text:
    Curtis F. VANDERPOOL v. FIDELITY & CASUALTY INSURANCE COMPANY
    95-264
    908 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Dabbs, Graham & Pometree, by: Jeffrey M. Graham, for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown and Walter Kendel, Jr., for appellee.
   Robert H. Dudley, Justice.

Appellant Curtis Vanderpool was driving a truck for his employer, Jackson Cookie Company, when the truck collided with a car being driven by Vicki Lynn Kaiko. Subsequently, appellant Vanderpool and Jackson Cookie Company’s workers’ compensation carrier, appellee Fidelity and Casualty Insurance Company, entered into a joint petition for approval of settlement. See Ark. Code Ann. § 11-9-805 (1987). The joint petition was approved by the Workers’ Compensation Commission.

Appellee Fidelity filed a complaint against Kaiko in which it alleged entitlement to a first lien on two-thirds of any net proceeds appellant Vanderpool might recover against her, up to the amount of compensation Fidelity had paid Vanderpool. Subsequently, appellant Vanderpool filed a suit for personal injuries against Kaiko. The trial court consolidated the two cases.

Appellant Vanderpool filed a motion for declaratory judgment in which he asked the trial court to declare that the statutory lien of appellee Fidelity against any judgment which Vanderpool might obtain against Kaiko was extinguished by the joint petition. In his motion, he contended that appellee Fidelity relinquished its lien in the settlement. Appellee Fidelity responded that the relinquishment of the subrogation rights was not part of the settlement agreement and a court cannot unilaterally alter terms of a settlement. On November 30, 1994, the trial court denied Vanderpool’s motion for declaratory judgment. The trial court was not asked to make a determination that there is no just reason for delay in appeal. See ARCP Rule 54(b). On December 15, 1994, Vanderpool gave notice of appeal from the order denying the motion for declaratory judgment. We dismiss the appeal because there has been no final order.

The Declaratory Judgment Act states that “declarations shall have the force and effect of a final judgment or decree.” Ark. Code Ann. § 16-lll-103(a)(2). However, they are not appealable unless they end the controversy or a severable part of it. If some relief remains to be granted, or a significant factual issue remains pending below, then the order is not final. Martin v. Black & White Cab Co., 321 Ark. 432, 901 S.W.2d 17 (1995). If an order leaves open significant issues relating to damages and relief, then the order is not final and appealable. Martin, 321 Ark. at 435, 901 S.W.2d at 19; see also Peterson v. Lindner, 765 F.2d 698 (7th Cir. 1985). A declaratory judgment does not automatically become final and appealable if issues relating to further relief have yet to be determined in the case. UHS of Ark., Inc. v. Charter Hosp. of Little Rock, Inc., 297 Ark. 8, 759 S.W.2d 204 (1988). However, if the plaintiffs are granted the only relief they sought, a declaratory judgment, the judgment is final and subject to appeal. United States v. State of Washington, 759 F.2d 1353 (9th Cir. 1985).

The case of Boyett v. Boyett, 269 Ark. 36, 598 S.W.2d 86 (1980) is instructive. In that case, Mr. Boyett filed for divorce on June 6,1979, and Mrs. Boyett filed an answer and cross-corn-plaint on June 22, 1979. Id. at 36, 598 S.W.2d at 87. On October 2, 1979, Mr. Boyett filed a motion for declaratory judgment, asking the court to declare that Ark. Stat. Ann. § 34-1214 (Repl. 1962), rather than Act 705 of 1979, controls the disposition of property. Id. The chancellor held that Act 705 was controlling and stated that the judgment was final and appealable. To the contrary, we stated the requisites of finality as follows:

For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.
An appeal will not lie from an interlocutory order relating only to some question of law or matter of practice in the course of the proceeding, leaving something remaining to be done by the court entering the order or by some court having jurisdiction to entertain the same and proceed further therewith.

Id. at 37, 598 S.W.2d at 87 (quoting Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967)). In order for a judgment to be final, the action of the court must finally determine a claim. Id. at 39, 598 S.W.2d at 88. We held that the filing of the motion was nothing more than a request for the trial court to make a preliminary declaration of law, making it nothing more than an interlocutory order. Id. at 38, 598 S.W.2d at 88.

The record before us does not show that there has been a final disposition of this claim. In his reply brief, appellant Vanderpool states that he and Kaiko entered into a negotiated settlement and that “a sum of money has been paid by Kaiko tendering a check made out to Vanderpool and Fidelity.” However, there is no evidence of a settlement in either the abstract or the record. It is incumbent upon an appellant to bring up a record sufficient for the court’s review. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 132 (1994). Thus, we dismiss for lack of a final judgment.

Appeal dismissed.

Glaze, J., not participating.


source: Caselaw Access Project

author: David Newbern, Justice. Robert H. Dudley, Justice,

license: Public Domain

text:
    Kenneth STRICKLAND v. STATE of Arkansas
    CR 94-879
    909 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      James P. Clouette, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This case was certified to us by the Arkansas Court of Appeals as one involving a legal principle of major importance. We accepted the certification with a view toward clarifying the requirements in our rules with respect to whether a defendant in a criminal trial conducted by a judge without a jury must apprise the Trial Court of the particulars of his or her claim that the evidence is insufficient to support a conviction in order to raise the issue on appeal. We hold there is no need to make such a motion in a bench trial in order to raise the issue on appeal. We affirm the conviction in this case as the evidence was sufficient to support the judgment.

Kenneth Strickland, the appellant, was the stepfather of a 12-year-old female child who accused him of sexual abuse. When the conduct allegedly occurred, Mr. Strickland was 43 years old. The child alleged, and later testified at trial, that Mr. Strickland fondled her breast.

The child testified that Mr. Strickland asked her to lie in bed with him while her mother was away from home. When she complied, he put his arm around her shoulder and began rubbing her breast. She said she began crying and was told to shut up but then was allowed to leave him and go to her room. She testified that she told a friend about the incident the next day. The friend’s mother notified school officials, and that led to the charge of sexual abuse in the first degree.

Mr. Strickland waived his right to a trial by jury. At the ensuing bench trial he denied the alleged event had occurred and said the child had made up the story due to jealousy as the result of attention given to him by his wife, the child’s mother. Mr. Strickland’s counsel did not challenge the sufficiency of the evidence at the conclusion of the State’s evidence. In his closing statement, however, defense counsel asked for acquittal stating, “Your Honor, ... I don’t feel that [the State has] met their burden of proof beyond a reasonable doubt.”

The Trial Court found Mr. Strickland guilty and sentenced him to five years probation, ninety days in the county jail, a $1,000 fine and 250 hours of community service. Mr. Strickland questions the sufficiency of the evidence.

1. Bench trial; questioning sufficiency of the evidence

The State contends that the issue of the sufficiency of the evidence is not preserved for appellate review because Mr. Strickland failed to raise the issue at trial in the manner required by Ark. R. Crim. P. 33.1 (previously rule 36.21).

Rule 36.21(b), which was in effect when the trial took place, provided:

Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

The rule has since been amended, renumbered as Rule 33.1, and retitled “Motions for Directed Verdict and Special Procedures During Jury Trial.” See In re: Motions for Directed Verdict in Criminal Cases, 321 Ark. 698 (1995). As amended, the rule provides:

When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal of a previous motion for a directed verdict at the close of all of the evidence preserves the issue of insufficient evidence for appeal.

Rule 36.21(b) and its replacement, Rule 33.1, by their very terms apply only “When there has been a trial by jury.” The State argues that, despite the language of the rule, we have required criminal defendants at bench trials to move for a “directed verdict” to preserve the sufficiency of the evidence issue for appeal. In support of the argument the State relies on Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993), and Stricklin v. State, 318 Ark 36, 883 S.W.2d 465 (1994).

In the Igwe case, the appellant was convicted in a bench trial and appealed questioning the sufficiency of the evidence. The State contended that failure to renew a “directed verdict” motion at the close of the evidence barred appellate review of the sufficiency of the evidence. We held that “in a trial by the court without a jury, it is unnecessary to raise the question of sufficiency of the evidence by motion at the close of the trial to preserve the issue for appeal.”

In the opinion, we discussed that part of Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992), which stated, “Appellant’s argument is a challenge to the sufficiency of the evidence, and, since appellant did not move for a directed verdict at the close of all the evidence, we do not address the issue even though this was a bench trial.” We said, “In the Greer case we obviously realized we were dealing with a bench trial rather than a jury trial, but we said the motion was required despite that fact without spelling out our reasons.”

