author: ANDREE LAYTON Roaf, Justice.

text:
    SEBASTIAN LAKE PUBLIC UTILITY COMPANY, Inc. v. SEBASTIAN LAKE REALTY, et al.
    96-167
    923 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996

      John W. Settle Law Firm, by: John W. Settle, for appellant.

      Skinner Law Firm, P.A., by: Jack Skinner, for appellees.
   ANDREE LAYTON Roaf, Justice.

Sebastian Lake Public Utility Company, Inc., appeals from an order granting summary judgment in favor of the appellees, Sebastian Lake Realty and John’s Jiffy Stop, Inc. In granting the summary judgment, the chancellor ordered the South Sebastian County Water Users Association, Inc., to provide water service to the appellees. The trial court further concluded that, as a matter of law, the appellant, which had been providing water to the appellees, did not have an exclusive franchise for the delivery of water service to any area in Sebastian County, Arkansas. We affirm.

On October 4, 1994, John’s Jiffy Stop and Sebastian Lake Realty, operators of a convenience store and apartment complex, filed a complaint against South Sebastian County Water Users Association (Association) alleging that they operated businesses in Sebastian County and that the Association was a public utility that provided water service to Sebastian County. The complaint further alleged that the Association had refused to provide water service to the appellees despite the fact that its water line was within a hundred feet of the appellees’ businesses. The appellees asserted that the actions of the Association were arbitrary and capricious, in violation of Ark. Code Ann. § 23-3-114, which prohibits a utility from subjecting any corporation to any unreasonable prejudice or disadvantage, in violation of the statutes of the United States, and in violation of the rules and regulations of the United States Farmers Home Administration. The appellees alleged that they had no adequate remedy at law, and they sought a mandatory injunction requiring the Association to furnish them water service.

In its answer, the Association alleged that the appellees did not need water because they were being supplied water from the appellant, Sebastian Lake Public Utility Company, Inc. (Public Utility). The answer provided that the Public Utility purchased its water from the Association pursuant to a water-purchase contract dating from November 18, 1968. The Association admitted that it sells surplus water to the Public Utility which then sells water to individual consumers in the Sebastian Lake community.

On May 26, 1995, the Public Utility filed a motion to intervene, alleging that it had a franchise recognized by the Public Service Commission (PSC) to supply water in the area where the appellees’ convenience store and apartment complex were located, and that its contract with the Association would be contravened if the Association was ordered to supply water directly to the appellees. The trial court granted the Public Utility’s motion to intervene.

On July 6, 1995, the appellees moved for summary judgment. They asserted that it was undisputed that the Association refused to supply water to them and that the Association’s water lines were within close proximity to their businesses. The appellees further contended that the Public Utility was no longer regulated by the PSC, that the Public Utility had not been awarded an exclusive franchise, and that they were entitled to judgment as a matter of law.

Subsequently, the Public Utility also moved for summary judgment, asserting that it was undisputed that the PSC granted it a certificate of convenience and necessity to provide water to the area known as Sebastian Lakes in which the appellees’ property was located. The Public Utility contended that it was granted an exclusive right to construct, operate, and maintain a waterworks system in the area pursuant to the certificate. The Public Utility further asserted that even though its rates were no longer subject to approval by the PSC, the certificate of convenience and necessity remained in effect because it had never been revoked by the PSC.

In granting summary judgment, the chancellor concluded that the Public Utility did not have an exclusive franchise to provide water service within the geographic area of Sebastian Lake Estates. The trial court further concluded that it was undisputed that the Public Utility was a Class C public utility which was no longer regulated by the PSC by virtue of Act 37 of the First Extraordinary Session of 1987. The trial court stated that if it held that the Public Utility had an exclusive and unregulated franchise, the appellees would be left in the untenable position of having neither bureaucratic redress for their complaints nor the ability to seek better service in the market place. The trial court also found that when the General Assembly deregulated Class C water utilities in 1987, it nullified by implication any exclusive franchise which may have otherwise been in existence for such a utility pursuant to a certificate of public convenience and necessity.

Í. Standing

We first consider whether the Public Utility has standing to bring this appeal. The appellees contend that because the chancellor did not order the Public Utility to do anything, or prohibit it from doing anything, it consequendy does not have standing to appeal the decision of the trial court. We hold, however, that the Public Utility is an aggrieved party, and as such, has standing to raise an issue on appeal. See McDonald’s Corp. v. Hawkins, 315 Ark. 487, 868 S.W.2d 78 (1994). In reaching its decision, the trial court interpreted the Public Utility’s certificate of public convenience and necessity and held that it did not have an exclusive franchise. Although the Public Utility was not “ordered” to do anything, the trial court’s decision impaired its economic interests. Further, the Public Utility was allowed to intervene, and the appellees have not appealed that decision.

2. Summary Judgment

The standard for appellate review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entidement to summary judgment, the respondent must meet that proof with proof showing a genuine issue as to a material fact. Id.

In determining that the appellees were entided to summary judgment as a matter of law, the trial court considered certain provisions of Tide 23 of the Arkansas Code, which addresses Public Utilities and Regulated Industries. Chapter 3 of Tide 23 is entided “Regulation of Utilities and Carriers Generally.” Arkansas Code Annotated § 23-3-201 (a) (1987) provides:

No new construction or operation of any equipment or facilities for supplying a public service, or extension thereof, shall be undertaken without first obtaining from the commission a certificate that public convenience- and necessity require, or will require, such construction or operation.

