed the three police officers and the various recorded statements and videotape to determine that the statements should be admitted at trial.

When we review a trial court’s ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).

Although Steggall argues that he requested the presence of an attorney, it is undisputed that he signed Miranda waiver forms notifying him of his right to counsel and, apparently on three occasions, gave the police statements without exercising those rights. In fact, as the State notes, the only evidence that Steggall presents that he asked for an attorney is his own testimony. This issue then turned on credibility, and it is in the province of the finder of fact to determine the credibility of witnesses. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992).

The burden is on the State to show that a defendant’s confession was made after a voluntary, knowing, and intelligent waiver of his rights. Rushing v. State, 338 Ark. 277, 992 S.W.2d 789 (1999); Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (1980). As was the case in Cagle, appellant’s confession was given without counsel. The test is whether appellant was effectively warned of his rights and knowingly and willingly decided to waive them. Id. (citing United States v. Harden, 480 F.2d 649 (8th Cir. 1973)). The assertion of the right to counsel and the right to remain silent must be made with specificity. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995) (citing Davis v. United States, 512 U.S. 452 (1994)).

In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), this court noted that there are two separate issues regarding the waiver of Miranda rights:

Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Id. (citing Moran v. Burbine, 475 U.S. 412 (1986)). The court in Clay further noted that the “totality of the circumstances” review mandated an inquiry into an evaluation of

age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. A court must look at the totality of the circumstances to see if the State proved that a defendant had the requisite level of comprehension to waive his Fifth and Sixth Amendment rights.

Here, Steggall was read his rights on three occasions, and he indicated on each occasion that he understood those rights. In fact, Steggall was audio- and videotaped on two out of three of these occasions, and there is no indication in the transcripts of these statements that he requested an attorney during the questioning. Considering Steggall’s age, education, and experience, no special circumstances existed to invalidate his waiver. He was an adult who had graduated high school and had completed some college credits. During these interviews, he showed no signs of being under the influence of any drug or delusions. Steggall also had prior experience with law enforcement as a child and teenager, as indicated in the psychological report generated in this case, and was placed on probation for shoplifting and stealing a truck. In his prior marriage, Steggall also had a run-in with law enforcement for alleged child abuse perpetrated against his stepdaughter. While those charges were dropped, he did deal with the police in that instance, as well. Based upon the foregoing, we conclude the trial court was not clearly erroneous in denying Steggall’s Motion to Suppress. Accordingly, the judgment of the trial court is affirmed.

Rule 4-3 (h)

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.


author: PER Curiam.

text:
    Carolyn ARNETT v. STATE of Arkansas
    CR 99-1442
    8 S.W.3d 34
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Wright & VanNoy, by: Herbert T. Wright, Jr., for appellant.
    No response.
   PER Curiam.

Carolyn Arnett, by her attorney, has filed a motion for rule on the clerk.

Her attorney, Herbert T. Wright, Jr., admits in his motion that the record was tendered late due to a mistake on his part.

We find that an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: PER CURIAM.

text:
    Ron OLIVER, President, First Arkansas Bail Bonds, Inc., Petitioner v. PULASKI COUNTY CIRCUIT COURT, Respondent; Jamie Mann and Affordable Bail Bonds, Inc., Interveners

    00-33
    8 S.W.3d 35
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Gruber Law Firm, by: Wayne A. Gruber, for petitioner.
    No response.
   PER CURIAM.

On January 11, 2000, Ron Oliver, president of First Arkansas Bail Bonds, Inc., filed a petition for writ of prohibition in this court pertaining to the taking of his deposition by Jamie Mann and Affordable Bail Bonds, Inc. (hereinafter referred to as Mann). Oliver contends in his petition that the circuit court lacks jurisdiction to subpoena him and his records for a deposition once that court remands the matter to an administrative board. Oliver also filed an Application for Temporary Relief to stay all further action relating to the deposition pending a decision on his prohibition petition.

The facts leading up to Oliver’s petition are these. Mann received an adverse decision from the Professional Bail Bondsman Licensing Board and filed a petition for judicial review in the Pulaski County Circuit Court with the Licensing Board and Arkansas Professional Bail Bond Company as respondents. On September 14, 1999, the circuit court, by agreement of the parties, remanded the matter back to the Licensing Board for the presentation of additional evidence and for additional findings by that board, if necessary. Thereafter, Mann sought to take Oliver’s deposition, and on September 23, 1999, a subpoena duces tecum was issued to Oliver by the Pulaski County Circuit Clerk and served by the Pulaski County Sheriff’s office. Mann’s notice of the Oliver deposition which was rescheduled for January 12, 2000, was filed on January 10, 2000, with the Pulaski County Circuit Clerk. Oliver moved to quash the deposition, and the circuit court denied the motion. Oliver’s petition for a writ of prohibition followed.