In overruling that part of the Greer case which required a criminal defendant in a non-jury trial to move for a directed verdict at the conclusion of the evidence to preserve the issue of the sufficiency of the evidence on appeal, we stated, “We find no authority for applying the requirement of Rule 36.21 in a non-jury situation.”

In Stricklin v. State, supra, the appellant moved for a directed verdict on specific grounds as to each count at the close of the State’s evidence and renewed the motions at the close of all the evidence. After a bench trial, the appellant was found guilty on all counts. On appeal he argued the Trial Court erred in denying his directed verdict motions for two specific reasons which were not presented to the Trial Court. We affirmed and stated:

To conclude, in contravention of our established law applicable to proper preservation of issues for appellate review, appellant argued three grounds for his motion at trial, but bases his argument on appeal on two entirely different specific grounds, neither of which was raised at trial. In consequence, we summarily dispose of the argument, and will not consider it for the first time on appeal. Brown [v. State], 316 Ark. 724, 875 S.W.2d 828.

Brown v. State was a case tried before a jury.

In Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993), the Trial Court found Graham guilty of promoting a sexual performance by a child under the age of seventeen and held that he had failed to produce proof of an affirmative defense. The appellant asserted to this Court that the Trial Court erred in failing to grant his motions for directed verdict at the close of the State’s case and at the close of all evidence. In reversing the conviction, we stated, “It is, of course, unnecessary in a trial by the court without a jury for the defense to renew its motion for a directed verdict at the close of the trial in order to preserve the issue for appeal. Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993).”

The Igwe case presented only the question whether renewal at the close of the case of the motion for directed verdict was required in a bench trial, so that was the only question answered. The State contends that decision thus did not affect a general requirement that sufficiency of the evidence be challenged at some point in a bench trial. We understand the State’s narrow reading of the case, but we find it inconsistent with the rationale expressed in the Igwe case opinion. There, we found it necessary to overrule Greer v. State, supra, in which we had said a motion for a directed verdict at the close of all the evidence was necessary to preserve the issue of sufficiency of the evidence for appeal. Our explanation was twofold:

The issue we consider here was not argued by the parties in the Greer case. Any reasons we may have had for applying the requirement of a motion for a directed verdict at the close of a criminal bench trial are easily overcome when we consider the clear wording of the Rule limiting the requirement to jury trials and our assumption that the main purpose of a judge trying a case without a jury is to determine the guilt or innocence of the accused with the sufficiency of the evidence as the point of the trial. [Emphasis supplied.]

It may be necessary, and certainly economic, to grant a directed verdict motion to keep a case from a jury when it is clear that the evidence is insufficient to support any conviction the jury might return. Our assumption, however, expressed in the Igwe opinion was that motions for directed verdict are superfluous when there is a trial without a jury as the judge would only be directing his own verdict and the entire purpose of a bench trial is to have the judge, rather than a jury, ascertain the sufficiency of the evidence to convict.

If the Igwe decision meant that a defendant need not challenge the sufficiency of the evidence in order to preserve that issue for appeal, then it cannot be reconciled with our more recent decision in the Stricklin case. If there is no need whatever for a defendant to challenge the sufficiency of the evidence to preserve that issue for review, then it is illogical to say that, if he or she does so, he or she is bound to the specifics of the challenge and may not expand or supplant them on appeal.

In our opinion in the Igwe case, we referred to Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982), and the practice in civil cases pursuant to Ark. R. Civ. R 50(e) which, by its terms, requires the directed verdict motion be made and renewed only in jury trial cases. Discussing the Bass case, we said:

It was the first time we were called upon to decide whether Rule 50(e) applied to a non-jury trial. We concluded the Rule meant exactly what it said and noted that prior to the adoption of the Rule there was a requirement that the matters stated in Rule 50(e) applied both to a jury and non-jury trial. We held that, by specifically stating that it applies to a jury trial, the Rule by implication excluded applicability to cases tried without a jury.

Rule 50(e) is, by its terms, limited to jury trials. Rule 50(a), however, provides in part:

In nonjury cases a party may challenge the sufficiency of the evidence at the conclusion of the opponent’s evidence by moving either orally or in writing to dismiss the opposing party’s claim for relief. The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.

Rule 50(a) thus provides a means of challenging the sufficiency of the evidence in a bench trial not found in the criminal procedure rules. Use of the motion is obviously discretionary rather than mandatory because the rule provides that a party “may” make such a motion. The fact that the motion is optional keeps the use of it from being a requirement for preservation of the sufficiency issue for appeal. Rule 50(e), on the other hand, specifies that failure to make and renew a directed verdict motion in a jury trial waives any question pertaining to sufficiency of the evidence but makes no such provision with respect to the motion to dismiss in a non-jury trial.

Our supposition in the Igwe case was that a Trial Court, sitting as a trier of fact, would be sufficiently aware of the evidence and the elements of the crime that no such motion would be necessary, and that is why our rules do not require the motion to dismiss in non-jury-trial cases. We adhere to that supposition today, and we overrule Stricklin v. State, supra, to the extent it is inconsistent with this decision.

2. Sufficiency of the evidence

Arkansas Code Ann. § 5-14-108 (Repl. 1993) provides in part:

A person commits sexual abuse in the first degree if: Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old ... .

The pertinent part of the definition of “sexual contact” is contained in Ark. Code Ann. § 5-14-101(8) as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs ... of a person or the breast of a female.”

Mr. Strickland contends the State failed to satisfy its burden of proof because there was neither evidence that he touched a sex organ nor that the touching was an act of sexual gratification. First, he argues the child did not demonstrate her knowledge as to the significance of a breast and that the failure to demonstrate such knowledge had some legal effect on whether a sex organ was touched. The argument completely ignores the last part of the definition of sexual contact where it plainly states “or the breast of a female.”

Second, Mr. Strickland claims that there was insufficient evidence as to whether the touching was for sexual gratification. “Sexual gratification” is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).

It is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. See Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993); Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992); McGalliard v. State, supra. The child testified that Mr. Strickland called her to the bedroom, asked her to lie down and fondled her breast for five or ten minutes. Under the circumstances, the Trial Court could properly infer that the fondling was for the purpose of sexual gratification. The evidence was sufficient to sustain the conviction.

Affirmed.

Dudley, Glaze, and Corbin, JJ., concur.

Robert H. Dudley, Justice,

concurring.

I concur with the result reached in the majority opinion. This concurring opinion is written to state the reasons I would amend A.R.Cr.P Rule 36.21 to require that a defendant state to the trial court the missing evidence in a motion for acquittal based on insufficiency of the evidence. Debate over use of the term “directed verdict” in a bench trial does not join the issue: The issue is whether specific grounds must be stated at trial in order to preserve an argument for appeal about sufficiency of the evidence, no matter what the motion is labeled.

This court repeatedly has taken the position that a party must contemporaneously raise an issue in the trial court before it can be argued on appeal. See, e.g., Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). The current rule disregards this axiom in bench trials. Correspondingly, in jury trials, we have repeatedly made clear the necessity of challenging the sufficiency of the evidence by stating specific grounds. Reagan v. State, 318 Ark. 380, 885 S.W.2d 849 (1994). Injury trials, the sufficiency of the evidence must be challenged on specific grounds to apprise the trial court of the evidence that is lacking so that the trial court might be specifically apprised of the evidence lacking, and also to allow the State to reopen its case and supply the missing proof if justice so requires. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). In jury trials, the rule prevents a defense attorney from tossing out a pro forma motion for directed verdict with no missing proof in mind, and then, on appeal, arguing for the first time about some previously unknown and undisclosed missing proof. The rule ought to employ the same reasoning in providing for bench trials.

If the specific grounds are not stated in a jury trial, an “automatic waiver occurs” on appeal. Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994). The same reasoning should apply to bench trials.

A number of foreign jurisdictions have rules comparable to Rule 36.21. The rationale for the rule is that a judge is supposed to know the elements of a crime and is supposed to know when the evidence is sufficient to prove those elements. Although, the rationale has some intellectual appeal, it lacks practical applicability. In both jury and bench trials, the judge must determine whether the proof is sufficient. In the jury trial, the judge must determine the sufficiency of the proof in order to rule on a motion for a directed verdict. In the bench trial, the judge must determine the sufficiency of the proof in order to rule on guilt. Thus, the basis for distinguishing between the two kinds of trials, as the rule currently does, lacks practical applicability. In addition, and perhaps unlike most other jurisdictions, special judges try felony criminal cases in this State, and, since they do not regularly sit as trial judges and may not be as familiar with the elements of multiple crimes and lesser offenses, they ought to be given the benefit of the specific grounds on which the evidence is insufficient. The case at bar was tried by a special judge.