Commission is defined as “the Arkansas Public Service Commission or the Arkansas Transportation Commission with respect to the particular public utilities and matters over which each commission has jurisdiction.” Ark. Code Ann. § 23-1-101(6) (Supp. 1995).

On October 9, 1964, the PSC entered an order regarding an application for a certificate of convenience and necessity filed by the Public Utility. The order provided that the Public Utility sought the certificate to

construct, maintain and operate a waterworks system in order that it may offer water for sale to the public in an area within the boundaries of a project known as Sebastian Lake Estates, which is being developed by Sebastian Lake Developments, Inc. . . .

(Emphasis added.) Ultimately, the commission ordered that:

Sebastian Lake Public Utility Company, Inc. be, and it is hereby, granted a certificate of public convenience and necessity to construct, operate and maintain a waterworks system in the area described hereinabove, and it is hereby charged with the responsibility of rendering adequate water service to the public in the area at rates for such service as may be herecfter approved by this Commission.

(Emphasis added.)

On appeal, the Public Utility contends that this certificate of public convenience and necessity grants it an exclusive franchise to provide water service in the specified geographic area. The Public Utility further contends that the certificate has never been revoked by the PSC and, therefore, remains in effect.

The trial court found that when the General Assembly deregulated Class C water utilities in 1987, it also nullified by implication any exclusive franchise which may have otherwise been in existence for such a utility pursuant to a certificate of convenience and necessity. Arkansas Code Annotated § 23-1-101 (Supp. 1995), Definitions, provides in part:

(4) (A) “Public utility” includes persons and corporations, or their lessees, trustees, and receivers, owning or operating in this state equipment or facilities for:
(i) Producing, generating, transmitting, delivering, or furnishing gas, electricity, steam, or another agent for the production of light, heat, or power to, or for, the public for compensation;
(ii) Diverting, developing, pumping, impounding, distributing, or furnishing water to or for the public for compensation. However, nothing in this subdivision shall be construed to include water facilities and equipment of cities and towns in the definition of public utility. Further, the term “public utility” shall not include any entity described by this subdivision which meets any of the following criteria:
(a) All property owners’ associations whose facilities are enjoyed only by members of that association or residents of the community governed by that association; or
(b) All entities whose annual operating revenues would cause them to be classified as Class C or lower water companies pursuant to the uniform system of accounts adopted by the Arkansas Public Service Commission. However, the term “public utility” shall include any water company which petitions, or a majority of whose metered customers petition, the Arkansas Public Service Commission to come under the commission’s jurisdiction, provided that the water company must have had combined annual operating revenues in excess of four hundred thousand dollars ($400,000) for the three (3) fiscal years immediately preceding the date of filing the petition; or
(c) All improvements districts.

(Emphasis added.) Act 37 of the First Extraordinary Session of 1987 amended the definition of public utility to provide that the definition did not include an entity whose annual operating revenues would cause them to be classified as a Class C or lower water company. The Emergency Clause of Act 37 provided in part:

It is hereby found and determined by the General Assembly that regulation of small water and sewer utilities as “public utilities” under the jurisdiction of the Public Service Commission generally imposes heavy regulatory costs upon the consumers . . .

Act 21 of the Fourth Extraordinary Session of 1988 further amended the definition to provide that a water company or its customers could petition the PSC in order to come under its jurisdiction if the company had sufficient revenues. In the instant case, it is uncontested that the Public Utility is a Class C utility which is not regulated by the PSC.

It is significant that a certificate of public convenience and necessity is issued by the PSC as part of its regulatory power. See Ark. Code Ann. § 23-3-201 (a) (1987). Section 23-3-201 (a) provides that “[n]o new construction or operation of any equipment or facilities for supplying a public service, or extension thereof, shall be undertaken without first obtaining from the commission a certificate. . .” It is also significant that the order of the PSC granting the Public Utility’s certificate of public convenience and necessity provided that the Public Utility was charged with the responsibility of “rendering adequate water service to the public in the area at rates for such service as may be hereafter approved by this Commission.” However, because the Public Utility is no longer subject to regulation, the provisions of the certificate have no force.

In short, the Public Utility was required to obtain a certificate in order to operate as a public utility; however, it is no longer a public utility. Because it is no longer regulated, the Commission’s rules and regulations are no longer applicable. Consequently, we hold that the trial court correctly determined that the certificate has been nullified. We therefore need not consider whether the certificate granted the Public Utility an exclusive franchise to provide water service in the area of Sebastian Lakes Estates.

3. Due Process

The Public Utility also contends that if its certificate has been revoked by legislation or by the trial court’s interpretation of this legislation, it has been deprived of its property without due process of law in violation of the United States and Arkansas Constitutions. The Public Utility submits that the statute is unconstitutional because it makes no provision for any proceeding by which it could protect its interest.

This argument, however, was never presented to the trial court. We have repeatedly stated that an argument which is raised for the first time on appeal is not properly preserved for appellate review and will not be addressed. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995); see also Smith v. Quality Ford, 324 Ark. 272, 920 S.W.2d 497 (1996); Technical Services of Arkansas v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). Even constitutional arguments are waived on appeal if they are not raised at trial. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Billy OWENS v. STATE of Arkansas
    CR 95-1187
    924 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996

      Craig Lambert, for appellant.
    No response.
   Per Curiam.

Appellant Billy Owens filed a petition in the trial court pursuant to Criminal Procedure Rule 37, challenging his convictions on four counts of delivery of a controlled substance. The petition was denied, and appellant appealed to this court. We affirmed the order of the trial court on the ground that the petition filed in the trial court was not timely. Owens v. State, CR 95-1187 (May 28, 1996). In determining the timeliness of the petition, we relied on the abstract of the record in the appellant’s brief.

