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

text:
    Houston WILLIAMS and Kathlene Williams v. STATE of Arkansas
    CR 96-848
    944 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      Kent McLemore and Finch & Gartin, by: Jay T. Finch, for appellants.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

Houston and Kathlene Williams were convicted of conspiracy, Ark. Code Ann. § 5-3-401 (Repl. 1993), to deliver methamphetamine. Ark. Code Ann. § 5-64-401(a) (Supp. 1995). The primary evidence against them came from testimony given by Henry and Terry Glosemeyer. There was additional testimony from police officers and a chemist, but the only evidence given by those witnesses that implicated the Williamses came from the Glosemeyers or from Fred Colvin. Mr. Colvin, who did not testify, had given a statement to a police officer impheating the Williamses as drug dealers. Mr. Colvin was pronounced by the Trial Court to be an accomplice to the conspiracy as a matter of law. The Trial Court left the question whether the Glosemeyers were accomplices to the jury.

It was the contention of the Williamses at the trial that the Glosemeyers should have been declared accomplices as a matter of law by the Trial Court, and therefore, as there was no corroborating evidence, their motions for directed verdict should have been granted. That has remained their primary contention on appeal.

The Arkansas Court of Appeals affirmed the convictions by a tie vote, Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), and we granted the Williamses’ petition for review. We agree that corroborating evidence was required. As there was none, it was error to deny the directed-verdict motions. We reverse and dismiss the convictions.

When we grant a petition to review a case decided by the Court of Appeals, we treat it as if it were before us in the first appellate instance. Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). In reviewing Mr. Williams’s abstract, we noted that his counsel mistakenly presented the judgment and commitment order from a previous conviction of Mr. Williams for possession with intent to deliver methamphetamine and marijuana and not the one relevant to this case. Although the State has not raised an issue as to the inadequacy of Mr. Williams’s abstract, we must address it.

In Winters v. Elders, 324 Ark. 246, 247, 920 S.W.2d 833, 834 (1996), we said we have “long held that the judgment appealed from is a bare essential of an abstract” and cited numerous cases. In Jolly v. Hartje, 294 Ark. 16, 18, 740 S.W.2d 143, 144 (1987), we wrote, “Ordinarily the basic pleadings and judgment or decree appealed from are essential constituents of the abstract, as we have frequently noted.” The question we must answer as a preliminary matter is whether the failure to include the appropriate judgment and commitment order in the abstract makes it “flagrantly deficient.” Ark. Sup. Ct. R. 4-2(b)(2).

We choose not to declare Mr. Williams’s abstract “flagrantly deficient.” Except for the omission of the judgment and commitment order, the abstract is complete and exemplary. We know from his uncontested statement of the case that Mr. Williams was convicted of conspiracy to deliver methamphetamine and that he was sentenced to thirty years’ imprisonment for that offense. We are aware that in other cases, such as the recent decision in Jewell v. Miller County Election Comm’n, 327 Ark. 153, 936 S.W.2d 754 (1997), we have declined to look to other parts of a brief or abstract to find information that should have been included elsewhere. That, however, was a case in which we were given a nine-page abstract to depict a 1500-page record and six volumes of exhibits. Even in the case of Winters v. Elders, supra, where we declared an abstract of the judgment “essential,” we had an additional reason for affirmance based on incompleteness of the record. While an abstract of the judgment from which the appeal comes is “ordinarily” required, its absence does not necessarily constitute a flagrant deficiency requiring affirmance, and it does not in this case.

The Williamses were convicted of possession of methamphetamine and marijuana with intent to deliver on January 7, 1994. Mr. Williams was sentenced to thirty years in prison and a $25,000 fine. Ms. Williams was sentenced to fifteen years in prison and a $15,000 fine. We affirmed that conviction. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). They were then tried and convicted on February 2, 1994, on the conspiracy charge. He received a sentence of thirty years’ imprisonment, and she was sentenced to twelve years’ imprisonment.

Prior to trial, Mr. Williams, in a motion joined by Ms. Williams, moved the Trial Court to declare Mr. Glosemeyer an accomplice as a matter of law in accordance with Ark. Code Ann. § 16-89-111 (e)(1) (1987). Section 16-89-111(e)(1) provides:

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.

The motion was denied.

Mr. Glosemeyer testified that charges were pending against him for possession of two ounces of methamphetamine with intent to deliver. He said he and Ms. Glosemeyer took jobs with Lloyd McCord Trucking in Springdale in 1991. They met the Williamses, who were then working for the same trucking company, around Thanksgiving of 1991. Mr. Glosemeyer stated that the Williamses lost their jobs before Christmas of that year. In Mr. Glosemeyer’s words, this “was the first time [he] had an occasion to talk to [the Williamses] about procuring drugs.”

Mr. Glosemeyer testified that he and Mr. Williams reached an agreement whereby Mr. Williams would take a gun owned by Mr. Glosemeyer to California and attempt to sell it for money, or trade it for drugs which he would then sell for money. Mr. Glosemeyer stated that he and Mr. Williams agreed to split whatever Mr. Williams obtained for the gun. Mr. Williams made the trip to California and later gave Mr. Glosemeyer one quarter ounce of methamphetamine in return for his gun.

Through the spring of 1992, the Glosemeyers would “weekend” with the Williamses at their home in West Fork. During that time, according to Mr. Glosemeyer, the Williamses often traveled to California for the purpose of obtaining drugs that they would later sell in Arkansas. Mr. Glosemeyer said that the Williamses were making their living by selling drugs and collecting unemployment benefits. Mr. Glosemeyer testified that he and Ms. Glosemeyer and the Williamses would use some of the drugs the Williamses had obtained in California, but Mr. Glosemeyer stated that, in the beginning, he and his wife were not selling any drugs. He admitted, however, that he and Ms. Glosemeyer had conversations with the Williamses about “making a living from selling drugs.”

The Glosemeyers quit their jobs with the trucking company on April 17, 1992, and began living with the Williamses in their West Fork residence. Mr. Glosemeyer testified that neither he nor Ms. Glosemeyer was employed during this time or drawing unemployment benefits but that they were living on the income they already had earned. The Williamses were not charging them for rent or food. The Glosemeyers did not contribute money for the upkeep of the house, but they assisted with chores. The Williamses also provided the Glosemeyers “with as much drugs as [they] could do.”

The Glosemeyers frequently talked with the Williamses about using, buying, and selling drugs. They would talk about how much methamphetamine they had in the house and how long the supply would last before Mr. Williams would have to make another trip to California to purchase more drugs. Mr. Williams made three or four trips to California for the purpose of obtaining methamphetamine during Mr. Glosemeyer’s stay there from April to September 1992. Mr. Glosemeyer estimated that the Williamses would return from California with quarter pounds of methamphetamine.

Eventually, Mr. Glosemeyer did more than merely “talk” about Mr. Williams’s travels to California. At some point between April and July of 1992, he permitted the Williamses to drive his truck to California for the purpose of obtaining methamphetamine. The Williamses asked the Glosemeyers to accompany them, but the Glosemeyers declined because Mr. Glosemeyer did not “think it was a good idea to take women along on a drug deal and make a party out of it.” Mr. Glosemeyer testified that he permitted the use of his truck even though he was aware that the truck could have been seized if the Williamses had been caught. There is no question that Mr. Glosemeyer knew that his truck would be used by the Williamses for the purpose of purchasing drugs and bringing them back to Northwest Arkansas for distribution.

Mr. Glosemeyer said that he never saw the Williamses sell drugs in their home during his stay there from April to September of 1992, but he said that he saw people come to the house and talk with the Williamses about obtaining drugs from them. As abstracted, the testimony was, “People came to the house and we all did drugs. There was constant conversation about selling drugs.” These conversations included the Williamses.

Mr. Glosemeyer testified that Ms. Glosemeyer moved out of the Williams residence in June or July of 1992 and that he moved out in September 1992. After Mr. Glosemeyer left the Williams residence, he moved to Springdale and returned to a position at McCord Trucking.

Mr. Glosemeyer testified that he continued to purchase drugs from the Williamses for his personal use. In November 1992, he began to purchase drugs from the Williamses to resell to other people. Mr. Glosemeyer testified that he purchased the drugs •from Mr. Williams and sold them to a fellow truck driver from Rogers. Mr. Glosemeyer stated that the Williamses knew of Mr. Glosemeyer’s arrangement and that one evening they met the Rogers truck driver who was buying the drugs that Mr. Glosemeyer was purchasing from Mr. Williams.

Mr. Glosemeyer clarified that he had not purchased drugs from Ms. Williams, but he said that she was present when he purchased the drugs from Mr. Williams and that he sometimes handed the money to Ms. Williams. Mr. Glosemeyer testified that the Williamses were receiving money from other drug buyers as well.

Mr. Glosemeyer purchased drugs from the Williamses and resold them from November 1992 to February 1993. He said that his purchases “snowballed from an eighth every day or every other day, or a couple times of week to an ounce every other day.” Mr. Glosemeyer used some of the drugs himself but he increased his drug purchases because he had begun supplying a dealer in Fayetteville who “was capable of moving a lot of drugs.” He would give the Fayetteville dealer a half ounce of methamphetamine twice a day. Mr. Williams also “fronted” the drugs that Mr. Glosemeyer was selling elsewhere, and Mr. Glosemeyer would mark up the price of the drugs he had purchased from Mr. Williams or would mix it with filler or “cut” it.