Oliver’s petition in this court raises the novel issue of whether the circuit court loses jurisdiction once the matter is remanded to the administrative board for additional proceedings. We ask for simultaneous briefs on this issue to be filed with this court by the parties and interveners no later than close of business on Thursday, February 3, 2000, and reply briefs filed by Thursday, February 10, 2000. Mann has filed a motion to intervene in the matter now pending before this court. That motion is granted.

The deposition of Oliver pursuant to the subpoena issued by the circuit clerk is temporarily stayed pending the resolution of the jurisdictional question. The motion for clarification filed by the interveners with respect to a hearing to be held before the Licensing Board on January 14, 2000, is denied.


text:
    Regina Padgett OSBURN, et al. v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    99-1296
    8 S.W.3d 533
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Appellants, pro se.

      Kathy L. Hall, for appellee.
   PER CURIAM.

This case involves a dependency-neglect and termination-of-parental-rights action brought by the Department of Human Services (DHS); the case involves three minor children, Brandon Lee Padgett, Anthony Dennis Padgett, and Alexander William Padgett. Regina and Phillip Osburn, William Padgett, and Irving Moreno were respectively named in this proceeding as mother, father or putative fathers; Charles and Angela Young were allowed to intervene pro se as grandparents. A considerable number of pleadings, reports, and hearings have taken place, since the initial petition for dependency-neglect was filed on January 8, 1998. An order was eventually entered terminating parental rights and granting DHS the power to consent to adoption on August 2, 1999. The August 2 order set out the trial court’s reasons and findings for terminating the parents’ parental rights. The order further held that the Youngs, as grandparents, should have no further contact with the children. The trial court retained jurisdiction for a hearing on the termination of parental rights of Irving Moreno and Anthony Padgett, which was scheduled to be heard on August 26, 1999. The partial record fails to reveal what action, if any, was taken in connection with the hearing.

The Youngs appear to have filed a notice on August 2, 1999, of their “intent to appeal.” They also filed a notice of appeal on August 20, 1999. Neither notice designated what order the Youngs appealed; presumably, their appeal is from the August 2 order. The Osburns appealed from the August 2, 1999 order, but later asked the trial court to dismiss the appeal, which the trial court did on October 12, 1999. The Youngs continued to pursue their appeal by filing a partial record with this court’s clerk and asked to proceed in forma pauperis and to be appointed counsel. We granted their in forma pauperis request on November 19, 1999. However, we decline to appoint counsel for the Youngs, since we are unaware of any law that provides they are entitled to appointment of counsel.

In addition, upon review of the partial record provided us, it is not entirely clear that the August 2, 1999, order from which they appeal is a final order that discharges all parties. As previously mentioned above, the trial court retained jurisdiction on the termination of parental rights as to Irving Moreno and Anthony Padgett on August 26, 1999, but we find nothing in the partial record where that matter has been concluded. For this reason, we direct the Youngs and DHS’s counsel, who has made her appearance in the appellate proceeding, to show whether a final order was entered in this case and a timely notice of appeal was filed. Also, from our review, it does not appear that the record has been timely filed with the clerk in this court in accordance with Rule 5 of the Arkansas Rules of Appellate Procedure — -Civil, nor is it clear any extension was requested and received as is provided under Rule 5.

The Youngs will have fifteen days from the date of this per curiam to provide a brief on the jurisdiction issues; DHS’s counsel will have fifteen days in which to respond. If this court is shown to have no jurisdiction, the Youngs’ appeal must be dismissed.


author: TOM Glaze, Justice. RAY Thornton, Justice, SMITH, J.,

text:
    CITY of CADDO VALLEY v. Joan GEORGE
    99-182
    9 S.W.3d 481
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      M. Keith Wren, for appellant.

      Boswell, Tucker & Brewster, by: Dennis J. Davis, for appellee.
   TOM Glaze, Justice.

This case began as a tort suit filed in Hot Spring County Circuit Court by Joan George against two officers of the Caddo Valley Police Department. It is now before us following certification from the Court of Appeals pursuant to Ark. Sup. Ct. R. l-2(b)(l) and (6) as that court found that the appeal involved an issue of first impression and questions of statutory construction.

The following events led to this litigation: Officer John Whittle of the Caddo Valley Police Department heard a BOLO (be on the lookout) report regarding a truck stolen from the parking lot of a gas station in Malvern. When Whittle saw the truck, driven by Patrick Sherman, pass through Caddo Valley, he flipped on his police vehicle’s siren and lights and began pursuit. After hearing Whittle’s radio call that he was in pursuit, Sergeant John Kelloms also joined in the chase. As the pursuit reached speeds of somewhere between seventy-five and ninety miles per hour, the officers heard radio reports from Arkadelphia that police there were in the process of setting up a roadblock across Highway 67. Sergeant Kelloms told Officer Whittle to back off from the fleeing truck in the hopes that they could get Sherman to slow down before reaching town. When Whittle did not back off far enough, Kelloms told him to do so again. Despite Whittle’s eventual backing off, however, Sherman failed to slow down.

