author: David Newbern, Justice.

text:
    Jesse Robert FURR, Jr. v. STATE of Arkansas
    CR 91-212
    822 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Billy J. Allred, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Jesse Robert Furr, was convicted of murder in the first degree and sentenced to life imprisonment in connection with the shooting death of his stepmother, Ruth Furr. He argues the Trial Court erred by refusing to direct a verdict in his favor because there was insufficient evidence that he possessed the necessary purposeful mental state. 'We affirm the conviction.

Furr lived with his father and stepmother near Huntsville. On the day the killing occurred, Furr got off work at 12:30 p.m., went home, and began drinking beer. His father and stepmother, and others present were also drinking. Eventually, everyone except Furr and his stepmother left the house.

According to Furr’s testimony, the two began discussing the family’s financial problems, and he told his stepmother, “Well, if you all ain’t got no money, why don’t you get rid of some of these guns?” He picked up a .22 caliber pistol, cocked it, and began pointing it around the room. Furr testified his finger accidentally hit the trigger, the gun went off, and the bullet struck his stepmother who was standing some five feet away from him at the kitchen sink.

Furr testified that after the shooting he saw that his stepmother was not breathing, and he panicked. He took some money, two pistols, and his stepmother’s truck and left for Midland, Texas, where his mother lived. He testified he was afraid to call the police because he was on parole for a burglary committed in Texas and knew he could not possess any weapons.

Furr was apprehended in Texas and brought back to Arkansas. After being advised of his rights, Furr admitted his responsibility for the shooting but stated it was an accident. The sheriff testified Furr told him he had been drinking the day of the shooting and had a “buzz.” He further told the officer “[I] was acting crazy with a .22 caliber revolver, pointing it around,” and “I pointed it at her and touched the trigger and it went off.” Furr first told the sheriff he was standing across the room from his stepmother when the gun went off, but later said, “I could have been closer than I previously said.”

Chief medical examiner, Dr. Famy Malak, testified the victim was shot once behind the left ear, and the bullet traveled down towards the right ear and entered the brain. A large amount of gunpowder residue was found inside and outside the wound. An autopsy revealed multiple fractures of the skull. According to Dr. Malak, gases had entered and expanded inside the brain leading to increased pressure there. This pressure caused a crack in the roof of the victim’s left eye, and the eye was visibly swollen and discolored as a result. Based on the gunpowder residue inside the wound and the multiple fractures of the skull, Dr. Malak inferred that the gun had touched the victim’s scalp when fired.

The jury was instructed on premeditated and deliberated capital murder and the lesser included offenses of murder in the first degree, murder in the second degree, and manslaughter.

Substantial evidence

Murder in the first degree is purposely causing the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (1987).

On appeal from denial of a directed verdict, this Court reviews the evidence in the light most favorable to the appellee, in this case the State, and affirms if there is any substantial evidence to support the conviction. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion, passing beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989).

Intent is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987).

The evidence with respect to Furr’s purposeful mental state at the time of the crime, viewed in the light most favorable to the State, was substantial. From Dr. Malak’s expert testimony that the gun used in the shooting was fired at close, or point blank, range the inference could easily be drawn that it was the purpose of the person firing to kill the victim. One is presumed to intend the natural and probable consequences of one’s act. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). The jury was free to determine the weight to be given the expert testimony, and they could reject or accept all or any part of it they believed to be true. Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991).

The State also presented evidence that Furr stole some money, a truck, and two guns from his stepmother after the shooting and then fled the scene. Furr testified he had no intent to return the money or the guns. A jury could reasonably conclude from this evidence that Furr purposely killed his stepmother for financial reasons.

Furr claimed his finger accidentally hit the trigger, and the gun went off, but the trier of fact is not required to believe the testimony of any witness. This is especially true when the witness is the accused. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988).

We find the evidence supporting the conviction to have been substantial. The record of trial has been examined for error in accordance with our Rule 11(f), and we have found no errors prejudicial to Furr.

Affirmed.


source: Caselaw Access Project

author:
Tom Glaze, Justice.
      David Newbern, Justice,

license: Public Domain

text:
    Jerry ALLEN v. JOHAR, INC.
    91-275
    823 S.W.2d 824
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Killough, Ford & Hunter, by: S. Kyle Hunter, for appellant.

      Butler Hickey & Long, by: Fletcher Long, Jr., for appellee.
   Tom Glaze, Justice.

This is a trade secret case. Johar, Inc., appellee, is in the business of grinding extruded rubber into handgrips for sporting equipment, motorcycles and tools. After working for Johar for approximately nine years, mostly as a sales manager, appellant, Jerry Allen was fired. Immediately after-wards, the appellant began developing two grinding machines that would allow him to compete with Johar. Mr. Flowers, a longtime maintenance man for Johar also went to work for the appellant. At the time the appellant left Johar, Johar claimed that files and lists containing customer names and other information were missing. Appellant admitted to having contacted as many as ten of Johar’s customers, but denied taking any information from Johar’s premises.

Johar filed suit alleging that the appellant had used confidential information in designing his production machines and in contacting Johar’s customers, and sought to enjoin the appellant’s actions. The chancellor found that the design and process of Johar’s machines and customer lists were protected by the Arkansas. Trade Secret Law and enjoined the appellant from using his production machines or Johar’s customer lists. Appellant was ordered to dismantle his production machines. Further, the appellant was enjoined from contacting any of Johar’s current customers for eighteen months from the date of the judgment. The appellant appeals arguing that the chancellor erred in ruling that Johar’s machines and customer lists were protected under Arkansas Trade Secret Law. We find no merit in the appellant’s arguments and therefore affirm.

Under the Arkansas Trade Secret Law, a trade secret is defined as the following:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value for its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Ark. Code Ann. § 4-75-601(4) (Repl. 1991). Under Ark. Code Ann. § 4-75-604(a), actual or threatened misappropriation of a trade secret may be enjoined, which in pertinent part is defined as the following:

(B) Disclosure or use of a trade secret of another without express or implied consent of a person who: . . .
(ii) At the time of the disclosure or use, knew or had reason to know that his knowledge of the trade secret was:
(b) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(c) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use . . .

Ark. Code Ann. § 4-75-601(2).

In ruling that the Johar’s machines were protected under these provisions of the Arkansas Trade Secret Law, the chancellor made detailed findings comparing Johar’s and the appellant’s machines based upon the testimony and the chancellor’s own viewing of the machines. Johar had entered the handgrip business by purchasing two production machines from a company in California. While these machines in their present form were capable of producing the rubber handgrips, Terry Vienna, the president and owner of Johar, decided to redesign the machines to make them more productive, and therefore more competitive. Dave Archer, an employee of Johar knowledgeable in industrial engineering, was in charge of the redesigning process. In this process, the main components were relocated — the grinding stone was placed in the middle with a mandrel and table on each side. The location of a mandrel and table on each side of the grinding stone gave Johar’s production machines dual capacity and the ability to produce twice as many handgrips. Archer also made other refinements to the machines for Johar including eliminating dust build-up, easing the raw material loading process, and ensuring accuracy in the sizing procedure.

According to Terry Vienna, Johar developed the “dual capacity” production technology in the late 1970’s. The appellant argued that Johar had not developed new technology because another company, Halstead Industrial Products Corporation, also had a dual capacity machine with characteristics very similar to the Johar machine. However, the record showed that Halstead got out of the business in the 1980’s and sold its machines to Cal-Tackle, which in 1980 or 1981 offered to sell these machines to Johar. Dave Archer testified that Johar decided not to buy the machines because they were not useful to the company. Further Archer testified that the Cal-Tackle machines were not similar to Johar’s redesigned machines.

