text:
    Roberta BREWER and Howard D. Baltz v. Lee FERGUS, Phillip Smith, and Sharon Priest
    02-402
    79 S.W.3d 831
    Supreme Court of Arkansas
    Opinion delivered May 10, 2002

      Everett & Hunter, by: Mike Everett; and Gerald Pearson, for appellant.

      Quattlebaum, Groom, Tull & Burrow, PLLC, by: Leon Holmes and E.B. Chiles IV, for appellee Lee Fergus.

      Howell, Trice, Hope & Files, P.A., by: William H. Trice, for appellee Phillip Smith.

      Mark Pryor, Att’y Gen., by: Tim Humphries, Gen’l Cnsl. and Dennis R. Hansen, Deputy Att’y Gen., for appellee Sharon Priest.
   JIM HANNAH, Justice.

This appeal involves an issue of constitutional interpretation; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l). We affirm the trial court.

Appellants argue that the trial court erred in denying their petition for a writ of mandamus prohibiting the Secretary of State from certifying Lee Fergus as a candidate for circuit judge, Division #2, Second Judicial Circuit, and Phil Smith as a candidate for circuit judge, Division #2, Third Judicial Circuit. We affirm the trial court’s holding that a person appointed to fill a vacancy in one division of a judicial circuit is not attempting to succeed himself or herself in violation of Arkansas Constitutional Amendment 29, § 2, when he or she subsequently runs for the office of circuit judge in a different division of the same judicial circuit.

Facts

As a consequence of legislation creating new judgeships in the Second and Third Judicial Circuits, Fergus was appointed to be the circuit court judge, Division #10, Second Judicial Circuit, and Smith was appointed to be the circuit court judge, Division #3, for the Third Judicial Circuit by the Governor of the State of Arkansas pursuant to Amendment 29, § 1, of the Arkansas Constitution. Both appointments were made on July 1, 2001, and were to last until someone is duly elected and begins serving as circuit judge for those respective divisions on January 1, 2003.

Fergus has filed to run for the office of circuit court judge in Division #2 of the Second Judicial Circuit, and Smith has filed for the office of circuit court judge in Division #2 of the Third Judicial Circuit. Separate actions for mandamus and declaratory judgment were filed against Fergus and Smith; however, the actions were joined and now come to this court in a single appeal.

Issue

We examine whether Amendment 29, § 2, prohibits a person from running for the office of circuit court judge in one division of a judicial circuit when he or she was appointed to, and filled, a vacancy in another division in the same judicial circuit under Amendment 29, § 1.

Standard of Review

We are called upon to interpret our constitution. On appeal, our task is to read the laws as they are written, and interpret them in accordance with established principles of constitutional construction. The fundamental rule is that the words of the constitution should ordinarily be given their obvious and natural meaning. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). See also, Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721 (1994); Kervin v. Hill, County Judge, 226 Ark. 708, 292 S.W.2d 559 (1956). We review issues of construction de novo; it is for this court to decide what a constitutional provision means. Hodges, supra. We are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998).

In this case, we are interpreting a constitutional amendment. We have said that in so doing, it is helpful to determine what changes the amendment was intended to make, in the existing law. Glover v. Henry, 231 Ark. 111, 328 S.W.2d 382 (1959). See also, Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).

Of Amendment 29, this court has previously stated:

Amendment 29 provides that the governor shall fill vacancies in the office of United States senator and in all elective state, district, circuit, county, and township offices except lieutenant governor, member of the legislature, and member of Congress. It is significant that these provisions made no substantial change in the law as it already existed, for the governor had the power to fill vacancies in the office of United States senator (Pope’s Dig., 11807) and in the designated elective offices (Const., Art. 6, 23) with the exception of the lieutenant governor (Amendment 6, 5), member of the legislature (Const., Art. 5, 6), and member of Congress (Pope’s Dig., 4676). Thus the purpose of Amendment 29 was not to create a new appointive power in the chief executive; it was to reaffirm the existing law as a basis for the operation of the other provisions in the amendment.

Glover, 231 Ark. at 115.

Succession in the Same Office

Fergus is running for the elective office of circuit judge, Division #2 of the Second Judicial Circuit, presently completing an appointment to fill a vacancy in Division #10 of the same circuit. Smith is running for the elective office of circuit judge, Division #2 of the Third Judicial Circuit, presently completing an appointment to fill a vacancy in Division #3 of the same circuit. The question is whether a change in division within a circuit constitutes a separate elective office under Amendment 29.

Section 1 of Amendment 29 provides that vacancies in elective offices, excepting some offices not relevant to this discussion, are to be filled by appointment by the Governor. See, Glover, supra. At issue is Section 2 of Amendment 29, wherein it is provided:

The Governor, Lieutenant Governor and Acting Governor shall be ineligible for appointment to fill any vacancies occurring or any office or position created, and resignation shall not remove such ineligibility. Husbands and wives of such officers, and relatives of such officers, or of their husbands and wives within the fourth degree of consanguinity or affinity, shall likewise be ineligible. No person appointed under Section 1 shall be eligible for appointment or election to succeed himself.

Our analysis must focus on the sentence, “No person appointed under Section 1 shall be eligible for appointment or election to succeed himself.” We note first that typically the word “shall” is interpreted by this court to mean mandatory compliance. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001).

Appellants argue that the apparent purpose of Amendment 29, in the case of a circuit judge, is to deny the appointed judge the advantage of incumbency in a following election. Appellant argues further that a circuit judge who is appointed to fill a vacancy in one division, and who then runs for the office of circuit judge of another division in the same judicial circuit, is in effect running for the same elective office because he or she would enjoy the advantages of incumbency in that the voters would be the same as they would have been had he or she run for the exact same division to which he or she was appointed. Appellants’ argument is understandable, but skips essential steps in constitutional analysis. We may not simply analyze the issue based upon rules of interpretation without first determining whether we may resort to those rules.

The rules of statutory construction apply to interpretation of constitutional amendments. MacDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971); Bailey v. Abington, 201 Ark. 1072, 148 S.W.2d 176 (1941). The words of the constitution should ordinarily be given their obvious and natural meaning. Hodges, supra. See also, Knowlton, supra; Kervin, supra. In Frank v. Barker, 341 Ark. 577, 582, 20 S.W.3d 293 (2000), this court stated:

As we interpret a provision of the Arkansas Constitution, we have said that when the language of a provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998).

Constitutional and statutory provisions are considered in the same manner. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). Where the meaning of the words is clear and unambiguous, we do not resort to the rules of statutory or, in this case, constitutional interpretation. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001). No interpretation is needed and, therefore, no aids of interpretation are used. Ragland, supra. See also, Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921).

Appellants invite us to consider the intent in putting Amendment 29 before the voters. This court has stated that in interpreting constitutional provisions, it may be helpful to determine what changes the constitutional amendment was intended to make. Glover, supra. We have stated further that in interpreting a constitutional amendment, it may be helpful to consider the history of the times and conditions existing at the time of adoption. Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992). Legislative interpretation may even be considered, but that is only where there is doubt or ambiguity. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978).

The sentence at issue is clear and easily understood. No person appointed to fill a vacancy in an elective office may succeed himself into that same elective office when the election takes place to fill that office. Circuit Judge of Division #2 of the Second Circuit is an elective office, as is Circuit Judge of Division #2 of the Third Circuit. When the voters go to the polls they will cast votes for the specific judge they wish to occupy each division. They will not, for example, vote for two of some number of candidates for circuit judge of a given circuit. In other words, the office of a division judge within a circuit is an elected office, not a office assigned once a person is elected as circuit judge of the circuit. The position of Division #2 of the Second Circuit, for example, is an elected office. Therefore, neither Fergus nor Smith is succeeding himself in the position to which he was appointed in 2001, because neither is running for the division in which they were appointed to serve. The office of circuit judge refers to a single elective office. This is implicit in State v. Green and Rock, 206 Ark. 361, 175 S.W.2d 575 (1943), where this court discusses that Section 1 of Amendment 29 to the constitution provides the manner of filling vacancies which may occur in certain offices, including the office of circuit judge. In Green and Rock, this court notes that in Section 1 of Amendment 29, it is provided that the Governor shall fill such vacancy by appointment. The reference is to a specific single vacancy of a circuit judge. See also, State v. Martin, 60 Ark. 343, 30 S.W. 421 (1895) (wherein this court discussed that the constitution did not limit each judicial circuit to one judge). It is relatively obvious that if candidates Fergus and Smith prevail in the upcoming election, they will be succeeding the prior sitting judges in Division #2 of their respective circuits, and will not be succeeding themselves, as others will occupy their former positions.