Meanwhile, in Arkadelphia, Lieutenant Mike Smith and Officer David Turner had positioned their cars partially across the highway, with one vehicle blocking a portion of the northbound lane and the other blocking part of the southbound lane. There was just enough room between the police vehicles for a car to pass through if it were going at a slow, safe speed. Several cars had made it through before Sherman arrived. Plaintiff Joan George’s Jeep was caught between the police cars when Sherman crested the hill just above the roadblock. Lieutenant Smith was standing on the center line with his pistol drawn, hoping to slow Sherman down. However, Sherman accelerated the stolen vehicle, forcing Smith to jump out of the way, and slammed it into George’s car. The impact threw the Jeep off the road and tossed George out of the vehicle and into the ditch.

George filed her complaint in September of 1998, naming as defendants, among others, Sherman, Whitde, and Kelloms. She alleged negligence on the parts of Whittle and Kelloms, claiming that they pursued Sherman at a high rate of speed when they knew, or should have known, that the pursuit was likely to injure innocent victims; that they failed to disengage from the pursuit when they knew, or should have known that the Arkadelphia police were setting up a roadblock; and that they failed to end the pursuit when they knew, or should have known, it was no longer prudent to chase Sherman under the conditions.

Whittle and Kelloms denied negligence, and in addition, they argued that they were immune from liability or damages because they were acting in their official capacities as employees of Caddo Valley. Eventually, they filed a motion for summary judgment on these same grounds. In response, George asserted that the officers were indeed negligent because they were engaged in conduct which gave rise to her injuries. She also pointed out that the officers were not protected by tort immunity only to the extent that they had minimum liability insurance as required by Arkansas law. The trial court denied the summary-judgment motion, but did permit the City of Caddo Valley to substitute itself as the real party in interest, in place of the two officers.

The case proceeded to trial. At the close of George’s case, Caddo Valley moved for a directed verdict, arguing that there was no evidence that the officers had been negligent in the operation of a motor vehicle, that Sherman’s actions constituted an intervening cause which superseded the officers’ liability, and that even if they were negligent, they were immune from suit. The court denied the motion at this time and again at the close of trial. The case was submitted to the jury, which found that Sherman, Whittle, and Kelloms were all negligent, and that liability should be apportioned ninety percent to Sherman and five percent each to Whitde and Kelloms. At a posttrial hearing, the trial court determined that Caddo Valley was jointly and severally liable for the judgment, but limited their liability to $25,000.00, the amount of the minimum required insurance coverage. George contended that, because there were two police cars involved, she should get twice that amount, but the court rejected that argument.

On appeal, Caddo Valley now argues that (1) the trial court erred in ruling that the city is not immune from liability in tort; (2) the court erred in denying the city’s motion for a directed verdict on the basis that any liability of the officers was cut off by the efficient intervening cause of the acts of Patrick Sherman; (3) no evidence was presented that Officers Whittle and Kelloms negligendy operated their motor vehicles; and (4) no evidence was presented indicating that the officers’ negligent operation of their motor vehicles, if any, proximately caused Joan George’s damages. On cross-appeal, George argues that the trial court erred in limiting Caddo Valley’s liability to $25,000.00.

Caddo Valley’s first argument is that the police officers were immune from suit. Ark. Code Ann. § 21-9-301 (Supp. 1999) provides that it is the “declared . . . public policy of the State of Arkansas that all . . . municipal corporations . . . shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.” (Emphasis added.) The immunity granted to municipalities extends to the city’s officials and employees when they are being sued in their official capacities. Matthews v. Martin, 280 Ark. 345, 346, 658 S.W.2d 374, 375 (1983). However, that same subchapter of the code also provides that “[a]ll political subdivisions shall carry liability insurance on their motor vehicles or shall become self-insurers, individually or collectively, for their vehicles, or both, in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq.” Ark. Code Ann. § 21-9-303(a) (1996). Under this section, “[t]he combined maximum liability of local government employees . . . and the local government employer in any action involving the use of a motor vehicle within the scope of their employment shall be the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act . . . .” Ark. Code Ann. § 21-9-303(b). The minimum amount defined in that act is $25,000.00 per vehicle insured. Ark. Code Ann. § 27-19-713(b)(2) (Supp. 1999).

Thus, a municipal corporation’s immunity for negligent acts only begins where its insurance coverage leaves off. An instructive case is City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989). There, Weber was injured when a Little Rock police officer, driving a city police car with the lights flashing and siren running, ran a red light and struck her vehicle. The city had moved for summary judgment, which was denied, and Weber won a jury verdict for $4,750.00. On appeal, the city argued that it was absolutely immune from tort liability arising out of a city policeman’s negligent operation of an authorized emergency vehicle. Weber, 298 Ark. at 383-84, 767 S.W.2d at 530. This court rejected the city’s reliance on earlier cases which held that immunity could be broached only when the public employee breached a duty imposed on him by law in common with (all other people, as opposed to a situation in which the negligent conduct arose out of a duty peculiar to his employment. The Weber court explained, stating the following:

The city’s reliance on these cases is misplaced. The test used previously in those cases allowed an injured party to side step governmental immunity and seek relief against the employee when the duty the employee breached was common to ah people. It cannot be used by the city to create governmental immunity not otherwise available, as where a statute specifically provides that all political subdivisions shall carry liability insurance on their motor vehicles.
There is no indication in § 21-9-303 that the legislature intended to distinguish in any manner the circumstances to which it apphed. In any event, we see no reason why a person injured by an emergency vehicle should be left without a remedy while persons may seek redress against a municipality for its employees’ negligence in the operation of ah other vehicles.