Appellant Billy Owens now seeks a rehearing on the ground that the original Rule 37 petition was timely. He states that the original petition was not included in the abstract in the appellant’s brief because the original petition, which was pro se, was “cleaned up by the filing of amended petitions and the oral amendments that were made in open court.”

The petition for rehearing is denied. It was the responsibility of the appellant to provide an abstract of the record such that this court could determine without examining the record that the Rule 37 petition was timely. We have said repeatedly that the record on appeal is confined to that which is properly abstracted because it is not feasible for the seven justices of this court to each examine the record. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1984); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). When an abstract is deficient, the lower court’s judgment or order must be affirmed. See Fruit v. State, 304 Ark. 457, 802 S.W.2d 930 (1991). We will not explore the record for prejudicial error. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387; Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Bowers v. State, 292 Ark. 249, 729 S.W.2d 170 (1987).

Petition denied.

Brown, J., would grant.

Dudley, J., not participating.


author: PER CURIAM.

text:
    Earnest YOUNG v. STATE of Arkansas
    CR 96-632
    923 S.W.2d 871
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996

      Robert F. Morehead, for appellant.
    No response.
   PER CURIAM.

Appellant Earnest Young, by his attorney, has filed for a rule on the clerk.

His attorney Robert F. Morehead, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Lamont BOWDEN v. STATE of Arkansas
    CR 95-1258
    925 S.W.2d 158
    Supreme Court of Arkansas
    Opinion delivered June 21, 1996
   PER CURIAM.

Appellant, Lamont Bowden, has been convicted of capital murder and sentenced to life imprisonment without parole. His attorney, Ronald Carey Nichols, requested and was granted a thirty-day extension to February 14, 1996, to file appellant’s brief. On February 14, 1996, he was given a second thirty-day extension, making the brief due on March 15, 1996. On March 19, 1996, appellant’s attorney was granted a third extension to April 14, 1996. A final extension to April 28, 1996, was then given to file the appellant’s brief, but no brief has been filed.

Ronald Carey Nichols is therefore ordered to appear before this court on the 1st day of July, 1996, at 9:00 a.m., to show cause why he should not be held in contempt of this court for his repeated failures to file appellant’s brief.


author: BRADLEY D. Jesson, Chief Justice.

text:
    Lynn O. DAVIS v. STATE of Arkansas
    CR 95-645
    925 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee. •
   BRADLEY D. Jesson, Chief Justice.

Shortly after midnight on March 4, 1994, the appellant, Lynn Davis, and his girlfriend, Michelle Wilson, arrived at the emergency room of the Cleburne County Memorial Hospital. With them was Michelle’s twenty-three-month-old son, Michael. Michael was in a state of cardiac arrest and was not breathing. His heartbeat was initially revived by use of CPR but he never regained consciousness. Two days later, he died. The medical examiner ruled Michael’s death a homicide. In particular, he noted that Michael showed signs of having been shaken and otherwise abused.

The authorities began to search for Wilson and Davis but the couple had left the state and their whereabouts were unknown. With the assistance of the FBI, they were apprehended in California on March 16, 1994. They returned to Arkansas to face capital murder charges in Michael’s death. Wilson was tried in Independence County. She was convicted of second-degree murder and received a sentence of eighteen years. The appellant was tried in Fulton County. He was convicted of capital murder and sentenced to life without parole.

In this appeal, the appellant challenges the sufficiency of the evidence to support his conviction, challenges two of the trial court’s evidentiary rulings, and argues that the court should have granted his petition for a writ of error coram nobis. After a careful review of the issues, we find no error and affirm. Additionally, in accordance with Arkansas Supreme Court Rule 4-3(h), we have examined the full record for rulings on objections or motions which were adverse to the appellant. None involves prejudicial error.

Sufficiency of the Evidence

Our review of the sufficiency of the evidence requires a detailed recitation of the facts. Lynn Davis and Michelle Wilson began dating seriously in December of 1993. Wilson had two children: Kaite, age four, and Michael, almost two. She and Davis maintained separate residences, but spent virtually every night at Davis’s apartment. Michael was almost always with them. Kaite often spent the night with her grandparents. Davis had worked for seven-and-a-half years at the same company. Wilson was temporarily unemployed.

Davis and Wilson, together with Michael, spent the night at Davis’s apartment on Wednesday, March 2, 1994. The next morning, Davis dropped them off at Wilson’s residence and went to work. Wilson and her next-door neighbor, Ruby Holt, spent the day running errands with Michael in tow. Michael, normally an active, temperamental child, was uncharacteristically sleepy during the day.

Later that afternoon, the errands completed, Holt, Wilson and Michael returned home. At some point, Kaite returned home as well. Wilson was cooking dinner in Holt’s apartment when Davis arrived between 4:00 and 5:00 p.m. According to Holt, Michael was lying on the floor whining and crying. Davis was sitting at the table with Holt and said to her, “I hate that kid.” Holt was sure he was referring to Michael. Davis, Wilson, and the two children left shordy thereafter to go to Davis’s apartment.