As a practical matter, a criminal bench trial frequently involves multiple crimes. Last week we handed down an opinion in which the trial judge, in a bench trial, found the defendant guilty of six different felonies and revoked probation given on a prior conviction. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995) Just as in that case, a defendant at times is charged with three, four, or even more felonies, and those multiple charges will, in turn, include considerably more lesser offenses. The State, in presenting multiple counts at one bench trial, may overlook asking a question of a witness who is present, perhaps a new deputy prosecutor who forgot to ask the witness about the value of a stolen item in one of many counts, and justice would require that the State be allowed to reopen its case to ask the question if the missing evidence were disclosed by requiring specific grounds for a directed verdict. However, Rule 36.21, as presently written, does not require the defendant to state specific grounds. Thus, as the rule now stands, the deputy prosecutor may have forgotten to ask the question about value and, at the trial, no one realized it, and then months later while examining the transcript, the defense attorney discovers the defect in one of the multiple counts. Under the present rule, the attorney could argue the defect for the first time on appeal. The defendant will then go free on that count because of a defect caused by our rule and an unjust result will have been reached.

Under the rule, as it is currently written, a defense attorney might unintentionally mislead a trial court. This case provides a practical example. In the trial court, the defense attorney moved for a directed verdict on the specific ground that the fourteen-year-old prosecutrix lacked credibility and her testimony should not be believed. The deputy prosecutor responded with reasons her testimony was credible. The trial court found the defendant guilty of first degree sexual abuse of the girl and, in so doing, devoted almost all of its findings of fact to the issue of credibility; however, on appeal, the lack of credibility is not even mentioned in the sufficiency of evidence argument, the sole argument on appeal. Instead, appellant argues that the evidence below was insufficient to prove that the defendant touched the prosecutrix for sexual gratification. By our retaining a rule that allows such an unjust procedure, a defendant can gain a reversal and dismissal on a ground never presented to a trial court. The result directly contradicts our rule that we only reverse a trial court for error committed, or not corrected, by the trial court. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994).

For all of the foregoing reasons, I would change A.R.Cr.P. Rule 36.21 to provide that a defendant must state specific grounds for acquittal because of insufficiency of the evidence in a bench trial, just as he must state specific grounds for a directed verdict in a jury trial.

Donald L. Corbin, Justice, concurring. I concur in the affirmance of this case, but would affirm based on the procedural issue rather than on the merits. I do not agree that a defendant in a criminal bench trial should be allowed to challenge the sufficiency of the evidence on appeal when he never addressed the issue below or called it to the attention of the trial court with any specificity.

The majority is unable to reconcile Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993), and Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994). Today, the majority admits that the only issue presented in Igwe, and therefore the only issue decided therein, was that a motion for directed verdict, once made at some point in a criminal bench trial, need not be renewed at the close of all the evidence in order to preserve that issue on appeal. The majority then expands the holding of Igwe to mean that the defendant in a criminal bench trial need not challenge the sufficiency of the evidence at all in order to preserve that issue for appeal. Consequently, the majority concludes that “[i]f there is no need whatever for a defendant to challenge the sufficiency of the evidence to preserve that issue for review, then it is illogical to say that, if he or she does so, he or she is bound to the specifics of the challenge and may not expand or supplant them on appeal.”

Because I disagree with the majority’s expansion of Igwe, I easily reconcile Igwe and Stricklin. The only issue presented in Stricklin, and therefore the only issue decided therein, was that a defendant in a criminal bench trial cannot challenge the sufficiency of the evidence on a particular basis below and then change the basis on appeal. That holding is no more than an application of the general rule (which remained unaffected by Igwe) that, in order to preserve arguments for appellate review, they must be presented to the trial court for a ruling — for there can be no appellate review if there is no ruling to review. Therefore, Stricklin effectively held that a defendant in a criminal bench trial must challenge the sufficiency of the evidence at some point in the trial. Such a holding is consistent with the original non-expanded holding of Igwe — that a criminal defendant need not renew a motion for directed verdict once made.

The majority’s application of the assumption expressed in Igwe that a motion for directed verdict is superfluous in a bench trial because the judge would only be directing his own verdict in a trial, the main purpose of which was to have a judge rather than a jury ascertain the sufficiency of the evidence, runs afoul of the principle that the state be allowed the opportunity to supply any missing evidence identified by the defendant. Preservation of this principle is essential to the people’s right to a fair trial — a right that should exist in both bench and jury trials. The majority’s decision today deprives the state of its right to a fair trial because it allows a defendant in a bench trial to remain obtuse and silent during the course of the trial and then possibly obtain reversal on appeal on an issue that was never identified to the trial court.

It is quite fair and reasonable to presume, as the majority does in this case, that a trial court knows the elements of a crime. However, it is unreasonable to expect the people of this state and the trial court to be subject to a trial by ambush, such as when multiple offenses with different elements are tried or when a multitude of witnesses extend the trial for several days or weeks. While this state is blessed with very capable trial judges, they are still human and susceptible to human weakness. A motion for a directed verdict should be specific so as to inform the trial court what insufficiencies are exposed by failure of proof, and to allow the trial court to reflect on the issue and give an informed decision. That is the basis upon which I wrote Stricklin and the reason I continue to support a requirement that the state be treated equally in a bench trial as well as a jury trial, in that both classes of defendants must identify the alleged insufficiency in the proceedings below when challenging the sufficiency of the evidence on appeal. Judicial economy alone would justify such a requirement. This principle is so closely related to the contemporaneous objection rule as to be the norm, rather than the exception. I would therefore affirm the judgment of conviction on the basis that the issue of the sufficiency of the evidence was not preserved for appeal.

Glaze, J., joins in this concurrence.


author: David Newbern, Justice. Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    Raymond Wade WATSON v. CITY OF FAYETTEVILLE
    CR 95-648
    909 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Raymond Wade Watson was convicted in a trial to the court without a jury of driving while intoxicated, first offense, and failure to maintain control of his motor vehicle. He was ordered to report to the Ozark Guidance Center (OGC) for presentence evaluation for the purpose of compilation of an Arkansas Highway Safety Program presentence report in accordance with Ark. Code Ann. § 5-65-109(a) (Repl. 1993). Upon advice of his counsel, Mr. Watson declined to report to the OGC. The Trial Court sentenced him to a fine and incarceration for 30 days with credit for time served and 29 days suspended.

Mr. Watson was held in contempt for his failure to attend the OGC, and his driving privilege was suspended until such time as he “elects to undergo that screening.” He contends the contempt ruling was in error because he should have had a jury trial on that issue and because his participation in the presentence procedure would violate his right not to incriminate himself. He also contends it was error to sentence him prior to receiving the presentence report. We uphold the contempt ruling and reverse and remand for resentencing upon receipt of the report.

1. Contempt

Mr. Watson was not entitled to a trial by jury with respect to the contempt citation because it was remedial and coercive in nature. We discussed the distinction between this kind of order and a punitive or criminal contempt citation in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). In that case, we found a fine to be punitive, but we pointed out the United States Supreme Court decision Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 (1988), in which the remedial nature of a coercive contempt order was emphasized with the adage, “And those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets.’” Mr. Watson had waived his right to a jury in the underlying proceeding, and that poses no issue in this appeal.

Mr. Watson’s refusal to obey the order was based on his counsel’s advice. His counsel argued to the Trial Court that Mr. Watson’s participation in the compilation of the presentence report would violate his privilege against self incrimination. The argument is based on § 5-65-109(c) which states “The report shall include, but not be limited to, the offender’s driving record, an alcohol problem assessment, and a victim impact statement where applicable.” His contention is that revelations by him in response to questions on those matters could cause an increase in his sentence.

In Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985), we rejected an argument that a presentencing report could violate one’s right not to incriminate oneself and said, “the act does not require a defendant to take any action whatever in response to the State’s proof or to the presentence report....” Evidently the issue was slightly different in that case, as the quoted holding does not address Mr. Watson’s point that requiring him to participate could violate his rights.

