text:
    Daniel J. WOODEND v. SOUTHLAND RACING CORPORATION
    99-63
    989 S.W.2d 505
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Clifford M. Cole, for appellant.

      Wright, Lindsey & Jennings, by: John G. Lile and Jane M. Faulkner, for appellee.
   Tom Glaze, Justice.

Appellant Daniel J. Woodend has been a patron of appellee Southland Racing Corporation for nineteen years. He is an experienced bettor who, by his own admission, has gambled around a half-million dollars at Southland over the past ten years. On September 27, 1997, Woodend placed a pari-mutuel “twin-trifecta” wager. A “twintrifecta” is a bet where the bettor selects three dogs to finish first, second, and third in exact order in the fourth race. If successful, the bettor then receives an “exchange ticket” or free bet in the sixth race; to win, he must again select three dogs to finish first, second, and third in exact order. If the bettor picks the three dogs in exact order in race six, the bettor wins the Twin-Tri carryover jackpot. If no bettor successfully chooses the foregoing exact winning combinations, a consolation payoff may still be won under the Arkansas Racing Commission’s Rule 3158(P) which reads as follows:

In the event there is no Twin-Tri exchange ticket accurately selecting the officially declared first three finishers of the second Twin-Tri race, in exact order, payoffs shall be made in the following order of priority: ■
1. The first and second finishers in exact order, for example 1-2-ALL
2. The first and third finishers in exact order, for example 1-ALL-3
3. The second and third finishers in exact order, for example, ALL-2-3
4. The winner to win, for example 1-ALL-ALL. (Emphasis added.)

In the instant case, Woodend and some other bettors picked the winning three dogs in exact order in the fourth race, but failed to choose the exact winning combination in race six. In race six, Woodend picked dogs 3 to win, 8 to place, and 6 to show. Dog 3 won, but dogs 4 and 2 placed and showed. Under Rule 3158(P) item 4, Woodend could have won the consolation payoff, but only if no bettors had successful combinations under the priority combinations set out above in items 1, 2, or 3 of the Rule. Unfortunately for Woodend, two other bettors picked dogs 4 and 2 as the second and third finishers in the second half of the “twin trifecta,” so those two bettors were declared winners of the consolation payoff under item 3 of the Rule. Each of those two bettors received the amount of $8,557.10.

Woodend sued Southland, claiming he held the winning ticket for the consolation payoff because the official racing program contained language regarding the Twin-Tri that differed from the language in Rule 3158(P). He contends his Twin-Tri ticket was the winning one as described in the official program. The program language on which Woodend relies reads as follows:

MANDATORY TRI-SUPER, TWIN-TRI and GROWING TRI-SUPER PAYOUTS
The MANDATORY TWIN-TRI is designated for pay out EVERY SATURDAY Evening. The MANDATORY TRI-SUPER is designated for pay out EVERY THURSDAY Evening. In the event that the 2nd Half of either of these bets is not hit EXACTLY on the designated pay out day, payoffs shall be made on tickets selecting in the following order of priority: A. The first three greyhounds in exact order, for example 1-2-3-ALL B. The first two greyhounds, in exact order, for example 1-2-ALL-ALL C. The winner to win, for example 1-ALL-ALL-ALL.

At trial, Woodend argued that the above language was contractual and controlled what the winning selection or bet should be in either the Twin-Tri or Tri-Super when the consolation payoff was at stake. Southland countered, stating the express language in the program described only the Tri-Super consolation payoff because the wording in the program required the bettor to select four dogs, not three as required in the Twin-Tri. The trial court held in Southland’s favor, but in doing so, it did not adopt South-land’s argument. Instead, the court granted Southland summary judgment, finding that the wager described in the official program was not authorized by the Arkansas Racing Commission, was illegal and void as against public policy, and was unenforceable.

On appeal, Woodend raises the following three points for reversal: (1) his twin-trifecta wager and alleged winning ticket constituted a contract between him and Southland, and a “valid” issue of fact exists as to whether he is entitled to recover on the contract; (2) Southland, by its language contained and published in the official program set out above, fraudulently misrepresented the payoff directions for the twin-trifecta wager; and (3) Southland violated Woodend’s due-process rights because it did not communicate the Twin-Tri rules to the public as required by the Commission’s regulations, and Southland also failed to designate those rules correctly in the official program. He also argues, without citation of authority and virtually no argument, that his due-process rights are denied because the public has no recourse against race tracks for taking illegal wagers.

Our court accepted jurisdiction of this appeal because it presents an issue of first impression and an issue needing clarification or development of the law. Ark. Sup. Ct. R. 1-2(b).

First, we must decline to reach Woodend’s due-process arguments because they were not presented to the trial court below. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Thus, we address only Woodend’s contract and fraud claims, which we hold are meritless.

We first consider the contract argument. Under Ark. Code Ann. § 23-111-204 (Repl. 1992), the Racing Commission has the full, complete, and sole power and authority to promulgate rules, regulations, and orders, and to prescribe conditions under which greyhound racing shall be conducted by a franchise holder. As previously discussed, the Commission adopted Rule 3158(P), and under the terms of that Rule, we observe that Woodend lost because two other bettors chose dogs that finished as described in priority item 3 — which immediately appears before item 4, Woodend’s dog selections.

In sum, the Commission’s rules governing twintrifecta wagering provide that each purchaser making such a wager agrees to be bound by the rules and regulations of the Commission and the laws of Arkansas pertaining to parimutuel wagering. It is also well settled that the law in effect at the time a contract is made forms a part of the contract as if it had been expressed in the contract. Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989). Here, even if Woodend is correct in claiming his wager constituted a contract, it is of no import because he held no winning ticket under any interpretation of Arkansas’ statutes, regulations, or rules. Woodend even conceded at trial that he understood the Commission sets the rules on how the twintrifecta wager is to payout, and under Rule 3158(P), he did not win the bet.

Woodend continues his argument by urging that Southland committed fraud when it misstated in its official program the Twin-Tri payoff instructions as they appeared in Rule 3158(P). Stated differently, he asserts that Southland’s misstatement in the program, attributing the same payoff directions for either the Twin-Tri or Tri-Super bets, constituted a fraud and deception on the public and entitled Woodend to punitive damages. This argument, too, must fail.

To plead a cause of action for fraud, a plaintiff must prove the existence of the following elements: (1) a false representation, usually of a material fact, (2) knowledge or belief by the defendant that the representation is false, (3) intent to induce reliance on the part of the plaintiff, (4) justifiable reliance by the plaintiff, and (5) resulting damage to the plaintiff. Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998). Moreover, to be well pleaded, fraud must be specifically alleged and the complaint must state something more than mere conclusions and must clearly set forth the facts relied upon as constituting fraud. Id. In the instant case, Woodend alleged in his complaint what he purported to be a misrepresentation by Southland in its official program, but he never factually alleged that Southland knew or believed it had made a misrepresentation of fact, that Southland intended Woodend to rely on such misstatement, or that Woodend justifiably relied on any misrepresentation. For these reasons, Woodend’s fraud claim must fail.

Woodend’s claim of fraud must also fail because, at the least, his proof fell short of showing any justifiable reliance on his part. Once again, Woodend knew Southland was required to make the payoffs in accordance with the Commission’s rules, and he had won a Twin-Tri wager under the consolation rules just a year prior to the one in issue here. Furthermore, Woodend admitted he only glanced through the official program and did not read and study it. Nor did Woodend show he was damaged by any misrepresentation since he concedes he was not entitled to recover under the Commission regulations or Rule 3158(P), which established the winning combinations for Twin-Tri wagers.

In conclusion, we repeat that the trial court granted Southland’s summary judgment based on the fact that the payoff in the Twin-Tri bet here was unauthorized and an illegal wager unenforceable under Ark. Code Ann. § 16-118-103 (1987). Our holding, of course, is based on Woodend’s failure to show any contractual or misrepresentation claim, and in so holding, we further conclude Rule 3158(P) is legal and controlling in this case. Consequently, we affirm the result reached by the trial court, but solely for the reasons stated above.