What happened next is known only to Davis and Wilson. According to them, they watched television with the children. Kaite fell asleep on the couch. At approximately 11:00 p.m. (according to Wilson) or 11:30 p.m. (according to Davis), they decided to take a shower. They noticed that Michael had a dirty diaper. Wilson went ahead and got in the shower. Davis followed, holding Michael, intending to clean him up in the shower. Michael began struggling and “throwing a fit” because he didn’t want to be in the shower. Davis took him out of the shower, laid him on the bedroom floor, and told him to go ahead and throw his fit. He was preparing to diaper the boy when he noticed his eyes were staring fixedly. Davis “popped him on the butt” a couple of times, thinking Michael was holding his breath on purpose, but Michael did not move. Davis checked Michael’s heartbeat and it was faint. He called to Wilson to get out of the shower. They grabbed the children, threw their clothes on and headed for the hospital.

Michael presented at 12:10 a.m. in a state of cardiac arrest. He was not breathing, and his color was blue. The physician on duty, Dr. Parker Jain, developed the impression that Michael had suffered a subdural hematoma and possibly had been the victim of abuse. Based upon his suspicion, he notified the authorities.

Detective Mark Baugh of the Heber Springs Police Department arrived at the hospital at 1:34 a.m. He learned from Dr. Jain that Michael had suffered not only a head injury but had bruises and sores on his body. He obtained a statement from Wilson in which she attempted to account for Michael’s injuries. She attributed Michael’s bruises to fighting with his sister. The sores, she claimed, were from shoes that fit too tight. The head injury, she explained, was the result of Michael slamming his own head against the refrigerator during one of his “fits.”

Arrangements had been made for a helicopter to transport Michael to the Arkansas Children’s Hospital in Litde Rock. It arrived shortly after 2:00 a.m. Wilson and Davis made arrangements to have Ruby Holt take care of Kaite. They then drove to Children’s Hospital, arriving about 4:00 to 4:30 a.m. Michael had a heartbeat, but was still not breathing on his own. Davis and Wilson stayed at the hospital until approximately 12:00 noon that day then drove back to Heber Springs to shower and pick up a change of clothes. They returned to Little Rock later that afternoon. Upon their return, Davis was refused entry to the hospital. Security personnel told Davis that Michael’s father was on the premises and they wanted to avoid trouble. Wilson stayed at the hospital while Davis returned to Heber Springs. He was en route when he received a call from Wilson on his mobile phone. She informed him that she was being accused of inflicting Michael’s injuries, that the Department of Human Services had taken custody of her children, and that she had been “kicked out” of the hospital. Davis immediately returned to Litde Rock and picked her up.

The two then decided, for reasons unexplained, to go to Conway, where they spent the night in a motel. They spoke by phone with Ruby Holt who informed them that the police were looking for Wilson. The next day, Saturday, March 5, 1994, they left the state of Arkansas.

In the meantime, Detective Baugh continued his investigation. During the day on March 4, he spoke with the physicians at Children’s Hospital and discovered the full extent of Michael’s injuries. Dr. Michael Avant, a pediatric intensive care physician at Children’s, would later testify that he made note of twenty-seven injuries, including a subdural hematoma, massive brain swelling caused by trauma and oxygen depletion, retinal hemorrhaging, a pulmonary contusion, a broken rib, burns consistent with being inflicted by a cigarette and a car cigarette lighter, a swollen and bruised testicle and scrotal sac, including a bruise in this area which was just a few hours old. Upon receipt of this information, Baugh attempted to locate Davis and Wilson. He was unsuccessful.

Michael died on March 6. Baugh received an autopsy report from Dr. Frank Peretti which concluded that Michael’s death was the result of homicide. Causes of death were listed as craniocerebral trauma and chest injuries with the contributing factors of thermal burns and testicular contusions. Based upon this information, charges were filed against Wilson and Davis for capital murder.

Baugh continued to search for Davis and Wilson. He became convinced that they were no longer in the state, and enlisted the assistance of the FBI in locating them. Davis and Wilson were, in fact, on the run. After leaving Conway, they had driven to Louisiana, through Texas, and into New Mexico. When they learned that Michael had died, they abandoned Davis’s car at the El Paso airport and flew to San Diego. There, they took a train to Los Angeles where they visited the beach, the zoo, and planned to visit Disneyland. Their trip had been financed with Davis’s credit cards.

On March 16, 1994, the FBI caught up with Davis and Wilson in Los Angeles. They were turned over to the Santa Monica Police Department. There, they were interviewed at length by Detective Steve Rosenfeld. The interviews were videotaped and were admitted into evidence at trial. In her interview, Wilson once again attempted to explain Michael’s injuries in ways that did not implicate either herself or Davis. She said that on the Tuesday before Michael was admitted to the hospital, he had become angry because she wouldn’t let him have a piece of cake. He began to slam his head against the refrigerator and the wall. The next day, which was Davis’s day off, the three of them went to the mall and to eat pizza. Michael became angry again and hyperventilated to the extent that he made himself sick. Wilson said that the sores on Michael’s toes were from tight shoes. When confronted with the possibility that the sores were in fact cigarette burns, she admitted that she may have accidentally burned Michael. She explained the injuries to his testicles by saying that, two months previously, he had fallen from a small bicycle, and six days before his death, he had fallen in the bathtub. But ultimately, after a lengthy interrogation, she admitted that, on the Wednesday before Michael’s death, she had shaken him hard and “probably” caused his death.

Wilson claimed that Davis was not involved in Michael’s death. Detective Rosenfeld questioned her intently on whether Davis had merely laid the boy on the floor after getting out of the shower, or had thrown him to the floor. He asked her to demonstrate Davis’s actions. Her demonstration indicated that Davis was upset and, at the least, dropped Michael to the floor with some force.