We hold that a person who runs as a candidate for circuit judge in a division of a judicial circuit, who was appointed in the previous term to serve out a vacancy in another division of the same judicial circuit, is not succeeding himself or herself in violation of Amendment 29, § 2, if elected.

The mandate in this case shall issue immediately.

Affirmed.

       To construe Amendment 29 otherwise would mean that no vacancy in the office of circuit court judge would occur until all sitting circuit court judges in a multiple judge judicial circuit had vacated their offices for whatever reason.


source: Caselaw Access Project

author: W H. "DUB" ARNOLD, Chief Justice. TOM GLAZE, Justice,

license: Public Domain

text:
    STATE of Arkansas v. Wendi Carol WILLIAMS
    CR 01-1195
    75 S.W.3d 684
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.
    ' Christian & Byars, by: Eddie Christian, Jr., for appellee.
   W H. "DUB" ARNOLD, Chief Justice.

Justice. This is appeal from the dismissal, based upon double jeopardy, of a state theft charge under Ark. Code Ann. § 5-36-103 (a) against appellee, Wendi Carol Williams. The State maintains this Court has jurisdiction pursuant to Ark. R. App. P.&emdash;Crim. 3 to entertain this appeal. We disagree and dismiss the appeal.

The circuit court dismissed the appellee’s state theft charge under Ark. Code Ann. § 5-1-114(1) (Repl. 1997) because the appellee had pled guilty to federal bank fraud based on the same conduct. The circuit court found that the two crimes did not protect against substantially different harm or evil. The State appeals.

On June 5, 2000, the State filed an information charging the appellee with theft by deception, alleging that she knowingly obtained property with a value of more than $2500 from City National Bank by deception and with the purpose to deprive the owner of the property. Additionally, on August 16, 2000, a one-count indictment was filed in the United States District Court for the Western District of Arkansas in case number CR20041-001 pursuant to 18 U.S.C. § 1344. The federal court indictment alleged the following:

Beginning on or about April 1, 2000, and continuing on or through June 14, 2000, in the Western District of Arkansas, WENDI CAROL WILLIAMS, Defendant herein, knowingly executed and attempted to execute a scheme and artifice to defraud the City National Bank, a federally insured institution, and to obtain monies, funds, and credit under the control of City National Bank, by means of false and fraudulent pretenses, representation and promises.

The federal court indictment and the state court information were both based upon the exact same criminal conduct of appellee, that being that appellee utilized a fraudulent loan application in order to obtain a $17,500.00 loan from City National Bank of Fort Smith, Arkansas.

Appellee subsequently entered a plea of guilty to the one-count indictment filed in federal court. As a result, the appellee was sentenced on July 31, 2001, and ordered to serve twelve months’ imprisonment. She was further ordered to pay restitution to City National Bank in the sum and amount of $21,499.56; this sum was derived from the $17,500.00 loan proceeds plus interest.

When appellee failed to appear on the state charge in June of 2001, a bench warrant was issued for her arrest. On August 3, 2001, her counsel filed a motion to dismiss the charge, relying on Ark. Code Ann. § 5-1-114, on the basis that she had earlier pled guilty to a federal crime based on the same conduct. The State filed a response on August 7, 2001, arguing, among other things, that the exception found in Ark. Code Ann. § 5-1-114(1)(A) applied. That same date, the State also filed an amended information charging the appellee with theft of property, but making the same theft-by-deception allegation made in the original information.

The circuit court held a hearing on the appellee’s motion to dismiss on August 15, 2001. Among other things, the State argued that the federal statute is meant to protect banks against fraud schemes, while the state statute protects anyone against the actual theft of property, without respect to an underlying fraudulent scheme. The circuit court granted the appellee’s motion to dismiss by an order filed August 17, 2001, finding that the federal and state charges were not substantially different and that the state crime did not prevent a substantially different harm or evil than the federal crime. The State filed a notice of appeal on September 1, 2001. For its only point on appeal, the State asserts that the circuit court erred as a matter of law by finding that state theft does not prevent a substantially different harm or evil than federal bank fraud.

We must first raise the question of whether this appeal is properly before this Court. Specifically, we must determine whether the correct and uniform administration of justice requires us to review this appeal. Ark. R. App. P.—Crim. 3(c). State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). In criminal cases, we accept appeals by the State in limited circumstances. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). This Court has held our review of a State appeal is not limited to cases that would establish precedent. State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Moreover, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Ashley, supra; State v. Guthrie, supra; State v. McCormack; supra. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this Court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).

Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Ashley, supra; State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) (“Here, the State questions the trial court’s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.”). This Court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (“Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.”). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).

Here, the State’s argument is based entirely on the application of the law to the facts and in no way raises an issue of statutory interpretation and, therefore, does not require interpretation of criminal statutes with widespread ramifications. Accordingly, this Court does not accept this appeal by the State under Ark. R. App. P.-Crim. 3(c). The trial court’s order to dismiss was within its discretion; therefore, we do not accept this appeal because it does not involve the correct and uniform administration of the law, only the application of the law.

Appeal dismissed.

Glaze, Corbin, and Imber, JJ., dissent.

TOM GLAZE, Justice,

dissenting. I dissent. This court has taken similar appeals to resolve the statutory interpretation of law regarding former-jeopardy claims. See State v. Thompson, 343 Ark. 135, 139, 34 S.W.3d 33, 35 (2000); State v. McMullen, 302 Ark. 252, 253, 789 S.W.2d 715, 716 (1990). Here, no factual issues exist. Appellee Wendi Williams had pled guilty to a federal crime under 18 U.S.C.A. § 1344 (2000). Based on the same conduct underlying the federal crime, the State charged Williams committed theft of property under state law, Ark. Code Ann. § 5-l-144(l)(A)(l) (Repl. 1997), which provides as follows:

When conduct constitutes an offense within the concurrent jurisdiction of this state of the United States or another state or territory thereof, a prosecution in any such other jurisdiction is an affirmative defense to a subsequent prosecution in this state under the following circumstances:
(1) The first prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is based on the same conduct unless:
(A) The offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other, and the law defining each of the offenses is intended to prevent a substantially different harm or evil[. ]

(Emphasis added.)

The sole legal issue to be decided in this appeal is whether the trial court misinterpreted § 5-1-114(1)(A) in deciding that the state theft law is not intended to prevent a substantially different harm or evil than the federal bank-fraud statute. It is difficult for me to understand why we decline to reach this legal issue now, because no doubt, this same issue is likely to be raised again until the issue is resolved. As noted above, we have done so in similar appeals in the past, and I know of no good reason not to do so in this case.

Corbin and Imber, JJ., join this dissent.


author: TOM GLAZE, Justice. Jim Hannah, Justice,  R ay Thornton, Justice,

text:
    Bobbye Farrar BONDS v. Barry CARTER
    01-943
    75 S.W.3d 192
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Tim A. Womack, P.A., by: Tim A. Womack, for appellant.

      Bell Law Firm, P.A., by: Ronny J. Bell and Karen D. Talbot, for appellee.
   TOM GLAZE, Justice.

This is a quiet-title action brought by appellant Bobbye Bonds to determine the ownership of a certain tract of land in Columbia County. Eddie Smith formerly owned all of the land in question. On June 19, 1980, Smith conveyed a timber deed to appellee Barry Carter, granting Carter “all the merchantable pine and hardwood timber standing, growing and being on” a parcel of land in Columbia County; Carter paid $1,000 in consideration for the right to cut and remove timber from the described land for 100 years. On January 15, 1981, Smith conveyed a warranty deed to Bobbye Bonds, covering the same parcel of land, and reserving to himself all the oil, gas, and mineral interests thereon. Bonds originally filed a petition to set aside the timber deed in 1982, but the case was abandoned after Eddie Smith died.

Nearly twenty years later, on February 18, 2000, Bonds sued to quiet title in her land, alleging that, under Ark. Code Ann. § 18-11-102 (1987), she had acquired title to the land by paying taxes on the “wild and unimproved” property every year since 1981. Further, Bonds alleged that Carter’s timber deed was void ab initio for inadequate consideration, for violating the rule against perpetuities, and for unconscionability under the Uniform Commercial Code. Carter answered, pleading, among other things, that Bonds’s action was barred by the statute of limitations. Both parties then moved for summary judgment. In her motion, Bonds argued that, since Carter did not dispute that the land in question was wild and unimproved, she had acquired title to the property through adverse possession because she had paid taxes on it for more than fifteen years. Carter’s motion agreed that the facts were undisputed, but asserted that his timber deed was superior to Bonds’s warranty deed, and further, that Bonds’s action was barred by the statute of limitations. Carter also pointed out that his validly recorded timber deed served to put Bonds on constructive notice of a superior interest in the land, and that she purchased the property subject to the timber deed.