Mr. Glosemeyer stated that he quit selling drugs on account of his arrest on February 22, 1993, for possession of two ounces of methamphetamine with intent to deliver. He testified that he had obtained the drugs for which he was arrested from Mr. Williams. Mr. Glosemeyer explained the events leading up to his arrest on that day as follows.

Mr. Glosemeyer was living in Rogers with Ms. Glosemeyer. A week or so prior to his arrest on February 22, 1993, Mr. Glosemeyer had permitted — for at least the second time — Mr. Williams to drive his truck to California for the purpose of obtaining drugs. Mr. Williams had told him that he was going to California in order to buy four pounds of methamphetamine. The prosecutor asked Mr. Glosemeyer why Mr. Williams had mentioned a specific amount, and Mr. Glosemeyer answered, “Because at that time I was a major distributor.”

On the afternoon of February 22, Mr. Glosemeyer stopped by his wife’s work place in Rogers and traded vehicles with her. He left Rogers in a Mercury owned by an acquaintance and headed for West Fork hoping to find that Mr. Williams had returned from California. Mr. Glosemeyer stated that his wife knew why he was driving to West Fork and that she knew what he was driving. Mr. Glosemeyer stated that Ms. Glosemeyer still used drugs but had “cleaned her act up very much.” She notified the police that Mr. Glosemeyer was headed toward the Williamses to get drugs. He was arrested that afternoon for being in possession of two ounces of methamphetamine.

On cross-examination, Mr. Glosemeyer admitted that he was a distributor of the drugs that the Williamses were bringing back from California, but he charged that the Williamses were responsible for the “major” distribution. Mr. Glosemeyer stated that he believed the people who were participants in the various conversations about drug dealing that had occurred at the Williams residence were engaging in a conspiracy to deli ver methamphetamine. He stated that he did not know if his wife would be considered “guilty” of conspiracy, but he testified that he “definitely” was involved in the “conspiracy.” In Mr. Glosemeyer’s view, the conspiracy ended with his arrest.

On redirect examination, Mr. Glosemeyer testified that, after his release from jail, he talked with Mr. Williams about the identity of the person(s) who had made the “tip” to the police leading to their arrests. The Williamses had been arrested for possession, and then for conspiracy, in the days following Mr. Glosemeyer’s arrest. During one of these conversations, Mr. Williams indicated to Mr. Glosemeyer that he had asked two other individuals to sell the remainder of a shipment of methamphetamine from California that had been stashed under a bridge and that he had offered to split the money with those individuals.

The State then introduced the testimony of Terry Glosemeyer. Ms. Glosemeyer covered much of the ground covered by Mr. Glosemeyer concerning how they came to know and live with the Williamses. She stated that, after the Glosemeyers moved in with the Williamses in April 1992, they did not contribute money to the Williamses’ household but did help with the cooking and cleaning. Ms. Glosemeyer verified that they all frequently used methamphetamine. She stated that Mr. Glosemeyer would take money from her paycheck and buy drugs from Mr. Williams. Ms. Glosemeyer indicated on cross-examination that she also gave money to her husband so that he could purchase drugs from Mr. Williams.

Ms. Glosemeyer testified that, while she lived at the Williams residence, she witnessed the Williamses sell drugs to other people. As she put it, “I saw methamphetamine at that house every day.”

Ms. Glosemeyer recounted her role in the drug deals that occurred in the Williams house during her stay there. On one occasion, she assisted Ms. Williams by cutting some methamphetamine with Inositol and packaging it for distribution. On another occasion, Ms. Glosemeyer helped Mr. Williams prepare for one of his drug-purchasing trips to California by counting the money that Mr. Williams would use to purchase the drugs. She testified that she counted between $8000 and $10,000. She said that the money belonged to Mr. Williams and that he had obtained it by selling drugs. When Mr. Williams returned from his trip, he had methamphetamine.

On cross-examination, Ms. Glosemeyer was asked about her drug-packaging efforts, and she said that she was “just as guilty” as Ms. Williams. She also acknowledged that she, her husband, and the Williamses were “living off of all the drug transactions that were taking place.”

At the close of the State’s case, counsel for Mr. Williams and counsel for Ms. Williams each moved for a directed verdict. Counsel argued that the Glosemeyers were co-conspirators and that the State’s case consisted solely of their testimony. Counsel pointed out that the Glosemeyers had benefited financially from the Williamses’ drug deals and that Mr. Glosemeyer had loaned his truck to Mr. Williams for his drug-purchasing trips and had described himself as a major distributor for the Williamses. Moreover, counsel emphasized that Ms. Glosemeyer admitted that she cut, packaged, and helped distribute methamphetamine. Counsel stated that the Williamses could not be convicted on the testimony of co-conspirators or accomplices alone. The motion was overruled.

Counsel for Ms. Williams also argued to have Ms. Glosemeyer declared an accomplice or co-conspirator. He focused on Ms. Glosemeyer’s statement — as he paraphrased it— that she was “as guilty as everybody else.” The Trial Court stated that her conduct did not “rise[ ] to that level” and overruled the motion.

Our accomplice statute provides as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403 (Repl. 1993).

According to Ark. Code Ann. § 5-64-401 (Repl. 1993), “it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” The terms “deliver” and “delivery” mean “the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship.” § 5-64-101 (f).

The conspiracy statute, § 5-4-203, provides as follows:

A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:
(1) He agrees with another person or other persons:
(A) That one (1) or more of them will engage in conduct that constitutes that offense; or
(B) That he will aid in the planning or commission of that criminal offense; and
(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.

“The defendant in a criminal case has the burden of proof that a witness is an accomplice whose testimony must therefore be corroborated.” Cate v. State, 270 Ark. 972, 976, 606 S.W.2d 764, 766 (1980). See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). “Whether a witness is an accomplice is usually a mixed question of fact and law, and the finding of a jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice.” Cate v. State, supra (emphasis added). See Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982); Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977). See also Marshall v. State, 27 Ark. App. 287, 289, 770 S.W.2d 177, 178 (1989)(“[W]here there is no conflict in the evidence as to a witness’s participation in a crime, or where his participation therein is conceded, the question whether the witness is an accomplice is one of law for the trial judge to determine.”)(Emphasis added.)

The testimony of the Glosemeyers “shows conclusively” that — in the words of the accomplice statute — they aided, agreed to aid, or attempted to aid the Williamses in planning or committing (1) the offense of conspiracy to deli ver methamphetamine and (2) the offense of delivery. It is clear that the Glosemeyers so acted “with the purpose of promoting or facilitating the commission of” the offenses. § 5-2-403(a) (2). The Glosemeyers very well could have been charged as co-conspirators under the conspiracy statute. There is no question that they, acting “with the purpose of promoting or facilitating the commission” of delivery of methamphetamine, agreed with the Williamses (1) that one or more of them would engage in conduct that constitutes delivery of methamphetamine, or (2) that the Glosemeyers would “aid in the planning or commission” of that offense, and there is no question that the Williamses and the Glosemeyers committed several “overt acts” in pursuance of the conspiracy.

In view of the fact that the only evidence against the Williamses came from accomplices, the question becomes whether there was any evidence to corroborate their testimony. We find none. During oral argument of this case counsel for the State was asked if there were any such evidence, and he agreed there was none.

There being no corroborating evidence, the proper disposition of the case must be determined. In other instances in which the only evidence was given by an accomplice or by accomplices, we have found the evidence insufficient and ordered dismissal rather than remand for a new trial. Foster v. State, 290 Ark. 495, 720 S.W.2d 712 (1986); Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978). See also Strickland v. State, 16 Ark. App. 293, 701 S.W.2d 127 (1995).

In the Foster case, where we reversed and dismissed a first-degree murder conviction, the State argued in its petition for rehearing that the case should have been remanded for a new trial. We disagreed and persisted in our characterization of the situation as one in which the State’s evidence had been insufficient for conviction, thus requiring dismissal. We said:

... if under our law an accused must be acquitted if the state’s case is based on the uncorroborated testimony of an accomplice, then that determination on appeal prohibits retrial just as it does when acquittal occurs at the trial. The reason for reversal is not “error” but insufficiency of the state’s proof.

Foster v. State, 290 Ark. at 498-B, 722 S.W.2d at 871 (Supplemental Opinion on Denial of Rehearing). We concluded there, as we conclude here, that the retrial of a defendant in these circumstances would result in him or her being placed twice in jeopardy of being convicted of a crime.

Reversed and dismissed.

Glaze and Brown, JJ., concur.

Robert L. Brown, Justice,

concurring. I concur in this opinion but write to emphasize that I would not consider the abstract in this case to be flagrantly deficient under Supreme Court Rule 4-2 merely because the judgment and commitment order for Houston Williams was erroneously described. Furthermore, even if the judgment and commitment order had not been abstracted, I would not consider the abstract to be fatal to this appeal.

The abstract in the Houston Williams brief contains the jury verdict and the sentencing by the trial court. Neither the judgment nor sentence is at issue in this appeal. This situation is unlike the civil cases cited by the majority where the judgment or order appealed from was essential to what the trial court had found, concluded, and ordered. See Jewell v. Miller County Election Comm’n, 327 Ark. 153, 936 S.W.2d 754 (1997); Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987).