Weber, 298 Ark. at 385, 767 S.W.2d at 531 (emphasis added).

Although Weber is factually distinguishable (there, the police car was physically involved in the accident), the underlying principle is the same. A city is not immune to the extent that it has liability insurance. Here, Caddo Valley strenuously urges that it was not the officers’ negligent operation of their motor vehicles that caused the accident in this case; rather, it says, it was an exercise of discretion in the performance of their official duties that led to the wreck. However, the question of negligence is not so easily divisible from the question of discretion. In Weber, the officer had also, for some reason, made a decision to turn on his lights and sirens prior to his collision with Weber, and that decision, as in the instant case, involved an exercise of discretion; nonetheless, this court held that he was not immune from suit. In other words, once the officers here exercised their discretion and made the decision to pursue the stolen vehicle, any actions taken subsequent to that decision were required by law to be taken with ordinary care. AMI Civ. 3d 911, which was given in this case without objection, speaks to this very question as follows:

The driver of an emergency vehicle is relieved of the obligation to obey a speed limitf, but t]he existence of this privilege does not reheve the driver of an emergency vehicle of the duty to exercise ordinary care for the safety of others using the highway.

It was the officers’ failure to exercise ordinary care, once the decision to pursue Sherman was made, that led to the accident; therefore, to the extent of the city’s liability coverage, they are not immune from suit and may be found liable for their negligence.

Caddo Valley argues that two cases from other jurisdictions should control our decision here. However, both of those cases are distinguishable. In the first, Thornton v. Shore, 666 P.2d 655 (Kan. 1983), the Kansas Supreme Court held that an officer pursuing a fleeing vehicle was immune from suit on the basis of a Kansas statute, similar to Ark. Code Ann. § 27-51-202 (Repl. 1994), which reheves drivers of emergency vehicles of the responsibility to obey speed limits. However, in Thornton, there was no finding that the police officer was driving negligendy. Here, the trial court found sufficient evidence of the officers’ negligence to place that issue before the jury. In addition, the Kansas statute provides that the emergency vehicle privilege does not relieve the driver of the duty to “drive with due regard for the safety of all persons.” Kan. Stat. Ann. § 8-1506(d) (1982). The “due regard” language was interpreted in Thornton to be some degree of care less stringent than the standard of “ordinary negligence.” Thornton, 666 P.2d at 661. To the contrary, Arkansas law, as applied by our court in Weber, requires an ordinary-care standard. Thus, the logic of Thornton does not control the situation here.

Nor do we find Caddo Valley’s reliance on the case of Kelly v. City of Tulsa, 791 P.2d 826 (Okla. Ct. App. 1990), controlling. First, we emphasize that, to the extent that Kelly can be read to immunize an officer when he or she is negligent during a hot pursuit, Arkansas law is well settled, as discussed above, that such officers must exercise ordinary care. In any event, the Kelly case differs factually from the case at hand. There, the driver of the fleeing vehicle lost control and swerved into the plaintiff’s car, resulting in injury. Thus, in Kelly, it was simply the police officer’s decision to initiate pursuit which was the basis of the plaintiff’s complaint, and the Oklahoma Supreme Court found that this was “not the consideration addressed by [Oklahoma’s emergency vehicle statute].” Kelly, 791 P.2d at 828. In the present case, however, the police officers continued to pursue Sherman at a high rate of speed even after they knew that Arkadelphia police officers were setting up a roadblock a short distance down the highway. Arkadelphia police officer Mike Smith testified that the there was only enough room for a vehicle traveling at a slow, safe rate of speed to pass between the police vehicles making up the roadblock. In sum, the question here was whether the officers were negligent in continuing the pursuit once they knew of conditions which could create a danger to innocent bystanders. It was their failure, once they knew of the roadblock, to exercise ordinary care for the safety of others using the highway, that leads to the conclusion that they were negligent.

This leads us to Caddo Valley’s second argument, i.e., that the officers were not negligent, and that the trial court erred in refusing to direct a verdict in its favor on that point. Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997) (citing Southern Farm Bureau Casualty Ins. V. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996)). It is not this court’s province to try issues of fact; we simply review the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence we view the evidence in the light most favorable to the party against whom the motion is sought and give the evidence its strongest probative force. Id. Stated another way, if there is any substantial evidence to support the verdict, we affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987).