The chancellor found that the appellant’s new production machines were very similar to the Johar’s machines — same size, same cutting apparatus and sliding tables, and same double-sided process. In sum, while the Allen machine has larger electrical motors and several new safety features that were not on the Johar machines, the Allen machine was the same in design, mode and method of operation for cutting the finished product, for loading and holding raw material for processing, and for sizing the product. Further, the Allen machine was built by Mr. Flowers, who previously worked for Johar with Dave Archer servicing Johar’s machines. While working for Johar, Archer became a part owner of Amcorp, and Flowers also worked for Amcorp. Mr. Flowers testified that his knowledge about designing production machines came from his employment with Amcorp and not from Johar. However, Archer testified that, while Amcorp built a machine for Johar under contract, the technology for that machine was Johar’s. Thus, the evidence in the record clearly establishes that Johar’s machines fit under the definition of trade secret in Ark. Code Ann. § 4-75-601(4).

We also find support in the record for the chancellor’s finding that Terry Vienna met the secrecy requirement under the trade secret law. Vienna testified that like his other competitiors, he did not allow tours of the building. Further, evidence showed that this is a very competitive business because there are a limited number of companies involved, three or four major companies and only two minor companies. In short, we cannot say that the chancellor was clearly erroneous in finding that Johar’s production machines are protected under the Arkansas Trade Secret Law.

In the second issue, the appellant argues that the chancellor erred in protecting Johar’s customer lists under the Arkansas Trade Secret Law. We do not agree. While this court has addressed the protection of customer lists in prior cases, these cases were decided prior to the passage of the Arkansas Trade Secret Law, and thus those holdings were based on the common law remedy for trade secrets. See Witmer v. Arkansas Dailies, Inc., 202 Ark. 470, 151 S.W.2d 971 (1941); El Dorado Laundry Co. v. Ford, 174 Ark. 104, 294 S.W. 393 (1927). The Arkansas Trade Secret Law was enacted in 1981 and is a uniform law.

There are a host of cases from other jurisdictions that hold that customer lists are trade secrets. American Credit Indemn. Co. v. Sacks, 262 Cal. Rptr. 92 (Cal. 1989); Michels v. Dyna-Kote Industries, Inc., 497 N.E.2d 586 (Ind. Ct. App. 1986); Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 434 N.W.2d 773 (1989); see generally, Annotation, Customer List As Trade Secret—Factors, 28 A.L.R.3d 7 (1969). Generally, customer lists obtained through use of a business effort, and the expenditure of time and money that are not readily ascertainable and are kept confidential are given protection as a trade secret. Annotation, 28 A.L.R.3d 7. In the present case, Vienna testified that it has taken Johar since 1974 to accumulate its customers, and that Johar’s customer lists and files contain detailed information about its customers — personality traits, hobbies and likes, credit history, buying habits and pricing agreements. Vienna testified that it would take two to three years of work for a company to obtain this kind of information.

In Hi-Line Elec. Co. v. Moore, 775 F.2d 996 (1985), the eighth circuit addressed whether customer information of an industrial supplier of electrical parts and supplies was a trade secret. In that case, the former employee served customers from a stocked van and developed about 75-80% of the customers himself. When the former employee quit, he started his own business and called on many of the same customers he had serviced as sales representative for the appellant. The federal court held that the customer information was not a trade secret because it was readily ascertainable. In the present case, however, the users of Johar’s product are not easily ascertainable. Vienna testified that it took years of trade shows and many subscriptions to magazines for Johar to accumulate a customer list. Further, unlike in Moore, appellant made no showing that he had developed the customers.

As previously discussed, an important factor in determining whether a customer list is a trade secret is whether the employer took actions to guard the secrecy or preserve the confidentiality of the list. Annotation, 28 A.L.R. 3d 7. In this respect, the record supports the trial court’s finding that Johar kept its customer lists and files confidential. Vienna testified that the information was kept confidential and was not to leave the premises. Further, he testified that he ordered old customer printouts destroyed. The evidence, we conclude, clearly supports the chancellor’s holding that Johar’s customer lists meet the requirements of protection as a trade secret.

In so holding, we note that the appellant does not really argue that he should be allowed the use of Johar’s customer lists and files in his business. Instead, he mainly challenges the chancellor’s holding requiring him to erase from his memory the names of Johar’s customers. In other words, the appellant does not admit using Johar’s written customer information, but does admit using his memory in contacting ten Johar customers. We believe that whether the customer information used was written down or memorized is immaterial, and the proper issue is whether the information is protectable as a trade secret. J. McCarthy, Trademarks and Unfair Competition, § 29:5 (2d ed. 1984). Under the circumstances of this case, it was.

For the reasons stated above, we affirm.

Dudley, Newbern and Brown, JJ., dissent.

David Newbern, Justice,

dissenting. Prior to the adoption of Act 439 of 1981, Ark. Code Ann. § 4-75-602 (1987), we defined a “trade secret” as “secret formula, method, or device that gives one an advantage over competitors.” Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W.2d 1 (1973); Miller v. Fairfield Bay, 247 Ark. 565, 446 S.W.2d 660 (1973). That definition was too narrow to include a customer list. In Orkin Extermination Co., Inc. v. Weaver, 257 Ark. 926, 521 S.W.2d 69 (1975), we made it clear that a customer list was not a trade secret. Our discussion of the two matters in that case was appropriately separated.

The enactment of § 4-75-602 revised the definition of “trade secret,” and provided, in subsection (4):

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable from proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

In Girard v. Rebsamen Ins. Co., 14 Ark. App. 154, 685 S.W.2d 525 (1985), the Arkansias Court of Appeals, without referring to the Statute, continued to consider protection of a customer list separately from protection of a trade secret. The Court wrote, “While we agree with appellant that no trade secrets were shown to exist in appellee’s business, the appellee’s proof did show that its customer list and related information were protected interests.”

Since the decision in the Girard case, the Court of Appeals has continued to refer to trade secrets and customer lists in the disjunctive, and as if they were completely separate subjects. See Federated Mut. Ins. Co. v. Bennett, 36 Ark. App. 99, 818 S.W.2d 596 (1991); Duffner v. Alberty, 19 Ark. App. 137, 718 S.W.2d 111 (1986).

Against this background, we are called upon for the first time to interpret the statutory language. Has it elevated to the status of “trade secret” the customer list previously protected only by the common law of unfair competition? I have no doubt a customer list is a “compilation” of “information,” thus satisfying the general requirement of § 4-75-602. Nor do I doubt that in this case there is substantial evidence that Johar, Inc., expended “efforts that are reasonable under the circumstances to maintain its secrecy,” with respect to its printed customer list, thus satisfying subsection (B). I question, however, whether Johar took reasonable efforts to protect secrecy of the list maintained in Allen’s mind.

The majority opinion notes that reference was made in the Trial Court to a noncompetition agreement but that we do not have it in the record before us and it is not a part of this appeal. It seems to me that the only reasonable effort an employer can make toward keeping the names of its customers secret is to contract with its employees not to reveal those names and not to compete for a reasonable period should the employment end.

A noncompetition agreement in these circumstances is a standard device; however, I believe it should be written by the parties and not by the Chancellor. To hold that a memorized customer list is protected as a “trade secret” will, I believe, lead to problems which could be avoided if the holding were limited to lists in writing.