In Davis’s interview, he denied any involvement in Michael’s death and denied awareness of any abuse which may have been inflicted by Wilson. Both his story and Wilson’s were remarkable for their presentation of detail. For example, both mentioned, without being asked, the number of crackers Michael ate on Thursday evening. Additionally, both of them asked, without prompting, if they might begin their explanation of events starting with the Tuesday before Michael’s death. The stories also contained some inconsistencies. In Wilson’s statement to Baugh, she was clear that the three of them began their shower just after 11:00 p.m. In the Rosenfeld interviews, Davis and Wilson indicate that the time is 11:30 p.m. Wilson told Baugh that she did not see Davis spank Michael after he was taken out of the shower. She told Rosenfeld that she did. Both Wilson and Davis said that Michael hated to take a bath or get his hair wet. Yet when Davis was explaining that Michael’s testicle was injured while getting out of the bathtub, he stated that both kids loved playing in the water.

Further evidence was presented to the jury in the form of Dr. Peretti’s testimony, complete with autopsy pictures. The photographs revealed with disturbing clarity the scars and sores on the child’s belly button, calf, thigh, and toes which Dr. Peretti characterized as cigarette burns. They also revealed bruises around the child’s neck and head and the fact that the child’s scrotal sac was obviously bruised and very swollen. Dr. Peretti testified that some of the cigarette burns were less than ten days old. Other injuries characterized by the doctor as “recent” were the subdural hematoma, the hemorrhaging along the optic tracks, the fractured rib, and the bruised scrotal sac. The doctor testified that Michael’s injuries and were consistent with being shaken and, two days later, being subjected to a significant trauma within a short time before his admission to the hospital. Dr. Avant concurred that Michael had been subjected to significant trauma prior to being admitted to the hospital. He stated that the trauma would had to have been caused by something more than the child banging his head against a wall or being hit by his sister. He characterized the type of trauma necessary to inflict such a head injury as a “violent force.” He said the brain swelling was of the type that might be seen in a car accident.

Finally, the jury was presented with the testimony of Angel Attendorn, Davis’s ex-wife. Attendorn testified that in June of 1993, Davis had administered severe beatings to her four-year-old daughter. She produced four photographs which revealed serious bruising on the child’s back, buttocks, and upper thighs.

The appellant was charged with committing capital murder in the manner described by Ark. Code Ann. § 5-10-101 (a)(9) (Supp. 1995):

A person commits capital murder if:
Under circumstances manifesting extreme indifference to the value of human life, he knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed, provided that the defendant was eighteen (18) years of age or older at the time the murder was committed.

The State was required to prove four elements to convict the appellant: that Michael was age fourteen or younger, that the appellant was age eighteen or older, that the appellant knowingly caused Michael’s death, and that Michael’s death was caused under circumstances manifesting extreme indifference to the value of human life. The third and fourth elements are in controversy.

At the close of the state’s evidence and at the close of all evidence, the appellant moved for a directed verdict on the ground that the state had not proven he acted knowingly or under circumstances manifesting extreme indifference to the value of human life. A directed-verdict motion is a challenge to the sufficiency of the evidence. Sufficient evidence means substantial evidence to support the jury’s verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation and conjecture, We review the evidence in a light most favorable to the appellee and consider only that evidence which supports the verdict. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

A person acts “knowingly” with respect to his conduct or attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. He acts “knowingly” with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl. 1993). A person acts “under circumstances manifesting extreme indifference to the value of human life” when he engages in deliberate conduct which culminates in the death of some person. Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

The appellant, citing Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), argues that the State did not meet its burden of proof. He implies that the State was required to prove premeditation and deliberation, but that is not so. A brief historical review is helpful at this point. We decided Midgett in 1987. The case involved the death of an eight-year-old boy at the hands of his father. The father was convicted of first-degree murder, which required proof of premeditation and deliberation. We recognized that state law, at that time, did not permit a conviction of first-degree murder for child abuse or torture in the absence of premeditation and deliberation. We therefore reduced Midgett’s conviction to second-degree murder.

Approximately one month later, the legislature responded to our decision in Midgett. The definition of first-degree murder was amended to include knowingly causing the death of a person age fourteen or younger under circumstances manifesting cruel and malicious indifference to the value of human life. See Act 52 of the First Extraordinary Session of 1987. In 1991, the legislature, with a slight revision in language, converted that definition of first-degree murder into a type of capital murder. The words “under circumstances manifesting cruel and malicious indifference to the value of human fife” were deleted from the first-degree murder statute. A category of capital murder was created which exists today as Ark. Code Ann. § 5-10-101 (a)(9) (Supp. 1995). See Act 683 of 1991.

The Midgett case, thus, is not applicable here. The crime charged does not require proof of premeditation and deliberation. More on point is the case of Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). Although it was a first-degree murder case, the offense was committed at a time when the first-degree murder statute contained language virtually identical to today’s § 5-10-101(a)(9). In Porter, we held that substantial circumstantial evidence of a cruel, malicious and continuous course of child abuse culminating in a violent act that causes the child’s death is sufficient to sustain a conviction for knowingly causing the death of a person age fourteen or younger under circumstances manifesting a cruel and malicious indifference to human life. As in Porter, we hold in this case that the evidence, though circumstantial, is sufficient to support the appellant’s conviction. It is clear that the jurors did not embrace Davis’s and Wilson’s explanation of the events surrounding Michael’s death. They might well have found their testimony so totally at odds with the medical evidence as to be a fabrication. See Porter v. State, supra. Additionally, the obvious and graphic nature of Michael’s injuries as depicted by the autopsy photos belies Davis’s claim that he was unaware that Michael had been abused. A jury is not required to believe all or any part of a defendant’s or witness’s statement, Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), and is entided to draw upon common sense and experience in reaching its verdict. Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984). The State’s proof contained evidence that Davis threw Michael to the floor in a forceful manner; strong medical testimony of recent, significant head trauma and other serious abuse; Ruby Holt’s testimony regarding Davis’s animosity toward Michael; Davis’s abuse of another child, see Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); and Wilson’s and Davis’s flight to avoid arrest (which included stringent efforts to hide from the authorities, abandonment of Davis’s automobile, and the fact that Davis, in order to flee, left a job of long standing). See Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). These facts, along with all others set forth in this opinion, constitute sufficient evidence of Davis’s guilt of capital murder.