In People v. Baker, 526 N.E.2d 157 (Ill. 1988), the Illinois Supreme Court faced a similar issue. The situation was somewhat different in that the Illinois statutes provided for a presentence report but did not require it. It was held that, because the report was permissive only, it was improper for the Trial Court to have held the defendant, who refused to participate, in contempt. It was pointed out, however, that the privilege against self incrimination may be invoked during an evaluation intended to lead to a presentence report. The Illinois Court of Appeals had held that it was unnecessary for the defendant to attend the presentence evaluation in view of his right not to answer questions which could be incriminating. That holding was rejected in the Illinois Supreme Court’s decision.

The mere possibility that Mr. Watson may be asked questions, the answers to which may have the effect of causing the Trial Court to sentence more harshly than it otherwise might, does not excuse violation of the Trial Court’s order that he report to the agency charged with the responsibility of conducting an evaluation. His self-incrimination argument was, at best, premature. The contempt ruling was proper.

2. The sentence

Section 5-65-109(b) provides, “The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.” Mr. Watson argues that, as there has been no presentence report, it was a violation of the statute and error for the Trial Court to have sentenced him. The State responds that the violation was “invited error,” and thus it may not form the basis of a reversal, citing Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).

In the Morgan case a criminal defendant disrupted a trial and then asked the Trial Court to declare a mistrial. We held that “one who is responsible for error cannot be heard to complain of that for which he was responsible.” The problem with applying that rule in this case is that it would obviate the need for, and thus be inconsistent with, the contempt order. Section 5-65-109(b) clearly states that, in a bench trial, the court “shall not” pronounce sentence until the presentence report has been received. If we were to hold that Mr. Watson could be sentenced without a presentence report because he invited the error, we would contradict the mandatory language of the statute.

The Trial Court has taken action to see to it that a presentence report is received. In these circumstances, we reverse the sentence and remand the case for resentencing upon receipt by the Trial Court of the Arkansas Highway Safety Program report.

Affirmed in part, reversed in part, and remanded.

Glaze and Brown, JJ., dissent.

Tom Glaze, Justice,

dissenting.

I join in Justice Robert L. Brown’s dissenting opinion to the extent he would affirm the trial court’s sentencing of appellant Raymond Watson. I disagree with both Justice Brown and the majority court that the trial court’s civil contempt order should be upheld. The civil contempt directive suspended Watson’s driving privileges until he reports to the Ozark Guidance Center.

As Justice Brown points out in his opinion, the trial court was well within its authority to sentence Watson after Watson refused to report to the Center. Clearly he cannot be heard to complain because his own action, or lack thereof, resulted in his presentence report not being prepared and submitted to the court for sentencing purposes. See Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992).

Nonetheless, when Watson’s sentence was imposed without benefit of a presentence report, the coercive nature and purpose of the trial court’s civil contempt order ended. Clearly the trial court’s order compelling Watson to appear at the Center no longer had any import after the court sentenced Watson.

Finally, I note the majority opinion cites the case of Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988), in support of its decision to uphold the trial court’s civil contempt order in this criminal case. The Fitzhugh decision, however, defines a civil contempt proceeding to be one instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for benefit of those parties. Id. at 139, 752 S.W.2d at 276. For this reason, as well, I would vacate the trial court’s civil contempt order.

Accordingly, I would affirm the trial court’s sentence, but reverse and dismiss its civil contempt order.

Robert L. Brown, Justice,

dissenting.

I would affirm both the contempt ruling suspending Watson’s driving privileges until he reported to the Ozark Guidance Center for presentence evaluation and his sentence of a fine and 30-day incarceration with all but one day suspended and credit for time served.

The opinion reverses the sentence because Watson did not report to the Center, and § 5-65-109(b) makes that a prerequisite to pronouncement of sentence. I cannot agree that a defendant can fail to report and then proclaim that he is immune from sentencing. The effect of the majority opinion is to allow a defendant to bypass sentencing by simply refusing to partake in presentence evaluation. If Watson can avoid sentencing in this manner, why cannot similarly situated defendants do likewise? The General Assembly certainly did not intend such contorted consequences or envision nonparticipation in the evaluation as an avenue for obstructing pronouncement of sentence.

Other jurisdictions lend credence to this dissenting opinion. Kansas v. Borders, 255 Kan. 871, 879 P.2d 620 (1994); Idaho v. Bylama, 103 Idaho 472, 649 P.2d 1228 (1982). In Borders, the defendant was convicted of three counts of rape and first-degree murder and refused to be interviewed as part of the presentence investigation. Kansas statutes made a presentence investigation mandatory. The Kansas Supreme Court denied the defendant’s claim of a due process violation:

The defendant was given the opportunity of an interview and declined. The defendant cannot refuse to participate in the PSI interview process and then use the failure of an interview as a ground for appeal. We know of no rule of law that requires the court services officer to continue making attempts at a personal interview with the defendant after the defendant has refused the opportunity and refused to cooperate.
The defendant’s due process rights were fully protected by the trial judge in this case, and the defendant has shown no prejudice. We find no abuse of discretion by the trial court in any of the issues asserted on appeal.

879 P.2d at 631.

In Bylama, the Idaho statute required a psychological examination of the defendant as part of a presentence report where appropriate. The defendant, who was convicted of bank robbery, did not cooperate in the psychological evaluation. The Idaho Court of Appeals concluded:

Appellant contends the presentence report was inadequate because it did not include all of the information required by I.C.R. 32(b). However, the failure to meet all of those requirements was the result of appellant’s refusal to cooperate in the preparation of the report. He cannot now claim that the deficiencies in the report precluded the trial court, from sentencing him. See State v. Lopez, 100 Idaho 99, 593 P.2d 1003 (1979); King v. State, 93 Idaho 87, 456 P2d 254 (1969.)

649 P2d at 1229.

The decisions in Kansas and Idaho make good, common sense, and I would follow them. To do otherwise allows a defendant to escape punishment by his own recalcitrance.

I respectfully dissent.


author: Tom Glaze, Justice.

text:
    Glen HINSON v. Vivian EATON
    95-390
    908 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian and Janie W. McFarlin, for appellant.

      Mike Wilson, for appellee.
   Tom Glaze, Justice.

Appellant Glen Hinson brought this tort case against appellee Vivian Eaton, alleging Eaton had sold him a 1985 Cadillac as a one-owner car with 68,607 registered miles. After having problems with the car, Hinson checked the car’s chain of title at the Department of Motor Vehicles, and discovered it had at least five previous owners and over 168,000 actual miles. Hinson contacted Eaton to tell her the car’s history and to settle this dispute with her, but Eaton denied any knowledge of the car’s true mileage. Eaton claimed that she told Hinson at the time of the sale that the “guy she bought the Cadillac from told her that it was a one-owner car and these (68,607) were the actual miles.” Hinson stopped his payments to Eaton, and Eaton repossessed the vehicle. Hinson subsequently sued Eaton for (1) federal and state statutory violations in failing to disclose the car’s true mileage, (2) common law fraud and (3) conversion for wrongful possession.

After a bench trial, the trial judge submitted a letter opinion wherein he found no evidence of statutory violations. The judge found Hinson had purchased the 1985 Cadillac “as is,” Eaton had quoted the prior owner when she told Hinson the car was a “one-owner,” and Eaton was never shown to be linked to the bogus odometer information contained on the car’s title documents. Based upon these findings, the trial judge dismissed Hinson’s suit. In an effort to have the trial judge rule on Hinson’s fraud and conversion theories of recovery, Hinson filed a motion for new trial and an alternative motion to amend the trial court’s findings. Although a hearing was held on these motions, the judge took the motion under submission but failed to rule on them. After Hinson’s motions were deemed denied under Ark. R. App. R 4(c), Hinson filed this timely appeal.

Hinson’s first argument questions the trial court’s reading of the federal and state laws concerning odometer disclosure requirements, and the trial court’s requiring scienter or “evil motive” as prerequisite to finding a violation of those laws. Hinson contends that these odometer disclosure laws impose liability on a seller or transferor of a car who makes an affirmative representation regarding the mileage of a motor vehicle without verifying the accuracy of that representation.

The state and federal statutes in issue here are Ark. Code Ann. § 4-90-206(a) (Repl. 1991) and 15 U.S.C. § 1988(a) 0repealed by Public L. 103-272 § 7(b) July 5, 1994, 108 State. 1379) which read in pertinent part as follows:

§ 4-90-206(a). No person shall transfer a motor vehicle without disclosing in writing to the transferee the true mileage registered on the odometer reading or that the actual mileage is unknown if the odometer reading is known by the transferor to be different from the true mileage.
15 U.S.C. § 1988(a). A transferor of ownership in a vehicle shall disclose to the transferee either (1) the cumulative mileage registered on the odometer or (2) that the actual mileage is unknown, if the reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.