To say that the list in this case is a trade secret but to be protected only for 18 months raises the question whether it is not, thereafter, a trade secret. Why does it cease to fulfill the statutory definition after that period has passed? Again, it seems to me that the Chancellor has simply written an agreement for the parties. In Rector-Phillips-Morse v. Vroman, supra, this Court held the covenant not to compete placed unnecessary restrictions upon Vroman, and it was found to be invalid. At the request of the appellants, this Court declined to rewrite the contract to make it valid. We wrote, “Our rule is that when a restriction such as this one is too far-reaching to be valid, the court will not make a new contract for the parties by reducing the restriction to a shorter time or to a smaller area.” See also Federated Mut. Ins. Co. v. Bennett, supra. This Court further wrote that to adopt a doctrine whereby the court is allowed to write an agreement for the parties “would confer upon the courts the power to make private agreements, a matter certainly not within the judicial province as it has been traditionally understood in our law.” Rector-Phillips-Morse v. Vroman, supra.

I would hold that a customer list is not protected under the Statute except as a written document. The only reasonable effort an employer can make to protect a list not in writing is to enter an agreement with the employee. If such an agreement exists, it may raise the memorized customer list to the level of a trade secret, but it should be protected only to the extent of the agreement between the parties for two reasons. First, in no event should the information be protected as a trade secret in perpetuity because that would violate the same public policy against restraint of trade we have declared to control noncompetition agreements. Hyde v. CM Vending Co., 288 Ark. 218, 703 S.W.2d 862 (1986); Evans Laboratories v. Melder & Cingolani, 262 Ark. 868, 562 S.W.2d 62 (1978); Federated Mut. Ins. Co. v. Bennett, supra; Rebsamen Ins. v. Milton, 269 Ark. 737, 600 S.W.2d 441 (Ark. App. 1980). Second, by entering a reasonable noncompetition agreement, the parties will supplant the protection of the trade secret Statute.

I respectfully dissent.

Dudley and Brown, JJ., join in this dissent.

       We note that a noncompetition agreement was mentioned in Johar’s complaint, but that agreement was not the basis of the chancellor’s holding and was not included in the record before us. Therefore, we will not consider this agreement in our ruling.

       Appellant counterclaimed for two weeks salary and three weeks paid vacation. The chancellor granted the appellant’s claim for his salary, but denied the vacation time. The counterclaims are not at issue in this appeal.


author: Tom Glaze, Justice. Jack Holt, Jr., Chief Justice,

text:
    Tracy Lamar DANIELS v. STATE of Arkansas
    CR 91-249
    821 S.W.2d 778
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Wallace & Hamner, by: Dale E. Adams, for appellant.

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

On July 18,1990, the appellant, Tracy Daniels, was convicted of the offense of theft of property and sentenced to a suspended imposition of sentence for a period of three years, conditioned upon compliance with written rules of conduct, with Act 346 of 1975 to apply. Daniels contends on appeal that the evidence is insufficient to sustain his conviction. We disagree, and therefore affirm.

On November 27, 1989, Daniels and co-defendants Ray Gene Crutchfield and Rhonda Lynn Hill were charged by felony information with the crime of theft of property. Crutchfield subsequently pleaded guilty; Daniels and Hill both waived their right to a jury trial and were tried before the court on July 12, 1990.

Before considering appellant’s arguments, we mention the manner in which the appellant’s and Hill’s cases were tried because it had some bearing on certain evidentiary objections he made. When appellant and Hill appeared in court on July 12, appellant initially attempted to enter a plea of guilty to hindering apprehension or prosecution. After the court went through its litany of questions required when accepting a plea, the appellant changed his mind, withdrew his plea and agreed to be tried by the court at the same time as Hill. Hill’s counsel then interposed the affirmative defense of duress, claiming the appellant forced her to participate in the convenience store theft. On this same date, the state proceeded to present its case against the appellant, and at the end of the state’s case, appellant moved to dismiss based upon insufficiency of evidence. The court denied appellant’s motion, and the state then proceeded with its case against Hill. At the close of Hill’s case, the appellant renewed his earlier motion to dismiss, which the trial court again denied before finding both appellant and Hill guilty of theft.

The foregoing trial procedure causes some confusion when reading the record, especially when pondering such arguments by appellant that Hill’s confession is of no evidentiary value against him and that the state’s evidence must be judged as to its sufficiency at the time of appellant’s first motion to dismiss. Even accepting appellant’s view as to when the state’s evidence should have been considered by the trial court, we conclude the state’s accomplice testimony showed that not only the theft occurred, but also described how the appellant, Hill and Crutchfield planned and committed the crime.

While appellant objected to the introduction of Hill’s written confession because it implicated him as a co-defendant, the trial court only admitted the confession into evidence after it had been properly edited to omit any reference to the appellant. See Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Also, Ken Armstrong, the convenience store manager, testified that Hill had notified him of the theft of some “thousand and some odd dollars” and Officer Richard Ward related his investigation revealed the theft took place around 8:30 or 8:45 p.m. on October 28, 1989. Both men further testified that Hill subsequently changed her story and Armstrong said that Hill related that her boyfriend (appellant) and a “younger fellow” (Crutchfield) had planned the theft. She further said that the appellant called her from a pay phone to make sure nobody was in the store. Afterwards, Crutchfield alone came into the store to get the money and then left the store, entered appellant’s car and the two drove away. After Armstrong fully testified to Hill’s version of what occurred, appellant objected on the grounds such testimony was hearsay and inadmissible in his case. While the trial judge agreed to take note of appellant’s objection, no ruling was made. In any event, in order to preserve an issue for appeal, an objection must be made at the trial court level at the first opportunity to do so. Asher v. State, 303 Ark. 202, 206, 795 S.W.2d 350, 352 (1990). Here appellant objected long after Armstrong’s testimony was fully presented. Therefore, Armstrong’s testimony was properly before the court for its consideration of appellant’s case.

Appellant’s main argument is that the state’s corroborating evidence was insufficient to show he had any connection with the convenience store theft. The well-settled test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). The corroborating evidence may be circumstantial and may be furnished by the acts, conduct, declarations or testimony of the accused. Id.

As we have discussed above, the state’s evidence through Armstrong’s testimony and Hill’s redacted written confession clearly showed the theft occurred, and appellant’s suggestion to the contrary is meritless. Thus, appellant’s argument is narrowed to whether the state’s other evidence tended to connect appellant with the theft, and we conclude it does.

Officer Bouwknegt testified that after Hill confessed, he drove her to 44 Eastgate in North Little Rock where she said the stolen money was located. She got out of the police car, went to and knocked on the door of the house and returned with a brown purse containing the money. She recovered nine hundred and three dollars, the approximate sum taken in the theft. The recovery of the money took place within five and one-half hours after the theft. Bouwknegt further testified that the appellant had given the 44 Eastgate address as his home and residence.

Possession of stolen property by the accused has been held as a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grant larceny. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). This court has held that stolen goods recovered from a dwelling shared by an accomplice is not sufficient corroboration standing alone. Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976); Cockrill v. State, 256 Ark. 19, 505 S.W.2d 204 (1974). But no evidence exists in the present case that in any way indicates appellant shared his residence at 44 Eastgate with anyone except his mother, who in no way was implicated in the convenience store theft.

Appellant argues Bouwknegt conceded he did not know where appellant lived or who was in the residence at 44 Eastgate when Hill retrieved the money. He even suggests Crutchfield might have taken the stolen money to the 44 Eastgate house. Appellant’s suggestion concerning Crutchfield’s possible residence at this house is sheer speculation and the remainder of his arguments ignore the fact that the appellant gave 44 Eastgate as his residence. The trial court clearly was free to accept appellant’s statement concerning his residence as being true, and obviously did so. Given the fact that Hill retrieved the aforementioned money from appellant’s residence only a short period after the convenience store theft, we believe the trial court correctly ruled the evidence, albeit circumstantial, tended to corroborate appellant’s connection with the crime.