Negligence is the failure to do something which a reasonably careful person would do and a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Mergen, 329 Ark. at 412, 947 S.W.2d at 784. While a party can establish negligence by direct or circumstantial evidence, that party cannot rely on inferences based on conjecture or speculation. Id.

Once again, the evidence presented at the trial of this case showed that the two Caddo Valley officers in pursuit knew that a roadblock was being set up in Arkadelphia. Officer Whittle stated that he was approximately 100 feet behind the fleeing vehicle while the suspect was driving at approximately 90 to 100 miles an hour. He was twice told by his superior officer, Kelloms, to back off. This was Whittle’s first high-speed pursuit, and he had been given no training or instructions on “what factors to consider when pursuing a high-speed pursuit.”

Sergeant Kelloms joined the pursuit after having told Officer Whittle to back off. Testimony of Arkadelphia Police Officer Jackie Woodall revealed that the Caddo Valley officers were only about four or five car lengths behind the stolen truck, which was being driven at an estimated 75 to 80 miles an hour. On cross-examination, Woodall stated that it was only a matter of seconds from the time he heard the radio transmission telling Whittle to back off until the moment of the collision.

The foregoing is substantial evidence from which the jury could have concluded, without resort to speculation or conjecture, that the Caddo Valley officers were pursuing the suspect too closely at high speeds, and continued to do so after they knew of the presence of the roadblock in Arkadelphia. An ordinarily prudent person in the same situation could have foreseen an appreciable risk of harm to others; thus, we hold that there was sufficient evidence of negligence from which the jury could have reasonably found the officers to be at least partially or minimally at fault in the accident with George.

For its next two points on appeal, Caddo Valley argues that the trial court erred in refusing to direct a verdict in its favor on the question of proximate causation and on the issue of whether Patrick Sherman’s actions constituted an efficient intervening cause. Because these two issues are so closely intertwined, we consider them together. Proximate cause has been defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury, and without which the result would not have occurred.” Union Pac. R. R. Co. v. Sharp, 330 Ark. 174, 181, 952 S.W.2d 658, 662 (1997). Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. In other words, proximate causation becomes a question of law only if reasonable minds could not differ. Id.

On the issue of whether or not there was an efficient intervening cause, this question is “simply . . . whether the original act of negligence or an independent intervening cause is the proximate cause of an injury. Like any other question of proximate causation, the question whether an act of omission is an intervening or concurrent cause is usually a question for the jury.” Hill Constr. Co. v. Bragg, 291 Ark. 382, 385, 725 S.W.2d 538, 540 (1987) (quoting from Larson Machine v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980)). The Bragg court went on to say that the “original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury. The intervening cause must be such that the injury would not have been suffered except for the act, conduct or effect of the intervening agent totally independent of the acts of omission constituting the primary negligence.” Bragg, 291 Ark. at 385, 725 S.W.2d at 540 (emphasis added).

In this case, there was evidence to establish a causal connection between the actions of the police officers and the injuries to Joan George. But for their actions in continuing to pursue Sherman, the jury could have reasonably found that the accident likely would not have happened. The events occurred in a natural and continuous sequence, thus making the officers’ acts a proximate cause of George’s injuries. In short, the jury could have easily concluded that the actions of Sherman, while admittedly an intervening cause, were not totally independent of the acts of negligence performed by the Caddo Valley police officers. As already discussed, the questions of proximate cause and the presence of an intervening cause were proper questions for the jury. As there was sufficient evidence from which the jury could have found negligence, the trial court did not err in refusing to direct a verdict on these two issues.

Caddo Valley’s last argument is that the trial court erred in finding it to be jointly and severally liable for the $150,000.00 judgment rendered against it and Sherman. The jury had assessed Sherman to be ninety percent at fault in the accident, and Whittle and Kelloms to each be five percent at fault (making Caddo Valley’s total liability ten percent). At a posttrial hearing on the form of the judgment, the trial court ruled that Caddo Valley, like any other corporate entity, could be jointly and severally liable. See Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962) (when the combined negligence of all joint tortfeasors exceeds the negligence of the plaintiff, each tortfeasor is jointly and severally hable for the plaintiff’s damages after they have been reduced in proportion to the degree of his own negligence); see also AMI Civ. 3d 2111. Following Arkansas’s law of joint and several liability, if George could not recover any of her loss from Sherman, she could look to Caddo Valley for satisfaction of the $150,000 judgment. Even so, the court limited Caddo Valley’s total liability to $25,000.00, the maximum liability of a local government employer in an action involving the use of a motor vehicle. Ark. Code Ann. § 21-9-303(b). In its brief, Caddo Valley argues that it is immune from suit and that there is no exception to tort immunity which permits a plaintiff to collect more than the amount actually owed by a local government. However, the city cites no authority which compels such a conclusion, and, therefore, we reject its argument. We have stated on occasions too numerous to count that we will not reverse where the appellant has offered no convincing argument or authority and it is not apparent without further research that the argument is well taken. See McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).