From reading the above statutes, if Eaton had known the odometer reading on the 1985 Cadillac was different from the number of miles the vehicle actually traveled, she was required to disclose in writing either the true mileage or that the mileage is unknown. The legal issue arises, however, whether Eaton must meet disclosure requirements if she had constructive rather than actual knowledge that the Cadillac’s odometer mileage reading was wrong.

Here, the evidence is undisputed that, when Eaton sold the car to Hinson, she possessed a title document which reflected on its face that the car’s odometer reading was 31,504 and not the 68,000 plus mileage showing on the car’s odometer. The car title’s issuance date and owner’s information also conflicted with Eaton’s date of purchase and possession of the car. Hinson urges that these discrepancies put Eaton on notice that the mileage on the Cadillac’s odometer may not be accurate, and thus, she had the duty to disclose the car’s true mileage to Hinson or inform him the actual mileage is unknown.

In Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993), this court dealt with a transferor’s liability under the federal odometer disclosure law, 15 U.S.C. § 1988(a). There, Junior C. Landis had purchased a truck from Walt Bennett Ford, but several years afterwards, Landis defaulted on his payments, and voluntarily returned the truck to Bennett Ford. Bennett Ford later sold the truck to Richard Smith, and certified the truck’s mileage to be 45,890. Smith later experienced problems with the truck, and while having his truck checked by J. A. Riggs Tractor Company, he learned that Riggs Tractor had previously repaired that truck when its odometer read 84,272. Afterwards, Smith brought suit against Bennett Ford, alleging Bennett Ford had violated 15 U.S.C. § 1988 of the Federal Odometer Fraud Act, and alternatively common law fraud. On appeal, this court upheld the trial court’s ruling denying Bennett Ford’s motion for directed verdict, and in doing so, this court held actual knowledge on a transferor’s part is not a requirement under the Federal Odometer Fraud Act and that constructive knowledge or reckless disregard is sufficient.

This court’s holding in Smith is consistent with Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979), where the Fourth Circuit Court of Appeals, in construing 15 U.S.C. § 1988, recognized constructive knowledge, recklessness, or even gross negligence in determining and disclosing the actual mileage traveled by a vehicle were sufficient to support a finding of intent to defraud under the statute. See also Nieto v. Pence, 578 F.2d 640 (4th Cir. 1978) (transferor who lacks actual knowledge that odometer reading is incorrect may still have a duty to state that actual mileage is unknown, and seller had duty to disclose that actual mileage was unknown where, in exercise of reasonable care, he would have had reason to know that mileage was more than that which odometer had recorded or previous owner had certified).

In Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989), this court had an opportunity to consider Arkansas’s odometer disclosure law, § 4-90-206(a)(1987). There, Currier sold a 1984 Datsun 300ZX as a one-owner car to Rod Spencer. Spencer later discovered the Datson had been wrecked and the rear one-third of the vehicle had been replaced with that of another car. Spencer stopped his car payments, Currier filed suit for damages and Spencer counterclaimed, alleging breach of warranties and a failure to provide an odometer disclosure statement required under § 4-90-206(a). The Currier court upheld the trial court’s decision that Currier had an affirmative duty to inform Spencer that the odometer reading on the Datsun did not reflect the car’s actual mileage, since it showed only the mileage for the front two-thirds of the vehicle.

When considering the foregoing case law, we must conclude that the trial court gave too restrictive an interpretation of § 4-90-206(a) and 15 U.S.C. § 1988 in suggesting Eaton’s liability depended upon her actual knowledge. The trial court incorrectly determined that Eaton had to be linked to the actual bogus transaction, causing the false mileage to be placed on the Cadillac’s title and leading to the misrepresentation of the mileage appearing on the car’s odometer. Nor could Eaton avoid her duty and liability under these laws merely by quoting a prior owner’s remarks that the miles on the car were actual. Eaton acknowledged that, had she closely examined the car’s title which she possessed when selling the car to Hinson, she would have realized the discrepancy in the miles appearing on the title and the number of miles she knew were on the car. If Eaton had constructive knowledge that the odometer reading was different from the miles the vehicle actually traveled or she exercised reckless disregard in determining and disclosing false mileage information, Eaton is subject to liability under the above statutory provisions. Because the trial judge erred in assuming the federal and state provisions required Eaton’s actual knowledge or involvement in these matters, we must reverse and remand this cause for further proceedings.

We must also touch on Hinson’s argument that the trial court erred in failing to hold in his favor on his common law misrepresentation theory. Hinson cites Grendall v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), for the proposition that one who makes statements which are known to be false, or, else not knowing their verity, asserts them to be true, and upon which someone else relies to his detriment, has committed misrepresentation and is liable for damages incurred as a result of those misrepresentations. Here, Hinson points out that, when Eaton represented the Cadillac as a one-owner car with 68,000 plus actual miles on it, she did not know the verity of that representation. At the least, our review of the record reflects fact issues exist on this misrepresentation count and need to be addressed at the retrial of this cause.

Finally, we mention Hinson’s claim for conversion and the trial court’s failure to reach or decide this issue. At trial, Hinson argued Eaton’s repossession was an act of conversion, since Hinson was current on his payments. On appeal, however, he argues conversion occurred because Eaton never retained a security interest in the vehicle. We simply dispose of this issue based on the settled rule that a party may not change his argument on appeal. See Dotson v. Madison County, 311 Ark. 395, 844 S.W.2d 371 (1993).

For the reasons above, we reverse and remand.

       New statutes concerning odometers were enacted July 5,1994, and are found at 49 U.S.C. §§ 32701-32711. Because 15 U.S.C. §§ 1981-1989 were in effect at the time Hinson’s cause of action arose, we apply those statutory requirements in the present case.

       Landis actually purchased fifteen trucks from Bennett Ford, but only one of the trucks figured in the dispute which resulted in the Smith decision.


text:
    Kenneth REAMS v. STATE of Arkansas
    CR 94-558
    909 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995
    [Petition for rehearing denied December 11, 1995.]

      Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Tom Glaze, Justice.

Kenneth Reams appeals from his capital felony conviction sentence for which he was sentenced to death. He raises seven points on appeal, but only four are properly preserved. Upon review, we conclude none of the points are meritorious.

We first consider Reams’s suggestion that we conduct a proportional review. Such a review is not required. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). However, this court has said that, in death penalty cases, it will continue to review the aggravating and mitigating circumstances presented to the jury and a harmless error review of the jury’s findings. Id. In reviewing those circumstances, we point out that the jury unanimously found two aggravating and no mitigating circumstances. The two aggravating circumstances were that (1) Reams had committed the murder in issue in order to realize a pecuniary gain and (2) he had previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person.

Here, Reams’s own testimony supported the first aggravating circumstance. Reams, who was charged as an accomplice with Alford Goodwin in the murder of Gary W. Turner, testified that he and Goodwin planned to commit an aggravated robbery at a bank automatic teller machine because Goodwin said, “He needed the money for graduation.” Reams admitted that he and Goodwin, who was armed with a .32 revolver, waited at a local automatic teller machine for someone to drive up so they could rob them. He further described how he and Goodwin approached Turner’s vehicle at the machine; he also related Goodwin shot Turner. Regarding the jury’s second aggravating circumstance, Reams was shown to have previously been convicted of two aggravated robbery offenses and these offenses, by their definition, reflect Reams had committed prior crimes involving the threat of violence to another. See Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Ark. Code Ann. § 5-12-103(a) (Repl. 1993).

Concerning the review of mitigating circumstances, we note that there was some evidence of six mitigating circumstances, but the jury unanimously agreed that those mitigating circumstances did not exist. Suffice it to say, the record supports the jury’s unanimous findings that two aggravating circumstances existed beyond a reasonable doubt and no mitigating circumstances existed. To impose the death penalty, this court has held that a jury need only unanimously agree that one aggravating circumstance exists. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). Here, two were shown.

In another point, Reams contends that, because of his mental retardation, his execution would violate state and federal guarantees against cruel and unusual punishment and deprive him of due process and equal protection of the law. Reams relies on Act 420 of 1993, now codified at Ark. Code Ann. § 5-4-618 (Repl. 1993), to support his argument that his mental retardation precludes the jury from imposing the death penalty sentence. His argument is without merit.