       “ALL” is a term of art meaning any entrant in the race. Thus, it is the equivalent of a “wild card.”


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Benjamin S. McFARLAND v. STATE of Arkansas
    CR 98-404
    989 S.W.2d 899
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Christopher Carter, Marion County Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Benjamin McFarland, was convicted of capital murder and kidnapping and sentenced to life imprisonment without parole and life imprisonment, respectively. In the summer of 1996, McFarland (age 17) was part of a group of friends who stayed together at a house at 1123 North Spring Street in Harrison. The residence was rented by Robert Diemert (age 27), who had lost his job and allowed Jason McGehee (age 21), the leader of the group, to take over the premises. The members of the group, who were in their teens and early twenties, lived by cashing stolen and forged checks. They included McFarland, McGehee, Christopher Epps (age 19), Candace Campbell (age 17), Anthony Page, and John Melbourne, Jr. (age 15).

On August 19, 1996, McGehee sent Melbourne into Harrison to cash a stolen check. Melbourne went to Cooper Shoes, which is on the square, and was told that the check was not correctly filled out. Melbourne returned later that day with Anthony Page and was able to cash the check and purchase a pair of shoes. The manager of the store was suspicious of the two and called the bank. When he discovered the check was stolen, he called the Harrison Police Department. While the police officers were at the store, they saw Melbourne across the street and stopped him for questioning. Melbourne told the officers about the stolen checks and other stolen property that could be found at or near the house on North Spring Street. He was released into his father’s custody.

The police officers went to the residence. McGehee, Campbell, Epps, and McFarland saw them and hid in the back of the house. They were able, however, to observe the officers as they searched and found the stolen property and concluded that Melbourne, who had not returned, must have “snitched” to the police officers. Later that day, McFarland and Epps saw Melbourne in town and asked him to stop by the house. He did and was immediately set upon by McGehee and Epps. He was beaten by the group, including McFarland, for the next one and one-half to two' hours. Later that evening, McGehee decided they all should go to Utah, where he had some relatives — presumably in order to avoid arrest for the stolen and forged checks. Melbourne’s hands were bound, and he, along with Epps, McFarland, McGehee, Campbell, and Diemert, left for Utah in Diemert’s car.

Campbell and Diemert testified at McFarland’s trial that during the trip someone asked Melbourne how it felt to know he was going to die. Campbell testified that it was either Epps or McFarland, while Diemert testified it was McGehee. The group traveled to an abandoned house in Omaha, Arkansas. They entered the house and again began to beat Melbourne. The testimony established that everyone there participated in the beating at varying levels. At one point, Melbourne tried to escape but only made it to the kitchen before he was caught by McGehee, Epps, and McFarland. There was testimony that McGehee hit Melbourne’s head with a box fan and that others hit him with sticks and burned him with a candle wick. This beating lasted approximately an hour. After the beating, McGehee, Epps, and McFarland took Melbourne out behind the house and walked down a trail into a wooded area. Campbell and Diemert stayed in Diemert’s car.

Epps, McFarland, and McGehee took turns strangling Melbourne until he died. In a statement made to Arkansas authorities, McFarland admitted that he was the one strangling Melbourne with an orange cord when he expired. The group then drove to Utah. On the way, they left Epps in Tulsa because he was “whining,” according to McFarland. When they arrived in Utah, they burglarized McGehee’s aunt’s house in Elmo, taking a checkbook and her automobile. Diemert left the group while they were burglarizing the house and returned to Arkansas in his car. On August 27, 1996, the remaining three, McGehee, Campbell, and McFarland, were arrested in Provo, Utah. They had used a stolen check to pay for a hotel room and were driving the stolen vehicle. McGehee was placed in an adult facility, and Campbell and McFarland were taken to a juvenile detention facility.

On August 30, 1996, Candace Campbell talked with her mother and told her about Melbourne’s murder. Later that day, Campbell called the Harrison Police Department and told the police officers where to find the body and the circumstances surrounding the death. On the evening of September 3, 1996, the police officers found the body approximately 150 yards behind the abandoned house in Omaha. On September 5, 1996, Arkansas law enforcement officers, including Detective Marc Arnold of the Harrison Police Department, flew to Provo, Utah, to interview Campbell and McFarland. After speaking with Campbell, they interviewed McFarland at 1:30 p.m. They initially read him his Miranda rights, and McFarland executed a standard waiver form. He further said that he understood his Miranda rights. When the police officers began questioning him about the Melbourne case, McFarland asked if he could speak with an attorney. The police officers ceased their questioning but asked him if he had contacted his family and who his attorney was. McFarland answered that he had spoken with his family but that he did not have an attorney.

Later that same day, at approximately 4 p.m., one of the jailer staff contacted Detective Marc Arnold and told him that McFarland wanted to speak with him again. Detective Arnold, accompanied by an officer with the Provo Police Department, first verified that McFarland wanted to initiate the interview. Fie read him his Miranda rights a second time, and McFarland again executed a waiver form. Detective Arnold testified that McFarland told him that he had spoken with his mother, who urged him to tell the truth. In response to McFarland’s inquiry, the detective told him he was probably looking at a capital murder charge. McFarland admitted to beating Melbourne because he had “snitched” and said that he was strangling Melbourne when he died:

So three of us went out there and next thing I knew was just everybody was getting enraged. . . . Then we went out there and just I don’t know the mentality switched for all three of us. One thing led to another and he was strangled. . . . Who actually did it? Well all three of us strangled him at separate times. Are you saying when he finally lost his fife, who was strangling him? Me.

McFarland was charged with capital murder and kidnapping and extradited to Arkansas. Before trial, McFarland’s counsel moved to suppress the statement, arguing that McFarland was held for six days in Utah before being brought before a judge (he argues nine days on appeal) and that but for the delay, McFarland might have been afforded counsel before being interviewed by the Arkansas authorities. McFarland was found guilty on both counts and sentenced to life without parole for the capital murder charge and life in prison for kidnapping.

I. Sufficiency of the Evidence

McFarland’s first argument is that the trial court erred in refusing to direct a verdict in his favor on both the capital murder and kidnapping charges due to the absence of substantial evidence. He contends that a directed verdict was proper for the capital murder count because the State failed to prove that he acted with a premeditated and deliberate purpose in the murder. He also claims that with regard to the kidnapping charge, the State did not prove that Melbourne was restrained involuntarily.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. See Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999); Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996). When reviewing the sufficiency of the evidence on appeal, this court does not reweigh the evidence but determines instead whether the evidence supporting the verdict is substantial. See Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Substantial evidence is defined as direct or circumstantial evidence that is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. See Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). In determining whether there is substantial evidence, this court reviews the evidence in the light most favorable to the State. See Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Only evidence supporting the verdict is considered. See Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

A person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person” he causes the death of any person. See Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997). McFarland urges that the State failed to show that he acted with a premeditated and deliberate purpose and, thus, a directed verdict in his favor was proper. He emphasizes that Jason McGehee led the group and decided what would be done.

Because intent can rarely be proved by direct evidence, a jury may infer premeditation and deliberation from circumstantial evidence such as the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. See Lever v. State, 333 Ark. 377, 971 S.W.2d 762 (1998); Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). The necessary premeditation and deliberation is not required to exist for a particular length of time and may be formed in an instant. See Lever v. State, supra; Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).

Contrary to McFarland’s assertion, there is sufficient evidence of McFarland’s premeditation and deliberation. On the way to Omaha, the question was asked Melbourne, either by McFarland or in McFarland’s presence: How does it feel to know you’re going to die? His death was the culmination of two prolonged beatings and torture. McGehee, Epps, and McFarland led Melbourne out to the back of the house in Omaha and were there for forty-five minutes, taking turns strangling him. An orange cord was used by McFarland to finally kill Melbourne. One can infer premeditation from the method of death itself— strangulation. See, e.g., Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997) (jury could infer the defendant’s purpose in causing the victim’s death from the blunt-force injuries to the head and evidence of strangulation). Additionally, McFarland was asked when giving his statement: “When you took him out there did you think you might wind up killing him?” He answered: “The thought had crossed my mind a couple of times that that’s what might happen.” He also stated that the first time he thought about it was on the way to Omaha. McFarland said that the three participants had become enraged and that he was angry because Melbourne had implicated him in a crime he had not committed. Robert Diemert testified that the three young men came back from the woods laughing. In sum, there is substantial evidence of Melbourne’s premeditated and deliberate intent to commit capital murder.