To be sure, an abstracted judgment or order can be essential in a criminal appeal. We have affirmed for lack of material evidence when the issue was revocation of a probationary sentence for battery and where the underlying conviction was not abstracted. See Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). We have also affirmed where the criminal appellant merely listed titles of pleadings and relevant evidence. See, eg., King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996); Harrison v. State, 300 Ark. 439, 779 S.W.2d 536 (1989). We have also affirmed under Supreme Court Rule 4-2 where the abstract in the criminal case failed to include “testimony, arguments, rulings, instructions, jury’s findings, or the judgment of conviction.” Moore v. State, 325 Ark. 468, 929 S.W.2d 149 (1996). Also, in a case involving the issue of jury selection under Batson v. Kentucky, 476 U.S. 79 (1986), we affirmed under Rule 4-2 when the information, judgment and commitment order, notice of appeal, and information about the composition of the venire, the final jury panel, and defendant’s use of peremptory challenges were all omitted. See Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996). We have also affirmed in cases collaterally attacking a judgment of conviction where neither the petition nor trial court order was abstracted. See, eg., Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994) (per curiam); Wilson v. State, 306 Ark. 179, 810 S.W.2d 337 (1991).

Nevertheless, we have not gone so far as to affirm under Rule 4-2 where the absence of the judgment and commitment order form is the sole deficiency, where that judgment is not at issue in the appeal, and where the conviction and sentence can be gleaned from other parts of the abstract. I disagree with any suggestion that we might do so in future appeals, and for that reason I concur.

Glaze, J., joins.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Donald Lloyd CLARK v. STATE of Arkansas
    CR 96-839
    944 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      Baxter, Wallace & Jensen, by: Ray Baxter, for appellant,

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

On May 2, 1995, the appellant, Donald Lloyd Clark, was arrested for some burglaries and thefts committed in Dallas County. At the time of his arrest, Clark expressed relief to law enforcement officers at being caught because he was suffering from an addiction to crystal methamphetamine. He claimed his addiction cost him $300 a day, and he committed crimes to underwrite those costs. After his arrest, law enforcement authorities from three or four other counties met in Dallas County to determine whether Clark had any information concerning burglaries committed in their surrounding counties. At this time, Dallas County SherifFDonnie Ford told Clark that, if he would cooperate, Ford would recommend that Clark serve only ten years’ imprisonment to be served concurrently for all the crimes he had committed. Clark subsequently cooperated with the various authorities, and in some instances, accompanied them to drug dealers’ houses where the officers located stolen guns and other stolen property.

On appeal, Clark argues that he had been given the impression that the prosecuting attorneys of all the counties, where crimes were committed, would follow the recommendations of law enforcement officials and that he was “almost” told he would not need to hire a lawyer because “it was just going to fall into place.” Clark claims that, in reliance upon the “promise of leniency,” he cooperated extensively with authorities in six counties, including Clark County. However, the Clark County prosecutor refused to agree to Dallas County Sheriff Ford’s ten-year concurrent recommendation, but instead the prosecutor sought to impose the maximum sentence for each of four felony offenses committed in Clark County. Consequently, Clark defended against the Clark County charges, and filed a motion to suppress his confession in that proceeding. The Clark County Circuit Court denied Clark’s motion, and the matter went to trial. Clark was tried on two charges of burglary and two charges of theft of property, and he was convicted and given the maximum sentence for each charge to run consecutively — a total of forty years.

Clark appeals his convictions, and argues the trial court erred (1) in refusing to exclude his confessions and denying his request to enforce the promise of leniency offered him by law enforcement authorities, (2) in rejecting his request to voir dire the jury regarding the subject of drug use, (3) in denying his attorney the opportunity to elicit evidence or to give argument during the sentencing phase of the trial regarding prison life and the workings of parole and meritorious good time, and (4) in permitting the State to introduce a conviction Clark sustained twenty-one years ago.

In considering Clark’s initial suppression argument, we do so in light of the rule all custodial confessions are presumed to be involuntary and the burden is upon the State to show the statement was voluntarily made. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). Additionally, we are also guided by the rule that a statement induced by a false promise of reward or leniency is not a voluntary statement. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). From our careful review of the record in light of these principles, we conclude there is no evidence that Clark’s confession was obtained in exchange for a false promise. See Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); see also Elwood v. State, 297 Ark. 101, 759 S.W.2d 553 (1988).

Initially, we point out that nowhere does it appear in the record that any Clark County law enforcement officer, and in particular Sheriff Troy Tucker, promised Clark that, if he would cooperate, Clark would get a ten-year sentence for the crimes committed in Clark County. Sheriff Tucker clearly denied having made promises of any kind. Indeed, Clark admitted he had already told Dallas County Sheriff Ford about the Clark County burglaries, and therefore, there was little or nothing for Sheriff Tucker to gain by offering Clark any promise.

Clark largely relied on Sheriff Ford’s advice at the time of Clark’s arrest that, if Clark would cooperate, Ford would recommend ten years. Sheriff Ford made such recommendations to all the prosecutors, including the prosecutor for Clark County. Flowever, Ford testified that he had advised Clark that Ford could only make a recommendation to the prosecutor, but he could not force the prosecutor to take the recommendation. In further support of Ford’s version of what was said, the record reveals that when Clark gave a written statement the day after his arrest, he signed a waiver of rights form which specifically provided no promises were offered to induce him to make a statement. In sum, we must conclude that, from our careful review of the evidence, the state breached no promise.

Before leaving this point, we add that, even if it could be said that disputed testimony existed on the promise-of-leniency issue, officers clearly testified that they offered no reward to Clark at any time. The trial judge was entitled to believe this evidence. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). This is especially true considering the facts in this case. For example, Clark, upon his arrest, was fully advised of his rights, was not detained or questioned for any prolonged length of time before giving his statement, and was not subjected to mental or physical punishment. Clark is forty-two years old and has attended college for four years. Plus, he is no stranger to the criminal justice system, having been previously convicted of two felonies. Again, in view of this evidence, we cannot say the trial court erred in denying Clark’s suppression motion.

In Clark’s second point, he asserts that, because he suffered from drug addition, he should have been permitted to voir dire the jurors concerning their experiences with friends or family members who used drugs. Clark cites no case directly in point, but refers to Jeffries v. State, 255 Ark. 501, 501 S.W.2d 600 (1973), where, during voir dire, the trial court dismissed a juror who volunteered that he was more prejudiced than others in drug cases and believed that, if a person was in possession of an illegal drug, that was evidence of guilt. On appeal, Jeffries further argued that, while the juror was properly excused, the trial court erred in failing to grant a mistrial. This court rejected Jeffries’ argument. Even so, Clark urges that the Jeffries decision indicates the trial court acted appropriately in dismissing the juror for cause and reflects adequate reason for the trial court in the present case to at least allow Clark to have questioned prospective jurors concerning their views on or experience with drugs.

Of course, Clark was not charged with drug offenses as was the case with the defendant in Jeffries. Nor did officers find any drugs on Clark at the time of his arrest. Aside from Clark’s efforts to inject the issue of drugs at trial through argument and cross examination, drugs had nothing to do with the State’s proof regarding the burglary and theft charges. Neither did Clark raise drugs as an affirmative defense which might have made his questioning of jurors relevant. Cf. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). Arkansas law is well settled that the course and conduct of voir dire examination of the veniremen is primarily within the trial judge’s discretion and this court will not reverse absent an abuse of that discretion. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1994). Based upon the record before us, we believe the trial court did not abuse its discretion in denying Clark’s proposed questioning on voir dire as being irrelevant.

In his third argument, Clark submits the trial court abused its discretion in precluding him, during the sentencing phase, from testifying to what it is like in the penitentiary and arguing how prison life works and how difficult it is to be a class-one prisoner — a classification needed to obtain sentence reduction and an early release. In considering this point, we are guided by Ark. Code Ann. § 16-97-103(1) (Supp. 1995), which in pertinent part provides that evidence relevant to sentencing by either the court or a jury may include the law applicable to parole, meritorious good time, or transfer.

During the sentencing phase, Clark testified that 80% of the people in the penitentiary were there because of drugs. When asked to tell the jury about what it is like to be in the penitentiary, the State objected, stating such inquiry was outside the realm of sentencing. The trial court agreed. And later, after the trial judge instructed the jury concerning parole and meritorious good time, defense counsel argued to the jury that the prosecutor “would have us believe that it’s an automatic one-sixth of the time,” but “That’s not what the instruction says and that sure isn’t how prison life works.” Counsel further argued that a prisoner only gets good time provided he or she is a class-one prisoner — a classification that is not easy to achieve. The State objected to Clark’s testimony and defense counsel’s argument, touching on prison life and the difficulties in obtaining a sentence reduction. The trial court sustained the State’s objections, noting the legislature authorized the only option to be given a jury.

In keeping with that law, § 16-97-103(1), and the law applicable to parole, meritorious good time or transfer, the trial judge read the following instruction to the jury:

In your deliberations on the sentence to be imposed, you may consider the possibility of the transfer of Donald Clark from the Department of Correction to the Department of Community Punishment. After he serves one-third of any term of imprisonment to which you may sentence him, he will be eligible for transfer from the Department of Correction to the Department of Community Punishment. If transfer is granted, he will be released from prison and placed under post-prison supervision. The term of imprisonment may be reduced further, to one-sixth of any period you impose, if he earns the maximum amount of meritorious good time during his imprisonment.
Meritorious good time is time-credit awarded for good behavior or for certain achievements while an inmate is confined in a Department of Correction or Community Punishment facility, or in a jail while awaiting transfer to one of those facilities. It is awarded an inmate on a monthly basis so that he receives one day for every day served, not to exceed thirty days per month. Accrual of meritorious good time does not reduce the length of a sentence but does decrease the time the defendant is required to be imprisoned before he becomes eligible for transfer to community supervision, under which the remainder of his sentence will be served.