For the above reasons, we affirm.

Holt, C.J., and Newbern, J., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. I disagree with the majority’s analysis of this case.

Arkansas Code Ann. § 16-89-111(e)(1) (1987) addresses evidence at trial in general and provides that “[a] conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.”

In Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983), we noted that the testimony of an accomplice must be corroborated by other independent evidence which tends to connect the defendant with the commission of the crime; it is not sufficient to prove that the crime was committed and the circumstances of the crime. The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony; in addition to being substantive, the corroborating evidence must be substantial. Substantial evidence is stronger evidence than that which merely raises a suspicion of guilt; it is evidence which tends to connect the accused with the commission of the offense charged; however, it is something less than that evidence necessary in and of itself to sustain a conviction. The corroborating evidence may be circumstantial, but it must be of a material nature and legitimately tend to connect the accused with the commission of the crime, and it may be furnished by the acts, conduct, declarations, or testimony of the accused.

In this case, the State presented three statements made by Hill, Daniels’ co-defendant. Hill’s first statement was oral and exculpatory. Hill’s second statement was written and stated as follows:

Last night the, twenty-seventh, me and (blanked out) and Ray were kidding. Ray got serious about it. (Blanked out) and Ray came into the store and (blanked out) called me on the pay phone and said he was scared after I told him I was scared. He said Ray was in the car. Ray came in and gave me a sack and to the money and left.

Hill’s third statement, two hours later, was also written and stated as follows:

Ray Crutchfield told me where the money was at. I, Rhonda, went and asked where it was and he said over at (blanked out) mother’s. Rhonda Hill, Sgt. Poe and myself, Sgt. Bouwknegt, went over to North Little Rock to (blanked out) mother’s house. I, Rhonda Hill, run up and got the money. I brought it back and give it to Sgt. Bouwknegt.

The State also presented the testimony of Sgt. Bouwknegt, who stated that he went with Hill to 44 Eastgate in North Little Rock and watcher her as she went up to the residence, knocked on the door, went inside, and returned with a brown purse containing money. Sgt. Bouwknegt further testified that Daniels gave 44 Eastgate as his home address when he was arrested.According to his records, Sgt. Bouwknegt stated that Daniels’ mother lived at the residence, but that he did not know if anyone else lived there, particularly Daniels.

To test the sufficiency of the corroborating evidence in this case, we eliminate the testimony of Rhonda Hill, the accomplice, and. determine whether the corroborating evidence is sufficient. Henderson v. State, supra (citing King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973)). By Officer Bouwknegt’s own admission, he did not know whether Daniels lived at the address where Hill retrieved money in an amount approximating the amount stolen from the convenience store.

Daniels was arrested at 12:30 a.m. on the same night as the reported incident, and Officer Bouwknegt went to 44 Eastgate with Hill at 2:00 a.m. There is no indication who was inside the house, if anyone, when Hill retrieved the money, nor is there testimony as to who placed the money in the residence. Indeed, we are left with nothing more than circumstance that money in an amount approximating the amount stolen from the convenience store where Hill worked was recovered from the residence of Daniel’s mother, the address which Daniels listed as his home address at the time of his arrest.

This fact, standing alone, is not sufficient corroboration. See generally Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976) (the mere fact that stolen property was found, after the accused had been incarcerated on another charge for several days, in a house jointly occupied by the accused and one who is an accomplice in its theft is not sufficient corroboration of the testimony of the accomplice.) It is just as consistent with the evidence presented that Crutchfield stored the money, since he was the one who actually took it from Hill, at Daniels’ mother apartment.

Consequently, I respectfully dissent.

Newbern, J., joins in this dissent.


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

text:
    Johnnie PETERS v. William PIERCE
    91-183
    823 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Gary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellant.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellee.
   Tom Glaze, Justice.

Appellant brought suit against appellee alleging appellee’s vehicle rear-ended appellant’s pickup truck after the appellant stopped his truck at an intersection. Appellee responded, denying any liability. At trial, appellant offered proof that he had incurred $5,000 in medical bills and that his loss of wages was between $126,000 and $135,000. Appellee countered appellant’s proof with a different version of how the rear-end collision occurred and medical testimony negating or diminishing the damages appellant claimed he had sustained. A jury awarded appellant a $6,000 verdict.

On appeal, appellant argues his low verdict resulted from two trial errors that created a false picture for the jury and deprived appellant of a fair trial. First, appellant claims the trial court should have allowed evidence of appellee’s liability coverage to rebut appellee’s unsolicited testimony reflecting his limited financial condition. Second, appellant contends the trial court erred in failing to declare a mistrial when appellant’s employer mentioned worker’s compensation when being cross-examined by appellee’s counsel.

Appellant’s first argument arises from testimony given by appellee in his defense and case-in-chief. Appellee’s attorney asked some preliminary questions dealing with name, age and place of employment. Appellee answered each add, to the last question, replied that he was retired. His attorney then asked how long he had been retired, and he said, “Retired May 1st of 1988. And now, whatever I have, if it is taken away from me, I can’t replace. I’m too old. I don’t work anymore. I do occasionally part time, but not on a regular basis.”

Immediately after appellee’s remarks, appellant approached the bench, and outside of the jury’s hearing, informed the trial court that he believed the appellee opened the door for appellant to show the appellee had $50,000 in liability insurance. Appellee countered by arguing that, if appellant received what he sought in damages, appellee would be financially devastated, notwithstanding his $50,000 in liability coverage. Before rejecting appellant’s request, the following colloquy took place between the parties’ respective counsel and the court:

THE COURT: My impression, just when I heard it, the response of the witness was not responsive to your question.
MR. SANDERS: [Defendant’s attorney] Wasn’t responsive to my question for sure.
THE COURT: I think it leaves an impression that this accident devastates him financially.
MR. SANDERS: It will if he gets what they want. That part is not untrue.
THE COURT: It might. But when it leaves the impression he is out there by himself subject to that devastation. That’s the problem I have with that.
MR. HOLT: [Plaintiffs attorney] Something else about that, Your Honor, I have repeatedly made policy limit settlement demands and said we would accept that. His client already told him if he doesn’t pay that and he gets hit here he is going to sue him.
MR. SANDERS: That’s totally outside the record here. I told you he didn’t say that. In so many words he was going to go after the insurance company.
THE COURT: What are the limits on this?
MR. SANDERS: It is $50,000. The thing is, first, I don’t know why he said that.
THE COURT: I don’t think it was responsive.
* * *
MR. HOLT: Your Honor, clearly there have been exceptions when the door is opened, and one of the major exceptions is when they get on there and testify about how catastrophic it is going to be to them.
MR. SANDERS: We don’t go into them. He said whatever he loses he won’t be able to replace.
MR. HOLT: No way to replace.
THE COURT: I think my impression of it was the jury was very attentive, as I have a peculiar view here, that he was talking about his life and being retired and how what little he had would be taken away from him.
MR. SANDERS: He couldn’t replace.
THE COURT: That’s why it disturbs me a bit. Could I get ya’ll to do this? I know we are going back here at 12:20. If you could call and just get a cite.
* * *
MR. SANDERS: I think what Gary is talking about, there’s plenty of cases where somebody gets on the witness stand and you are quizzing them why they were hurting so bad, why they didn’t get medical treatment and so forth, “Well, I can’t afford it.” Then they say, “Well, the thing is, if they had insurance, that would have paid for all that treatment and cost was not a factor.” They will let you get into that. He said anything he lost, and to that extent he is saying a true statement. It is not the same thing as saying he didn’t go see a doctor, even though I was dying in pain because I couldn’t afford it when there was somebody that would be paying the bill had he went. There’s a big difference there.
THE COURT: I understand what you are saying there. I still think — I may be wrong. It may be that the law is entirely different, but from my prospective [sic], it seemed that had an impact on the jury.