Regarding the kidnapping, Melbourne contends that the State failed to prove that Melbourne was transported or restrained without his consent. Kidnapping requires the restraint of another:

(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him; or
(5) Terrorizing him or another person.

Ark. Code Ann. § 5-11-102 (Repl. 1997).

This court has held that this statute speaks in terms of restraint and not removal. See Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Hence, the statute reaches a greater variety of conduct because restraint can be accomplished without removal. See Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). Here, there are several different acts that constitute kidnapping — forcing Melbourne to stay in the North Spring Street house during the beating in Harrison, removing him to Omaha with hands tied, and preventing him from leaving the house in Omaha. It is true that Melbourne did come to the house on North Spring Street voluntarily, but the evidence established that his hands were bound at the house in Harrison, during the trip to Omaha, and in the house at Omaha.

McFarland relies on the fact that Diemert testified that he thought Melbourne came on the Utah trip voluntarily. Diemert, however, did not realize that his hands were bound until the group got out of the car in Omaha. Regardless of that testimony, Diemert did acknowledge that Melbourne was restrained, and we view the evidence in favor of the State. The trial court did not err in refusing to direct a verdict on either charge.

II. Lesser Included Offense

At trial, McFarland asked the trial court to instruct the jury on first-degree felony murder, based on AMCI 1502, as follows:

To sustain this charge the State must prove the following things beyond a reasonable doubt:
First: That Ben McFarland, acting alone or with one or more other persons, committed kidnapping, and
Second: That in the course of and in furtherance of that crime, Ben McFarland or a person acting with him, caused the death of John Melbourne, Jr. under circumstances manifesting extreme indifference to the value of human life.

The trial court declined to give the instruction, and McFarland asserts that this was error.

McFarland is correct that when evidence at trial warrants instructions on lesser included offenses, the instructions must be given. See Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Nevertheless, in this case McFarland was charged with capital murder based on premeditation and deliberation and not capital felony murder. Purposeful first-degree murder under § 5-10-102(a)(2) is a lesser-included offense of premeditated capital murder. See Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992). First-degree felony murder is not. See id. McFarland did not request an instruction on purposeful first-degree murder. As we said in Allen v. State:

Under the capital murder statute, Ark. Code Ann. 5-10-101 (Supp. 1991), there are two types of capital murder. One is the premeditated and deliberate killing of a person, and the other is the killing of a person in the course of one of several enumerated felonies. Appellant was charged only with premeditated and deliberate capital murder. This kind of premeditated capital murder charge includes the lesser charge of purposeful first degree murder. Appellant was not charged with the other kind of capital murder, often termed felony-murder.

310 Ark. at 385, 838 S.W.2d at 346. Stated simply, first-degree felony murder is not a lesser included offense of premeditated and deliberate capital murder.

Moreover, the Arkansas Constitution reserves the duty of charging an accused to the prosecutor or the grand jury. See Ark. Const. amend. 21 § 1. McFarland was not charged with capital felony murder or first-degree felony murder. The Arkansas Constitution would be violated if the trial court, in effect, amended a criminal information by instructing the jury on an uncharged offense. See Renfro v. State, 331 Ark. 253, 962 S.W.2d 745 (1998). There was no abuse of discretion by the trial court in refusing to instruct the jury on first-degree felony murder.

III. Failure to Suppress the Statement

The facts leading up to McFarland’s statement are these. On August 27, 1996, he was taken into custody in Utah, solely on Utah charges — hot checks, burglary, and theft of a vehicle. On August 30, 1996, Arkansas authorities got a phone tip from Candace Campbell, who was in the juvenile facility in Utah, that McFarland and others were involved in Melbourne’s murder. On September 3, 1996, they confirmed the murder when they found Melbourne’s body in Omaha. On September 5, 1996, the Arkansas law enforcement officers flew to Utah and interviewed McFarland. As soon as he asked for an attorney, they stopped questioning him. A few hours later, McFarland initiated the questioning himself, asking if he could speak with Detective Arnold. At both interviews, he signed a valid rights form. Both interviews were recorded, and there is no evidence that his statements were anything but voluntary. The tape of the second interview was read to the jury at trial and contained his confession of the crime.

McFarland argues now, as he did before the trial court, that his statement should be suppressed because he was not promptly taken before a judge in Utah. He argues that at the time he was questioned, he had been confined in the juvenile facility in Utah for nine days without being brought before a judge and that because of this delay, he did not have counsel. Had he had appointed counsel, he contends that he would not have confessed to the Arkansas police officers.

In denying his suppression motion, the trial court observed that McFarland was sufficiendy advised of his rights, made a knowing waiver of those rights, and initiated the second interview with police officers. Furthermore, the trial court emphasized that there was nothing in the record to show when McFarland was brought before a judge on the Utah charges and what actions transpired. Without a sufficient record on this point, the trial court stated that it could make no decision regarding it.

We agree with the trial court. When an accused is in custody, any statement made is presumed involuntary, and the burden is on the State to prove by a preponderance of the evidence (1) voluntariness, and (2) that the statement was knowingly and intelligently made. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). McFarland cites his age, tenth-grade education, lack of family in Utah, and emotional mental state as factors militating against a knowing waiver of Miranda rights and a voluntary statement. In such cases, we look to the totality of the circumstances. See Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). In the instant case, we are convinced that McFarland, who was Mirandized twice, fully understood his rights and knowingly waived them. Indeed, at one point he exercised his right to counsel. We conclude that the State met its burden. Furthermore, after asking for counsel in the first interview, McFarland initiated contact with the police officers, which led to his confession. Under these circumstances, the United States Supreme Court as well as this court have held that the confession is voluntary. See Michigan v. Jackson, 475 U.S. 625 (1986); Edwards v. Arizona, 451 U.S. 477 (1981); Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995).

It is the appellant’s burden to produce a record exhibiting prejudicial error. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). And we will not consider an argument where the appellant presents no citation to authority, makes no convincing argument in support of his allegation of error, and it is not apparent without further research that the argument is well-taken. See Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In this case, McFarland failed to put forth any evidence that his constitutional rights were violated in Utah. Indeed, Campbell testified that she and McFarland were both taken before a judge in Utah a couple of days after their arrest. It would have been a simple matter for defense counsel to obtain some kind of official record of his appearance, or lack thereof, before a judicial officer. Moreover, the United States Supreme Court has made it clear that it is only when there is a working arrangement or collaboration between two separate jurisdictions, whether federal and state or state and sister state, to perpetuate abuses such as delay in the appointment of counsel which led to a confession that suppression may be appropriate. See Anderson v. United States, 318 U.S. 350 (1943); United States v. Rose, 526 F.2d 745 (8th Cir. 1975), cert. denied, 425 U.S. 905 (1976).

The case of Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989) is instructive on this point. In Branscomb, a defendant claimed there was unnecessary delay in taking him before a magistrate in Chicago, Illinois, which had an impact on his subsequent confession in Lee County. Branscomb was arrested there on September 27, 1986, and remained incarcerated until December 11, 1986, when a Lee County deputy sheriff brought him back to Arkansas. Except for the defendant’s own testimony, the trial court had no information about what happened in Chicago between those dates. The trial court refused to consider the delay after his arrest in Chicago and his transportation to Arkansas, noting that it had no idea what caused the delay in Chicago. In reviewing the decision, we concluded: “We can hardly attribute it [the delay] to an attempt by the state to gain a tactical advantage over Larry (the defendant).” Similarly, in the instant case, we have no idea what happened in Utah between the time McFarland was arrested and when he was interviewed by Arkansas police officers.