The trial court held a hearing on the motions for summary judgment on September 13, 2000, and the hearing resulted in a court order finding that the 1980 timber deed was valid and that, while Bonds was vested with the fee simple title in the property, the issue was whether or not that vested interest interest was subject to the previously granted timber deed. Initially, the court denied both motions for summary judgment at that time; however, the court later dismissed all claims challenging the validity of the timber deed. The court also found that § 18-11-102 had no bearing on the controversy between the parties and did not affect the validity of the timber deed.

On appeal, Bonds raises two points for reversal: 1) the trial court erred in not finding Carter’s severed timber estate on wild and unimproved property was adversely possessed when Bonds obtained the underlying fee to the property and paid all taxes on it from 1981 through 1998; and 2) the 100-year timber deed is an ongoing unconscionable contract, presenting public policy concerns that the trial court should have addressed to invalidate the instrument, and the court erred in dismissing the action due to statute of limitations considerations.

For her first point on appeal, Bonds argues that a recorded, severed timber estate on wild and unimproved land is adversely possessed when the owner of the underlying fee pays all taxes assessed on the land (both real and personal property) from 1981 to 1998. She contends that, under § 18-11-102, her payment of taxes vests title in her. That statute provides as follows:

Unimproved and unenclosed land shall be deemed and held to be in possession of the person who pays the taxes thereon if he has color of title thereto, but no person shall be entitled to invoke the benefit of this section unless he, and those under whom he claims, shall have paid the taxes for at least seven (7) years in succession.

Bonds further relies on Jones v. Barger, 67 Ark. App. 337, 1 S.W.3d 31 (1999), wherein the court of appeals held that one claiming title to land by having paid taxes on that land for seven years need not have actually adversely possessed the land in question. In Jones, both parties had received warranty deeds to the same parcel of land, and the court was faced with determining whose title was superior. The court of appeals held that, under § 18-11-102, the Joneses had paid taxes on unimproved and unenclosed land, under color of title, for at least seven years. Jones, 67 Ark. App. at 341. Because that statute did not require “actual adverse possession,” the court of appeals concluded that the Joneses had met the statutory requirements and were thus entitled to have the title to the land vested in them. Id. at 346.

The facts of the instant case are distinguishable from those in Jones. Jones involved two parties claiming the same title to the same estate in the land; here, on the other hand, we are presented with a situation in which one party has the underlying surface rights, and the other possesses the timber rights, which have been severed from the surface. Arkansas’s taxation statutes make it clear that timber rights are separate and distinct from the land itself. Ark. Code Ann. § 26-26-1109 (Repl. 1997), dealing with taxation of timber rights, provides in pertinent part as follows:

(a)(1) When the timber rights in any land shall, by conveyance or otherwise, be held by one (1) or more persons, firms, or corporations, and the fee simple in the land by one (i) or more other persons, firms, or corporations, it shall be the duty of the assessor, when advised of the fact, either by personal notice or by recording of the deeds in the office of the recorder of the county, to assess the timber rights in the lands separate from the soil.
(2) In such case, a sale of the timber rights for nonpayment of taxes shall not affect the title to the soil itself, nor shall a sale of the latter for nonpayment of taxes affect the title to the timber rights.

(Emphasis added.) In sum, this statute provides that timber rights held by one person are to be assessed separately from the fee simple rights of another in the land, because the timber rights are separate from another’s rights in the soil.

Further, when a purchaser of land records his deed, it serves to put any subsequent purchaser on notice of the earlier deed. In this respect, Ark. Code Ann. § 14-15-404 (Repl. 1998) states the following:

(a) Every deed, bond, or instrument of writing affecting the title, in law or equity, to any real or personal property, within this state which is, or may be, required by law to be acknowledged or proved and recorded shall be constructive notice to all persons from the time the instrument is filed for record in the office of the recorder of the proper county.

(Emphasis added.) Here, Carter recorded his timber deed six months before Bonds ever received the warranty deed from Smith. Thus, Bonds was on constructive notice of Carter’s deed.

The question remains, however, as to whether or not Bonds could adversely possess Carter’s timber interest, when she was on notice of the fact that those interests had been severed and recorded prior to her taking the warranty deed to the remainder of the land. As Carter points out, there is no case law in Arkansas dealing with the question of adverse possession of timber rights. There is case law, though, setting out what must happen before one can adversely possess mineral rights. While mineral and timber rights differ in many respects, both are severable from the land on which they are found.

In Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390 (1929), Laura Barnes contended that she held title to certain mineral rights through adverse possession. The mineral rights had been excepted from a deed to the surface rights dated November 17, 1911, but no such exception was contained in subsequent quitclaim deeds to the property. Barnes, who was a subsequent grantee to the surface estate, eventually claimed she held title to the mineral rights as well, although she had never exploited the mineral rights until she attempted to execute a mineral lease on the land in 1918. In reversing the trial court’s decision finding that Barnes adversely possessed the property, this court held as follows:

Where there has been a severance of the legal interest in the minerals from the ownership of the land, it has been held as to solid minerals, and the same rule has been applied to oil and gas, that adverse possession of the land is not adverse possession of the mineral estate and does not defeat the separate interest in it. [Citation omitted.] In Scott v. Laws, 185 Ky. 440, 215 S.W. 81, 13 A.L.R. 369, the court said that, since there was a severance of the mineral estate from the surface estate, the owner of the minerals did not lose his right or his possession by any length of nonuser, nor did the owner of the surface acquire tide by the statute of limitations to the minerals by his exclusive and continued occupancy and enjoyment of the surface mere.
This rule was approved by this court in Bodcaw Lumber Co. v. Goode, [160 Ark. 48, 254 S.W. 345 (1923)], and the court said: “The rule of those authorities is that the title to minerals beneath the surface is not lost by nonuse nor by adverse occupancy of the owner of the surface under the same claim of title, and that the statute can only be set in motion by an adverse use of the mineral rights, persisted in and continued for the statutory period.”
So it may be taken as settled that the two estates when once separated, remain independent, and title to the mineral rights can never be acquired by merely holding and claiming the land, even though title be asserted in the minerals all the time. The only way the statute of limitation can be asserted against the owner of the mineral rights or estate is for the owner of the surface estate or some other person to take actual possession of the minerals by opening mines and operating the same. It is only when such possession has continued for the statutory period that title to the mineral estate by adverse possession is acquired.

Id. at 682 (emphasis added). Other cases have held similarly. See, e.g., Taylor v. Scott, 285 Ark. 102, 685 S.W.2d 60 (1985) (when a mineral ownership has been severed by deed from the surface ownership, adverse possession of the surface is ineffective against the owner of the minerals unless the possessor actually invades the minerals by opening mines or drilling wells and continues that action for the necessary period).

Bonds’s argument in her reply brief that mineral rights and timber rights are not analogous is not well taken, especially in light of her concession in her opening brief that timber rights are a profit a prendre. Timber rights are indeed a profit a prendre, see Black’s Law Dictionary 1483 (6th ed. 1990). Further, a profit d prendre is defined as a “right to take from the soil, such as by logging, mining, drilling, etc.” Id: at 1211. The right of profit d prendre is a “right to make some use of the soil of another, such as the right to mine metals, and it carries with it the right of entry and the right to remove and take from the land the designated products or profit and also includes right to use such of the surface as is necessary and convenient for exercise of the profit.” Id. In sum, while we do not conclude that timber and mineral rights are necessarily identical in nature, both rights involve the right to remove the subject goods from the surface itself; neither right .profits its owner until it is exercised by removing the goods from the land. Title to such rights is separate and apart from tide to the surface.

In conclusion, we hold that Bonds’s reliance on Jones v. Barger, supra, is misplaced, and § 18-11-102 is likewise inapplicable, because one cannot adversely possess timber rights merely by paying taxes on the land. In order to establish adverse possession, the possession must be actual, open, continuous, hostile, exclusive, and be accompanied by an intent to hold adversely and in derogation of, and not in conformity with, the right of the true owner. Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000); Staggs v. Story, 220 Ark. 823, 250 S.W.2d 125 (1952). Further, to adversely possess property on which another holds a superior right to timber growing thereon, there must be actual adverse possession for seven consecutive years before the commencement of the suit. Collins v. Bluff City Lumber Co., 86 Ark. 202, 205, 110 S.W. 806 (1908). If the owner of the surface holds the land upon which the timber is growing, it is presumed, unless the contrary appears, that he or she holds in subordination to the rights of the owner of the timber deed, such possession being consistent with the right to the timber; mere possession is not sufficient to bar recovery. Id. Here, Bonds did nothing to actively assert her interest in the timber growing on the land until she filed this suit. This was insufficient to claim an adverse interest in the property, and the trial court did not err in finding in favor of Carter on this issue.