After hearing the arguments of counsel, the trial court determined appellee’s answer was unresponsive to his attorney’s question. Rather than allowing the jury to know of appellee’s liability insurance coverage, it instructed the jury that appellee’s ability to satisfy a judgment should not be considered in arriving at a judgment.

Generally, it is improper in automobile accident cases for either party to introduce or elicit evidence of the other party’s insurance coverage. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980). The court has also said that the injection of insurance coverage is not proper unless it is relevant to some issue in the case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). This court has allowed a plaintiff to be cross-examined about his insurance coverage after he gave misleading testimony regarding his financial inability to pay the full amount of damages his vehicle sustained as a result of the defendant’s negligence. York, 271 Ark. 266, 608 S.W.2d 20 (1980). There York testified that, due to a shortage of personal funds, he was unable to fully repair his vehicle, when in fact insurance proceeds were available to him to cover the repairs. This court affirmed the trial court’s ruling that York misled the jury, invited the rebutting questions and made the questions regarding his insurance relevant to the issues in the case. Id., 271 Ark. at 267, 608 S.W.2d at 22.

The York decision is in keeping with the well-settled rule that where one party introduces incompetent testimony, he cannot complain of the introduction of the same character of evidence directed to the same issue by the other party. Arkansas State Highway Comm’n v. Pittman, 251 Ark. 709, 473 S.W.2d 924 (1971). The Pittman court further held that the rebutting evidence restricted to “similar evidence,” the “same subject,” or to “answering evidence” in denial or explanation of the subject. In support of its holding, the court cited McCormick on Evidence which in relevant part reads as follows:

If the evidence,though inadmissible, is relevant to the issues and hence probably damaging to the adversary’s case, or though irrelevant is prejudice-arousing to a material degree, and if the adversary has seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence as of right. By objecting, he has done his best to save the court from mistake, but his remedy by assigning error to the ruling is not an adequate one. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence .... [Footnotes omitted.]

Edward W. Cleary, McCormick on Evidence § 57, at 147-48 (3d ed. 1984).

In the present case, the trial court refused appellant the opportunity to answer appellee’s misleading and incompetent testimony even though it believed appellee’s remarks impacted adversely against the appellant. As mentioned above, appellee argued his remarks would not entirely be false, especially if appellant received an award substantially exceeding the $50,000 insurance amount. However, the trial court correctly noted that appellee’s remarks left the false impression that appellee was “out there by himself’ and therefore subject to financial devastation. Obviously, appellee’s remarks were totally false assuming the jury awarded $50,000 or less, which it did. The adverse impact of appellee’s remarks cannot be minimized by assuming, as appellee would have us do, that he merely told the jury “what he perceived to be the truth.” Nor can we agree the trial court’s cautionary instruction cured appellee’s misleading statement or did anything more than draw special attention to appellee’s personal ability (or inability) to satisfy a judgment in any amount.

As was the situation in York, appellee injected his limited personal resources into issues, casting doubt before the jury that he could afford or financially survive a judgment against him. By doing so, he portrayed a false, or at least a misleading picture, that he alone would absorb any loss or judgment, and under these limited and special circumstances, appellant had every right to answer appellee’s portrayal by giving the jury the full and complete picture. The fact that appellee’s remarks were volunteered and unsolicited by his own counsel cannot be used to justify the adverse or prejudicial impact they had upon the jury, and the trial court was wrong in so ruling.

Because the second evidentiary issue raised by appellant on appeal is unlikely to arise in the retrial of this matter, we need not reach it. For the reasons stated above, we reverse and remand this cause for a new trial.

Corbin and Brown, JJ., dissent.

Donald L. Corbin, Justice.

The majority opinion takes the “opening the door” theory a step too far. Noticeably absent from the majority’s reversal is any reference to the “abuse of discretion” standard that limits this court’s review of a trial court’s decision to exclude evidence. A.R.E. Rule 104(a); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); White v. Mitchell, 263 Ark. 787; 568 S.W.2d 216 (1978). While the majority cites cases in which this court has relied on the “opening the door” theory to affirm the admission of otherwise inadmissible evidence, none of those cases reversed a trial court’s decision to exclude such evidence.

In this case, the trial court was in the best position to weigh both the prejudicial effect of the defendant’s inappropriate remark and the potential prejudicial effect of admitting evidence concerning the monetary limit of the defendant’s insurance policy. While the majority quotes extensively from the bench conference regarding the defendant’s unsolicited remark, the ultimate decision to exclude the insurance evidence indicates the trial court’s belief that the prejudicial effect of informing the jury that the defendant carried a $50,000 insurance policy would outweigh any prejudice caused by the defendant’s remark.

The trial court’s ruling is certainly consistent with this court’s holding that evidence of insurance coverage is unnecessary and irrelevant in cases where its admission “is designed to skew the jury’s thinking because of the presence or absence of a deep pocket.” Hacker v. Hall, 296 Ark. 571, 576, 759 S.W.2d 32, 35 (1988). York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), the case relied upon by the majority, is readily distinguishable from the present case. In that case, the plaintiff alleged that an accident caused by the defendant reduced the value of his truck by $3,000. He testified that the reason his repair bill was only $550 or $600 was because he could not afford to repair the remaining damage. We affirmed the trial court’s decision to admit evidence of the plaintiffs collision insurance on the basis that such evidence served to refute the plaintiffs testimony that his truck had not been fully repaired.

I believe that the basis for admission in the York case distinguishes that case from the situation in the present case. In the York case, the insurance evidence served to refute the plaintiffs claim regarding the extent of damage to his vehicle. Because the insurance evidence in York was relevant to determining the actual damages sustained by the plaintiff, the admission served a legitimate rebuttal purpose.

In the instant case, no such legitimate purpose existed for admission of appellee’s liability limits. Appellant does not allege that the evidence was relevant to either defendant appellee’s negligence or to his sustained damages. Instead, appellant wished to use evidence of the defendant’s insurance coverage to illustrate the defendant’s ability to satisfy a judgment. Given this court’s repeated admonitions regarding the dangers of introducing insurance evidence, I disagree with the majority’s decision that the trial court abused its discretion in refusing to allow introduction of the defendant’s liability coverage.

The trial court’s ruling is also consistent with this court’s reasoning in Henson v. State, 239 Ark. 727, 393 S.W.2d 856 (1965). In Henson, a rape case, the defendant presented inappropriate evidence concerning specific instances of his good conduct. The state responded by introducing witnesses who testified that the defendant had raped them. This court found error, stating: “[T]wo wrongs do not make a right. The evidence offered by appellant was clearly inadmissible, but his did not justify the state in offering inadmissible evidence.” Id. at 732, 393 S.W.2d at 859. Relying on the Second Circuit case United States v. Beno, 324 F.2d 582 (2d Cir. 1963), the court quoted as follows:

For it makes little sense to insist that once incompetent evidence is erroneously admitted, the error must of necessity be compounded by “opening the door” so wide that rebutting . . . collateral, inflammatory and highly prejudicial evidence may enter the minds of the jurors. In short, a small advantage improperly obtained does not compel the exaction of a gross disadvantage in penalty, particularly where a tarnished verdict is the inevitable result.