Evidentiary Errors

Prior to trial, Davis moved in limine to prohibit the State from mentioning a charge of battery filed against him in 1993. The charge stemmed from his alleged beating of the child of his ex-wife, Angel Attendorn. In a pretrial hearing, the State agreed that the motion should be granted and agreed not to mention the charge in their case-in-chief. Without further discussion, the trial court granted the motion.

During opening statements, the prosecutor told the jury that, in Davis’s videotaped statement, Davis would admit that battery charges had previously been filed against him. Davis moved for a mistrial and an in camera hearing was conducted. The prosecutor explained that, since Davis had agreed to let his videotaped statement come into evidence in its entirety, the in limine order was no longer operative. The trial judge, considering the merits of the issue for the first time, decided to allow admission of the evidence. He agreed to give a cautionary instruction, which was done just before Davis’s videotape was played.

Davis argues on appeal, as he did at trial, that admission of the evidence violated A.R.E. Rule 404(b) and Rule 403. Rule 404(b) reads as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Davis cites Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995) in support of his argument. In Diffee, the State was attempting to prove that the method used by the appellant to commit murder — an ice pick — was her “method of operation.” In doing so the state offered evidence of another ice-pick attack committed by the appellant. We held that the evidence was inadmissible and set forth a test for using prior acts to show method of operation. But Diffee is not applicable in this case. Davis’s prior crime was admitted here to show absence of mistake or accident, not method of operation.

The trial judge cited Limber v. State, supra, in ruling that Davis’s 1993 battery charge was admissible. Limber is representative of a number of cases involving child victims in which we have permitted evidence of crimes committed by the defendant against other children. See Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), all involving sexual abuse. In Limber, the appellant and his wife were charged with the murder of the wife’s son. They claimed, as did Davis and Wilson, that the child’s injuries resulted from accidents. Evidence was admitted that another child in the appellants’ household had suffered two broken arms. We allowed the evidence as being probative of absence of mistake or accident. The case is virtually on point with the case at bar. Daws attempts to distinguish it by arguing that, in Limber, the appellant and the two abused children were members of the same household. While Michael might not have been an official or legally recognized member of Davis’s household, the evidence shows that he was a de facto member. Michael and his mother routinely spent every night with Davis. Davis was an omnipresent adult in Michael’s life, much as he might have been if they had been living under one roof.

The trial judge is accorded discretion in ruling on 404(b) questions. Fry v. State, supra. A mistrial is a drastic remedy which should be resorted to only when there has been error so prejudicial that justice cannot be served by continuing the trial. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). A trial judge’s denial of a mistrial will not be disturbed on appeal absent an abuse of discretion. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). We hold that the trial judge did not abuse his discretion in denying a mistrial in this case. We also hold that the probative value of the evidence was not outweighed by the danger of unfair prejudice. A.R.E. 403.

Davis also attacks the judge’s ruling on the ground that the original order in limine should have been honored. To support his argument, he relies on the law-of-the-case doctrine. That doctrine is inapplicable here. It ordinarily arises in the case of a second appeal and requires that matters decided in the prior appeal be considered concluded. See Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588, cert. denied, 513 U.S. 974 (1994). During the course of a single trial, the judge is at liberty to reconsider his or her prior rulings. Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982).

The second evidentiary ruling challenged by Davis is related to the first. As we have already mentioned, during the course of Angel Attendorn’s testimony, four photographs of her daughter were introduced into evidence. The photos depicted a badly bruised child. Davis argues that the photos were irrelevant or, alternatively, unfairly prejudicial because they depicted injuries suffered by the child in the course of her daily activities. He bases this claim on Attendorn’s testimony on cross-examination. Attendorn had apparently told the police that some of her child’s bruises were from normal activity. However, on the witness stand, she said that any old bruises visible in the pictures were the result of Davis’s beatings. She said that her child had bruises on the front of her legs from ordinary activity. The photographs did not depict the front of the legs.

The admission of photographs is within the trial court’s discretion. Williams v. State, 322 Ark 38, 907 S.W.2d 120 (1995). The mere fact that photos are inflammatory will not render them inadmissible. If they enable a witness to testify more effectively or tend to corroborate testimony, they have evidentiary value which outweighs their inflammatory effect. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Our examination of Attendorn’s testimony shows that she sufficiently explained her statement to the police or, at the least, presented the jury with a question as to her credibility. The photographs themselves illustrated to the jury the extent of the abuse in a way that Attendorn’s words could not. In addition, they corroborated Attendorn’s accusations. We hold that the trial court did not abuse its discretion in admitting the photos. See Van Sickle v. State, 16 Ark. App. 143, 698 S.W.2d 308 (1985).