Without the facts of what occurred in Utah and evidence that Arkansas authorities somehow prolonged McFarland’s ability to have counsel appointed for him, we will not suppress a statement. None of that has been provided us in this case, and we affirm the trial court’s decision not to suppress.

IV. International Covenant on Human and Civil Rights

McFarland also raises the novel defense that the United States has signed the International Covenant on Civil and Political Rights, which provides that the death penalty shall not be imposed on persons below age eighteen years. This argument is meritless. First, the treaty signed by the president provides that persons under age eighteen may be sentenced to death. But even more to the point, the issue is moot. McFarland did not receive the death penalty.

An issue becomes moot if the judgment will have no practical effect on the litigant, and, therefore, the decision on the issue is advisory only. See Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). Questions related to the imposition of the death penalty become moot when the death penalty is not imposed. See Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996); Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). Hence, we give this argument no credence.

V. Doyle Violation

McFarland’s final argument is that the trial court erred in refusing to grant a mistrial when Captain Kyle Wolfe, an investigator with the Boone County Sheriffs office, testified that McFarland asked for counsel during his interrogation. He argues that this violated his due process rights because the State used his post-arrest silence for impeachment purposes. See Doyle v. Ohio, 426 U.S. 610 (1976). During direct examination, this colloquy ensued:

Prosecutor: And did you ask him if he knew — basically, if he knew what had happened to John Melbourne or anything about him in recent days?
Wolfe: Yes. And he said something to the effect that he had left that morning and that’s the last he had seen of him.
Prosecutor: He didn’t acknowledge in that, then, any knowledge of John Melbourne or anything that had happened to John?
Wolfe: No, sir, he did not.
Prosecutor: Essentially, that was a very short interview at that point. Is that correct?
Wolfe: Yes, it was.
Prosecutor: And you all concluded that interview?
Wolfe: Yes, sir. I advised him that I didn’t believe him, and he said that he wanted to see his attorney, so I just —■
Prosecutor: Okay. And you stopped the interview at that point?
Wolfe: I stopped.

McFarland’s counsel moved for a mistrial because of the reference to the request for counsel, and the trial court denied the motion. On cross-examination, the appellant’s counsel tried to establish that McFarland had been truthful in his statement. On redirect, the prosecutor asked:

Prosecutor: At that point in the discussion, you felt he wasn’t being truthful?
Wolfe: That’s correct.
Prosecutor: And that’s when you told him you didn’t think he was being truthful with you, and that’s when the conversation ended.
Wolfe: That’s correct. He asked for an attorney and I told him it was his prerogative.
Prosecutor: And that ended the conversation.
Wolfe: That’s correct.

McFarland’s counsel renewed his mistrial motion concerning the reference to the attorney, which was again denied. No request for a curative instruction or admonition was made by defense counsel.

The State maintains in this appeal that the prosecutor had no intention of impeaching McFarland with his silence but instead wanted to establish his truthfulness because it had McFarland’s confession. Furthermore, the State contends that it did not solicit the testimony from Captain Wolfe. In Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993), we held that there was no Doyle violation when there was no comment or question by the prosecutor about appellant’s post-arrest silence but instead there was an inadvertent reference to the defendant’s silence by a witness. See also McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988), cert. denied, 489 U.S. 1065 (1989). In both Tarkington and McIntosh, we relied on Greer v. Miller, 483 U.S. 756 (1987). In Greer, the prosecutor asked the defendant on cross-examination why he did not tell his story about the murder. Following an objection by defense counsel, the trial court instructed the jury to ignore the question. The Supreme Court held that the admonition essentially cured any Doyle problem.

Similarly, in the instant case, we view Captain Wolfe’s comments as unsolicited and merely inadvertent. They were not the result of questions propounded by the prosecutor. We are also cognizant of the drastic nature of a mistrial. A mistrial should only be declared when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. See King v. State, 335 Ark. 139, 983 S.W.2d 383 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). The trial court has wide discretion in granting or denying a motion for mistrial, which will only be granted when the possible prejudice could not be remedied by an admonition to the jury. See Bell v. State, supra.

We are convinced that an admonition would have cured any prejudice resulting from the police officer’s reference to McFarland’s request for counsel. No such request was made. McFarland’s counsel admitted at oral argument that the decision to rely on his mistrial motion and not seek an admonition was essentially strategic. We find no merit to this argument.

The record has been reviewed for other reversible error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.


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

text:
    Arthur BLEDSOE, Jr. v. STATE of Arkansas
    CR 97-1160
    989 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999

      Dana R. Davis, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Arthur Bledsoe, Jr., was convicted of rape and sentenced to life in prison. He appeals on six different points: (1) that the trial court failed to obtain a knowing and intelligent waiver of the right to counsel; (2) that the trial court erred by refusing to allow the defendant to cross-examine the victim with respect to prior sexual conduct; (3) that the trial court erred by allowing testimony that Mr. Bledsoe was in possession of crack cocaine and drug paraphernalia at the time of his arrest; (4) that the trial court erred in allowing testimony regarding the Heaton burglary; (5) that the trial court erred in allowing testimony regarding the Godsey burglary; (6) that the trial court erred in allowing testimony regarding the Rogaisis burglary. Because we find merit in Mr. Bledsoe’s first point, we reverse the conviction.

During the early morning hours of July 11, 1996, Ms. Jennifer Gann was forcibly raped when a man entered her home through a back window and threatened her with a gun. Mr. Bledsoe’s fingerprints were recovered from a window screen and DNA evidence was consistent with the allegation that Mr. Bledsoe was the perpetrator. Also on July, 11, 1996, Mr. Robert Godsey discovered that a Harrington & Richmond .22 caliber pistol with a long barrel and brown scabbard had been stolen from his home along with jewelry, a VCR, and a pink flashlight.

On the evening of July 12, 1996, a grocery store owned by Ms. Louise Heaton was broken into and several cartons of cigarettes, six-packs of beer, candy, cookies, and cigarette lighters were stolen. The investigation of these burglaries led police to Mr. Aaron Allen, who told the police that he purchased a .22 caliber gun from Mr. Bledsoe for $30 one week after the rape occurred. The gun was identified as that stolen during the Godsey burglary. Other evidence recovered by the police during the rape investigation finked Mr. Bledsoe to yet another burglary.

On July 16, 1996, Mr. Bledsoe was arrested by Officer Tom Lewis. Officer Lewis discovered a small black film canister of crack cocaine, a small metal wire “poker,” and what he believed to be a crack pipe in Mr. Bledsoe’s possession at the time of his arrest.

Mr. Bledsoe was charged with rape in the Mississippi County Circuit Court. Initially, Mr. Bledsoe retained a private attorney, Ms. P.J. Maddox-Cook, to represent him in connection with the rape charge. After Ms. Maddox-Cook withdrew from the case, the trial court appointed the Mississippi County Public Defender, Mr. Dana Davis, to represent Mr. Bledsoe. Just before the trial began on June 2, 1997, Mr. Bledsoe informed Mr. Davis and the court that he wished to represent himself. The trial court then proceeded to warn Mr. Bledsoe that he would be required to follow all of the rules and procedures of court and that this would most likely be difficult for him given his lack of formal legal education. The trial court further advised him that the public defender could take the trial from beginning to end if he so desired. Mr. Bledsoe persisted in his request to represent himself. The trial court then instructed Mr. Davis to stand by and assist during the trial and granted Mr. Bledsoe permission to proceed pro se.

During the trial, Mr. Bledsoe cross-examined all but one of the State’s witnesses and examined all of his own witnesses. Mr. Bledsoe also responded to the court’s inquiries during bench conferences and made the closing argument. Mr. Bledsoe’s standby attorney, Mr. Davis, handled the preliminary aspects of the trial including voir dire and the opening statement, and he participated in a hearing on a pretrial motion to admit evidence of consensual sexual conduct by the victim. Mr. Davis also cross-examined one of the State’s witnesses, reviewed the jury instructions, and handled the sentencing phase of the trial. After a four-day trial, the jury found Mr. Bledsoe guilty of rape and sentenced him to life imprisonment.