Id. at 588-89.

It has been suggested that the principle behind the “opening the door” theory is to provide a device by which a trial error can be cured at the trial itself. 1 Wigmore on Evidence § 15, n. 2, p. 732 (Tillers rev. 1983). If this is so, I believe the discretion of the trial court must provide the linchpin behind the theory. I dissent because I disagree with the majority’s disregard for the trial court’s discretion.

Brown, J., joins in this dissent.


author: Donald L. Corbin, Justice.

text:
    Clifton Lee USSERY v. STATE of Arkansas
    CR 91-218
    822 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Paul Johnson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Clifton Lee Ussery was convicted by a Pulaski County jury of first degree murder and being a felon in possession of a firearm. The jury sentenced appellant to serve forty years on the murder conviction, and six years on the felon in possession of a firearm conviction. The state’s evidence included a docket sheet from Pulaski County Circuit Court which indicated that appellant pled guilty to a burglary charge in 1969 and was placed on probation for three years. Appellant argues admission of his prior guilty plea constituted error because the definition of “conviction” does not encompass a guilty plea to a felony charge for which a suspended sentence was imposed. We find no merit in appellant’s argument and affirm the conviction.

The state charged appellant with both first degree murder and being a felon in possession of a firearm. As part of its case, the state presented evidence that appellant pled guilty to a burglary charge in 1969. Presumably, the state presented evidence of appellant’s prior guilty plea in order to prove an essential element of the offense of felon in possession of a firearm — that is, that appellant was indeed a felon. Ark. Code Ann. § 5-73-103 (Supp. 1991) provides in pertinent part:

(a) . . . [N]o person shall possess or own any firearm who has been:
(1) Convicted of a felony; or
(b) A determination by a jury or court that a person committed a felony:
(1) Shall constitute a conviction for purposes of subsection (a) of this section even though the court suspended imposition of sentence or placed the defendant on probation[.]

At trial, the trial judge admitted evidence of appellant’s prior guilty plea over defense counsel’s objection. The substance of defense counsel’s objection was limited to counsel’s statement that a guilty plea resulting in a suspended sentence did not constitute a conviction. Counsel then proceeded to describe the facts of several civil cases which this court had painstakingly distinguished in Finley v. State, 282 Ark. 146, 666 S.W.2d 701 (1984). The Finley case presented a fact situation strikingly similar to the situation in appellant’s case.

In Finley, the appellant had pleaded guilty to a felony charge in 1971. The trial judge had imposed a three year suspended sentence. In 1981 the state relied on Finley’s 1971 guilty plea in charging Finley with the offense of being a felon in. possession of a firearm. Finley argued that the applicable statutory definition of “conviction” was unconstitutional as an ex post facto law because it imposed punishment based on an offense committed before the section became effective in 1976. In rejecting Finley’s argument, this court analogized the felon in possession of a firearm statute to statutes prescribing enhanced penalties for habitual offenders, and concluded “[t]here can hardly be any doubt about the validity of [the relevant subsection of] the statute.” Id. at 148, 703.

At trial in the present case, appellant’s counsel neither referred to the Finley case nor argued the. unconstitutionality of the statutory definition of “conviction.” On appeal, however, appellant urges this court to overrule the Finley decision based on a cursory ex post facto argument.

The state argues for affirmance on the ground that appellant failed to sufficiently raise his constitutional challenge below. The state relies on this court’s rule that we will not reach issues on appeal that were not raised at the trial court level by means of a timely, specific objection. The court relied on this rule in Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990) and Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), the cases cited by the state, to affirm various allegations of error raised by the defendants. The court reiterated the rule that even constitutional issues will not be considered when raised on appeal for the first time.

In the instant case, the trial court allowed evidence of appellant’s prior guilty plea over objection by defense counsel. However, the trial court did not rule on whether the admission of the guilty plea violated the ex post facto clause because the ex post facto argument was not raised below. We only reverse a trial court for erroneous rulings and when an issue was not brought to the attention of the trial court, we do not consider it on appeal because the trial court had no opportunity to rule on the issue. Id. Even constitutional issues will not be considered when raised on appeal for the first time. Id.

Appellant neither raised his ex post facto argument below nor offers this court any reasoning or authority in urging us to overrule the Finley decision. The Finley case explicitly held that the felon in possession of a firearm statute does not violate the ex post facto clause simply because a defendant committed the original felony before the effective date of the statute. In Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989), cert. denied, 111 S. Ct. 218 (1990), this court refused to consider an appellant’s argument for overruling controlling precedent when the appellant neither argued the constitutional issue before the trial court nor offered a compelling reason to declare the challenged statute unconstitutional. As appellant neither raised his ex post facto argument below nor offers a compelling reason for overruling the Finley decision, we reject appellant’s argument and affirm the conviction.


author: Robert L. Brown, Justice.

text:
    Phillip CONLEY v. STATE of Arkansas
    CR 91-193
    821 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      Herbert T. Wright, Jr. P.A., by: Herbert T. Wright, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal arises from the conviction of the appellant, Phillip Conley, for possession with intent to deliver cocaine and from his sentence as a habitual offender to a term of forty years. The appellant raises two points on appeal: the lack of substantial evidence to support the jury verdict, and the absence of a usable amount of cocaine to sustain the conviction. We find no merit in the points raised, and we affirm the conviction.

The facts are these. On the evening of June 19, 1990, two detectives of the Little Rock Police Department staked out a residence in Little Rock. One detective had binoculars; the other did not. At 8:35 p.m., the detectives saw Damien Adams, age 16, motion several vehicles not to stop, as they slowed down on their approach to the residence. At 8:45 p.m., a Dodge van approached and backed into the driveway of the house. The appellant emerged from the van and went over to Adams and gave him some money. The appellant then went back to the van, took something from it, closed the van door, and activated the car alarm. He then went over to the chimney of the house and dropped a tan-and-white matchbox beside it. After that, he went inside the residence.

Minutes later, a woman approached Adams in the front yard. Adams went over the chimney, picked up the matchbox and opened it. The detective with binoculars testified that he thought Adams retrieved something from the box but could not be positive. Adams put the box down and walked back to the woman who gave him some money. The detectives later observed similar transactions between Adams and two men.

When the detectives moved in, they recovered the matchbox, which contained three rocks of crack cocaine. A chemist subsequently testified at trial that the rocks contained a cocaine and procaine base of .141 grams. Of that base amount, 76.5 percent was cocaine. Adams had $ 183 in case on his person. They arrested both Adams and the appellant. Adams subsequently pled guilty to possession with intent to deliver cocaine. He testified at the appellant’s trial, but he did not implicate him.

The appellant testified at trial that he had gone to purchase fireworks for his mother-in-law in order to chase some teenage boys out of her front yard and that the fireworks stand had not been open. He returned to the house in his van and returned the $3.00 that he had borrowed from Damien Adams to buy the fireworks. The appellant also stated he had a baby in his arms when he came back to the house, and he denied going over to the chimney. One detective, in rebuttal testimony, disputed the presence of a baby.

For his first point, the appellant argues that the state presented no evidence from which the jury could deduce guilt and, thus, the jury was forced to rely on surmise and conjecture. We disagree. The fact that evidence is circumstantial does not render it insubstantial. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). The question of whether a more reasonable hypothesis exists is usually one for the jury. Gardner v. State, supra; Harshaw v. State, supra.

When determining the sufficiency of the evidence, we view the proof in the light most favorable to the appellee. Gardner v. State, supra; Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). What the state presented by way of evidence and what the jury presumably found to be persuasive was a process that more than suggested that the appellant was trafficking in drugs.