Reams concedes that he is not entitled to the rebut-table presumption of mental retardation under the Act, since his intelligence quotient is above that 65 quotient prescribed by law. This may well be the reason Reams failed to raise the defense of mental retardation as an affirmative defense as is required by Act 420. See § 5-4-618(d)(l). In any event, he did not assert Act 420 as a defense prior to trial, and for this reason alone, Reams’s argument must fail. While Reams mentions other constitutional arguments connected with his purported mental retardation, those arguments were not properly raised below, so we do not address those for the first time on appeal. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

In a third point, Reams asserts that the trial court’s submission of pecuniary gain to the jury as an aggravating circumstance in the penalty phase was an unconstitutional “double-counting” which violated the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. He argues in part that Arkansas’s definition of capital murder does not sufficiently narrow the crime for which the death penalty can be imposed and that Arkansas’s law, providing narrowing during the penalty stage only, fails to meet the Eighth Amendment requirements. The Supreme Court, the United States Eighth Circuit Court of Appeals and this court have rejected this “double-counting” and narrowing argument. Lowenfield v. Phelps, 484 U.S. 231 (1988); Perry v. Lockhart, 871 F.2d 1384 (8th Cir.); cert. denied, 493 U.S. 959 (1989); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied, 112 S.Ct. 3043 (1992). We see no need to revisit or reconsider this issue, yet again.

In a fourth point, Reams states that he is black and the victim was white and that racial overtones were involved in the commission of the crime. He urges that, contrary to the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the prosecutor here unconstitutionally used his peremptory strikes to exclude blacks from the jury. In Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), this court set out the following required procedures when a Batson objection is raised:

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the state has the burden of showing that the challenge was not based on race. Only if the defendant makes a prima facie case and the state fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

This court has further held that, on appeal, the standard of review for reversal of a Batson ruling is whether the trial court’s findings are clearly against the preponderance of the evidence. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Here, the trial court ruled that Reams made no prima facie case by showing racial discrimination was the basis of the prosecutor’s juror challenges. In Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), this court held that a defendant may make a prima facie case by showing that (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose, (2) the total or seriously disproportionate exclusion of negroes from the jury venires or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire.

In this appeal, Reams cites Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993), in support of his argument that he made a prima facie case by objecting to the prosecutor’s peremptory strike of the first venire person, Irma Johnson, who was black. Of course, no strike pattern or discriminatory purpose was evident merely because the first juror called and struck happened to be black. Nonetheless, the trial court assured Reams that, if a pattern developed later, it would require the prosecutor to provide a race-neutral explanation for striking Johnson. Reams never later renewed his objection regarding Johnson. Contrary to Reams’s suggestion, the Franklin decision is unhelpful here, because there, four other jurors had been voir dired when the first black juror was called and subsequently challenged by the state, and by the time the court ruled on the Batson objection, the jury was composed of only white jurors.

In sum, no strike pattern was shown when Johnson was struck by the state, nor did the state’s questions asked of her reflect a racially discriminatory motive. In fact, had the prosecutor been requested to provide an explanation for his decision to peremptorily excuse Johnson, he undoubtedly would have related Johnson’s concessions that her brother had been unsuccessfully prosecuted for robbery in 1988, her nephew had robbed a store in 1992 and her sister had been charged for a drug offense in federal court in 1992.

Reams next argues that the trial court erred in upholding the state’s peremptory challenge of black venireman, Matthew Henry. At this stage of voir dire, the state had used four peremptory challenges, including the one striking Mr. Henry — two strikes involved black jurors, Johnson and Henry, and two involved white jurors. Again the trial court ruled no prima facie “pattern” of discrimination was exhibited by the prosecutor, but it also delved into the state’s “race neutral” explanation for its peremptory strike of Henry.

Reams couches his argument on appeal in terms suggesting that the state’s disparate treatment of venire members not only established a pattern, but also showed the specious nature of the state’s explanation in striking Henry. Reams points out that the state purportedly wanted assurances from the potential jurors that they were aware of accomplice liability and could find an accomplice as guilty as the person who actually shot the victim. He argues white venire members Linda Messina, Carolyn Phillips and Dorothy Hodges had indicated the person who actually shot the victim should be punished more severely, but the state accepted them after each finally concluded that she could impose the death penalty, if accomplice liability was established. Reams asserts that, contrary to its treatment of Messina, Phillips and Hodges, the state struck Henry even though Henry indicated he could impose the death penalty if an accomplice was found guilty of capital murder.

Reams’s argument breaks down when examining Henry’s answer when voir dired by defense counsel. While he previously said that he could impose the death penalty, he steadfastly adhered to his belief that “[he] could consider the level of participation of the defendant or the role he played in the crime when it came to punishment if he could discern the difference in the state of mind.” He further said, “I could do that if I could by some way see the difference in the state of mind and understand it or what is going to happen or whatever.” After Henry’s remarks, the prosecutor explained he wished to strike Henry because he believed Henry was of the opinion that, if Reams was not the shooter, he could not impose the death penalty.

The trial court voiced dissatisfaction with the state’s explanation of striking Henry, and instead ruled Reams showed no prima facie case. While we agree with the trial court’s ruling finding no discriminatory purpose or pattern, we also conclude the state’s explanation was clearly race neutral.

Reams’s Batson argument also included black venire member, Muriel M. Hayes, who the state struck because of her reservations about imposing the death penalty. Mrs. Hayes said, “I really do not want to be a person who would cause someone being put to death, I would not want a guilty conscience, I would not want to feel guilty, and I would not want to be a part of saying that this person gets the electric chair.” The prosecutor’s explanation here was clearly based on something other than Ms. Hayes’s race and without anything more, his reason offered in striking her must be deemed race neutral. See Hernandez v. New York, 500 U.S. 352 (1991). For the reasons above, we affirm the trial court’s Batson rulings.

As previously mentioned, Reams argues three additional points on appeal, but those arguments were not argued or preserved below. His arguments are that (1) the jury did not adequately consider his youth (age 18 years) as a mitigating circumstance, (2) form 2, as a part of the verdict form, violated the Eighth and Fourteenth Amendments, and (3) jury members were given inadequate instructions on non-statutory mitigating evidence. Although we see no merit in these issues, it is unnecessary to discuss them further, since even in death penalty cases, a defendant must have raised the allegations of error at the trial court level by having made a specific, timely objection. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to Reams which constituted prejudicial error. Therefore, we affirm.

       The evidence considered but not unanimously found by the jury suggested the following: (1) the capital murder was committed while Reams was under extreme mental or emotional disturbance; (2) the capital murder was committed while Reams was acting under unusual pressures or influences or under the domination of another person; (3) Ream’s youth at the time of his commission of the murder; (4) the murder was committed by another person and Reams was an accomplice and his participation was relatively minor; (5) Reams had no significant history of prior criminal activity; and (6) Reams suffered from borderline mental retardation.

       Reams suggests Ms. Hayes was rehabilitated when she agreed she could consider the death penalty, but, at the same time she again stated that she would rather not do so.


text:
    STATE of Arkansas v. Bobby BANKS and Willie Butler
    CR 95-666
    909 S.W.2d 634
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior Appellate Advocate, for appellant.

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine, III, Deputy Public Defender, for appellees.
   Tom Glaze, Justice.

The state brings this appeal pursuant to A.R.Cr.P. 36.10(b-c), contending that it has inspected the trial record and is satisfied that the state has suffered prejudicial error and that the correct and uniform administration of the criminal law requires this court’s review. Rule 36.10 is jurisdictional and mandatory, and as this court has said on numerous occasions, the state has no right to appeal beyond that conferred by the constitution or rules of criminal procedure. State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). As a matter of practice, the court has only taken appeals which are narrow in scope and involve the interpretation of the law. Id. at 521, 838 S.W.2d at 358. We decline the state’s request for review here, since we fail to see how the correct and uniform administration of the criminal law is required or affected.

On May 9, 1994, appellants Bobby Banks and Willie Butler were seen in a 1977 brown and beige Grand Prix near Little Rock Central High. Butler was driving and Banks was a passenger. Banks leaned out of the passenger car window and over the top of the car when he fired a weapon at a house at 1223 Dennison Street. Banks and Butler were later identified, arrested and, on June 22, 1994, were charged with class B felony offenses — unauthorized use of another person’s property to facilitate certain crimes under Ark. Code Ann. § 5-74-105(a)(l) (Repl. 1993) and second degree unlawful discharge of a firearm from a vehicle under Ark. Code Ann. § 5-74-107(b)(l) (Repl. 1993). These state offenses are a part of Arkansas’s Criminal Gang, Organization, or Enterprise Act.