It is well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. See Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997). A defendant may proceed pro se in a criminal case when: (1) the request to waive the right to counsel is unequivocal and timely asserted; (2) there has been a knowing and intelligent waiver of the right to counsel; and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999).

I. Waiver of the Right to Counsel

Mr. Bledsoe argues on appeal that he did not knowingly and intelligently waive his constitutional right to counsel. In order to effectively waive the right to counsel, the accused must “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). To establish a voluntary and intelligent waiver, the trial judge must inform the accused that he is entitled to an attorney as a matter of law and question him to determine if he can afford to hire a lawyer. Mayo, supra. The trial judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id.; see also Akins, supra. Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Akins, supra; Oliver, supra. A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989).

After the trial court was informed that Mr. Bledsoe wanted to proceed pro se, the following colloquy occurred:

Court: Mr. Bledsoe, I’ve been told that you want to represent yourself; is that correct?
Defendant: Yes, sir.
Court: Do you understand that I’ll expect you to follow all the rules and procedures of court which you’re probably not familiar with, do you understand that?
Defendant: Yes, sir.
Court: All right. That’s why Mr. Davis has been appointed to aid and assist you on any rules and procedures and to do whatever you want him to assist you. I will let you defend yourself which you have a constitutional right to do if you choose, but I’m not going to let you represent yourself without a lawyer sitting there with you to aid and assist you; do you understand?
Defendant: Yes, sir.
Court: All right. So you’ll be expected to adhere to all the rules, all the orders of the Court; do you understand that?
Defendant: Yes, sir.
* * *
Court: All right. I just want to be sure you understand. Mr. Davis is the public defender and he can take the case from beginning to end if you want him to.
Defendant: (Nodding.)
Court: If you are dead set on representing yourself, I’m going to let you do it.
Defendant: (Nodding.)
Court: But I expect you to follow the rules and procedures, and he’s there to advise you on that or to do anything you need him to do or want him to do; do you understand?
Defendant: Yes, sir.
Court: All right.
Prosecutor: One thing for the record — the State has made an offer that on a plea to rape as sentence to 35 years. In fact that would probably be tied in with the other burglary charges for that matter, but that the State could offer 35 years on a plea to the rape charge and the burglaries tied in with it. And it’s my understanding that the defendant has rejected that. I want that on the record because it won’t — the offer won’t be available after we start to pick a jury.
Court: As I understand what the prosecutor’s saying, Mr. Bledsoe, is that you’re being offered a 35-year sentence to plead guilty to the rape and the burglaries which would wipe out all the present charges against you. So that’s a decision you have to make.
Defendant: (Nodding.)
Court: Okay?
Defendant: Yes, sir.
Court: And you’re saying, Mr. Davis [prosecutor], once we start the case you’re going to withdraw the offer?
Prosecutor: That’s correct.
Mr. Davis [standby counsel]: And you do not wish to accept the offer?
Defendant: No.

The record does not reflect that the trial court advised Mr. Bledsoe of the dangers and disadvantages of proceeding without an attorney. While Mr. Bledsoe was informed several times about the requirement that he follow the rules and procedures of court, he was given no explanation as to the consequences of failing to comply with those rules, such as the inability to secure the admission or exclusion of evidence, or the failure to preserve arguments for appeal. There was simply no discussion about the substantive risks of proceeding without counsel. Furthermore, the reference to the State’s offer of a thirty-five-year sentence on a plea of guilty to the rape and burglary charges did not include a full disclosure about the range of penalties Mr. Bledsoe faced on any of the charges. Finally, notwithstanding any inference suggested by the trial court’s statement that the public defender “can take the case from beginning to end if you want him to,” Mr. Bledsoe was not informed explicitly of his constitutional right to an attorney, nor was any inquiry made as to his ability to afford an attorney. We therefore conclude that Mr. Bledsoe did not knowingly and intelligently waive his right to counsel.

II. Assistance of Counsel Participation by Standby Counsel

The State asserts that even if the trial court’s inquiry failed to establish Mr. Bledsoe’s knowing and intelligent waiver of counsel, there is no reversible error because Mr. Bledsoe effectively relinquished representation to his standby counsel, Mr. Davis. We do not agree.

The assistance of standby counsel can rise to a level where the defendant is deemed to have had counsel for his defense, thereby mooting any assertion of involuntary waiver. See Oliver, supra; Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982). Whether or not such assistance rises to that level is a question that must be answered by looking at the totality of the circumstances. See Oliver, supra; Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995). Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. See Oliver, supra; Calamese, supra.

In Calamese, supra, there was no evidence of any inquiry by the trial court into the appellant’s attempted waiver of counsel, but we determined that the appellant had been effectively represented at trial by the attorney appointed to assist her. We noted that the attorney “immediately assumed a fully active role as trial attorney, conducting the entire interrogation, cross-examination, making objections to evidence and exhibits, presenting a defense with numerous exhibits and four defense witnesses, including eliciting lengthy testimony from the defendant and making a forceful closing argument, all of which was done with evident familiarity.” Id. Under those facts, we held that appellant was not left to represent herself at any stage of the proceedings, and she was not denied her right to counsel. Id.

Similarly, in Oliver, supra, no effective waiver was obtained when the defendant elected to proceed pro se and standby counsel was appointed to assist during trial. As in Calamese, we affirmed the conviction where, with the exception of the defendant’s cross-examination of the first State witness, standby counsel cross-examined each State witness, made objections during the State’s case, and presented a motion for directed verdict at the conclusion of the State’s case. Id. Further, standby counsel recalled the State’s first witness and examined him as well as the remaining six defense witnesses. Id. Counsel also made the closing argument. Id. Under such circumstances, we held that the defendant was not denied his right to counsel because standby counsel not only advised the defendant but “actively represented him during most of the proceeding,” and the defendant “effectively relinquished representation to his standby counsel” early in the trial. Id. (emphasis added).

The facts here are distinguishable from those in Calamese and Oliver in that the appointed counsel in this case did not actively participate in Mr. Bledsoe’s defense during most of the trial. The record shows that Mr. Bledsoe cross-examined twenty-four of the State’s twenty-five witnesses, and examined all of the defense witnesses. Furthermore, Mr. Bledsoe raised and argued the only substantive objections during the trial and presented his own closing argument. In contrast, Mr. Davis cross-examined only one of the State’s witnesses, raised no objections to evidence or exhibits, and participated in one bench conference. While Mr. Davis conducted voir dire, and gave the opening statement, he “effectively relinquished” representation to Mr. Bledsoe once the State began to call its witnesses. Mr. Davis’s participation level increased again at the close of the trial when he reviewed the jury instructions and handled the sentencing phase. In short, Mr. Bledsoe was left to represent himself during the State’s case-in-chief and during the presentation of his defense. Under these circumstances, we must conclude that Mr. Davis did not actively represent Mr. Bledsoe during most of the proceeding. We therefore hold that Mr. Bledsoe was denied his right to counsel.

Because we are reversing on Mr. Bledsoe’s first point on appeal, it is unnecessary for us to address the merits of his remaining points.

Reversed and remanded.

Arnold, C.J., and Corbin, J., dissent.

W. H.“Dub” Arnold, Chief Justice,

dissenting. I disagree with the statement of the majority concluding that Mr. Bledsoe did not knowingly and intelligendy waive his right to counsel. The colloquy between the trial court and Mr. Bledsoe set forth on pages five and six of the majority opinion reveals that Mr. Bledsoe wanted to represent himself and that the trial judge took every precaution to protect the defendant’s constitutional rights.

This court has stated that the determination in each case of whether a waiver is intelligendy made depends upon the particular facts and circumstances. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). The record in this case is very clear that the defendant insisted that he represent himself and that he understood that he would have to follow the rules and procedures and orders of the court. Even then, the court would not allow the public defender to withdraw from the case. It is undisputed that the public defender did assist the defendant in the trial of the case.