In her second point on appeal, Bonds argues that the trial court erred in concluding that the statute of limitations barred her challenge to the validity of the timber deed. In this respect, she contends that public policy considerations concerning the inherent “unconscionability” of the 100-year timber deed somehow trumped the seven-year statute of limitations for bringing actions to recover lands. See Ark. Code Ann. § 18-61-101 (1987). She also avers that the Uniform Commercial Code provides authority for setting aside unconscionable contracts, and cites Davis v. Kolb, 263 Ark. 158, 563 S.W.2d 438 (1978), wherein this court set aside a timber deed for unconscionability. However, Davis did not involve any question of the applicable statute of limitations, or such statute’s effect in barring the underlying suit.

In Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999), this court had the following to say about the interplay between public policy and statutes of limitations:

Any statute of limitation will eventually operate to bar a remedy, and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. [Citations omitted.]

Id. at 103 (emphasis added).

Bonds simply offers no convincing authority to support her argument that public policy concerns should override the applicable seven-year statute of limitations, nor does she make any argument whatsoever that the legislature made a “palpable error” in determining the statute of limitations for bringing suits to recover land. This court has repeatedly held that we do not consider assignments of error that are unsupported by convincing authority. Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Public Defender Comm. v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000); Federal Fin. Co. v. Noe, 335 Ark. 78, 983 S.W.2d 107 (1998).

For the foregoing reasons, the order of the chancery court is affirmed.

Arnold, C.J., Corbin and Hannah, JJ., concur; Thornton, J., dissents.

Jim Hannah, Justice,

concurring. I concur with the majority’s decision. First, I agree with the dissent’s analysis that there is a difference between a timber deed, which is more akin to the sale of a crop, and a deed granting mineral rights, which is a separate estate in the minerals beneath the surface. Common sense dictates that while a mineral estate and a surface estate can coexist due to their different positions on and under the land, a surface estate and a timber deed or contract relate to the same locale &emdash; the property above ground. The respective rights of mineral and surface owners are well settled. The owner of the minerals has an implied right to go upon the surface to drill wells to his underlying estate, and to occupy so much of the surface beyond the limits of his well as may be necessary to operate his estate and to remove its products. Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160 (1974). His use of the surface, however, must be reasonable. Id. The rights implied in favor of the mineral estate are to be exercised with due regard for the rights of the surface owner. See id. (citing Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971)). However, with regard to a timber interest and a surface estate, until the timber is harvested, use of the surface by the surface owner is basically suspended pending the expiration of the contractual term over the timber. For example, a surface owner cannot build a house in a grove of contractually conveyed timber without either cutting down the timber and injuring the timber owner’s interest, or waiting to the detriment of his interest until the timber is harvested. If a timber estate were perpetual, as can be a mineral estate, the surface owner could conceivably be forever barred from developing his land for fear of damaging the timber owner’s interests.

Although I agree with the dissent on this point, I must concur in affirming this case because I think Ms. Bonds did not assert the proper claim below to challenge the timber contract at issue here. Certainly, as the dissent notes, the document in this case is a contract for the sale of “all the merchantable pine and hardwood timber standing, growing and being on. . . [the land].” The contract is to be performed within one huhdred years. To challenge this contract, Ms. Bonds argued that the timber contract was void ab initio because she alleged that Mr. Carter defrauded Mr. Smith by taking advantage of Mr. Smith’s alcoholism to obtain the contract, that a timber contract with a term of one hundred years to perform is against public policy for improper restraint of property, and that the timber contract and description had been materially altered after Mr. Smith signed the contract. These, however, appear to be the claims Ms. Bond asserted in her original lawsuit in 1982, in which she nonsuited her claims pursuant to Ark. R. Civ. P. 41(b) and then never refiled. The trial court noted that the action was dismissed for want of prosecution on January 15, 1986. While I believe that these particular claims are barred by the statute of limitations, I do not think that a dismissal of this current action would bar Ms. Bonds from bringing a different action such as a challenge to the reasonableness of Mr. Carter’s failure to remove “aE the merchantable pine and hardwood timber standing, growing and being on. . . [the land]” that was present in 1981 when the contract was made, or to compel Mr. Carter to remove the only the “merchantable” timber in existence in 1981 and to enjoin him from removing any other timber that matured and became “merchantable” after the moment the contract was created. The statute of limitations perhaps has not run on these or other causes of action to properly enforce the contract pursuant to our case law and consistent with public-policy considerations. Accordingly, I concur and would affirm the chancery court.

Arnold, C.J. and Corbin, J., join.

R ay Thornton, Justice,

Justice, dissenting. Because I believe that there is a difference between a timber deed and a deed granting mineral rights, and because I think that Arkansas Code Annotated § 18-11-102 et seq. (1987) applies to timber land, I must respectfully dissent.

The majority opinion is premised upon the notion that a timber deed is analogous to a mineral-rights deed. Based on this assumption, the majority concludes that Ms. Bonds may not follow the procedure outlined in Ark. Code Ann. § 18-11-102 et seq. to acquire any rights to the timber identified in Mr. Carter’s timber deed. This assumption is misplaced. We have held that:

there is a broad distinction between a sale of timber and mineral rights, for the use of the former necessarily creates a burden upon the owner of the surface which is not consistent with use by the latter, whereas the use of the surface for mining purposes is only incidental and does not necessarily impair to a serious extent the enjoyment of the surface rights.

Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S.W. 345 (1923).

Because there is a “broad distinction” between a timber deed and a mineral-rights deed, I do not think that we can look to our previous case law involving mineral rights to determine whether Ark. Code Ann. § 18-11-102 et seq. may be used to quiet title in land that is subject to a contract for sale of merchantable timber. It appears that the question whether a property owner may perfect his title to land that is the subject of a timber deed by payment of taxes for a period of numerous consecutive years pursuant to Ark. Code Ann. § 18-11-102 et seq. is now being raised for the first time, although we have previously decided that the applicable provisions of the statutes will support the perfection of a clear title notwithstanding a record title held by the original owner of the property. See Wimberly v. Norman, 221 Ark. 319, 253 S.W.2d 222 (1952); see also Jones v. Barger, 67 Ark. App. 337, 1 S.W.3d 31 (1999).

This issue of first impression requires us to review a chancellor’s interpretation of a statutory provision. As we have stated on numerous occasions, we consider chancery cases de novo on the record. Bharodia v. Pledger, 340 Ark. 546, 11 S.W.3d 540 (2000). In City of Lowell v. M & N Mobile Home Park, 323 Ark. 332, 916 S.W.2d 95 (1996) we elaborated on this standard of review. Specifically, we explained:

In appellate review of ordinary equity cases there are two different components of the chancellor’s ruling that are considered. The appellate court will not set aside a chancellor’s finding of fact unless it is clearly erroneous. This deference is granted because of the regard the appellate court has for the chancellor’s opportunity to judge the credibility of the witnesses. However, a chancellor’s conclusion of law is not entitled to the same deference. If a chancellor erroneously applies the law and the appellant suffers prejudice, the erroneous ruling is reversed. Manifestly, a chancellor does not have better opportunity to apply the law than does the appellate court.

Id. (internal citations omitted).

In our review of the chancellor’s conclusions of law, we must also remain mindful of our standard of review for matters of statutory construction. We review issues of statutory construction de novo; it is for this court to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454 , 995 S.W.2d 341 (1999). We are not bound by the decision of the trial court. Id.

I turn now for a de novo review of the chancellor’s interpretation of Ark Code Ann. § 18-11-102 et seq. On appeal, Ms. Bonds contends that timber resources are different than mineral estates and that the statutory provisions of Ark. Code Ann. § 18-11-102 et seq. anticipate gaining ownership of land by prolonged payment of taxes on land in which a timber deed was once granted. Specifically, she argues:

It is disingenuous and counterintuitive in Arkansas to suggest that land or real property — especially in a wild and unimproved or unimproved and unenclosed state for any seven year of fifteen year or more period does not also connote growing timber. For adverse claimants to possess land with timber is reasonable. Appellee distinguishes appropriately ‘mineral estates’ and ‘interests’ and the necessity that they be opened to be adversely possessed in Arkansas. However, minerals are dormant assets of the land, beneath the surface estate. They are not wasted if left undisturbed and their true economic significance (for taxation purposes and otherwise) arises at severance. Further, unopened mineral estates rarely bind surface alienability or use.
But control of the timber estate-in this case putatively for one hundred years-controls all practical surface usage and alienability of the land for a century. The timber resources, unlike unopened mineral estates, are visible, growing, and currently dominating the land’s use and value.