Both Banks and Butler were also charged with having violated federal offenses under the Gun-Free School Zones Act, which includes a provision making it unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm at a place that the person knows is a school zone. 18 U.S.C.A. § 922(q)(3)(A) (Supp. 1995). On September 19, 1994, Banks pled guilty in federal court to one count of aiding and abetting in the discharge of a firearm in a school zone under § 922(q)(3)(A), and on October 17, 1994, Butler pled guilty to one count of misprision of felony under 18 U.S.C.A. § 4 (1969). In essence, misprision of felony is the failure of an individual having knowledge of the actual commission of a federal offense to report this information to federal authorities.

After entering guilty pleas to the federal offenses, Banks and Butler filed motions to dismiss in the state criminal proceeding and argued double jeopardy barred further prosecution. They contended that Ark. Code Ann. § 5-1-114 (1987) protected them against multiple prosecution in different jurisdictions for the same conduct. In sum, Banks’s and Butler’s argument was that the Arkansas felony offenses of unauthorized use of another person’s property to facilitate certain crimes and second degree unlawful discharge of a firearm from a vehicle are the “same offense” as the federal criminal offenses of discharging a firearm at a place known to be a school zone and misprision of felony. The state trial court agreed and granted their motions to dismiss.

The state seeks this appeal and submits the two state felony offenses are not the “same offense” as the federal ones because each state offense requires proof of an element that the federal offenses do not. The state further asserts the Arkansas felony offenses are intended to combat a societal evil that is substantially different from the one the federal offenses are intended to combat. See § 5-1-114(1)(A).

Most of the state’s argument depends on a comparison of the elements contained in the pertinent state criminal offenses with those in the federal criminal Gun-Free School Zones Act, particularly § 922(q) of that Act. The state concedes, however, the Supreme Court has held that, in making it a federal offense under § 922(q) for any individual knowingly to possess a firearm at a place that individual knows or has reasonable cause to believe is a school zone, Congress exceeded its constitutional authority under the Commerce Clause. U. S. v. Lopez, 115 S.Ct. 1624 (1995); see also 18 U.S.C.A. § 922(q)(2)(A). That being so, the state further concedes, as it must, provision § 922(q)(3)(A) in issue in this case is undoubtedly unconstitutional and will not survive a future constitutional challenge. Because § 922(q) of the federal act has been held to have exceeded Congress’s constitutional authority, we have no reasonable expectation that another case like the one before us will arise again. Certainly the state offense involving our interpretation of § § 5-74-105(a)(l) and -107(b)(1) will not come into issue in the same manner. Consequently, we conclude that Arkansas’s correct and uniform administration of the criminal law is not in issue.

In sum, while this court has allowed the state a Rule 36.10(b-c) appeal where a substantial question of former jeopardy existed when federal and state offenses and proceedings were involved, State v. McMullen, 302 Ark. 252, 789 S.W.2d 715 (1990), we find no substantia] question here since the situation here (or one similar) is unlikely to recur. See also Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979). Instead, because § 922(q) has been declared unconstitutional, the only statutory interpretation with which we are primarily left concerns § 5-1-114 and how it is viewed under the controlling cases of Block-burger v. United States, 284 U.S. 299 (1932), and United States v. Dixon, 113 S.Ct. 2849 (1993). We do not render advisory interpretation of laws, which is what exists here once it is concluded that the federal law in issue is deemed unconstitutional.

In conclusion, we mention that the federal criminal statute regarding misprision of felony is still in effect and a double jeopardy comparision of it to the state felony offenses against Butler may have lent some importance for a Rule 36.10(b-c) review, but that issue was not argued by the prosecutor below. The trial court, state and defense counsel limited their arguments to comparing Banks’s and Butler’s state offenses to the federal charges filed under the Gun-Free School Zones Act, specifically § 922(q)(3)(A). Because the prosecutor failed to include the federal misprision of felony offense as a part of his double jeopardy argument, we could not consider it even if a Rule 36.10 appeal were granted.

For the reasons above, we dismiss the state’s appeal.


author: Donald L. Corbin, Justice.

text:
    Tony Lamont COOLEY v. STATE of Arkansas
    CR 95-805
    909 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

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

Appellant, Tony Lamont Cooley, appeals a judgment of the Pulaski County Circuit Court convicting him of robbery, residential burglary, felon in possession of a firearm, two counts of aggravated robbery and two counts of theft of property. The circuit court tried appellant and sentenced him as a habitual offender with four or more prior felonies to concurrent sentences resulting in a term of fifty years in the Arkansas Department of Correction. Appellant’s sole point of error in the proceedings below is the failure of the judgment to reflect the trial court’s statement from the bench that he receive jail credit for one year and three days. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2).

The state does not dispute that appellant is entitled to the jail credit pursuant to Ark. Code Ann. § 5-4-404 (Repl. 1993). According to the state, the judgment does not reflect the jail credit due to a clerical mistake. Consequently, the state does not object to modification of the judgment to reflect the credit. The state does argue, however, that appellant did not seek relief from the trial court prior to filing this appeal and therefore suggests the case should be remanded for modification.

Appellant contends we should address his argument, even though it is made for the first time on appeal, either because he received an illegal sentence or because, pursuant to Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), he did not have an opportunity to review the judgment before it was filed. Neither of these arguments has merit for the reasons discussed below.

First, an illegal sentence is one that is illegal on its face. Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989). When the sentence given is within the maximum prescribed by law, as was appellant’s sentence, it is not illegal on its face. Id. Second, regardless of whether appellant had an opportunity to review the judgment before it was filed, he certainly had an opportunity to review it after it was filed and seek correction of the judgment below pursuant to A.R.Cr.R Rule 37 since no appeal was pending.

In the conclusion of his brief, appellant cites Arkansas Code Annotated § 16-65-119(b) (1987) as authority for this court to modify the judgment on appeal. However, subsection (c) of that statute provides that the proceedings to obtain modification shall be by appeal as prescribed by law. It is well-settled law that issues raised for the first time on appeal are not considered by this court. E.g., Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994). Therefore, section 16-65-119(b) does not authorize modification on appeal when there was no request for modification below.

This court has previously decided that a request for jail time credit is a request for modification of a sentence imposed in an illegal manner. Delph, 300 Ark. 492, 780 S.W.2d 527; see Pannell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995). A claim that a sentence was imposed in an illegal manner must be raised in a petition filed with the circuit court under Rule 37. A.R.Cr.P. Rule 37.2(b); Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995) (per curiam) (citing Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam)). No such petition was filed in this case.

Because modification of the sentence is the only issue raised on appeal, and because both parties agree as to the correction of the sentence, we are somewhat inclined to modify the judgment and affirm as modified. See Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979), and Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974). However, neither Abbott nor Walters considered Rule 37 and its application or effect. Rule 37 requires that the merits of the modification of the sentence be determined by the circuit court. Therefore, we feel constrained to dismiss the appeal rather than modify the judgment.

Appellant is not left without a remedy, however. As applied to this case, Rule 37.2(c) provides that if an appeal was taken of the judgment of conviction, a petition for relief under the rule must be filed with the circuit court within sixty days of the issuance of the mandate or dismissal of the appeal. Thus, appellant has sixty days from this dismissal to seek correction of his sentence which was imposed in an illegal manner.

The appeal is dismissed.


text:
    Erwin L. DAVIS v. OFFICE OF CHILD SUPPORT ENFORCEMENT
    95-213
    908 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered November 6, 1995

      Charles L. Stutte, for appellant.

      G. Keith Griffith, for appellee.
   Donald L. Corbin, Justice.

Appellant, Erwin L. Davis, appeals a judgment of the Washington County Chancery Court finding him the father of a minor child, Kerwin Mikhail Lee Sheppard, born out of wedlock on December 10, 1990, and ordering him to pay support for the child. Appellant’s sole assignment of error is the trial court’s denial of his motion to dismiss pursuant to ARCP Rule 41 for prior dismissal with prejudice of the same action. On July 6, 1994, this court denied appellant’s petition for writ of prohibition on the same issue. That denial was without prejudice for appellant to raise the issue on appeal. Jurisdiction of the appeal is properly in this court under Ark. Sup. Ct. R. l-2(a)(3), as construction of Rule 41 is required. We find no merit to appellant’s argument and affirm the judgment.