The defendant exercised his constitutional right to represent himself. What he did not like was the outcome of the trial. The courts have protected a defendant’s constitutional rights to represent himself, to have an appointed attorney, to hire his own attorney, to not have an appointed attorney represent him against his own will, and to represent himself with the aid of an appointed attorney. The one thing the court cannot guarantee is that the defendant will be satisfied with the results after he has made his choice.

Judge Burnett did everything possible to protect Mr. Bledsoe’s constitutional rights; therefore, this case should be affirmed.

Corbin, J., joins dissent.

        Reporter’s note: The page references are to the Supreme Court’s slip opinion; see 337 Ark. at 407-09, 989 S.W.2d at 513.


author: Ray Thornton, Justice. Robert L. Brown, Justice,

text:
    Clinton Eugene BYRD v. STATE of Arkansas
    CR 98-1087
    992 S.W.2d 759
    Supreme Court of Arkansas
    Opinion delivered May 6, 1999
    [Substituted opinion delivered June 10, 1999]

      Val P. Price, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appehee.
   Ray Thornton, Justice.

Appellant Clinton Eugene Byrd appeals the judgment of the Craighead County Circuit Court finding him guilty of first-degree murder for the June 7, 1997, death of Austin Davis, the seven-month-old son of appellant’s girlfriend. Appellant was tried by a jury and sentenced to fife imprisonment, which gives rise to our jurisdiction to review this matter under Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises four arguments for reversal: (1) That there was insufficient evidence that he knowingly caused the child’s death; (2) that the trial court improperly sustained an objection to appellant’s attempt to impeach a witness based upon a prior inconsistent statement; (3) that the trial court erred when it refused to rule on an objection to the State’s cross-examination of appellant; and (4) that it was error for the trial court to deny appellant’s request for an instruction on a lesser charge of second-degree murder. We find no reversible error and affirm the trial court’s judgment.

I. Fads

Appellant lived in Jonesboro with his girlfriend, Danna Davis, and her seven-month-old twin sons, Blake and Austin Davis. On the evening of June 5, 1997, Danna Davis left her sons with appellant while she went to work, leaving the home at approximately 6:00 p.m. She later described the physical condition of the children as “fine,” with no bruises or abnormalities, before she went to work. At approximately eight o’clock that evening, appellant ran to the emergency room of St. Bernard’s Hospital, carrying the crumpled body of Austin.

Dr. Brian Harvey, a pediatrician at St. Bernard’s, testified that Austin was pale and very ill, with two long linear bruises above his left eyebrow and abnormal breathing and heart rates. The child’s body temperature was very low, and he was in a coma-like state. Dr. Harvey testified that appellant told him that he had left Austin in the bathtub to check on his twin brother and returned to find the child unresponsive, but not under water. Appellant told the doctor that in trying to revive the child, “I hit him hard, doc. I hit him real hard and after that he quit moving.” Appellant told the doctor that he slapped him “real hard” on the face and head to get him to breathe, and when he did not respond, ran with him to the emergency room. Dr. Harvey testified that his tentative diagnosis, based on the facial bruising, rib fractures, inner cranial bleeding, and loss of consciousness that his examination revealed, was child abuse, and that his injuries were inconsistent with appellant’s description of the events. Austin was airlifted to Arkansas Children’s Hospital (hereinafter “Children’s”) in Litde Rock, where he was placed on life support for his extensive internal injuries.

Dr. Amanda Bradshaw, a resident at Children’s, testified that Austin was placed on a ventilator. She attempted to take a history on the incident from appellant and Danna Davis and reported that appellant did not say anything about hitting the child at that time, but did claim that the child was sitting up in the bathtub when he returned. Dr. Sara Cline, a radiologist at Children’s, testified that the X-rays, bone scans, and CT scans taken of Austin revealed five healed or healing fractures, including a skull fracture and a left tibia fracture, as well as five broken ribs, all of which were more than twenty-four hours old. Austin’s brain scan revealed a skull fracture with soft tissue swelling of the scalp, indicating a recent fracture, and that all parts of the brain were swollen, with the sutures spread apart. Blood had filled the open spaces of the child’s brain.

Austin’s left leg indicated a “bucket handle fracture,” found only in children younger than two years of age due to the softness of their bones. According to Dr. Cline, this type of fracture occurs only as a result of child abuse, not from typical childhood accidents, and generally from shaking the child by the limb. Furthermore, the brain injuries found in Austin were consistent with banging the child’s head against a solid object. A characteristic of child abuse is the presence of injuries of various ages, indicating more than one episode of violent abuse. Austin’s injuries suggested healing rib fractures of two to six weeks old, a leg fracture of less than a week, and an acute brain and skull injury, suggesting at least two episodes of abuse. The cause of death was severe shaking leading to head injury, and this degree of shaking was not consistent with appellant’s description of attempting to resuscitate the child. The radiology studies of the head injury indicated that the injury would have occurred between six and eight p.m. on the evening of June 5, 1997, and it would be unlikely that the injury occurred much before six o’clock because of the seriousness of the condition. Dr. Cline testified that she was “one hundred percent sure” that Austin was abused, based on the nature and pattern of injuries that she observed, and that it was such a classic case of child abuse that she used Austin’s X-rays as illustrative in teaching classes.

Dr. Mark Heulitt from the intensive care unit of Children’s testified concerning Austin’s brain injury and swelling, describing bleeding and brain damage indicating brain death. According to Dr. Heulitt, the brain swelling was a complication from the brain injury. In meeting with appellant and Danna, Dr. Heulitt reported that appellant described a fall by Austin that could not be corroborated by his mother, as well as hitting his head on a car door on the way to the hospital. According to Dr. Heulitt, none of the explanations offered by appellant were consistent with Austin’s level of injuries. The doctor’s diagnosis was child maltreatment syndrome or shaken baby syndrome, and testified that he was “one hundred percent certain” that this was child abuse, and that the brain injury occurred within an hour of his arrival at the emergency room in Jonesboro, which was around 8:00 p.m. There was no indication that Austin’s death was a result of past breathing problems or seizure disorder.

Austin was determined to be brain dead and he was taken off fife support on June 7, 1997. An autopsy was performed by the State Crime Lab, and Dr. Charles Kokes, medical examiner, testified about their findings. In Dr. Kokes’s opinion, Austin died as a result of cranial cerebral injuries, or blunt force trauma to the head and brain. His medical opinion was that the manner of death was homicide.

At the close of the State’s case, appellant, who was charged with first-degree murder under Ark. Code Ann. § 5-10-103(a)(3) with “knowingly causing death of a person fourteen years of age or younger,” moved for a directed verdict, arguing that the State had failed to prove the element of “knowingly.” The motion was denied. Appellant then took the stand in his own defense, alleging that Danna had thrown or kicked Austin on the floor before she left for work. According to appellant, he found Austin had a dirty diaper and put him in the bathtub with the water running, leaving him unattended momentarily to check on Blake, and returned to find Austin under water. He admitted slapping Austin “pretty hard” and shaking him repeatedly, attempting to get some response from the child. He denied causing any of the injuries described by the doctors, except for the brain injuries. Appellant testified that, “I didn’t cause any injuries to the child except for the swelling of the brain which the doctor in Little Rock told us that was due to shaking. That would be the only injury that I caused.” Appellant testified that he was the primary care giver for the children and that he knew that he had to be careful with the children because they were “soft.” He further testified that the child was too young to crawl and had only just begun sitting up on his own.

Appellant’s testimony concluded the defense and appellant again moved for a directed verdict on the grounds that the State had failed to prove the element of “knowingly.” The motion was again denied, and the court took up the issue of jury instructions. The defendant requested that the jury be instructed on the charge of second-degree murder, arguing that this was a lesser included offense of the first-degree murder charge. The trial court denied the request, ruling that second-degree murder could not be a lesser included offense of the murder charge because the second-degree murder charge contained an additional element not present in the first-degree murder charge, i.e. causing the death under circumstances manifesting extreme indifference to the value of human life.