I agree wholeheartedly with Ms. Bonds. The conveyance by warranty deed of title to a mineral estate is not analogous to a present contract for sale of a crop, namely the merchantable timber, that is growing on the surface of the land. For example, in Bodca-w, we quoted the language used in a warranty deed that reserved mineral rights. The document stated:

Reserving to the grantor, its successors and assigns, all of the gas, oil and minerals and mineral rights in and under said land. . .if same shall be necessary for, or desired by it, its successors or assigns — such pipe lines for oil and gas and such telephone and telegraph lines and such right of way, however, not to infringe upon or interfere with any improvements upon said land without payment of a reasonable amount for damages caused thereby.

Id. (Emphasis added.) Bodcaw reflects a carving out of the mineral interest from the surface rights. That case holds that such mineral interest can be distinguished from the ownership of the title to the surface estate. The title to minerals can be retained in perpetuity while the surface owner enjoys his estate in perpetuity. Id. In Bodcaw, we also held that the separate title to the enjoyment of the minerals “is retained in perpetuity” and that:

the statute of limitations does not run against these rights unless there is an actual adverse holding which constitutes an invasion of these particular mineral rights. Such is the unanimous view in all the authorities which hold that there is a right of separation and separate conveyance.

Id. In Bodcaw, we drew a distinction between a sale of merchantable timber as contrasted with a retention of an interest in minerals in perpetuity. We also pointed out that unlike a reservation of title to minerals in perpetuity, a mere lease for the purpose of exploring for gas, and the production of the same, would allow an abandonment of the leasehold rights unless work began within a reasonable time. Id. (citing Mansfield Gas Co. v. Alexander, 97 Ark. 167, 133 S.W. 837 (1911)). There is a similar distinction between a present sale of merchantable timber and a lease of the surface for the purpose of growing timber in the future.

In contrast to the retention of rights to minerals in perpetuity, we held in Liston v. Chapman & Dewey Lumber Co., 77 Ark. 116, 91 S.W. 27 (1905) that a timber deed to merchantable timber relates only to the purchase of merchantable timber standing upon the property at the time of the conveyance, and that the holder of the timber deed only has the right to remove such merchantable timber together with the right to enter upon the land for a reasonable time to harvest his personal property. In Liston, we defined the term “merchantable” to mean “such timber as would bring the ordinary market price at the time the deed was executed.” Id.

In the case now before us, it is clear that there was no conveyance of title or lease of the surface for the purpose of growing timber. The timber deed before us was entered on June 18, 1980, and provides:

This contract and agreement made and entered into by and between Eddie Smith parties of the first part and Barry Carter parties of the second part. . . The parties of the first part have this day and by this act and in these presents grant, bargain, sell, convey, set over, transfer, and deliver unto said party of the second part, with full guarantee of title and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors, the following described property towit: all the merchantable pine and hardwood timber standing, growing and being on. . .[the land].

There is no language purporting to convey any interest to Mr. Carter’s heirs and assigns. The sale conveys only a present interest in a growing crop, and does not grant a lease for a term of years. Eddie Smith contracted for the sale of “merchantable pine and hardwood timber” then standing on the land, and agreed that Mr. Carter may cut and remove the property he has purchased within one hundred years.

Faced with an unlimited time for removing timber in Liston, supra, we held that the trial court was correct in finding that “all of the timber less than eighteen inches in diameter at the stump was not merchantable in the month of April 1898, and [therefore] is the property of plaintiffs [landowners]. ” In Liston, we held that “defendant had a right to enter upon the land and remove the timber and to cut and remove all timber not less than eighteen inches at the stump.” Id. We further held that after five years “a reasonable time had not expired for cutting and removing the timber.” Finally, we observed that the “timber under eighteen inches at the stump, of the kinds named, was not merchantable” and was retained by the seller. Id.

In the case now before us, there was no language in the timber deed to create any estate for growing timber. Under the principles we established in Liston, it is clear that Ms. Bonds retained full ownership of the land together with all growing timber that was not conveyed as merchantable pine and hardwood timber on the 18th of June 1980.

In response to Mr. Carter’s motion for summary judgment, Ms. Bonds presented to the trial court an affidavit that stated that a timber deed does not convey an interest in the land. The affidavit by Teddy Reynolds addressed the distinction between the timber deed found in this case and a conveyance of an interest in the underlying real estate. Mr. Reynolds’s affidavit was not controverted. In his affidavit, Mr. Reynolds testified that:

The deed is for all the merchantable pine and hardwood timber standing, growing, and being on the property. ‘Merchantable’ is a term of art in the timber industry that has the same meaning today as it did in 1980.
* * *
Further, a timber deed designates a transaction regarding timber to be harvested and is distinguished from a lease of surface rights for growing timber. The two concepts are not at all interchangeable and the terms are not used interchangeably in the industry.
* * *
Whether for one or one hundred years, the Smith/Carter ‘timber deed’ sets its term only for felling, cutting, and removing the merchantable timber, not for leasing the surface rights to grow timber.
So, it seems to me that Mr. Carter only bought from Mr. Smith the timber that was upon the property and merchantable as of June 18, 1980. There is no reference or even slight hint of a lease of surface rights for timber production in this instrument.

It is clear that this issue was presented to the chancellor and that this issue was brought forward for our review. In deciding a case of first impression of the application of Ark. Code Ann. § 18-11-102 et seq. to a contract for sale of merchantable timber, we must perform a de novo review of the record, and make our own interpretation of the statute.

In so doing,, I believe that an analysis of the public policy behind collecting taxes leads to the conclusion that the failure of Mr. Carter to assess or pay taxes on standing timber, as provided by Ark. Code Ann. § 26-26-1109 (Repl. 1997), resulted in Ms. Bonds’s payment of taxes upon both the land and the timber for more than twenty years. This triggers the application of Ark. Code Ann. § 18-11-102 et seq. Here the only person paying taxes on the land and the timber was Ms. Bonds. The legislative intent was to collect taxes upon both the land and the timber. All of the taxes were paid by Ms. Bonds. Arkansas Code Annotated § 18-11-102 et seq. provides that title may be quieted in the person paying such taxes for the required statutory period.

Arkansas Code Annotated § 18-11-102 et seq. allows a person to take possession of “unimproved and unenclosed land” or “wild and unimproved land” when he pays the “taxes thereon” for at least seven years. Id. We have defined “unimproved and unenclosed land “ to mean land that is in a “state of nature,” “wild,” or “not cleared.” Fenton v. Collum, 104 Ark. 624, 150 S.W. 140 (1912).

In summary, from our cases interpreting deeds of minerals, it is well established that an. estate in perpetuity is created by a conveyance of minerals, and that this estate is independent of rights to ownership of the surface. For that reason, adverse possession of the surface does not impair the separate ownership of the mineral estate. That principle does not apply to the timber deed in this case because no leasehold or other interest in the land was ever created. Mr. Carter simply purchased merchantable pine and hardwood timber on the date of the contract. The conveyance of merchantable timber carries with the purchase the right to enter upon the land for a reasonable time for the purpose of removing what has been purchased. Provision of a limited time for cutting and removing the merchantable timber does not establish an estate in the land, and is subject to the provisions of Ark. Code Ann. § 18-11-102 et seq. whereby a clear title to the land is acquired by the payment of taxes for a period of seven or fifteen years. In order to avoid the operation of those statutory provisions, Mr. Carter had an opportunity to separately assess and pay property taxes upon his merchantable timber until he harvested his crop. This was not done. There was no separate assessment or payment of taxes upon the timber. The taxes on the merchantable timber as well as all other taxes on the land were paid by Ms. Bonds each year for more than twenty years. Payment of the taxes on unimproved land according to Ark. Code Ann. § 18-11-102 et seq. clears title to such land against claims of other interests in the property except for severed mineral estates. This is the law even when the contesting holder of title claims an interest based on record tide or other claims of title to- the land. The operation of these statutes clearly extinguishes any contractual right to enter upon the land to harvest merchantable timber purchased more than twenty years earlier.

In the case now before us, the land in dispute was approximately forty-nine acres of timberland. In his response to request for admissions, Mr. Carter admitted that this land was wild and unimproved. It is undisputed that Ms. Bonds paid the taxes on this land from 1981 to 1998. The instrument conveying all merchantable pine and hardwood timber did not include anything more than a sale of merchantable timber in existence at the time of the sale. Based on the language of Ark. Code Ann. § 18-11-102 et seq., Ms. Bonds acquired possession to any timber Mr. Carter failed to remove during the running of the statutes. Accordingly, I would hold that the chancellor’s statutory interpretation was clearly erroneous.