Error Coram Nobis

Two months after his notice of appeal was filed, Davis petitioned the court for a writ of error coram nobis. He claimed that the jury foreman, William Newton, had been misleading in his responses during voir dire. A hearing was held and the trial judge denied the writ.

Error coram nobis is a rare remedy. It is available only where there is an error of fact extrinsic to the record, such as insanity at the time of trial, a coerced guilty plea, or material evidence withheld by the prosecutor, that might have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). The writ has also been used in cases in which a third party confessed to the crime during the time between conviction and appeal. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). We decline to extend the use of the error coram nobis remedy to a case involving a juror’s allegedly misleading responses during voir dire.

Affirmed.

Dudley, J., not participating.

       The case originated in Cleburne County. Wilson and Davis each received a change of venue.

       The charge was nolle prossed, according to Angel Attendorn, because she was fearful of pursuing the case.


author: BRADLEY D. JESSON, Chief Justice.

text:
    Gary Dean OWENS and Judy Christine Owens v. STATE of Arkansas
    CR 95-1272
    926 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Rush , Rush & Cook, by: Craig L. Cook, for appellant Gary Dean Owens.

      William M. Pearson, for appellant Judy Christine Owens.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   BRADLEY D. JESSON, Chief Justice.

The appellants are husband and wife. They were initially convicted in November of 1994 of manufacture of methamphetamine, for which they each received a sentence of twenty-five years; possession of methamphetamine with intent to deliver, for which they each received a sentence of twenty-five years; and possession of drug paraphernalia, for which they each received a sentence of ten years. After they were convicted, they filed a motion for a new trial based upon the prosecutor’s failure to reveal that a State’s witness had been offered a negotiated plea in exchange for his testimony. The trial judge granted the motion, and the appellants were tried again in May of 1995. They were convicted again, and, this time, received life sentences on the manufacturing and possession with intent to deliver charges, and twenty years on the paraphernalia charge.

In all, seven issues are presented on appeal. We find no error on any point and affirm the convictions.

Sufficiency of the Evidence

Gary Dean Owens challenges the sufficiency of the evidence to support his possession with intent to deliver conviction. We are required to address sufficiency-of-the-evidence questions before all others. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

At the close of the State’s evidence, and at the close of all evidence, Gary Dean Owens moved for a directed verdict on the possession with intent to deliver charge. He argued that there was no evidence he had transferred drugs in exchange for money or something of value. The trial court denied the motion. A directed-verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury’s verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Misskelley v. State, supra.

The record reveals the following pertinent facts. At 12:55 a.m. on December 29, 1993, a warrant was issued allowing a search of the appellants’ residence. The warrant was served at 1:15 a.m. Authorities recovered two packets which were later revealed to contain methamphetamine. One packet, found in the west bedroom of the house, contained 909 milligrams of a substance which was seventy-eight percent methamphetamine (approximately 709 milligrams). The other packet, found in the bedroom where Gary Dean Owens was apprehended, contained 1.57 grams of a substance which was fifty-three percent methamphetamine (approximately 832 milligrams). In addition, the search revealed glass jars containing cloudy liquid, all of which contained traces of methamphetamine; a metal spoon and a plastic scoop with traces of the drug; a container which held scales, syringes, spoons and plastic baggies; a container with 13.1 grams of ephedrine, a base ingredient in the manufacture of methamphetamine; and various other items which experts would later testify were consistent with the manufacture of methamphetamine such as Sunshine Super Blend B Vitamins, Liquid Fire, Red Devil Lye, coffee filters, baking soda, a funnel, and salt. Police also seized a gas mask, a paperback book on prescription drugs, and a police scanner which was on when the search took place. This evidence was introduced at trial through David Hyden, an Arkansas State Police officer who participated in the search and Norman Kemper, a forensic drug chemist with the State Crime Lab. The State presented other evidence, including the testimony of Barbara Sparks, which will be discussed later in this opinion. However, the physical evidence is all that is necessary to our consideration of this issue.

The argument that Owens makes on appeal is the same narrow argument he made in his directed-verdict motions — the State failed to show that he actually transferred or delivered methamphetamine. It is true that the evidence in this case does not reveal an actual sale or transfer of methamphetamine by Gary Dean Owens. However, such evidence is not necessary to obtain a conviction of possession with intent to deliver. The key element of the crime is the intent to deliver, not actual delivery. See People v. Wolfe, 440 Mich. 508, 489 N.W.2d 748 (1992).

Substantial proof of Gary Dean Owens’s intent to deliver was presented by the State. We need look no further than the amount of the drug recovered from the Owens residence. In executing the search warrant, officers seized over 1,500 milligrams of unadulterated methamphetamine. Possession of more than two hundred milligrams of methamphetamine gives rise to a presumption of intent to deliver. Ark. Code Ann. § 5-64-401 (d) (Repl. 1993); Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). The jury was instructed that they could consider the quantity of the drug possessed in determining Owens’s intent. Since Owens possessed methamphetamine in an amount in excess of the statutory presumption, the evidence is sufficient to support his conviction. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995); Sanchez v. State, supra.

Validity of the Search Warrant

The search warrant, which led to the seizure of the items listed above, was executed at 1:15 a.m. on December 29, 1993. It was obtained upon the application of Steve Brown, coordinator of the Fifth Judicial District Drug Task Force. The appellants argue that Brown failed to establish a factual basis to support a nighttime search.

In reviewing a trial court’s ruling on a motion to suppress because of an alleged insufficiency of the affidavit, we make an independent determination based on the totality of the circumstances. We reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992).