The jury returned a verdict of guilty, and, following a sentencing hearing with victim-impact evidence, recommended a sentence of life imprisonment. Appellant was sentenced to life by the trial judge, and this appeal follows.

II. Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence to support his conviction for first-degree murder. When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997). On appeal, appellant claims that his conviction must be reversed because the State failed to present sufficient evidence that he acted “knowingly” in causing the death of Austin Davis, as required by Ark. Code Ann. § 5-10-102(a)(3)(Repl. 1997), which provides that a person commits murder in the first degree if he knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed.

A motion for directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State, and sustains a judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

In his argument, appellant offers various purportedly exculpatory facts to be weighed against evidence presented at trial by the State. This court, however, views only the evidence that is most favorable to the jury’s verdict and does not weigh it against other conflicting proof favorable to the accused. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

Here, the evidence was sufficient to establish that appellant “struck and shook the child knowing that the result could be serious injury [or] death.” Ladwig, supra. The medical testimony of the physicians who treated Austin presented uncontroverted evidence of child maltreatment, particularly from descriptions of blunt force trauma causing a skull fracture and brain swelling and hemorrhage leading to the child’s death. The radiological studies indicated that the life-threatening injuries occurred between six and eight p.m., during the time in which appellant was the only care giver of the child, and the intensive care physician testified that he was “one hundred percent certain” that the brain injury occurred within an hour of Austin’s arrival at the Jonesboro hospital.

According to Ark. Code Ann. § 5-2-202 (Repl. 1993), “A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.” Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). A jury need not lay aside its commonsense in evaluating the ordinary affairs of fife, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). The evidence was sufficient to show that appellant struck and shook the child knowing that the result could be serious injury or death. The motion for directed verdict was properly denied.

III. Impeachment with Prior Inconsistent Statement

For his second point on appeal, appellant contends that the trial court improperly sustained an objection by the State to appellant’s attempt to impeach Danna Davis’s testimony based on a prior inconsistent statement to the police. The exchange was as follows:

Q. Going back to the . . . statement [you made to the Jonesboro police], and this would have been on June 9th, I believe that was a — Was that a taped statement?
A. Yes, sir.
Q. Have you ever seen Clinton strike Blake? ■
A. Blake, no.
Q. Have you ever seen Clinton strike Austin?
A. No.
Q. Have you ever seen Clinton physically abuse Austin?
A. No — Yeah — I mean, I told him about a time when he walked into the bedroom when they were crying, and he had went in there and Clinton had locked the door behind him, and I had to get a credit card to open it, and he was like had Austin holding his mouth, holding his face like trying to get him to quit crying or pass out or something, and I tried to get him away from him, and he pushed me away, and I asked him what he was doing, you what, “What are you doing,” and that’s the only time —
Q. Do you recall being asked a question — This is on page four — did you ever see Clinton physically abuse Austin or Blake, and you answered: I never saw him. Do you recall giving that answer?
A. Yeah, I guess. I don’t remember.

The State objected to this line of questioning, arguing to the trial court that the defense could not ask questions on cross for purposes of bringing out contradictions for purposes of impeach-merit. The trial court sustained the objection, and appellant was not permitted to further attempt to impeach the witness with her alleged inconsistent statement. Appellant argues on appeal to this court that the case should be reversed and remanded on this point.

While we agree with appellant that the trial court’s ruling reflected an incorrect understanding of the Rules of Evidence with regard to impeachment with a prior inconsistent statement, we do not find this to be reversible error because appellant does not show prejudice. The witness was asked whether she had made a previous contradictory statement and answered that she had made such a statement. Although appellant did not make a proffer of the testimony that he hoped to elicit from the witness, we note that Rule 613 of the Arkansas Rules of Evidence permits extrinsic evidence of prior inconsistent statements of a witness to be introduced for the purpose of impeachment only if the witness is afforded the opportunity to explain or deny the statement, and does not admit having made it, and the other party is afforded the opportunity to interrogate the witness on that statement. See Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981); Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991). If the witness, however, admits making the prior inconsistent statement, then extrinsic evidence of that statement is not admissible. Also, unsworn prior statements made by a witness cannot be introduced as substantive evidence in a criminal case to prove the truth of the matter asserted therein. Ark. R. Evid. 801 (d)(1)(i); Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983).

Under the circumstances of this case, appellant has demonstrated no prejudice as a result of the granting of the State’s objection, as the proof of his guilt is overwhelming. Even assuming the trial court erred in sustaining the State’s objection, the error was harmless in that the prejudicial effect of the testimony was minimal and the evidence of guilt was overwhelming. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994). We cannot say that this claim of error warrants reversal.

III. Trial Court’s Refusal to Rule on Appellant’s Objection

Appellant next contends that the trial court committed error when it failed to rule on appellant’s objection during the following exchange between the prosecutor- and appellant.

Q. The doctors from Children’s also in Little Rock indicate that when you got down there you told them you hit this kid’s head on the car.
A. I said that I did not know. He asked what the possibilities were of what would have caused this child’s damages, and I told him that I did not know because he asked if I had hit his head. I told him I didn’t know if I had hit his head or not, and that’s what led to the conclusion did I hit it on the way out the door, did I hit it getting in the car. And I didn’t answer this question myself. I didn’t say yes, I did, or no, I didn’t.
Q. So, Doctor Heulitt gave the wrong testimony today, is that what you’re saying?
A. I am not sure what I . . .
Q. Doctor Heulitt said you told him you hit this kid’s head against the car . . .

Appellant’s attorney objected to the form of the question, asserting that this was an improper characterization of the testimony given by Dr. Heulitt.

The judge responded that the jury had made notes and could draw their own conclusions from the evidence presented, but he would not comment on the evidence. Appellant’s counsel then restated his objection and asked the court for a ruling, which the trial judge again refused to give, saying that to rule on the objection as appellant had phrased it would be equivalent to commenting on the evidence. At a bench conference, the judge stated: “[I]f I sustain the objection, I am saying that the doctor didn’t say that, and that’s a comment on the evidence because I don’t know for sure what he said exactly . . . Maybe you ought to rephrase your objection to one that is a proper objection that I can rule on. That particular objection is not a proper objection ... It sounds to me like what you are leading up to is an argumentative question of who is telling the->truth, which is an argumentative question.”

Appellant contends in his brief that his objection was a proper objection to the form of the question because the question assumed a fact not in evidence, and asks that this court reverse the trial court and remand the case based on this point. We decline to do so. Appellant’s argument must fail because he failed to obtain a ruling on his objection. This court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal concerning a ruling has the burden to obtain a ruling. Matters left unresolved simply may not be raised on appeal. Alexander v. State, 335 Ark. 131, 983 S.W.2d (1998). While appellant understood the necessity of getting a ruling, and repeatedly asked the court to give one, he did not state his objection in a form on which the trial judge believed he could rule without commenting on the evidence.

Furthermore, a party cannot complain about a favorable ruling on appeal, as appellant now seeks to do. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied 520 U.S. 1244 (1997). At the conclusion of the bench conference on this issue, the trial court admonished the State not to ask argumentative questions, saying that it appeared to the court that the State was attempting to ask a question about “who is telling the truth.” The trial court’s admonition amounted to a ruling in appellant’s favor, as the State did not return to that line of questioning. Lastly, appellant has not shown any prejudice from the trial court’s failure to grant his objection, and when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994).

IV. Lesser Included Offense Instruction

Appellant requested that the trial court instruct the jury on the lesser charge of murder in the second degree, Ark. Code Ann. § 5-10-103, contending that it was a lesser included offense of the original charge of murder in the first degree, for “knowingly caus[ing] the death of a person fourteen (14) years of age or younger at the time the murder was committed.” Ark. Code Ann. § 5-10-102(a)(3). Appellant contended that the trial court should have given the instruction applicable to second-degree murder that appellant “knowingly caused the death of Austin Davis under circumstances manifesting extreme indifference to the value of human life,” as well as the appropriate transitional instruction, and instructed the jury to consider second-degree murder as an alternative to the crime charged as a lesser included offense. The flaw in this argument is that the element of causing a death under circumstances manifesting extreme indifference to the value of human life" is not an element of the charge for first-degree murder of a person aged fourteen years or younger.