On cross-appeal, George presents us with a related question. She argues that because there were two police vehicles involved in the accident, she should be able to recover $50,000.00 — twice the amount determined by the trial court to be Caddo Valley’s maximum liability, or $25,000.00 for each police car. The trial court interpreted Ark. Code Ann. § 21-9-303 to read in terms of an “occurrence” involving a city vehicle (or vehicles), rather than applying the insurance requirements to each vehicle involved in an accident. The trial court reads language into § 21-9-303 that is not there. Arkansas’s motor vehicle liability insurance statute plainly provides that a vehicle owner’s insurance policy must insure the policy-holder “against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle or vehicles..., with respect to each vehicle” for a minimum of $25,000.00. Ark. Code Ann. § 27-19-713(b)(2) (emphasis added). Thus, because there were two Caddo Valley vehicles involved in the accident, and each officer was found five percent at fault, Caddo Valley, as a joint tortfeasor, would be jointly and severally hable in the amount of $25,000.00 for each of the city’s vehicles. George therefore should recover $50,000.00 against Caddo Valley, and the trial court erred in ruling otherwise.

For the foregoing reasons, the decisions of the court below are affirmed on direct appeal and reversed on cross-appeal.

ARNOLD, C.J., not participating.

Thornton and Smith, JJ., dissent.

RAY Thornton, Justice,

dissenting. I respectfully dissent. The rule in Arkansas has long been that local governments are generally immune from tort liability. Ark. Code Ann. § 21-9-301 (Repl. 1996). However, this unlimited immunity was modified in 1968 to permit recovery for damages in Parrish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), where the plaintiff was injured when her vehicle was stuck as a result of negligence on the part of a city’s garbage truck driver. The Legislature’s response to Parrish was Act 165 of 1969, which provided that all local governments “shall be immune from liability and suit, except to the extent that they may be covered by liability insurance, for damages.” Id. This act also provided that all political subdivisions carry liability insurance or become self-insurers to the legal requirement of $25,000. Based on these enactments we have allowed recovery for damages when a municipal vehicle is involved in an accident. See Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973).

This is the first case in Arkansas presenting the issue whether immunity from suit is waived when a municipal vehicle is pursuing a suspect’s vehicle in accordance with the officer’s duty under Ark. Code Ann. § 14-52-203 (Repl. 1998). Notwithstanding the duty to apprehend a fleeing suspect, and the statutory authorization for an emergency vehicle to exceed speed limits under certain circumstances, the majority’s decision imposes liability upon the City of Caddo Valley for the actions of the city’s employees where the city’s vehicles were not involved in the collision itself.

Faced with a similar issue, our neighboring courts in Oklahoma and Kansas have determined that a city emergency vehicle may not be held responsible for an accident caused by a fleeing suspect. In adopting their rule, these states accepted the general rule expressed by New Jersey in Roll v. Timberman, 229 A.2d 281, cert. denied 232 A.2d 147 (1967), and I agree that the views of the New Jersey Superior Court are very persuasive. That court stated:

The decisive issue in this case is whether a police officer is hable for damage caused by a vehicle operated by a fleeing law violator who is being pursued by the officer in the performance of his duty. The precise question has not been dealt with in any of the reported decisions in our State. However, the majority view expressed in other jurisdictions in similar cases holds that the police officer is not hable.

Id. (citations omitted).

The New Jersey Superior Court opinion points out that:

When Officer Martin observed Timberman violate the motor vehicle laws it became the officer’s duty to apprehend him. When he pursued Timberman the officer was exempt from speed regulations. He was performing his duty when Timberman, in gross violation of the motor vehicle laws, crashed into plaintiff’s car. To argue that the officer’s pursuit caused Timberman to speed may be factually true, but it does not fohow that the officer is hable at law for the results of Timberman’s neghgent speed. Police cannot be made insurers of the conduct of the culprits they chase.

Id. (citations omitted). Similar analysis has been made by many other jurisdictions. Contrary to the opinion issued today by the majority, the general rule relative to the liability of municipalities in such circumstances is that a municipality responsible for the conduct of a police officer is nevertheless not liable for personal injuries, death, or property damage inflicted by a vehicle being pursued by a police vehicle where the police vehicle is only involved to the extent that it was being driven in pursuit of the fleeing vehicle which actually causes the injury or damage complained of. See Thornton v. Shore, 666 P.2d 655 (1983). See e.g., Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky.Ct.App.1952); Morris v. Coombs’ Adm’r, 304 Ky. 187, 200 S.W.2d 281 (Ct.App.1947); Pagels v. City and County of San Francisco, 135 Cal.App.2d 152, 286 P.2d 877 (D.Ct.App.1955); Draper v. City of Los Angeles, 91 Cal.App.2d 315, 205 P.2d 46 (D.Ct.App.1949); United States v. Hutchins, 268 F.2d 69, 83 A.L.R.2d 447 (6 Cir. 1959); Wrubel v. State of New York, 11 Misc.2d 878, 174 N.Y.S.2d 687 (Ct. Claims 1958).