The appellant drove to a residence, gave Adams money, and then dropped a matchbox by the chimney. Adams opened that matchbox and went back to a woman who gave him money. Similar transactions involving Adams, the matchbox, and two other persons occurred. Crack cocaine was found in the matchbox. The evidence is circumstantial, but the jury could readily have found from these facts that the appellant was involved in drug transactions. Certainly, the appellant’s testimony that he was engaged in the purchase of fireworks is not reasonable or plausible in light of the detectives’ surveillance of what transpired.

The appellant next contests his conviction on grounds that a usable amount of cocaine was not proven by the prosecutor. The percentage of cocaine found, .141 grams, is less than the presumptive amount for possession with intent to deliver under our statute, which requires more than one gram. See Ark. Code Ann. § 5-64-401(d) (Supp. 1991). Nevertheless, two detectives observed the appellant’s participation in transactions that involved the sale of cocaine. Moreover, Damien Adams, though he did not identify the appellant as as accomplice, pled guilty to delivering cocaine.

The fact that the prosecutor did not introduce evidence of a usable amount is not fatal to the state’s case. We have held that usable amount is a factor to be considered where the accused is charged with possession of a controlled substance. See Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990). In Harbison the issue was whether a trace amount of cocaine found in the possession of the accused constituted a usable amount for a possession conviction. Here, however, more than a trace amount of cocaine was found in the matchbox, and the offense charged was possession with intent to deliver. To prove the requisite intent, the state presented eyewitness testimony from two detectives.

The Arkansas Court of Appeals has upheld a conviction for trafficking when less than the presumptive amount was found in the possession of the accused but where other proof of intent to deliver was present. See Johnson v. State, 23 Ark. App. 200, 745 S.W.2d 651 (1988). That is exactly the situation we have in the case before us. A specific amount of cocaine was found in connection with a trafficking scheme observed by the detectives.

Affirmed.


text:
    John H. STEIN v. Bob LUKAS and Buck Stove of Arkansas, Incorporated
    91-27
    823 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered January 21, 1992

      T.B. Patterson, Jr., for appellant.

      Anderson & Kilpatrick, by: Michael E. Aud, for appellees.
   Robert L. Brown, Justice.

This appeal arises from a jury verdict in favor of the appellant, John H. Stein, in the amount of $5,700. That amount represented damages to the appellant resulting from a flue fire caused by a wood-burning stove. The core of the appellant’s appeal is the circuit court’s refusal to submit the issue of punitive damages to the jury. The appellant asserts that this was error. The appellees, Bob Lukas and Buck Stove of Arkansas, Incorporated, cross-appeal on the basis that the circuit court impermissibly allowed evidence of the appellees’ financial worth to be presented to the jury, since punitive damages were not at issue. The appellees further assert that the circuit court erred in taking judicial notice of the Southern Building Code.

The appellant began shopping for a wood-burning stove in November 1984 and ultimately decided to purchase a stove that same month after discussions with appellee Bob Lukas, an agent of appellee Buck Stove of Arkansas. The stove purchased was a Little Buck Stove, model 26000, to be installed in his zero-clearance metal fireplace. The appellant alleged that Lukas made assurances that the stove was suitable for his fireplace.

In March 1986 the appellant had a flue fire which caused him to read the Buck Stove owner’s manual. He discovered then that the manual prohibited installation of model 26000 in metal fireplaces. He filed a complaint against the appellees on November 5, 1987, alleging deceit and breach of express and implied warranties. At the first trial (Stein I), the circuit court directed a verdict in favor of the appellees at the conclusion of the appellant’s case. On appeal, the Arkansas Court of Appeals in an unpublished opinion reversed and remanded for a new trial, after holding that sufficient factual issues involving liability and damage questions were presented in the case and necessitated jury resolution.

At the second trial (Stein II), the appellant advanced both his deceit claim and his claims for breach of warranty. The appellant maintained that he had been assured by Lukas that the stove was suitable for his fireplace and that the National Fire Protection Association 211 standards, governing in part stove installations, were not of concern. Lukas testified that he told the appellant only that Arnold Greene Testing Laboratories had approved these stoves for metal fireplaces by letter dated June 28, 1983. The appellant asked for all monetary damages, including repair and replacement costs, which he said totalled $4,736.15. He also asked for punitive damages.

The circuit court instructed the jury on deceit and breach of warranty. Over the appellant’s objection and at the appellees’ urging, the court also instructed on negligence. It refused, however, to instruct on punitive damages or to allow the appellant to develop a punitive damages case at trial. It further refused an AMI (Civil) 903 instruction premised on criminal deceit as some evidence of negligence.

The case was not submitted on interrogatories, and no special verdict forms were submitted to the jury. The jury returned a verdict of $5,700, and judgment was entered according.

I. Punitive Damages

For his first point, the appellant argues that there was error in the circuit court’s refusal to submit the issue of punitive damages to the jury. We agree.

We have held that punitive or exemplary damages are proper where there is an intentional violation of another’s right to his property. See Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 768 S.W.2d 28 (1989). We have further held that punitive damages are available in cases of misrepresentation or deceit. See Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989).

In addition, we have said that an award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred. See Missouri Pacific Railroad v. Mackey, 297 Ark. 137, 760 S. W.2d 59 (1988); National By-Products, Inc. v. Searcy House Moving Company, Inc., 292 Ark. 491, 731 S.W.2d 194 (1987). In both cases we quoted the following language from St. Louis, I.M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W.2d 224 (1909) with approval:

In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred.

Mackey, 297 Ark. at 145; 760 S.W.2d at 63; National By-Products, Inc., 292 Ark. at 494; 731 S.W.2d at 196.

We have also defined circumstances from which malice can be inferred: “In other words, in order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto.” Dalrymple v. Fields, 276 Ark. 185, 188, 633 S.W.2d 362, 364 (1982); quoting Hodges v. Smith, 175 Ark. 101, 293 S.W.2d 1023 (1927).

In 1987, we cited Arkansas Model Jury Instruction 2217 as an embodiment of the law on punitive damages. See Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987). We quoted AMI 2217 in part as requiring a finding that the defendant “knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in the reckless disregard of the consequences from which malice can be inferred.” Id. Hence, malice can be inferred either from a conscious indifference to the consequences of one’s actions or from a reckless disregard of those same consequences.

Our analysis begins by determining the degree of evidence required for the jury to consider a punitive damage award. We have said that if there is evidence tending to show deliberate misrepresentation or deceit, that meets the plaintiffs burden. See Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). We have further said that the degree of proof required is substantial evidence of actual or inferred malice. See City Nat’l Bank v. Goodwin, 301 Ark. 182, 783 S.W.2d 335 (1990); Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W.2d 192 (1972). We believe that the better rule is to look for any substantial evidence to support a punitive damages instruction, and we hold that to be the standard.

By denying the submission of the punitive damage issue to the jury, the circuit court, in effect, directed a verdict in favor of the appellees on that issue. We look, therefore, to see whether any substantial evidence of record exists to warrant the jury’s consideration of punitive damages. Here, we conclude that there is such evidence. First, the manufacturer’s instructions specifically warned the appellees of the danger involved in installing wood burning stove in zero-clearance metal fireplaces. The appellee Lukas testified that he was aware of the instructions but chose to disregard them and did not tell his customers specifically about them, although he gave them an owner’s manual which contained the warning about wood stoves in metal fireplaces after the stoves had been installed.