See AMCI 2d 9402 and 9403; see also Ark. Bd. Corr. & Comm. Punishm’t Reg. 826-7.9-VI(A)(l) and (2).

We first note that, while the trial court properly instructed the jury on the law applicable to parole, meritorious good time, and transfer as required by § 16-97-103(1), Clark never proffered any additional law on the subject. Instead, he merely offered his own view on what prison life was like — a subject that appears totally irrelevant concerning what sentence should be imposed. And if Clark intended to offer evidence that the law pertaining to parole or meritorious good time was not, for some reason, being followed by prison authorities, no such suggestion was evident by counsel’s question to Clark concerning what it is like to be in the penitentiary. In short, the trial court was left to speculate as to what relevance Clark’s description of prison life might have on his sentencing by a jury.

The same lack of relevance ensues from defense counsel’s argument to the jury concerning how difficult it is to be a class-one prisoner, which is required to achieve sentence reduction. Again, such a suggestion has nothing to do with the sentencing law as it applies to parole, meritorious good time, or transfer, but instead seems merely to suggest that prisoners who misbehave cannot avail themselves of these sentence-reduction regulations. In sum, we cannot say the trial judge erred in excluding the testimony and argument offered by Clark, since the relevancy of such matters was never shown.

In his final argument, Clark contends that, during the penalty phase, the trial court erred in admitting into evidence a twenty-one-year-old prior conviction. He claims the conviction was irrelevant and inadmissible since it was more than ten years old. See A.R.E. Rule 609(b). The record, however, reflects Clark had no objection to Clark’s twenty-one-year-old judgment when it was admitted into evidence, most likely, because § 16-97-103(2) authorizes both felony and misdemeanor prior convictions during the sentencing phase. Thus, Clark’s failure to timely object is a waiver of this issue on appeal. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996).

Arnold, C.J., not participating.

       Clark apparently had been involved in committing burglaries and thefts in a total of six Arkansas counties, including Dallas and Clark Counties.

       We note Clark did testify that, while at Clark’s house, “several sheriffs” were under a tree beside the house and they agreed the ten years would be his fate if he cooperated.

       Section 16-97-103(3) (iii) excludes consideration of delinquency adjudications occurring more than ten years prior to the commission of the offense charged.


author: Robert L. Brown, Justice.

text:
    David SPANN v. STATE of Arkansas
    CR 96-733
    944 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      William R. Simpson, Jr., Public Defender, by: Jeffrey A. Weber, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant David Spann was convicted of first-degree murder and sentenced to life imprisonment. He raises two points on appeal: (1) the trial court erred by allowing the prosecutor to inform the jury about parole eligibility in the penalty phase; and (2) the trial court erred in refusing to give an instruction on voluntary manslaughter. Both points are meritless, and we affirm.

The facts of this case were developed at trial. On February 21, 1995, Spann shot and killed Carl Ahrens in Spann’s house in Perry County. According to Barbara Wilcutt, who lived with Spann at the time of the shooting, she heard Spann arguing with another man about whether one of Spann’s sons, Jacob Spann, had stolen equipment from the man. She testified that she went downstairs and watched the argument. Spann, she stated, was mad and turned white. There was no physical fighting, and the man did not threaten Spann. Spann, though, got a shotgun from the gun rack and shot the man. After shooting him, Spann placed a pocketknife in the victim’s hand. Sarah Lucker, Wilcutt’s 12-year-old daughter, confirmed the fact that Ahrens had nothing in his hands when Spann shot him.

Following the killing, Chief Deputy Ed Johnson of the Perry County Sheriffs Department responded to a call at 6:20 p.m. at the Spann residence. He collected the .410 single shot shotgun and found the opened pocketknife in the victim’s hand. The victim also had a larger knife attached to his belt. According to a witness from the State Crime Lab, Ann Hoff, Ahrens was in close proximity to the shotgun when he was killed. Perry County Coroner Hank Bergen testified that the gunshot wound was to Ahrens’s head and neck. Dr. William Sturner, chief medical examiner for the State, testified that both marijuana and alcohol were found in Ahrens’s system.

Spann did not testify at his trial, but a second son, David Spann, Jr., testified about seeing Ahrens in an agitated condition and stated that Ahrens was drunk. David Spann, Jr., stated that he called the sheriffs department at his father’s direction after the shooting. In closing argument, Spann’s counsel contended before the jury that Spann lacked the purpose to kill Ahrens and that the murder was the result of a passionate argument. The jury returned a verdict of guilty of first-degree murder and after the sentencing phase, sentenced Spann to life in prison.

Spann first complains that the trial court erred in permitting a jury instruction relating to parole and transfer when either a sentence of life imprisonment or a term of years is meted out by the jury. Prior to trial, Spann moved the trial court to exclude jury instructions, evidence, and argument relating to parole and transfer eligibility. The motion was denied at an omnibus hearing. During the sentencing phase, the trial court instructed the jury on meritorious good time and transfer to community supervision and then answered “No” to the jury’s question about the possibility of parole after a life sentence.

The crux of Spann’s argument on appeal is that this court announced a rule of evidence in 1971 when we held that it was improper for the trial court to inform the jury about transfer and parole eligibility. See Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). Spann argues that the subsequent Act of the General Assembly permitting the same (Ark. Code Ann. § 16-97-103(1) (Supp. 1995)) must bow to the mixed rule of evidence and procedure announced in Andrews v. State, supra. We disagree.

We have recently answered this precise question against Spann’s position in the case of Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). In Travis, we concluded:

Since the enactment of the criminal code, we have said that sentencing is controlled by statute. See Cody v. State, 326 Ark. 85, 929 S.W.2d 159 (1996); Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). Ark. Code Ann. § 16-97-103(1) was enacted as part of Act 535 of 1993, where the General Assembly made changes in procedures governing jury trials by providing for separate consideration of guilt and sentencing. Among other things, Act 535 defines what is “evidence relevant to sentencing,” part of which includes parole eligibility.
Simply put, Travis fails to cite to any express rule of this court with which Ark. Code Ann. § 16-97-103(1) conflicts. Our holdings to which Travis cites were handed down prior to the enactment of Act 535 of 1993. Because of the deference this court has given to the General Assembly in matters pertaining to sentencing, see Cody, supra, and because Travis fails to cite an express rule of this court which conflicts with Ark. Code Ann. § 16-97-103(1), we affirm as to this point.

Travis v. State, 328 Ark. at 450, 944 S.W.2d at 99-100.

Spann does quote the following language from our opinion in Andrews v. State, supra:

The subject matter [parole eligibility] is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive.

Andrews v. State, 251 Ark. at 289, 472 S.W.2d at 92. Yet, he makes no constitutional argument about separation of powers but, rather, centers his claim only on the asserted conflict between § 16-97-103(1) and the Andrews decision. This court resolved the latter issue in Travis v. State, supra. The point is without merit.

For his second point, Spann claims that the heated argument that ensued in the minutes prior to the shooting justified the proffered voluntary manslaughter instruction. The State counters that there was no rational basis for the instruction.

It is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). We will affirm a trial court’s decision to exclude an instruction on a lesser included offense only if there is no rational basis for giving the instruction. Brown v. State, supra; Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988).

The elements of manslaughter set out in Spann’s proffered instruction are that the defendant caused the death of another while “under the influence of extreme emotional disturbance of which there was a reasonable excuse.” See also Ark. Code Ann. § 5-10-104(a)(1) (Repl. 1993). We have held that it is not error to refuse to give an instruction on manslaughter where there is no evidence of extreme emotional disturbance. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996); see also Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). For example, in Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992), we held that there was no rational basis for giving the manslaughter instruction where the appellant chased down the victim after the victim hit the car of the appellant’s friend.

Similarly, in Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992), this court held that there was no rational basis for the manslaughter instruction where the proof was that the victim had teased the appellant for urinating on himself. The appellant had said that he was tired of the victim’s “messing” with him and that he was going to kill him. The appellant later shot the victim and continued to shoot at the victim as he ran away. Again, while there was proof of a lost temper, there was no proof of emotional disturbance.

On the other hand, in Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), we reversed the appellant’s conviction due to the failure of the trial court to give the requested manslaughter instruction. In Rainey, the appellant shot his lover during a heated argument in which the victim threatened to divulge their relationship to the appellant’s wife and family. The appellant testified that he was hysterical and that he shot the victim out of anger after she reached for his gun and caused it to discharge. We concluded that this evidence was enough to warrant the manslaughter instruction. We stated:

The Frazier case is readily distinguishable from this one. Here, evidence indicated that Rainey had been threatened with a gun before the killing occurred which, combined with the ongoing argument and the threat to ruin his family relationship, could well have been considered by the jury to have caused him to suffer extreme emotional distress, especially when viewed from his perspective as the statute requires. There is a substantial difference between the emotional effect of being teased and being threatened with a gun.