To extend the test of due care to include acts of fleeing motorists whom an officer is attempting to apprehend has the effect of making the officer, and the municipality, the insurer of the fleeing violator — or, in this case, the insurer as well of the actions of another police department. As the Kansas court noted in Thornton, supra, “who can say whether the greater harm would result from the imposition or nonimposition of a duty upon municipalities to refrain from pursuing a lawbreaker already engaged in reckless and dangerous operation of a motor vehicle on the public streets?”

The reasoning underlying the rejection of liability in these cases is twofold: (1) “[I]t is the duty of a police officer to apprehend those whose reckless driving makes use of the highway dangerous to others; (2) the proximate cause of the accident is the reckless driving of the pursued, notwithstanding recognition of the fact that the police pursuit contributed to the pursued’s reckless driving.” Thornton, supra. Here, the proximate cause of the accident also included the actions of the Arkadelphia police in setting up the roadblock (though they were not named as defendants in the underlying complaint). The Caddo Valley officers were engaged in pursuit as required of them by statute, but, according to their own testimony, they had begun backing off the pursuit for safety considerations. Our inquiry should be whether the officer’s pursuit was so extreme or outrageous as to pose a higher threat to public safety than that ordinarily incident to a high-speed chase. I would hold that the actions of the Caddo Valley officers, under this analysis, did not meet the test of negligent conduct and that a directed verdict in favor of Caddo Valley should have been granted.

Lastly, even if the majority is not mistaken in adopting the rule that the city becomes the insurer for a fleeing violator, I cannot understand the reasoning leading to the majority’s decision that the insurance policy limits should be applied to both police cars. The trial judge had determined that the real party in interest was the city of Caddo Valley, and there was absolutely no showing that the pursuit by two cars rather than one caused the fleeing suspect to travel any faster or drive more recklessly. As the majority has determined that liability is to be imposed, I would affirm the trial court’s determination that there was only one occurrence. For the above stated reasons, I respectfully dissent.

SMITH, J.,

joins in this dissent, but because he does not believe any negligent acts of the officers caused the injuries to the plaintiff, he would not reach the issue of insurance liability limits.

Dissent.


author: TOM Glaze, Justice.

text:
    Alfredo Trejo MUÑOZ v. STATE of Arkansas
    CR 99-432
    9 S.W.3d 497
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Longino & Morton, by: George B. Morton and James H. Longino; R. Charles Wilkins III, Rule XV, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Alfredo Trejo Muñoz brings this appeal from a conviction of the rape of the three-year-old baby of Muñoz’s girlfriend, Michelle Araujo. We accepted the appeal from the court of appeals because the case involves the question of first impression as to whether an indigent criminal defendant has a right, under Ake v. Oklahoma, 470 U.S. 68 (1985), to have the State pay for an independent expert DNA analysis. Upon review of the case, we are unable to reach the merits of the question as certified because it was not properly preserved at trial.

On July 23, 1998, Muñoz followed Michelle home from work in case her car ran out of gas. On the way home, Michelle picked up her baby at day care, went home, and temporarily left her baby with Muñoz at Michelle’s house while Michelle went to put gas in her car. When Michelle returned about ten or fifteen minutes later, the baby was upset and was having difficulty sitting on the couch. Muñoz told Michdle that he had spanked the baby because she would not stop crying. Michelle noticed a stain on Muñoz’s jeans, which Muñoz said was chocolate syrup. Later that evening after Muñoz left, the baby went to her mother crying and said that her “butt was bleeding.” She told Michelle that “Fredo spanked me.” Michelle examined the baby’s bottom and saw blood in her panties. Michelle asked her baby what Muñoz had spanked her with, and the baby replied, “He spanked me with his weewee.” Michelle then gathered the baby’s clothing and took the child to the Washington Regional Medical Center. However, before Michelle had left her house, Muñoz called her and instructed her to stay home, and if she was not there when he returned, “you know what will happen.” Michelle proceeded to the Center’s emergency room where a nurse assisted in performing a rape kit on the child. A doctor examined the baby and found peri-rectal lacerations consistent with penetration and which were suspicious for sexual abuse. While Michelle and her child were in the emergency room, Muñoz was seen in his vehicle outside the Medical Center circling the parking lot. He was arrested and found to have a .22 rifle and lead pipe in his possession.

On the following day, July 24, Muñoz was formally charged with rape. On July 27, he was arraigned, appointed counsel, and the prosecutor filed a motion for Muñoz to give blood, saliva, semen, and hair samples. Muñoz was taken immediately to the Medical Center, where the samples were obtained.