An offense must meet three criteria to be considered a lesser included offense: l)It must be established by proof of the same or less than all the elements of the greater offense; 2) it must be of the same generic class as the greater offense; and 3) it must differ from the greater offense based upon degree of risk to persons or property or upon grades of intent or culpability. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996). A trial court does not err by refusing to give an instruction on an offense that is not a lesser included offense of the greater, charged offense, or “where the indictment for the greater offense does not contain allegations of all the ingredients of the lesser offense.” Id. 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. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997).

As we noted in Davis v. State, supra, the Arkansas General Assembly has specifically addressed appellant’s argument that the phrase “under circumstances manifesting extreme indifference to the value of human life” is not an additional element but merely a different way to prove “knowingly caused the death.” A review of legislative history discloses that in response to our decision in Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), the legislature amended the definition of first-degree murder to include knowingly caused the death of a person age fourteen or younger under circumstances manifesting cruel or malicious indifference to the value of human life. See Act 52 of the First Extraordinary Session of 1987. Then, in 1991, the legislature deleted the element “under circumstances manifesting cruel and malicious indifference to the value of human life” from the first-degree murder statute. Davis, supra. The language formerly used to define first-degree murder, with a slight revision, was converted into a type of capital murder.

Here, the crime charged, first-degree murder, does not require proof of circumstances manifesting extreme indifference to the value of human life. A person acts “under circumstances manifesting extreme indifference to the value of human fife” when he engages in deliberate conduct which culminates in the death of some person. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). The General Assembly has specifically stated that to prove first-degree murder, the State need only show that appellant knowingly caused the death of a person aged fourteen or younger. A person acts “knowingly” with respect to his conduct or attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. He acts “knowingly” with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl. 1997).

The trial court’s ruling was correct both because the proffered version of second-degree murder is not a lesser included offense of first-degree murder under Ark. Code Ann. § 5-10-102(a)(3), with which appellant was charged, and also because the information did not charge him with causing a death under circumstances manifesting extreme indifference to the value of human life. Second-degree murder pursuant to Ark. Code Ann. § 5-10-103(a)(1) cannot be a lesser included offense of first-degree murder under Ark. Code Ann. § 5-10-102(a)(3) because that second-degree murder charge requires a showing that one knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life, an element in addition to the requirements of the statute under which appellant was charged.

While this may be an issue of first impression for this court, the analysis in Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996) is instructive. In Brown, the appellant, who was charged with capital murder and convicted of the lesser included offense of first-degree felony murder, appealed his conviction on the ground that it was error for the trial court to have refused to instruct the jury on the lesser included offense of second-degree murder. This court affirmed the conviction, holding that second-degree murder is not a lesser included offense of capital felony murder. We held that because second-degree murder requires proof of an element not required for proof of felony murder, second-degree murder is not a lesser included offense of felony murder. Furthermore, where the indictment for a greater offense does not contain allegations of all the ingredients of the lesser offense, a conviction of the lesser cannot be sustained, even though the evidence may supply the missing element. Id.

In the instant case, the information charged appellant with knowingly causing the death of Austin Davis, a person aged fourteen years or younger. The additional language of knowingly causing the death under circumstances manifesting extreme indifference to human life was not charged in the information, and was not required to be proven in order to sustain a conviction for first-degree murder. Because appellant was not so charged, there is no rational basis to justify charging the jury with the lesser offense of second-degree murder. The trial court is affirmed on this point as well.

V. Rule 4-3(h) Review

In accordance with Rule 4-3(h), the record has been reviewed for adverse rulings to objections made by appellant but not raised on appeal, and no such errors have been found.

Affirmed.

Brown, J., dissenting.

Robert L. Brown, Justice,

dissenting. The majority holds today that Byrd was not entitled to an instruction for second-degree murder because the instruction he offered contained the language “under circumstances manifesting extreme indifference to the value of human life.” See Ark. Code Ann. § 5-10-103(a)(1) (Repl. 1997). According to the majority, the first-degree murder provision under which Byrd was charged is for knowingly causing the death of a person age fourteen or younger. See Ark. Code Ann. § 5-10-102(a)(3) (Repl. 1997). Because this first-degree murder statute does not include the “extreme indifference” clause, the majority concludes the second-degree murder instruction could not be given.

The first fallacy in the majority’s reasoning is that the first-degree murder subsection for purposeful murder also does not contain the “extreme indifference” clause. See Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). Does this mean that the second-degree murder instruction with the “extreme indifference” language also cannot be used as a lesser included offense for purposeful first-degree murder? Surely not. In fact, we recently held that a jury was appropriately instructed with the second-degree murder offense containing the “extreme indifference” language as a lesser-included offense of purposeful first-degree murder. See Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). The Court of Appeals appears to have held similarly. See Lanes v. State, 53 Ark. App. 266, 922 S.W.2d 349 (1996). Now with today’s decision, this second-degree murder instruction has been invalidated for both purposeful first-degree murder and knowingly killing a person age fourteen or younger. This unquestionably, was not the intent of the General Assembly, and our circuit courts will now, understandably, be in a quandary about what to do.

The second fallacy in the majority’s reasoning is that it disregards the fact that the “extreme indifference” language relates to the perpetrator’s degree of intent. The definition of “knowingly” in the Criminal Code makes the connection between “knowledge” and “circumstances” abundantly clear:

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

Ark. Code Ann. § 5-2-202(2) (Repl. 1997). The Original Commentary to the second-degree murder statute underscores the point:

An actor “knowingly” causes a result when he engages in conduct with an awareness that “it is practically certain that his conduct will cause such a result.” See § 5-2-202(2). The requirement of “knowledge” with regard to attendant circumstances manifesting extreme indifference is satisfied if the actor “is aware . . . that such circumstances exist.” See, § 5-2-202(2).

Ark. Code Ann. Original Commentary, Vol. B, p. 169 (Repl. 1995).

The identical “extreme indifference” language is used in our first-degree battery statute. See Ark. Code Ann. § 5-13-201(a)(3) (Repl. 1997). We have held on two occasions that the “extreme indifference” clause for first-degree battery relates to proof of the intent or mental state of the accused. See Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1997). The commentary to the battery statutes emphasizes this point. Ark. Code Ann. Commentaries, Vol. B, pp. 185-187 (Repl. 1995). Hence, for the majority to hold that the clause does not relate to intent flies in the face of prior precedent.

The majority illogically concludes that because the General Assembly ehminated the “extreme indifference” language from the first-degree murder statute for those age fourteen or younger, it intended to wipe out the second-degree instruction with comparable language. Why does that necessarily follow? I do not believe it does. Remember, at that same legislative session the General Assembly added the “extreme indifference” language as part of the capital-murder statute for murdering a person age fourteen or younger. See Ark. Code Ann. § 5-10-101(a)(9) (Repl. 1997) (Act 683 of 1991).

The majority also cites Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), to bolster its argument, but that case is clearly inapposite. In Brown, the defendant was charged with capital felony murder and convicted of first-degree felony murder. He asserted as error the failure of the trial court to instruct the jury on the same second-degree murder instruction at issue in this case. We drew the obvious distinction between felony murder and intentional murder and held that the second-degree murder instruction offered related to intentional murder. Thus, it did not qualify as a lesser-included offense.

Again, I worry about the ramifications of what we do today. We abolish a second-degree murder instruction for a whole panoply of purposeful first-degree murder offenses. It is reversible error not to instruct on a lesser included offense when an instruction is warranted. See Moore v. State, 280 Ark. 222, 656 S.W.2d 698 (1983); Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). I would hold, as we have in the past, that it was error not to give the second-degree murder instruction, and I would reverse and remand for a new trial.