Rainey v. State, 310 Ark. 423, 837 S.W.2d 455. We then quoted the following from an earlier decision:

The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible. An assault with violence upon another who acts under the influence thereof maybe sufficient to arouse such passion.

Rainey v. State, 310 Ark. at 423, 837 S.W.2d at 455, quoting Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960).

In the present case, there was proof of intense anger on the part of Spann after the victim, who purportedly had been drinking, accused Spann’s son of theft and demanded retribution from Spann. But there was no proof of provocation in the form of physical fighting, a threat, or a brandished weapon. Indeed, Spann’s counsel at oral argument did not dispute the fact that Spann placed the pocketknife in Ahrens’s hand after the shooting. Anger alone is not enough to support the element of extreme emotional disturbance. The trial court correctly refused to instruct on manslaughter under these facts.

The record has been reviewed for reversible error in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Paul E. HOPPER v. Tom GARNER
    96-1423
    944 S.W.2d 540
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      Appellant, pro se.

      J. Scott Davidson and Tom Garner, pro se, for appellee.
   Annabelle Clinton Imber, Justice.

This appeal involves a dispute over who is the rightful city attorney of Horseshoe Bend. The appellant, Paul Hopper, filed a usurpation-oGoffice action against the appellee, Tom Garner. The jury rendered a verdict for Garner, and Hopper appeals. Finding no reversible error, we affirm.

In 1994, Paul Hopper was elected city attorney of Horseshoe Bend, Arkansas. During litigation concerning another matter, Hopper discovered that two people had trespassed on his property. Hopper asked the prosecuting attorney to file a criminal trespass action against these individuals, but he refused. Hopper could not file the criminal action as city attorney because he was personally interested in the case. Therefore, Hopper asked Mayor Charles Mowder to appoint a special city attorney to litigate the case.

On Wednesday, October 4, 1995, Mayor Mowder appeared at Hopper’s office to discuss the matter. When the mayor refused to appoint a special attorney, Hopper offered, “If you will sign the paperwork, I will give you an early Christmas present and resign as city attorney on Friday.” Before leaving town the next morning, the mayor administered the oath of office to the appointed special city attorney who then filed the criminal trespass action in municipal court.

Meanwhile, Hopper placed on the mayor’s desk a letter of resignation that said, “As we agreed last night, I hereby resign my office as City Attorney effective at 4:00 o’clock p.m. on Friday, October 6, 1995.” Later that afternoon, Hopper discussed the matter with the chief of police who persuaded Hopper to tender his resignation in person when the mayor returned on October 6. Hopper then removed his letter of resignation from the mayor’s desk. On Friday, October 6, 1995, the mayor returned to Horseshoe Bend and demanded that Hopper return his resignation letter. Hopper complied.

On October 9, 1995, the mayor sent the following letter to the special city attorney:

Since Paul Hopper has seen fit to resign as of Friday, October 6, 1995 at 4:00 p.m. there will be no need for your acting as special city attorney and we therefore rescind the authority and oath administered on Thursday, October 5, 1995. The new city attorney will handle this as well as all other matters.

The prosecuting attorney volunteered to handle the city’s affairs pending the appointment of a new city attorney, and obtained a nolle prosequi of the criminal trespass action.

On November 8, 1995, Hopper attempted to withdraw his resignation by sending the following letter to the mayor and the City Council:

As my resignation was conditional and the condition was not met, and since the council has not accepted the resignation, I withdraw my resignation as City Attorney effective at 3:59 o’clock p.m. on October 6, 1995. I am this date reclaiming the office. At the council meeting on Monday, I will take my seat unless a majority of the members of the council agree that I should not.

At the aldermen’s request, Hopper did not appear at the next city council meeting.

On November 15, 1995, the mayor hired Tom Garner as the new city attorney. The next day, Hopper informed Garner, the mayor, and the city council that he. objected to Garner’s appointment because he had effectively withdrawn his resignation. The City Council agreed to review the matter at its next meeting.

During the December 11, 1995, meeting, the city council rejected Hopper’s attempted withdrawal of his resignation. The council also adopted resolution 95-07 thereby approving the November 15, 1995, appointment of Tom Garner as city attorney.

In response, Hopper filed a usurpation-of-office action under Ark. Code Ann. § 16-118-105 (1987), requesting ouster of Garner from the office and the fees and emoluments he received while serving as city attorney. Prior to trial, the parties stipulated that Garner received $8,870.85 for his services as city attorney. The jury rendered a verdict for Garner, and Hopper filed a timely notice of appeal.

I. Withdrawal of Resignation

For his first argument on appeal, Hopper claims that he is the rightful city attorney of Horseshoe Bend because he withdrew his resignation before it was accepted. Hopper is correct that under Arkansas law a city officer’s resignation may be withdrawn anytime prior to its acceptance. Rider v. City of Batesville, 220 Ark. 31, 245 S.W.2d 822 (1952). Whether the resignation was actually withdrawn is, however, an issue to be resolved by the trier of fact. Id.

During the trial, Hopper argued that he withdrew his resignation in his November 8, 1995, letter to the mayor and city council. In this letter, Hopper declared that he was withdrawing his resignation, and that he would take his seat at the next city council meeting “unless a majority of the members of the council agree that [he] should not.” (Emphasis added.) The council then voted to reject Hopper’s withdrawal of his resignation. Based on these facts, the jury could have reasonably concluded that Hopper’s withdrawal was conditioned upon the city council’s approval. Thus, we hold that there was sufficient evidence from which the jury could have concluded that Hopper’s resignation was never effectively withdrawn. Accordingly, we affirm on this point.

II. Right to a Jury Trial

Next, Hopper asserts that the trial court erred when it granted Garner’s request for a jury trial. According to the Arkansas Constitution, “the right of trial by jury shall remain inviolate, and shall extend to ah cases at law, without regard to the amount in controversy.” Ark. Const, art. 2, § 7. The right to a trial by jury does not secure the right in all possible instances, but only in those cases that were so triable at common law. McClanahan v. Gibson, 296 Ark. 304, 756 S.W.2d 889 (1988); Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987).

Hence, the relevant inquiry is whether, Garner, as a defendant in a usurpation action, was constitutionally entitled to a jury trial. In Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887), we recognized that although there was no common law right to a jury trial in usurpation-of-office cases when the plaintiff merely requested ouster of the alleged usurper, such a right might exist if the plaintiff also made a claim for fees or emoluments. In Louisiana & Northwest R.R. Co. v. State, 75 Ark. 435, 88 S.W. 559 (1905), the plaintiff requested ouster and the return of the usurped property (the railroad franchise and the contractual rights growing out of it), and thus we found that it was entitled to a jury trial.

In his complaint, Hopper requested both the ouster of Garner from the office of city attorney, and the fees and emoluments he received while holding this office. Thus, according to Wheat and Louisiana, Garner had a constitutional right to a jury trial. In response, Hopper argues that because the parties stipulated to the amount of fees earned by Garner there was no factual issue to be resolved by the jury. Regardless of whether the amount of fees is liquidated or disputed, the jury must still decide the underlying factual issue of who is rightfully entitled to the office. Therefore, we conclude that the trial court did not err when it granted Garner his constitutional right to a jury trial in this case.

III. Jury Instructions

For his final argument on appeal, Hopper claims that the trial court improperly instructed the jury in several respects. As we have held on numerous occasions, a trial court must give a jury instruction if there is some evidence to support it. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). Thus, we must decide whether there was sufficient evidence to warrant the giving of the following jury instructions.

A. Resignation by Implication

In his first challenge to the jury instructions, Hopper asserts that the trial court erred when it gave, over his objection, the following instruction on resignation by implication:

INSTRUCTION NO. 8

It is not necessary that a resignation from a public office be couched in any particular words, it being only necessary that the person resigning evince a purpose to relinquish the office. No formal method is necessary, but the resignation may be written or oral, or it may be implied from conduct. In this regard, if you find that the plaintiff accepted an office or position which was incompatible to that of city attorney of Horseshoe Bend, Arkansas, you must find by implication that plaintiff resigned the office of city attorney of Horseshoe Bend, Arkansas.
If it is your finding that plaintiff resigned the office by accepting an office or position which was incompatible with that office, you must find that plaintiff could not withdraw his resignation.

On appeal, Hopper contends that there was no evidence that he “accepted an office or position which was incompatible to that of city attorney,” and thus the judge should not have given the instruction. We disagree with this assertion for several reasons.

First, Hopper testified that a few days after he resigned as city attorney, he agreed to represent two defendants on charges pending in the City Court of Horseshoe Bend. Although he did not appear in court or accept fees for his services, Hopper did give advice, obtain documents, make inquiries, and procure continuances on behalf of these two clients. Moreover, the court clerk testified that at one time Hopper was listed on the docket sheets as the attorney for both defendants. Finally, both defendants testified on cross-examination that Hopper acted as their attorney in the city court.

We also find that this representation was “incompatible” with being the city attorney. Hopper argues that private practice is not incompatible with being the city attorney of Horseshoe Bend because the office is only a part-time position. This argument would have merit if Hopper represented a private client in a matter outside the jurisdiction of the city court. The facts, however, suggest that Hopper represented two criminal defendants in the City Court of Horseshoe Bend. Because we find that there was evidence to support Garner’s argument that Hopper accepted a position incompatible with the office of the city attorney, we affirm the trial court’s decision to instruct the jury on resignation by implication.