Secondly, there was testimony of record from the appellant’s expert, Alan Molero, who had previously installed stoves for Lukas. Molero wrote Lukas in 1972 to warn him that installation of wood-burning stoves in metal fireplaces was unsafe. He refused to install them. Molero further testified that Lukas justified continued sales by saying he would “lose out on a good portion of the market” if he did not sell the stoves in conjunction with the metal fireplaces. Molero added that Lukas once offered him an economic incentive to install a stove in a metal fireplace which he considered unsafe. This evidence is sufficient to warrant jury consideration, and we so hold.

A related aspect of the punitive damage issue is whether the jury’s verdict was one that could sustain damages which are designed to punish conduct. The jury was instructed on negligence, deceit, and breach of warranty. A verdict was returned, but it is impossible to know with certainty which of the three theories of relief the jury relied upon. If the jury’s theory was breach of warranty, which sounds in contract, a question arises of whether punitive damages could have been appropriately considered by the jury in any event. We do not presume error, and if punitive damages were inappropriate for consideration due to a contract verdict, that could end the matter. See Northwestern Nat’l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990).

One commentator has discussed the issue in terms of whether punitive damages are compatible with products liability cases where typically the plaintiff sues for negligence, breach of warranty, and strict liability. See 1 Ghiardi and Kircher, Punitive Damages, L & Prac § 6.01 (1985). The discussion goes forward:

It has been argued that actions based on strict liability or breach of warranty cannot support a punitive damage claim because they are faultless concepts and fault is a critical element of punitive damages.
However, courts have refused to recognize the incompatability argument with regard to strict liability actions. Likewise, with warranty actions, courts have avoided the rule that punitive damages may not be awarded in contract actions by using established exceptions or simply by refusing to apply the rule when punitive damages appear appropriate. Usually, all three theories of liability or a combination thereof are pled in the alternative in a products case. Because of the prevalent use of the general verdict it is often difficult if not impossible to ascertain the basis for the punitive damages award.

Id.

In 1989, we reviewed a case involving a defective car where the jury was instructed in restitution due to revocation of acceptance under the Uniform Commercial Code and in tort for damages due to misrepresentation. See Thomas Auto Co. v. Craft, supra. Punitive damages were also requested. The jury found for the plaintiff, awarded damages on a special verdict form for revocation of acceptance and misrepresentation, and added punitive damages. The appellant argued that punitive damages were not allowable except in conjunction with compensatory tort damages and that a recovery for revocation of acceptance would not sustain them.

We stated in Craft that we saw no reason why punitive damages could not be recovered when the conduct that formed the basis for the revocation and restitution also constituted the tort of deceit. We concluded that punitive damages were available to a claimant whose claim was based on rescission or revocation of acceptance that resulted in restitution and consequential damages.

Here, under the rationale of Craft, the appellant’s claim for punitive damages should not be negated by the fact that the jury did not specify whether the underlying cause of action supporting the $5,700 award lay in tort or breach of warranty. The elements of deceit were proven in this case. Indeed, deceit was the primary thrust of the appellant’s case and the principal theory that he advanced to the jury in closing argument.

We recognize in this case that, on the surface, the appellant appears to have foisted a limited appeal on this court by narrowing the scope of the appeal to the punitive damages issue. We have been constant in holding that a verdict is an entity which we cannot divide by affirming the finding of liability but remanding on the issue of damages. See, e.g., McVay v. Cowger, 276 Ark. 385, 635 S.W.2d 249 (1982). At oral argument, however, the appellant stated his preference for a remand on all issues rather than an affirmance of the existing judgment. The appellees, too, have cross-appealed for a new trial. All this being the case, we remand for a new trial on all issues, and we hold that under the proof submitted to the jury in Stein II it was error to omit the punitive damages instruction.

Since we are remanding for a new trial, we will answer the collateral points raised by both parties.

II. Discovery

The appellant contests the circuit court’s decision to deny discovery in certain areas relating to the appellees’ business. We have long held that the court has wide discretion in matters' pertaining to discovery and that we will not reverse a decision absent an abuse of discretion. See Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978). The appellant sought extensive sales data and customer lists together with gross income from Buck Stoves of Arkansas, dating back to 1982. The circuit court permitted discovery of customers who bought the Buck stoves for installation in metal fireplaces in 1984 which was the year of the sale to the appellant. There were some 54 in number. The other requests for customer and sales data were denied on grounds of irrelevancy. What is relevant is soundly placed within the circuit court’s discretion. We cannot say that limiting discovery to the year in question for purposes of punitive damages was an abuse of that discretion.

On a related discovery point, the appellant asserts error in the court’s failure to allow discovery into the gross sales by Buck Stoves of Arkansas as opposed to net sales or income. Buck Stove provided its corporate tax returns from 1982 through 1988. This was sufficient evidence of Buck Stove’s financial condition. There was no abuse of discretion.

III. Instructions

The appellant objected to a negligence instruction on the basis that he viewed Lukas’ conduct as intentional. The circuit court, nonetheless, gave this negligence instruction. The appellant then asked that the jury be instructed on criminal deceit under the Deceptive Trade Practices Act as some evidence of negligence under AMI (Civil) 903. See Ark. Stat. Ann. §§ 70-904, 70-907, now codified as Ark. Code Ann. §§ 4-88-103, 4-88-108 (1987). The court refused.

It seems largely inconsistent to request an instruction on criminal deceit, which is comparable to the conduct that constitutes civil deceit, as some evidence of negligent behavior. The jury was instructed to find the appellees’ conduct to be either deceitful or negligent. We cannot say the court abused its discretion by refusing to instruct that criminal deceit is some evidence of negligence.

IV. Interest and Attorneys Fees

This was essentially a deceit action sounding in tort. The appellant asked, in closing argument, for damages of $ 1,274.50 (the cost of the stove) and $3,211.65 (the repair cost for the fireplace) and additional damages for deceit. The jury awarded $5,700.00. The fact that the jury awarded an amount higher than the total of repair and replacement costs evidences are difficulty in awarding prejudgment interest in this case. Generally, prejudgment interest is not recoverable where damages are inexact and uncertain. See City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991). The jury’s verdict confirms the uncertainty which envelops the damage issue in this case.

Nor did the circuit court err in refusing to award an attorney’s fee. Arkansas’ fee statute for civil actions does not embrace tort actions such as deceit. See Ark. Code Ann. § 16-22-308(1987). In this case deceit lies at the heart of the claim leveled by the appellant against the appellees.

V. Cross Appeal

The appellees raised two arguments on cross appeal: 1) admission of financial condition in a non-punitive case, and 2) judicial notice of the Southern Building Code. The appellees are correct on point one. Admission of a defendant’s financial condition into evidence when punitive damages are not at issue is ordinarily reversible error. See Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 402, 653 S.W.2d 128, 138 (1983) (Supp. Opin.). Here, though, we have held that punitive damages should have been considered by the jury. Since this is the case, the financial condition argument is moot.

The circuit court’s taking judicial notice of the “Southern Building Code” may also be suspect, but we are at a loss to know precisely what code the appellees have reference to since it is not clearly identified for our review. Certainly, a circuit court is within its bounds in noticing a code of regulations duly promulgated under our Administrative Procedures Act. See Ark. R. Evid. 201(b). There is oblique testimony to the Code’s inclusion in the State Fife Code, which was said at trial to be on file in the Secretary of State’s office. That is not sufficient identification of the Southern Building Code for purposes of our consideration. We decline to reach this issue.

Reversed and remanded.

       The issues presented in the appeal of Stein / either were not ripe for consideration by the Court of Appeals or the Court of Appeals refused to address them. Accordingly, the doctrine of Law of the Case does not apply.