This is the third time that appellee, Office of Child Support Enforcement, has initiated paternity and support proceedings relating to the same minor child against appellant on behalf of the child’s mother, Marlene Sheppard. Appellant has consistently denied paternity and argued that if the child was indeed his, it was because Sheppard broke into his home, stole a used condom containing his sperm, and artificially inseminated herself. The first paternity proceeding resulted in a voluntary dismissal without prejudice pursuant to appellee’s motion. After the first dismissal, appellant sued Sheppard and her mother for the alleged break-in of his home. Appellant testified his purpose for filing suit was to force a paternity test. According to appellant’s testimony, the test showed the probability of his paternity is 99.65 percent. The second proceeding ended in a dismissal with prejudice after a settlement was reached and acknowledged by the chancery court. Thus, appellant argues, the dismissal with prejudice barred appellee from pursuing a third action against him.

Appellant relies on Rule 41 and the theories of estoppel, waiver, accord and satisfaction, release, discharge, and res judicata. Rule 41 provides that when a plaintiff has once dismissed her case voluntarily, a subsequent dismissal by that plaintiff operates as an adjudication on the merits unless the parties agree in writing that the subsequent dismissal will be without prejudice. The order dismissing the second complaint with prejudice is the order upon which appellant’s argument in this case must rest, and states in its entirety:

COMES NOW FOR HEARING the Plaintiff’s Motion for Dismissal With Prejudice, and Plaintiff, Marlene R. Sheppard appearing in person and as the natural parent and next friend of Kerwin L. Sheppard, a minor, and further represented by Counsel, George E. Butler, Jr., appearing on behalf of the Plaintiff and the State of Arkansas, Department of Human Services; and Defendant, Erwin Davis, appearing and by his attorney, Dale Varner, and from the pleadings, representations of Plaintiff and statements of the attorneys, and other matters appearing before the Court, the Court finds:
1. That this Court has jurisdiction over the parties and the subject matter herein.
2. That all parties have agreed to a settlement of all contested and disputed issues appearing before the Court as evidenced and acknowledged by the below signature of Plaintiff, and Plaintiff represents to the Court that all terms of same have been executed in full, Defendant having no further duties, and that Plaintiff has prayed that this case be dismissed with prejudice.
IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the above captioned cause should be, and hereby is, dismissed with prejudice.

More than a year after the above-quoted dismissal with prejudice was entered, appellee initiated this suit, the third suit for paternity and support, alleging in the complaint that the dismissal with prejudice was void under Arkansas law. In that complaint, appellee acknowledged that the dismissal with prejudice was based upon appellant’s payment of $10,000.00 towards medical expenses, past support, and future support. Consequently, appellee requested the $10,000.00 be allocated by the trial court to medical expenses, past support, and future support based upon the Family Support Chart.

The trial court denied appellant’s motion to dismiss the instant suit by order stating that the dismissal with prejudice was void as against public policy because there was no hearing to determine that dismissal was in the child’s best interest. After a hearing on the third paternity complaint, the trial court entered an order reflecting that all parties were represented by counsel and that the minor child was represented by a guardian ad litem. In the order, the trial court found appellant to be the father of the minor child in question, ordered appellant to pay support at a rate of $200.00 per month, and applied the $10,000.00 appellant had previously paid to future support payments such that appellant received credit for fifty payments. From that order comes this appeal in which appellant contends the trial court erred in denying his motion to dismiss and allowing the case to proceed after the dismissal with prejudice.

It has long been the law in Arkansas that the interests of a minor cannot be compromised by a guardian without approval by the court. See, e.g., Rankin v. Schofield, 71 Ark. 168, 66 S.W. 197 (1902). It is not sufficient that a court be made aware of a compromise agreement and that it is agreeable to the guardian; rather, the court must make a judicial act of investigation into the merits of the compromise and into its benefits to the minor. Id.; Kuykendall v. Zachary, 179 Ark. 478, 16 S.W.2d 590 (1929). Any judgment by a court that compromises a minor’s interest without the requisite investigation is void on its face. Id.; Rankin v. Schofield, 81 Ark. 440, 98 S.W. 674 (1905).

The foregoing rules of public policy protecting minors have been applied to a child’s right to support from his parents. See, e.g., Muncrief v. Green, 251 Ark. 580, 473 S.W.2d 907 (1971). Moreover, this court has stated that the duty of support is a continuing one and one that cannot be permanently bargained away by a parent to the child’s detriment. Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1975). Consequently, the parents’ inability to permanently bargain away the child’s right to support preserves the court’s power to modify an order to meet subsequent conditions. Id.; Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991).

Appellant argues that the foregoing policy considerations apply only to support cases and not to contested paternity cases. This argument is entirely without merit, for the major purpose of Arkansas’s filiation law is to identify the putative father so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

As appellant asserts, there is no doubt that the Arkansas Rules of Civil Procedure apply to paternity proceedings. Ark. Code Ann. § 9-10-102 (Repl. 1994). This case therefore requires us to balance the application of ARCP Rule 41 against the public policy that a minor’s right to support cannot be permanently settled by his parent. Given the long-standing protection of minors by the courts in this state and others, the scales tip heavily in favor of protecting the minor’s well-guarded right to continuing support. Muncrief, 251 Ark. 580, 473 S.W.2d 907; see, e.g., Tuer v. Niedoliwka, 285 N.W.2d 424 (Mich. App. 1979). The welfare of the child is paramount. Storey, 258 Ark. 24, 523 S.W.2d 387.

The dismissal with prejudice upon which appellant relies in this case does not indicate that the trial court considered whether the settlement would be to the child’s benefit. In fact, we cannot determine from the terms of that order that the trial court was even aware of the terms of the settlement. Consistent with Rankin, 81 Ark. 440, 98 S.W. 674, and Kuykendall, 179 Ark. 478, 16 S.W.2d 590, the order of dismissal is therefore void on its face. Void judgments have no legal effect. Rankin, 81 Ark. 440, 98 S.W. 674. They are worthless; no rights can be obtained from them and all proceedings founded upon them are equally, worthless. Id. Because the dismissal with prejudice was void, it could not and did not operate as a bar to these proceedings under ARCP Rule 41. The trial court did not err in so holding.

The judgment is affirmed.

Roaf, J., concurs.

Andree Layton Roaf, Justice, concurring. I concur with the majority holding that the trial court should be affirmed under the facts presented in this case, but write to express several concerns.

First, as the majority correctly notes, attorneys with the appellee Office of Child Support Enforcement (CSE) initiated all three paternity actions against the appellant, and agreed to settle and dismiss the second action with prejudice. The same office then filed the third action a little more than a year later, challenging the dismissal with prejudice their office had approved.

George Butler, the attorney for CSE in the first two actions, testified as follows:

Even though these things are styled Marlene Sheppard vs. Erwin Davis, the Office of Child Support Enforcement actually always represents the State. We style our pleadings different now than we did then, but we always represented the State, and at this particular time I think Ms. Sheppard may have been, or she may have been the other time, may have been on some public assistance at that time too in which event those cases are automatically referred to us.
We had always — the law always was, and there had always been an understanding we represented the State, and then we finally started changing — decided we needed to start changing our captions, and we have done that.

Mr. Butler further testified:

I thought there was a chance that this settlement might be subject to attack later on, if not by her, but by a Guardian of the child. I wasn’t for certain at that time whether or not it might be void as against public policy.

The conduct of the CSE attorneys is not at issue in this opinion, however, to the extent they may feel that they are free to continue the not uncommon practice of filing and dismissing multiple actions against the same defendant without fear of running afoul of Rule 41 in future cases, I would point out that Ark. R. Civ. P. 41(d) provides for payment of costs of previously dismissed actions, and Ark. R. Civ. P. 11 provides for sanctions for causing the needless increase in the cost of litigation. These rules should apply to attorneys who are employed by the “state” and who work exclusively in the domain of child support, whether they consider themselves to be collecting funds to reimburse the state for AFDC and other public assistance or whether they are truly looking out for the welfare of children in need of support.

Also, I point out that there is no statute of limitation on bringing an action for paternity. See Ark. Code Ann. § 9-10-102(b). Indeed, such actions are often brought on behalf of teenage children, and up to the eve of a child reaching the age of majority. Under such circumstances, a one-time settlement payment and dismissal with prejudice would not be unreasonable if both parties are represented by counsel, as in the instant case.

I concur.