B. Estoppel

Next, Hopper argues that the trial court erred when it instructed the jury on Garner’s estoppel defense. Specifically, Hopper alleges that “Garner cannot rely upon the resignation, a public record, and ignore the withdrawal of resignation, another public record.” As we have previously explained, Hopper’s November 8, 1995, letter created a genuine issue of fact as to whether Hopper’s withdrawal was conditioned upon the city council’s approval. Thus, we find no merit to Hopper’s factual challenge to this instruction.

Furthermore, Hopper fails to cite a single legal authority in support of this argument on appeal. We have repeatedly admonished appellants that we will not do their research for them, and that we will affirm when the appellant’s argument is neither supported by legal authority nor apparent without further research. Granquist v. Randolph, 326 Ark. 809, 934 S.W.2d 224 (1996); Equity Fire & Casualty Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996). Because Hopper fails to provide a factual or legal basis for reversal, we affirm the trial court’s ruling on this issue.

C. Duress

Next, Hopper argues that the trial court committed reversible error when it granted Garner’s motion for a directed verdict on the issue of duress, and refused to instruct the jury on the same. This court has previously held that the party asserting duress must

show that the duress resulted from the other party’s wrongful and oppressive conduct, and not by his own necessity. In addition, he must show that the wrongful conduct deprived him of his own free will and volition.

Cox v. McLaughlin, 315 Ark. 338, 345, 867 S.W.2d 460, 463 (1993).

During the trial, Hopper explained that he resigned only because he wanted to keep his promise to the mayor. Hopper did not contend that the mayor threatened him or did any other wrongful or oppressive act. In fact, Hopper’s desire to protect the integrity of his word was an extraordinary exercise of his free will. Hopper simply failed to present any evidence that his resignation was rendered under duress, and therefore, we affirm the trial court’s ruling.

D. Appointing Authority

As mentioned previously, the law in this state is that a city officer’s resignation is not effective, and thus may be withdrawn, until it is accepted “by the proper authority.” Rider v. City of Batesville, 220 Ark. 31, 245 S.W.2d 822 (1952). Based on this premise, Hopper argued at trial that he was the rightful city attorney for Horseshoe Bend because he withdrew his October 6, 1995, resignation before it was accepted by the proper authority.

Although Arkansas law does not designate who is the proper authority to accept a municipal officer’s resignation, other jurisdictions have held that the entity or person that has the authority to designate the resigning officer’s successor also has the authority to accept a resignation. 63A Am. Jur. 2d, Public Officers and Employees, §§ 172-74 (1984). Arkansas law provides that a vacancy in the city attorney’s office may be filled by the mayor and city council. Ark. Code Ann. § 14-42-112(a)(2) (Supp. 1995). Accordingly, Hopper requested the judge to give the following jury instruction, which parallels the statute:

when no resident attorney has been elected as municipal attorney, the mayor and the city or town council may appoint any regularly licensed attorney of this state to serve as the municipal attorney.

(Emphasis added.) The trial judge refused to give the instruction because he found that the statute was permissive instead of mandatory.

As we have previously explained, the use of the word “may” instead of “shall” indicates that the statute is permissive or discretionary rather than mandatory. Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). Thus, it may be inferred that the legislature deliberately used “may” in Ark. Code Ann. § 14-42-112(a)(2) to designate that the mayor and city council could appoint a replacement city attorney, or that the appointment could be made in some other manner. Because the statute does not require second-class cities such as Horseshoe Bend to fill a vacancy in the city attorney’s office in any particular man-tier, we find that the trial judge correctly refused to give Hopper’s proffered instruction.

Affirmed.


author: Ray Thornton, Justice. David Newbern, Justice,

text:
    Floyd JOHNSON v. STATE of Arkansas
    CR 96-1478
    944 S.W.2d 115
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      L.D. Gibson, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Floyd Johnson was convicted by a jury of the rape of a thirteen-year-old female, V.J., and sentenced by the trial court to thirty-five years’ imprisonment. Fie contends that there was insufficient evidence to support his conviction by the jury. He also contends that the court lacked the authority to fix his sentence and that it erroneously deviated from the presumptive sentencing grid when imposing his sentence. None of his arguments have merit, and we affirm his conviction.

We will address his challenge to the sufficiency of the evidence first, as this question is always considered before we decide other points for reversal. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Here, appellant was charged with raping the thirteen-year-old victim because he put his finger into her vagina. A person commits rape if he engages in deviate sexual activity with a person under fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1993). At the time of this offense, the statutory definition of deviate sexual activity was “any act of sexual gratification involving the penetration, however slight, of the vagina ... of one person by any body member ... of another person.” Ark. Code Ann. § 5-14-101(l)(B) (Repl. 1993). The jury was so instructed.

Appellant argues that the evidence was insufficient to establish the required element of vaginal penetration. We can quickly dispose of this argument. The testimony introduced by the State clearly established vaginal penetration, “however slight.” V.J. testified that she awoke on the morning in question to find appellant lying next to her with his finger placed inside of her. She testified that his finger felt like a tampon. As the State argued at trial, there is no place for a tampon to be placed other than in the vagina. V.J. testified that she was using tampons; thus, there was no question that she was familiar with how tampons feel and was competent to compare a tampon to appellant’s finger.

Evidence is substantial if reasonable minds could convict without resorting to speculation and conjecture. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). In response to appellant’s argument that V.J.’s testimony was the only evidence of vaginal penetration, we reiterate that the testimony of a rape victim alone is sufficient to sustain a conviction if it establishes all of the elements. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Reasonable minds could conclude from this victim’s testimony, without resorting to speculation or conjecture, that appellant penetrated her vagina with his finger. The proof was sufficient to sustain a conviction for rape.

Appellant next challenges the authority of the trial court to impose his sentence. The pertinent facts are as follows. The jury returned its verdict finding appellant guilty of rape, at around 5:18 p.m. Because of the lateness of the hour, the court called a recess before the jury commenced the sentencing phase. The court reconvened at 9:30 a.m. the next day for the sentencing phase. Appellant offered no testimony at the sentencing phase, and the State presented evidence that appellant had been previously convicted of rape and of sexual solicitation of a child in 1981. After hearing the evidence, the jurors retired to the jury room at 10:25 a.m.

After the jury retired, appellant’s counsel brought to the court’s attention that there had been an article in the previous day’s edition of the Jonesboro Sun regarding a sexual abuse charge against appellant, which involved another victim and which had been severed from this case. The jurors were escorted back into the courtroom at 10:35 a.m. At that time, the court asked if anyone had read the article, and one juror replied that he had. Appellant moved for a mistrial on both the guilt and sentencing phases. The court denied the motion for mistrial on the guilt phase, but found that the sentencing phase had been tainted and stated that the only remedy was for the court to impose sentence.

Appellant made a motion for new trial, in which he argued that the court did not have authority to sentence appellant because of the statutory provisions of Ark. Code Ann. § 5-4-103. He argued that the exception that allows sentencing by the trial court when the jury is unable to reach a verdict only applies to a hung jury. The court denied the motion for a new trial on the basis that the court was authorized to fix punishment when the jury was unable to agree upon the punishment because only eleven jurors remained after one was disqualified.

The trial court was correct. Section 5-4-103 of the Arkansas Code Annotated provides:

(a) If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter.
(b) Except as provided by §§ 5-4-601 — 5-4-605, 5-4-607, and 5-4-608, the court shall fix punishment as authorized by this chapter in any case where:
(1) The defendant pleads guilty to an offense; or
(2) The defendant’s guilt is tried by the court; or
(3) The jury fails to agree on punishment; or
(4) The prosecution and the defense agree that the court may fix punishment; or
(5) A jury sentence is found by the trial court or an appellate court to be in excess of the punishment authorized by law.

We have held that the trial court may only fix punishment under the specifically enumerated circumstances as set out in the statute. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). Although we have long held that the exceptions that allow sentencing by the trial court do not violate Ark. Const, art. 2, §§ 7, 10, and 21, which guarantee a defendant a right to a jury trial, Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960), the trial court’s authority to sentence is limited to the exceptions as set out in the statute.

The trial court was correct in determining that the jury could not agree. When it becomes clear that a member of the jury panel cannot be impartial in passing a sentence, the jury cannot agree. Such a situation arose in Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984), when the trial court passed sentence after the jury had unanimously agreed not to impose a sentence. The jurors informed the trial court that two members of the panel were no longer able to be impartial after one of the defense’s witnesses asserted that one of the jurors was a prostitute, and the defendant seconded her remarks. The court of appeals found that the trial court had acted within the bounds of its statutory authority under the exception that allows it to fix punishment when the jury cannot agree.

Recently, in Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997), the trial court correctly imposed sentence when the jury was deadlocked. Eleven jurors voted for a forty-year sentence, and one was holding out for a life sentence. We think that the jury in that case would similarly not have been “able to agree” had the one juror become tainted by prejudicial information, or as in Clinkscale, supra, become incapable of rendering an impartial decision. The statute authorizes the court to fix punishment after the jury has found the defendant guilty, if during the sentencing phase the jury fails to agree on punishment. Ark. Code Ann. § 5-4-103(b)(3). Here, the jury was unable to agree on punishment, and the court exercised its statutory authority to fix punishment.