On November 6, 1998, Muñoz obtained private counsel, who later, on December 8, moved to exclude all hair and bodily fluid samples taken on the day of arraignment. He contended that the samples had been taken before the court’s July 27 order had been entered, and Muñoz’s counsel had not been afforded the opportunity to be present when the samples were taken. Muñoz’s new attorney also moved to exclude from the State’s evidence the .22 rifle and lead pipe found in his possession when he was arrested. Finally, Muñoz’s counsel moved that, in order to prepare his defense, he needed a DNA expert to interpret the fluid tests, to give an independent analysis, and to testify at trial.

On December 14, two days before trial, the trial court heard Muñoz’s motions, and denied his three requests. The trial court refused to exclude the State’s fluid tests because Muñoz’s counsel had agreed to the taking of Muñoz’s hair and fluid samples on July 27, the arraignment date. It further denied excluding the .22 rifle and lead pipe because those items were relevant to show consciousness of guilt. The trial court also denied the appointment of a DNA expert, finding his request was untimely. He further ruled that even if his motion had been timely, the court did not believe Ake required a DNA expert.

On December 15, 1998, Muñoz moved for a continuance and retesting of forensic evidence, basing his motion on a new blood test that had been conducted by his expert, Captain Charles Rex-ford of the Washington County Sheriff’s Department. Rexford ran a test on Muñoz’s jeans worn on July 24, 1998, and said three of his tests showed negative for the presence of blood and one test showed marginally positive for blood. The trial court denied the continuance request because Rexford had tested a different piece of the jeans than the State’s experts had tested, and because the blood tests had nothing to do with the DNA analysis, which had been conducted from the semen taken from the baby’s panties, her rectal swab, and Muñoz’s fluid samples.

The Muñoz case proceeded to trial on December 16, when the State presented six witnesses and Muñoz offered only one witness, Captain Rexford. The jury returned its verdict of guilty, and then the sentencing phase was conducted. During that phase, Muñoz sought reassurance that his motion to exclude the weapons found in his possession, when he was arrested, had been ruled on. The trial court denied Muñoz’s motion, and the State introduced testimony of the .22 rifle and lead pipe during the sentencing phase. On appeal, Muñoz only argues two points — the trial court erred (1) in refusing him the assistance of a DNA expert and (2) in allowing the weapons’ evidence during the sentencing phase.

In addressing Muñoz’s first point for reversal, we must first consider the trial court’s ruling that Muñoz was too late in raising the question of whether he was entitled to the appointment of a DNA expert. Muñoz was well aware that the State had taken fluid samples from him in July 1998, and the prosecutor indicated those lab results were obtained in August of 1998. And while Muñoz complains that the prosecutor never objected to Muñoz’s failure to make a timely request for a DNA expert, the prosecutor very plainly stated Muñoz’s motion was tantamount to requesting a continuance, which the trial court should not grant. The trial court ruled it did not think Muñoz’s motion was timely, and it denied his motion.

In Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992), we held that the denial of a continuance which would deprive an accused of the chance to have an independent review of DNA analysis will be closely examined. See also Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994). In making such an examination in the present case, we cannot conclude the trial court abused its discretion in denying any continuance so a DNA expert could be appointed. As already noted above, the State’s results from its test samples taken from Muñoz were available in August of 1998, or approximately four months prior to the trial date of December 16, 1998. Nevertheless, Muñoz waited until about one week before trial to request a DNA expert and did not obtain a ruling until two days before trial. Like the appellant in the Swanson case, Muñoz had months to locate an expert witness and make a tentative arrangement for an independent review, yet Muñoz could not offer the name of a potential expert witness, nor did he offer any hope of procuring the attendance of such a witness in the near future. Id. at 35; but see Hunter, 316 Ark. at 751, 875 S.W.2d at 66 (where this court distinguished Swanson, reversing the trial court for failing to grant Hunter a continuance when (1) Hunter’s DNA expert had no chance to examine the State’s evidence, procedures, and protocol, and (2) Hunter had located an expert, but could not take advantage of her expertise without being provided the State’s information). In the circumstances before us, Muñoz’s motion was tantamount to a continuance request, and we cannot say the trial court abused its discretion denying his requests.

We next turn to Muñoz’s second argument wherein he claims the trial court erred in refusing to exclude evidence of the .22 rifle and lead pipe during the sentencing phase of his trial. Muñoz submits that these weapons were “other crimes” evidence that was more prejudicial than probative. However, Muñoz abstracts very little of the testimony presented at either the guilt or sentencing phase. Nonetheless, as we set out above, the record reflects that Muñoz told Michelle on the evening the offense took place that she “had better be home when he got there or else,” and related to that threat, he was found that evening, with the weapons in his car, circling the hospital. The trial court concluded that such actions by Muñoz were relevant since they indicated a consciousness of guilt. We hold the trial court did not abuse its discretion.

For the reasons above, we affirm.

       Much of what we relate that occurred on July 23 and the following day has not been abstracted, and since we affirm this appeal, we have gone to the transcript so the reader will have sufficient information to understand what led to the filing of felony charges against Muñoz.