       The arguments raised by the dissent, regarding the purported distinctions between timber and mineral rights, go far beyond the arguments presented by the parties in their briefs. Our analogy between timber and mineral rights extends only so far as our taxing statutes, Ark. Code Ann. § 26-26-1109 and -1110, tax these interests separate and apart from the underlying surface estate. Further, to the extent the dissent relies on the validity or conscionability of the one-hundred-year term of the timber deed, we hold infra that the trial court correctly concluded that the issue of the validity of the timber deed was barred by the statute of limitations.


author: Tom Glaze, Justice.

text:
    Elizabeth STROM v. STATE of Arkansas
    CR 01-933
    74 S.W.3d 233
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Wilson & Associates, P.L.L.C., by: Patrick J. Benca, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

On February 15, 2000, a Pulaski County jury convicted appellant Elizabeth Strom of manufacturing a controlled substance and possession of drug paraphernalia and sentenced her to a total of fifteen years in prison. The judgment and commitment order was entered on February 28, 2000, and Strom filed a pro se petition for postconviction relief on May 10, 2000. The trial court denied that petition on July 20, 2000.

On April 12, 2001, Strom filed a motion to vacate or set aside her conviction and sentence pursuant to Ark. R. Crim. P. 37; in this motion, she alleged, among other things, that her trial attorney, Stuart Vess, refused to file an appeal from her February 2000 conviction and sentence. On August 28, 2001, Strom filed her motion for belated appeal in this court, in which she argued that she should be entitled to an appeal because Vess did not file a notice of appeal after her conviction in February of 2000. In an affidavit attached to the motion for belated appeal, Strom averred that she told Vess that she wanted him to file a notice of appeal on her behalf, but Vess refused to file a notice of appeal because he believed it to be futile and because Strom could not afford his fee for representation on appeal.

In a per curiam order issued on September 27, 2001, this court remanded the matter to the trial court for a hearing to settle the record in order to determine whether Strom had requested Vess to file a notice of appeal and whether Vess had complied with Ark. R. App. P. — Crim. 16. Strom v. State, 346 Ark. 160, 55 S.W.3d 297 (2001). After a hearing on October 24, 2001, the trial court entered an order concluding that Strom did not inform Vess of her desire to appeal, and that Vess complied with Rule 16.

After the trial court entered that order, Strom filed a motion with this court to set aside the trial court’s findings on October 26, 2001; we denied the motion on November 15, 2001. On November 16, 2001, Strom filed a notice of appeal from the trial court’s October 24 order. Strom then resubmitted her motion to file a belated appeal on February 13, 2002; the motion was denied on February 21, 2002. On March 7, 2002, Strom filed a motion for clarification, asking our court to explain why it agreed with the trial court that Vess had fully complied with Rule 16. This time, the court granted the motion and set a briefing schedule. Strom filed her brief on March 28, 2002, and on appeal, she argues that the trial court erred in concluding that Vess complied with Rule 16.

When a case is remanded to the trial court for a factual determination regarding a motion for belated appeal, and the merits of that motion rest on the credibility of the witnesses, this court recognizes that it is the lower court’s task to assess the credibility of the witnesses. See Frazier v. State, 339 Ark. 173, 3 S.W.3d 334 (2001). This court, however, does not attempt to weigh the evidence or assess the credibility of the witnesses; that lies within the province of the trier of fact. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). We are bound by the fact-finder’s determination on the credibility of witnesses. Id. Likewise, we have long held that the trier of fact is free to believe all or part of a witness’s testimony. Id. We do not reverse a trial court’s findings of fact unless they are clearly erroneous. See, e.g., Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Shibley v. State, 324 Ark. 212, 920 S.W.2d 10 (1996); Ark. R. Civ. P. 52(a).

Rule 16 of the Arkansas Rules of Appellate Procedure — Criminal provides, in pertinent part, the following:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

(Emphasis added.) This court has held, however, that a defendant may waive the right to appeal by his or her failure to inform counsel of the desire to appeal within the thirty days allowed for filing a timely notice of appeal under Rule 4(a) of the Rules of Appellate Procedure. Langston v. State, 341 Ark. 739, 19 S.W.2d 619 (2000); Sanders v. State, 330 Ark. 851, 956 S.W.2d 868 (1997); Jones v. State, 294 Ark. 659, 748 S.W.2d 117 (1988).

At the October 24 hearing, Vess testified that Strom informed him that she did not wish to appeal her February 2000 conviction; rather, she said she- wanted to try to get the other charges that she had, including a revocation of probation, to run concurrent to the February conviction. Vess commented that Strom received a sentence that was less than the one the prosecutor had offered her, and she seemed relieved about it. Vess further stated that he talked with Strom over the phone about another charge that was coming up on April 3, 2000, and she did not mention at that time that she wanted to appeal the February conviction. She indicated during that conversation that she wanted the April 3 charges run concurrently to the other time she was already serving. Strom pled guilty to the charges on April 3, and her penitentiary time was run concurrently to the other time; at the time, Vess testified that she never mentioned that she wanted to appeal the earlier case.

Vess also noted that he had sent Strom a letter about the April 3 charges, and confirmed their conversation wherein she said that she did not want to appeal. The letter read as follows:

As per our telephone conversation, we will not be appealing your jury trial conviction. As I talked to you, the prosecutor is agreeable to running the charges in Seventh Division Circuit concurrent with the sentence you received in the jury trial. Also with regard to your theft charge, the prosecutor will be nol prossing that. I’ll see you on April 3td at 2 o’clock to do your guilty plea for concurrent time. Good luck to you, Stuart Vess. [Emphasis added.]

After Strom’s appearance on April 3, when she pled guilty and received concurrent time, the next time Vess heard from Strom was after the court of appeals reversed the conviction of her husband and co-defendant in case number 99-3836, Mike Porter. Porter’s case was reversed and dismissed on January 24, 2001. Porter v. State, CACR00-627 (Ark. App. Jan. 24, 2001). Porter called Vess about Strom after Porter’s conviction was reversed, and at that time, Vess told Porter that it was too late, but Vess said that if Porter could get authorization from Strom for Vess to release her file, he would do so. Porter got Strom’s authorization, and Vess released her file to him. The last time Vess had contact with Strom, however, was on April 3, 2000.

When asked about an allegation in Strom’s affidavit that Vess refused to file her appeal because he believed it to be futile and because she could not afford his fee on appeal, Vess replied that he had never quoted her a fee, and that her allegations were not true. He stated that he did not file an appeal in her case because he did not think she would win on appeal, and he advised her of that. He also advised her that he thought they could get the charges run concurrently, and when he asked her if she wanted to do that, she said, “yes.”

Strom also testified at the hearing, and contradicted most of what Vess had stated. However, she did concede that Vess’s letter, in which he stated that they would not be appealing her conviction “confirmed [her] conversation with him.” At the end of the hearing, the trial court opined that Strom did not tell Vess that she wanted to appeal, and that the issue of her appeal never came up until after Porter’s case had been reversed. The judge stated that he “just simply [didn’t] believe this lady. ... I believe Mr. Vess and based upon that, I don’t think Mr. Vess had a duty to withdraw; I don’t think he had a duty to do anything other than what he did[.]”

Strom acknowledges that the trial court, as fact-finder, makes credibility determinations. See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). However, citing Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983), Strom argues that her trial counsel, Vess, failed to advise her of her right to appointed counsel on appeal. In Lewis, this court held that, where counsel knew his client wanted to appeal but failed to take action to see that his client understood that an indigent could ask the trial court to appoint an attorney to perfect the appeal at public expense, counsel was obligated to file a notice of appeal or obtain permission from the trial court to withdraw.

In the present case, as opposed to Lewis, Vess testified that it was his understanding, based on his conversations with Strom, that she did not want to appeal. The trial court believed Vess’s testimony to this effect, and the court’s conclusion is adequately supported by the transcript of those proceedings. Although there was conflicting testimony, the trial court concluded that Vess was credible and Strom was not. This court defers to the trial court’s superior position to ascertain witnesses’ credibility, see Frazier, supra, and the trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002); Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).

Further, in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the United States Supreme Court rejected the notion of a bright-line rule requiring trial counsel to “always consult with the defendant regarding an appeal”; rather, the Court held that it would apply the standard of Strickland v. Washington, 466 U.S. 688 (1984), to determine whether or not counsel rendered a deficient performance with respect to filing a notice of appeal. In other words, the Court stated that counsel’s performance would be judged by determining whether or not the representation fell below an objective standard of reasonableness, and whether or not the performance prejudiced the defendant. Flores-Ortega, 528 U.S. at 477. The Court expanded on this notion as follows:

In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term “consult” to convey a specific meaning —• advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal. [Citation omitted.]

Id. at 478.