Appellant’s final point is that the trial court erred in departing upward from the presumptive sentence of 312 months and imposing a sentence of 420 months. Under Ark. Code Ann. § 16-90-804, the trial court may deviate beyond a five percent range above the presumptive sentence when the following factors are present:

(d) The following is a nonexclusive list of factors which may be used as reasons for departure:
(2) Aggravating factors:
(B) The offender knew or should have that the victim was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health;
(I) The offense was a violent or sexual offense committed in the victim’s zone of privacy, e.g., his home or the curtilage there of[.]

The trial court noted that the departure was justified on account of the statutory factors quoted above; that is, the victim’s young age and the fact that the crime had been committed in the bed in her own home where she was sleeping. Appellant argues on appeal that the victim, who was thirteen at the time of the offense, was not “extremely young” within the meaning of the statute. Further, he contends that the “zone of privacy” factor does not apply because there was no showing that he broke into the home to rape the victim. Appellant was a friend of the victim’s parents, and was a guest in her home when he committed the rape.

This argument is not preserved for appeal. The abstract does not indicate that appellant objected in the trial court when his sentence was imposed, or at any point afterward. As we observed in Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996):

We have repeatedly held that, where the record reflects a total absence of any objections after the jury’s findings and sentencing are read by the court, we will not consider issues of such nature raised for the first time on appeal.

Id. at 466, 928 S.W.2d at 335.

The judgment of the trial court is affirmed.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. Arkansas Code Ann. § 5-4-103(a) confers the right of a person convicted of a felony to be sentenced by the jury that found him or her guilty. Subsection (b) of that statute states the exceptions to subsection (a) and, in other than a capital case, allows the court to fix punishment if one of several situations occurs. The majority opinion agrees that one of the expressly stated exceptions must apply in order for the court rather than the jury to determine the sentence. The exception selected by the majority in this case is (b)(3), “The jury fails to agree on punishment.”

The only authority cited by the majority opinion as being in support of applying subsection (b)(3) in this case is Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984). After a jury found Mr. Clinkscale guilty, and while the members of the jury were being polled prior to returning to the jury room for deliberation on the sentence, Mr. Clinkscale urged one of the witnesses to disrupt the proceedings by declaring that a juror was a “prostitute.” After the disruption had occurred, Mr. Clinkscale moved for a mistrial which was denied. The Trial Court admonished the jurors not to allow the disruption to affect their deliberations on the sentence. The jurors returned to the jury room but later informed the Trial Court they had voted unanimously not to pass sentence.

The Court of Appeals opinion approved the refusal to grant Mr. Clinkscale’s mistrial motion, noting that the ground for the motion had been created by the defendant. It also approved the sentencing of Mr. Clinkscale by the Trial Court as authorized by Ark. Stat. Ann. § 43-2306 (Repl. 1977), a predecessor of § 5-4-103, which allowed the judge to fix punishment when the jury-failed to agree.

In the Clinkscale case, there was deliberation by a jury but no sentence reached by it, apparently for the reason that some of the jurors realized they were irreparably affected by the defendant’s conduct. Whether or not that constituted “failure to agree,” in the sense intended by the General Assembly, it is a far cry from this case in which the jury was dismissed for tainting misconduct of a juror after having been in the jury room for ten minutes.

I thoroughly agree with all the cases cited by the majority in which there was sentencing by the court after the jury deadlocked and thus failed to agree, but again, that is precisely the instance in which subsection (b)(3) applies. Had the General Assembly wished to make an exception to jury sentencing in the event of an occasion requiring dismissal of the jury prior to its rendering a sentence, it would have said so. It did not.

I respectfully dissent.


author: Per Curiam.

text:
    Craig BURKHALTER v. STATE of Arkansas
    CR 96-278
    943 S.W.2d 604
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      Petitioner, pro se.

    No response.
   Per Curiam.

Craig Burkhalter was convicted of murder and is now serving a life imprisonment sentence in the Department of Correction. He filed a notice of appeal and has filed a petition, accompanied by an affidavit of indigency, to be allowed to appeal as an indigent appellant and for appointment of an attorney to represent him.

The petition is granted. John I. Purtle is appointed to represent Mr. Burkhalter on appeal.


text:
    Clarence MIXON v. STATE of Arkansas
    CR 97-452
    944 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered May 12, 1997

      John F. Stroud III, for appellant.
    No response.
   Per Curiam.

The appellant, Clarence Mixon, has filed a motion for rule on the clerk. His attorney, John F. Stroud III, states that the notice of appeal was filed prior to the entry of the judgment and commitment order. Thus, under rules, the notice of appeal was of no effect. See Profit v. State, 326 Ark. 825, 933 S.W.2d 392 (1996). However, because counsel does not admit fault for filing the notice of appeal prematurely, we deny the motion.

If the attorney will concede by affidavit that it was his fault that the notice of appeal was prematurely filed, or if other good cause is shown, then the motion will be granted. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). The attorney is given 30 days from issuance of this per curiam order to respond. If no response is received within that time, the motion will be treated as a request for a belated appeal and granted, and a copy of the order granting the motion will be forwarded to the Committee on Professional Conduct.

Motion denied.


author: W.H.“Dub” Arnold, Chief Justice.

text:
    Bruce MACE v. STATE of Arkansas
    CR 96-993
    944 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997
    [Petition for rehearing denied June 23, 1997.]

      Ralph M. Char, Jr., and William H. Craig, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen. and Thomas M. Carpenter, Little Rock City Att’y, by: Anthony M. Black, Asst. City Att’y, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

The appellant, Bruce Mace, was charged with driving while intoxicated, making an illegal left turn, and refusing to submit to a chemical test. He was convicted in municipal court and appealed to circuit court. After granting Mace’s motion to dismiss the refusal-to-submit charge, the circuit court found him guilty of driving while intoxicated and making an illegal left turn. Mace appeals his convictions, and the State cross-appeals the dismissal of the refusal-to-submit charge. We affirm the decision of the circuit court on direct appeal, but declare error on cross appeal.

On August 21, 1995, at approximately 3:00 a.m., Little Rock Police Officer Charles Weaver was patrolling the area of 12th, 13th, and Woodrow Streets in Little Rock. He observed Mace’s vehicle make a left turn without signaling. According to Officer Weaver, Mace’s vehicle made what he termed a “bootleg” turn, or a crossing over the centerline into the opposite lane of traffic. When Officer Weaver stopped Mace’s vehicle, he observed that Mace had extremely bloodshot eyes, was very unsteady on his feet, and had to hang on his vehicle for support. Officer Weaver administered four field sobriety tests to Mace, all of which he failed. In the officer’s opinion, Mace had been driving while intoxicated. He further observed that Mace’s passenger, Caroline Grafton, had six rock-like substances resembling crack cocaine in her hand. She was placed under arrest for possession of cocaine. Grafton told Officer Weaver that the rocks belonged to Mace.

Officer Ray Moreno arrived at the scene to assist Officer Weaver. He testified that Mace failed the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. Thereafter, Mace was transported to the Pulaski County Detention Center, where Officer Moreno advised him of his rights under the implied-consent law. Mace signed a form and marked the section indicating that he understood his rights. Officer Moreno then requested that Mace submit to a breath-alcohol-content (BAC) test. Mace agreed to take the test, which revealed no alcohol in his bloodstream. Believing that Mace was under the influence of some type of drug, Officer Moreno then requested that Mace submit to a blood test. He also gave Mace the option of taking a urine test. According to Officer Moreno, Mace did not want any tests. Because Mace refused to submit to a blood test, Officer Moreno charged him with violation of the implied-consent law.

At the close of the State’s case, the circuit court dismissed the refusal-to-submit charge, but denied Mace’s motions to dismiss the driving-while-intoxicated and improper-left-turn charges. At the close of all the evidence, Mace renewed his motions on these charges, and the motions were again denied. The circuit court found Mace guilty as charged, sentenced him to one day in jail with credit for one day served, suspended his driving privileges for ninety days, ordered that he complete an approved alcohol treatment program, and fined him $150.00. For making an improper left turn, the circuit court fined Mace $50.00.

Sufficiency of the evidence

The general rule with respect to sufficiency of the evidence is:

The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993); Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992).

A person can be found guilty of driving while intoxicated if he or she (1) operates a motor vehicle while intoxicated; or (2) operates a motor vehicle while having a blood-alcohol content of .10 percent or more. Ark. Code Ann. § 5-65-103(a) and (b) (Repl. 1993). The term “intoxicated” as used in the DWI offense includes being “influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof.” See Ark. Code Ann. § 5-65-102(1) (Repl. 1994). A DWI conviction is not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication. State v. Johnson, 326 Ark. 189, 931 S.W.2d 760 (1996); Tauber v. State, 324 Ark. 47, 919 S.W.2d 196 (1996).

In this case, Mace asserts that the State failed to prove an essential element of the DWI offense — that his driving skills were impaired as a result of ingestion of a controlled substance. However, both Officers Weaver and Moreno testified that, in their opinions, Mace was intoxicated. Opinion testimony regarding intoxication is admissible. State v. Johnson, supra; Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Particularly, Officer Weaver observed that Mace had extremely bloodshot eyes, was very unsteady on his feet, and had to hang on his vehicle for support.

In support of his argument that the evidence was insufficient to support his conviction for driving while intoxicated, Mace relies on the court of appeals’s decision in Roach v. State, 30 Ark. App. 119, 783 S.W.2d 376 (1990). In that case, the court of appeals held that the State failed to show that Roach was driving under the influence of a controlled substance due to the absence of any showing that an empty bottle of prescription pills in Roach’s car contained a controlled substance. The facts in the present case are easily distinguishable from those in Roach. Here, we have substantial evidence gleaned from field sobriety tests, whereas no tests were performed in Roach.

In the present case, there was testimony that Mace failed all four of the field sobriety tests that were administered to him. During the eye-gaze nystagmus test, Mace could not follow a moving object smoothly with either eye. According to Officer Weaver, Mace had nystagmus prior to and beyond 45 degrees in both eyes. His pupils were also dilated.

During the walk-and-turn test, Mace could not keep his balance and had to grab his vehicle for support. He attempted to begin the test before the instructions were finished. He stopped twice to steady himself while walking, and, rather than walking heel to toe as instructed, took extremely long steps. Although he was told to keep his arms at his sides at all times during the test, Mace used them for balance. He stepped off the line four times, and took an incorrect number of steps down and back.

Mace was also administered the one-leg-stand test. During this test, he swayed while trying to balance himself and had to put his foot down on three occasions. The finger-count test was administered to Mace a total of five times. He failed each test. In sum, the officers’ observations constitute competent evidence supporting the DWI charge. State v. Johnson, supra; Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992).

Mace was also convicted for making an improper left turn in violation of Little Rock City Ordinance § 32-271. Officer Weaver testified that he observed Mace’s vehicle make a left turn without signaling and watched as the vehicle crossed over the centerline into the opposite lane of traffic when making the left turn. Section 32-371(2) provides that:

The approach for a left turn shall be made in that portion of the right half of the roadway nearest the centerline of the road. After entering the intersection, the left turn shall be made so as to leave the intersection to the right of the centerline of the roadway being entered.

In this case, Officer Weaver’s testimony establishes that Mace violated this section. Instead of leaving the intersection to the right of the centerline of the roadway being entered, Mace’s vehicle crossed over the centerline into the oncoming lane of traffic. Thus, the evidence was substantial and supported the conviction for violating the city ordinance.

Expert witness

Next, Mace argues that the circuit court erred in qualifying Officer Moreno as a drug-recognition expert. Arkansas Rule of Evidence 702 governs the testimony of experts:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Whether a witness qualifies as an expert is a matter within the trial court’s discretion, and we will not reverse the trial court’s decision absent an abuse of that discretion. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). If some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id.

Officer Moreno testified that he had attended a drug-recognition-expert school from August through December of 1995, as well as six field sobriety training schools. Having been previously recognized by the circuit court as a drug-recognition expert, Officer Moreno testified that he had recently been trained as a drug-recognition instructor. The circuit court determined that Officer Moreno possessed specialized knowledge that would assist in determining a fact in issue — whether Mace was intoxicated.

Prior to Officer Moreno’s qualification as an expert, Mace conducted a voir dire examination of his qualifications. Officer Moreno testified that he was trained to determine which of the seven categories of drugs under which a person may be influenced. These categories included central nervous system depressants, central nervous system stimulants, narcotic analgesics, POP, inhalants, and cannabis. Mace questioned Officer Moreno regarding the effects of caffeine and Benadryl. At the conclusion of voir dire, Mace complained that Moreno “could not explain what reactions are caused by what intoxicants.”

The circuit court specifically stated that it was qualifying Officer Moreno as an expert for a narrow purpose — whether Mace was impaired because of some kind of intoxicant. We agree that Officer Moreno’s specialized training and knowledge aided the circuit court in determining this fact in issue. In sum, Mace has failed to demonstrate the circuit court abused its discretion in qualifying Officer Moreno as a drug-recognition expert.

Refusal to submit

In its cross-appeal, the State contends that the trial judge erred in granting Mace’s motion to dismiss the charge of refusing to submit to a chemical test. At the time of Mace’s arrest, the applicable statutes containing Arkansas’s implied-consent and refusal-to-submit laws were as follows:

(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of § 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.

Ark. Code Ann. § 5-65-202 (Repl. 1993) (emphasis added).

The chemical test or tests shall be administered at the direction of a law enforcement officer having reasonable cause to believe the person to have been operating or in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood.
If any person shall object to the taking of his blood for a test, as authorized herein, the breath or urine of the person may be used to make the analysis.

Ark. Code Ann. § 5-65-203 (a) and (b)(2) (Repl. 1993).

If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to . . . [suspend or revoke the operator’s license].

Ark. Code Ann. § 5-65-205 (c) (Repl. 1993) (emphasis5-65205(c)] added).

After Mace was arrested, he consented to a breathalyzer test, which revealed no alcohol in his bloodstream. Thereafter, Officer Weaver attempted to administer a blood test in order to try to detect what he believed to be the presence of a controlled substance in Mace’s bloodstream. Because Mace refused to submit to a blood test, Officer Moreno charged him with violation of the implied-consent law. The State asserts that Mace’s refusal to take a blood test constituted substantial evidence of a violation of the implied-consent law. Mace contends that Officer Moreno should have requested that he submit to a urine test, and that, under § 5-65-203 (b)(2), he could properly refuse to take a blood test without penalty. The Court of Appeals certified this case for us to determine whether a law enforcement officer must first request an operator who refuses a blood test to submit to an alternative test before the operator may be found guilty for refusing to submit to a chemical test. See Ark. Sup. Ct. R. l-2(a)(17)(vi) and (d).

We need not decide this question because we conclude, after reviewing the testimony, that Officer Moreno offered Mace both a blood and urine test. While the officer selected a blood test, he gave Mace the option of taking a urine test. According to Officer Moreno’s testimony, which Mace did not contradict, Mace refused any further testing after submitting to the breathalyzer test. The following passage is instructive:

COUNSEL FOR MACE: And he refused to consent to the drawing of the blood?
OFFICER MORENO: Yes.
COUNSEL FOR MACE: At that point you charged him with refusing the test?
OFFICER MORENO: Correct.
COUNSEL FOR MACE: You didn’t ask him for a urine test?
OFFICER MORENO: No, sir. I gave him an option of taking (a) urine test. But he refused.
COUNSEL FOR MACE: As an independent test?
OFFICER MORENO: That’s correct.
COUNSEL FOR MACE: He didn’t want the independent test? OFFICER MORENO: No. He didn’t want any test. COUNSEL FOR MACE: But the only test you asked him to take that he refused was drawing the blood?
OFFICER MORENO: That’s correct.
COUNSEL FOR MACE: That is the only basis for you charging him with refusing the test?
OFFICER MORENO: That’s correct.

(Emphasis added). While it is true that Officer Moreno requested that Mace take a blood test, it is clear to us that he also gave Mace the option of submitting to a urine test. Under these circumstances, we must conclude that the State’s proof constituted sufficient evidence of a refusal-to-submit violation. Due to the circuit court’s dismissal of the refusal-to-submit charge in Mace’s favor, his double-jeopardy rights prevent a retrial for this offense. See State v. Johnson, supra; State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). Thus, we can only declare error.

Affirmed on direct appeal; error declared on cross appeal.

       Recently, in Medlock v. State, 328 Ark. 229, 942 S.W.2d 861 (1997), we held that, to the extent that § 5-65-205(c) prevents a defendant from having a jury determine whether he or she is guilty of refusing to submit to a chemical test, the statutory provision unconstitutionally infringes upon the right to jury trial under the Arkansas Constitution. Because this issue was not raised in this case, we do not address it.


text:
    PULASKI COUNTY CHILD SUPPORT ENFORCEMENT UNIT v. Orville S. NOREM, Jr.
    97-132
    944 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered May 19, 1997
    [P etition for rehearing denied June 9, 1997.]

      Diane Sexton, for appellant.
    No response.
   Tom Glaze, Justice.

The appellant Pulaski County Child Support Enforcement Unit brings this appeal requesting us to interpret the Uniform Interstate Family Support Act (UIFSA) and to enforce a North Dakota trial court’s judgment which increased appellee Orville S. Norem, Jr.’s child-support payment. In particular, appellant claims the Arkansas chancery judge exceeded his authority under Ark. Code Ann. § 9-17-607(b) (Repl. 1993) by issuing an order which effectively stayed a North Dakota child-support order and improperly established child support in an amount different from that set out in the North Dakota court’s judgment. In arguing the North Dakota court’s child-support order should be enforced as registered in this state, appellant also urges on appeal that the Arkansas chancellor was required to recognize the North Dakota court’s authority to impute “house-spouse income” against Norem based upon his former occupation as a truck driver, since Norem claims he is unemployed.

Unfortunately, appellant presents us with a two-page abstract that fails to reflect, as it must, that the legal arguments now made on appeal were ever argued to or ruled on by the chancellor. See Dolphin v. Wilson, 328 Ark. 1, 939 S.W.2d 863 (1997). In fact, the chancellor’s order with findings also has not been abstracted, so that the members of this court might determine exactly how the chancellor decided this case. This court has frequently noted that the basic pleadings and the judgment or decree appealed from are ordinarily essential constituents of the abstract. Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). In addition, this court has stated that all relevant orders entered by the trial judge are to be abstracted. Id.

Because appellant failed to abstract the trial court’s order appealed from or show that it presented its legal arguments below, we affirm.

       The record reflects only appellant’s request that it wanted the trial court’s ruling “on the amount of support Mr. Norem is to pay,” and reveals no objection that the chancellor’s order effectively stayed the North Dakota judgment or the chancellor’s decision violated § 9-17-607(b).