From Vess’s testimony at the October hearing, it is clear that the trial court believed that Vess had sufficiently consulted with Strom about her appeal and about the remainder of the proceedings against her. The question, as framed in Flores-Ortega, is whether or not “counsel ma[d]e objectively reasonable choices.” Id. at 479. Here, given Strom’s indication to Vess that she wanted to plead guilty to the other charges against her, and Vess’s credible testimony that she never mentioned that she wanted to appeal the February 2000 conviction, we agree with the trial court that Vess acted reasonably under the circumstances and did not render ineffective assistance of counsel.

We note that the State has raised two procedural arguments against Strom’s appeal. First, citing Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (2000), the State asserts that law of the case bars this appeal, because this court has twice rejected her petition for a belated appeal. In Camargo, we held that the law-of-the-case doctrine prevents an issue that was raised in a prior appellate proceeding from being raised in a subsequent appellate proceeding “unless the evidence materially varies between the two[.]” Here, though, the “subsequent” proceedings — our present review of the trial court’s factual findings — differ from the prior appellate proceedings, because this is the first time we have had the opportunity to examine the determinations of facts made by the trial court following our remand.

Additionally, the State contends that there is no final, appealable order from the circuit court. However, as just noted, the trial court made findings upon directions from this court, so that we could consider and review an unresolved factual question. The State attempts to analogize this court’s current remand to the appointment of a special master to make findings of fact, but this analogy only supports the conclusion that there is an appealable order. When this court appoints a master, he or she enters findings of fact, and this court then reviews them, rejecting any findings that are clearly erroneous, and renders a decision. See, e.g., Osborne v. Powers, 322 Ark. 229, 908 S.W.2d 340 (1995). This is precisely what we are asked to do in this matter, and we conclude that the trial court’s findings were not clearly erroneous.

We affirm the trial court and deny Strom’s motion for belated appeal.

Imber, J., not participating.

       The partial transcript that accompanied Strom’s subsequent motion for belated appeal did not reflect that any further action was taken on that motion.


author: Donald L. Corbin, Justice.

text:
    Lloyd C. JONES v. STATE of Arkansas
    CR 01-1095
    74 S.W.3d 663
    Supreme Court of Arkansas
    Opinion delivered May 16, 2002

      Bowden Laiv Firm, P.A., by: David O. Bowden, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Lloyd C. Jones appeals the judgment of the Sebastian County Circuit Court, Greenwood District, convicting him of the rape of his estranged wife and sentencing him to ten years’ imprisonment. Jones raises four points for reversal, one of which is an issue that this court has not heretofore considered: Whether Arkansas law prohibits the rape of one spouse by another by means of forcible compulsion. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(b)(1). We find no merit to Jones’s arguments, and we affirm.

I. Sufficiency of the Evidence

For his first point on appeal, Jones argues that there was not sufficient evidence to convict him of rape, and that the trial court erred in denying his directed-verdict motion. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. Before we review the evidence presented below, we must address the point of procedure raised by the State.

The State argues that this point is procedurally barred because Jones’s directed-verdict motion below did not specify the proof allegedly missing from the prosecutor’s case. We disagree. The record reflects that Jones’s attorney moved for a directed verdict on the ground that the State had failed to prove that there was coercion or that the rape actually occurred. Counsel admitted that sexual activity, and even deviate sexual activity had occurred between the two, but that Jones’s “point is consensual.” We view counsel’s argument as a challenge to the proof submitted on the issue of forcible compulsion, which is the argument he makes on appeal. As such, we will review the merits of this point.

Jones was charged with the offense of rape pursuant to Ark. Code Ann. § 5-14-103 (Repl. 1997). Particularly, the State charged that Jones engaged in sexual intercourse or deviate sexual activity with his estranged wife, Charis Jones, by forcible compulsion. “Forcible compulsion” is defined in Ark. Code Ann. § 5-14-101(2) (Repl. 1997) as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Charis testified that on the early morning of December 14, 2000, between 2:15 and 3:00 a.m., her husband Lloyd Jones broke into the trailer where Charis was living with her three children and a friend and her two children. According to Charis’s testimony, she and Jones were separated at the time and had been since the week before Flalloween 2000. On the date in question, she was asleep in her bed when she awoke to find Jones standing over her. Jones placed duct tape on her mouth and attempted to handcuff her, but he was unable to get the handcuffs on her completely. Jones also held a box cutter blade to her neck and told her that if she screamed or called to her roommate, Amy Gothard, he would kill the children and her roommate.

At some point, Charis was able to get the duct tape off her mouth. Jones did not retape her mouth. Jones then asked her to “suck on his penis.” Charis agreed to do so. Jones then instructed Charis to bend over, and he inserted his penis into her anus. When he had finished engaging in anal intercourse, Jones went into the bathroom and cleaned off his penis. He then told Charis that he wanted her to perform oral sex again. When he tired of that, Jones asked to have vaginal intercourse with Charis, and she complied.

When asked by the prosecutor why she complied with Jones’s requests for sex, Charis stated that she was afraid of Jones. When asked if she had consented to the sexual acts at any time during the incident, Charis stated that she had not. She explained that she let Jones do those things and she did not call for help or attempt to get away from him, because she “was scared that he was going to hurt us.” She explained further that her fear stemmed from the fact that “he sat there and said he was going to do harm to my children and to my friend and her kids.” Charis also stated that after they had vaginal intercourse, Jones told her that he was going to come and live with her in the trailer, and that they were going to be a family again. Charis testified further that Jones told her “that if I wanted out of the marriage by divorce I wouldn’t get it because the only way to get out of our marriage was like our wedding vows is through death and I would have to die.”

This court has repeatedly held that the uncorroborated testimony of a rape victim is sufficient to sustain a conviction. See, e.g., Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999); Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998); Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Accordingly, we could end our review of the evidence here. In this case, however, we have corroboration of the victim’s testimony in the form of a custodial confession by Jones, which was played for the jury.

In his statement, Jones admitted that on the date in question, he broke into Charis’s trailer, placed duct tape on her mouth, and threatened her with a box cutter. Although Jones claimed that the box cutter did not have a blade in it at the time, he admitted that he held the box cutter up to Charis’s neck and told her that if she screamed, “[he] might harm her friend Amy.” He admitted that Charis engaged in the sexual acts “out of fear and not because she wanted to.” He also admitted that he had forced Charis to engage in similar sexual acts before, but he maintained that this was the only time that he had placed a knife to her throat. He admitted that he had a problem and he stated: “I would like for somebody to please help me get help, counseling, ‘cause I want counseling ‘cause I don’t really understand why I am doing this, why I do this.” This evidence certainly corroborates the victim’s testimony that Jones forced her to engage in the sexual acts out of fear that he would harm her, her children, her friend, and her friend’s children. Accordingly, we conclude that there was more than sufficient evidence to convict Jones of rape, and we affirm the trial court’s denial of a directed verdict.

II. Rape Within the Marriage

For his second point for reversal, Jones raises an issue of first impression in this state, namely whether Arkansas law recognizes the crime of rape within a marriage. Jones contends that at common law in England, there was no crime of rape within a marriage. He asserts that this rule was based on the theory that consent to any and all sexual relations was deemed to have been given as part of the marriage contract. He asserts further that when the legislature enacted Ark. Code Ann. § 1-2-119 (Repl. 1996), it thereby adopted the common law of England. Thus, he argues that the legislature has never specifically recognized the crime of rape between spouses. The State argues, and Jones does not dispute, that this point is procedurally barred because it was not raised in the trial court. See Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001); Branscum, 345 Ark. 21, 43 S.W.3d 148. Notwithstanding, we reject Jones’s argument on this point.

In adopting our Criminal Code, the General Assembly specifically declared: “The provisions of this code shall govern any prosecution for any offense defined by this code and committed after January 1, 1976.” Ark. Code Ann. § 5-l-103(a) (Repl. 1997). Section 5-14-103(a)(l), which is part of the Criminal Code, provides that a person commits the crime of rape by engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Under this section, a perpetrator is “[a] person” and the victim is “another person.” Thus, on its face, this section is neutral both as to gender and as to the relationship, if any, between the perpetrator and the victim. This section controls all prosecutions for the crime of rape involving forcible compulsion, including those instances of forcible rape between spouses. Because the statute controls, the common law of England is irrelevant. Accordingly, we affirm on this issue.

III. Admissibility of Explicit Photographs under the Rape-Shield Statute

For his third point on appeal, Jones argues that the trial court abused its discretion in denying the admission of several photographs that graphically depict the victim engaging in oral sex and various acts of masturbation. In his written motion, filed pursuant to Ark. Code Ann. § 16-42-101 (Repl. 1999), Jones claimed that the photographic evidence was crucial to refute the allegations against him that he forced the victim to engage in deviate sexual acts. The trial court conducted an in camera hearing on the admissibility of the photographs, during which Jones testified that the photographs were taken by him on two different dates in June 2000. Jones identified himself as the other person in some of the photographs. At the conclusion of the hearing, the deputy prosecutor argued that the photographs were not relevant to the issue of the victim’s consent on the night of the rape. He argued that the photographs were not in any way connected to the events of this case. Jones’s attorney, on the other hand, argued that the photographs were relevant to show that Jones and the victim, as husband and wife, had engaged in consensual anal and oral intercourse. The trial court took the matter under advisement.

The following day, the trial court entered a written order, finding that some of the photographs may be relevant to the issue of consent. The order provided that Jones would be allowed to ask the victim whether she had engaged in anal and oral sex with Jones during their marriage. If the victim admitted that she had, even if she claimed that it had been without her consent, the photographs would not be admissible. However, if she denied the acts, the photographs may become admissible, subject to other objection by the State.

During the trial, the victim admitted that she and Jones had engaged in anal and oral intercourse during their marriage, but she claimed it had been without her consent. Defense counsel then attempted to impeach her testimony and sought to introduce the photographs. The trial court denied the request, but allowed defense counsel to ask her about one particular photograph depicting an act of anal manipulation with a dildo. The trial court ruled further that the photograph itself, which the judge described as “highly prejudicial” and “more inflammatory than necessary,” would not be admissible unless the victim denied posing for the photograph. Initially, the victim admitted that such a photograph of her had been taken, but she claimed that it was taken without her consent, after she had just been awakened.

At that point, the jury was taken out of the courtroom to allow the parties to argue the admissibility of the photograph. The prosecutor asked the judge if he could have the opportunity to show the photographs to the victim, as she had not seen them in some time and may not have recalled what was depicted in the particular photograph referred to by defense counsel. The trial court allowed this and ruled that after she looked at them, he would allow defense counsel to ask the question again. Whereupon the jury was recalled, and defense counsel asked the victim: “Did you not on or around June of 2000 pose in the nude with your husband, having anal sex with a dildo?” The victim answered: “Yes.” Defense counsel then asked her if it was consensual, and the victim said “No.” At that point, defense counsel again attempted to introduce the photograph, arguing that it demonstrated consent. The trial court disagreed that the photograph necessarily showed consent and denied its admission. We find no error in the trial court’s ruling.

The purpose of our rape-shield statute, section 16-42-101, is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. State v. Babbs, 334 Ark. 105, 971 S.W.2d 774 (1998); Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997). The rape-shield statute prohibits admission of evidence of a victim’s prior sexual conduct, unless such evidence directly pertains to the act upon which the prosecution is based. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979). Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act; there must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. Id. See also Babbs, 334 Ark. 105, 971 S.W.2d 774; State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994). However, even such relevant evidence is not admissible unless the trial court, at an in camera hearing, makes a written determination that the probative value of the evidence outweighs its inflammatory or prejudicial nature. Graydon, 329 Ark. 596, 953 S.W.2d 45; Bradley v. State, 327 Ark. 6, 937 S.W.2d 628 (1997). The trial court is vested with a great deal of discretion in ruling whether the victim’s prior sexual conduct is relevant, and we will not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. See Babbs, 334 Ark. 105, 971 S.W.2d 774; Graydon, 329 Ark. 596, 953 S.W.2d 45.

Here, the trial court found the evidence to be relevant to the issue of consent. The trial court reasoned that acts of deviate sexual activity might be foreign to many people, such that the jurors may be inclined to think that such conduct is never consensual. Thus, the trial court allowed defense counsel to ask the victim whether she had engaged in anal and oral intercourse with her husband and whether she had posed for photographs depicting such conduct. -The trial court denied admission of the photographs themselves because they did not demonstrate necessarily consensual acts. The trial court also found that the photographs were more inflammatory, derogatory, and prejudicial than they were probative. We cannot say that the trial court abused its discretion in ruling as it did.

IV. Admission of Taped Telephone Conversation

For his final point on appeal, Jones argues that the trial court erred in denying his motion to suppress statements he made during a taped telephone conversation with the victim and those he made to police after his arrest. He asserts that the telephone conversation should have been suppressed pursuant to the Supreme Court’s holding in Massiah v. United States, 377 U.S. 201 (1964), and that the custodial statement should have been suppressed because it was the fruit of an illegal arrest. We find no error.

The record reflects that the victim reported the rape to Captain William Hollenbeck, of the Sebastian County Sheriffs Office, on the date that it happened. The following day, the victim went to the sheriff s office to give an interview. While there, Hollenbeck asked her to make a telephone call to Jones to see if he would corroborate her statement. The victim agreed to make the call from Hollenbeck’s office. The entire conversation was tape recorded by Hollenbeck, but Jones was not aware of this. During the course of the conversation, the victim pressed Jones to tell her why he raped her the night before. She also tried to get him to admit that it was in fact rape. Jones denied raping her for most of the conversation, although he told her that he was sorry for what he did and that it was wrong. Finally, near the end of the conversation, Jones made the statement “I did it.”

Following the telephone call, Hollenbeck went to Jones’s trailer to arrest him for rape. Hollenbeck did not have an arrest warrant. He testified during the suppression hearing that he believed that he had probable cause to arrest Jones based on the victim’s statement and the admissions made by Jones during the telephone conversation. When he arrived at the residence, Hollenbeck informed Jones that he wanted to talk to him about the charges made by his wife. Jones agreed to go to the sheriffs office for an interview. Hollenbeck then placed Jones in handcuffs and put him in the back of a patrol car, where he was transported to the sheriff s office. Hollenbeck stated that at that point, Jones was not free to go and was in fact under arrest. Once they arrived at the sheriffs office, Jones was taken to an interview room, and Hollenbeck read him his Miranda rights from a statement-of-rights form. Jones acknowledged his rights and agreed to talk to Hollenbeck without an attorney present. Thereafter, Jones confessed to the crime on tape.

During the hearing below, Jones asked the trial court to suppress his custodial confession on the ground that it was obtained illegally following an arrest without a warrant. Jones argued that the police lacked reasonable or probable cause to arrest him for rape and that, accordingly, the police violated his rights by coming into his house to arrest him without a warrant or exigent circumstances. Jones argued that his custodial statement should be suppressed as fruit of the poisonous tree. However, Jones did not directly challenge the voluntariness of the custodial statement.

The trial court denied Jones’s motion to suppress, finding that the police had probable cause to arrest him without a warrant pursuant to Ark. R. Crim. P. 4.1. The trial court found further that the custodial confession was given voluntarily, after Jones had been fully advised of his Miranda rights. In reviewing a trial court’s denial of a motion to suppress, we make an independent examination of the issue based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. Holmes v. State, 347 Ark 530, 65 S.W.3d 860 (2002); Stanton, 344 Ark. 589, 42 S.W.3d 474. We will reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Id.

Jones first argues that the trial court erred in denying suppression of the telephone conversation because it was obtained illegally in violation of Massiah, 377 U.S. 201. He contends further that, depending on the origin of the call and location of the parties at the time, the call may have been a violation of the Federal Communications Act. Neither of these arguments were made below. The record demonstrates that the written motion to suppress only challenged the admissibility of the custodial confession. Moreover, during the suppression hearing, defense counsel did not challenge the telephone conversation, under Massiah or any other basis. Counsel’s only argument was that Jones had been arrested illegally and that his custodial statement was therefore fruit of the poisonous tree. Accordingly, we limit our review to the issue of the legality of Jones’s arrest.

A police officer may arrest a person without warrant if the officer has reasonable cause to believe that the person committed a felony. See Rule 4.1(a)(i); Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). Reasonable or probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Id. In assessing the existence of reasonable or probable cause, our review is liberal and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996). All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Id. See also Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999).

Here, the trial court found that the police had reasonable or probable cause to arrest Jones for rape based on the victim’s testimony that he had forcibly raped her using a dangerous weapon. The trial court found further support for Jones’s arrest from the telephone conversation in which he made some admissions about the incident. Jones has failed to overcome the presumption in favor of the trial court’s ruling that the arrest was legal. Because the arrest was legal, his custodial statement after-wards was not the fruit of the poisonous tree. Where the tree is not poisonous, neither is the fruit. Criddle, 338 Ark. 744, 1 S.W.3d 436. Accordingly, we must affirm the trial court’s denial of the motion to suppress.

Affirmed.

Imber., J., not participating.

       In his written motion to suppress, Jones alleged that the police had coerced his statement by feeding him candy that “had a peculiar taste to it.” He claimed that five minutes later, he lost all memory of the events that followed, until he woke up in the jail’s suicide cell. He did not pursue this argument at the suppression hearing, nor does he pursue it on appeal. Accordingly, we need not address it.