The facts are as follows. Near midnight on December 29, 1993, Brown submitted his affidavit and the affidavit of one Gary King for the purpose of obtaining the search warrant. Brown’s affidavit is a detailed, handwritten document which contains, in paragraph six, a list of factors which he relied on in asking for a nighttime search warrant. The paragraph reads as follows:

Access to the Dean Owens residence can be made only by a one lane dirt road which is filled with potholes, currently very muddy and the approach of vehicles can be observed from the residence. Vehicles can approach only within approximately two hundred and fifty (250) yards [twenty five (25) yards had been marked through] due to the condition of the driveway and curtilage.
Informant information has revealed that Dean and Christie (Judy) Owens have been under the constant influence of methamphetamine for the past six (6) months and have because of this use exhibited characteristics consistent with a fear of being watched and approached by law enforcement authorities at their residence. Information addressed in Paragraph Four of this affidavit supports the possibility of automatic firearm(s) being in the possession of the occupants of the Dean Owens residence. Therefore, safe and speedy access to the Dean Owens residence by authorities can only be obtained under the cover of darkness and during an hour when it would be reasonable to believe that occupants of the residence would be less attentive to approaching officers. Speedy access is necessary both for the protection and safety of approaching officers as well as occupants of the residence and to ensure that objects to be seized are not destroyed or removed in that the residence is equipped with indoor plumbing which could easily facilitate the flushing or washing of methamphetamine out of the residence.
Due to the above information and facts officers will be forced to approach the residence in their vehicles at a reduced or slow rate of speed, exit their vehicles approximately two hundred fifty (250) yards from the residence and approach the residence on foot causing dangerous exposure to themselves to detection and therefore officers need to approach the residence with the inherent protection of the cover of darkness. Affiant further states that he has gathered intelligence that the occupants, Dean and Christine (Judy) Owens customarily sell methamphetamines out of the residence throughout the nighttime hours therefore removal of contraband by distribution is highly likely. •

The information referred to from paragraph four was a report from the Franklin County Sheriff’s Office that, during the previous forty-five days, a concerned citizen living within one mile of the Owens house reported what sounded like the firing of an automatic weapon from the Owens residence.

The judge issued the warrant. On the face of the warrant, he checked the appropriate blanks which indicated that the place to be searched was difficult of speedy access, that objects to be seized were in danger of imminent removal, and that the warrant could only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. Prior to trial, both appellants moved to suppress the fruits of the search on the basis that the warrant was defective. The trial court denied the motion.

Ordinarily, a search warrant may only be executed between the hours of 6:00 a.m. and 8:00 p.m. However, a warrant may be executed at any time, day or night, if the issuing judicial officer has reasonable cause to believe that:

1) the place to be searched is difficult of speedy access; or
2) the objects to be seized are in danger of imminent removal; or
3) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.

Ark. R. Crim. P. 13.2(c). The use of the word “or” makes it clear that the existence of any one of these factors may justify a nighttime search.

Mere conclusions in an affidavit will not support the issuance of a nighttime warrant. A factual basis is a prerequisite to obtaining such a warrant. See Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). The affiant in this case presented specific data and fact-based conclusions regarding the difficulty of access, the possible removal of evidence, and the dangers presented to the officers. We hold that there was a sufficient factual basis for a nighttime search.

Judy Owens raises two additional points with regard to the validity of the warrant. First, she claims that the information contained in Steve Brown’s affidavit was not shown to be reliable. The state argues that this issue was not before the trial court. However, during the suppression hearing, appellant’s counsel questioned Steve Brown extensively concerning the reliability of his information and the court stated, “I’ll let him go into that.” This convinces us that the trial judge was aware that the appellant was raising the issue of reliability.

Steve Brown relied on various sources of information in the preparation of his affidavit. A person described as “Informant A” had been arrested by the Franklin County Sheriff’s office on November 2, 1993, for public intoxication. While in custody, he told the authorities that on three occasions in the previous two weeks, he had been given methamphetamine by Gary Dean Owens while at the Owens residence. In his affidavit, Brown set forth the following factors bearing on the reliability of Informant A: his statement against penal interest in admitting he had possessed and used methamphetamine, the fact that he had provided information in the past to the Sheriff’s office, and the fact that his physical characteristics, method of conversation and mannerisms were consistent with methamphetamine use. Brown also relied on information provided by Gary King. King was arrested on a traffic charge on December 28, 1993. When officers searched his vehicle, they discovered equipment of the type used in the manufacture of methamphetamine. King was arrested and gave a statement to the authorities in which he detailed his involvement with the appellants in the manufacture of methamphetamine. According to King, the manufacturing was accomplished both at his home and the appellants’ home. He drew a map giving directions to the appellants’ home and filled out an affidavit containing the information he had provided. Brown set forth the following factors bearing on the reliability of Gary King: his statement was against his penal interest, he swore to his testimony in the form of an affidavit, and he provided information which was substantiated by the authorities’ intelligence files. Brown also relied on information provided by Franklin County Sheriff Kenneth Ross that access to the Owens residence was difficult and that a citizen had reported the sound of automatic gunfire in the area.

When an affidavit in a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. Ark. R. Crim. P. 13.1(b). In deciding whether to issue the warrant, the magistrate should make a practical, commonsense determination based on the totality of the circumstances set forth in the affidavit. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). Steve Brown’s affidavit noted that the informants’ statements tended to incriminate them, that their statements were based on personal observations of recent criminal activity, and that, in the case of Gary King, his statement could be corroborated. These are all factors which indicate reliability. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983); Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977). Regarding the information provided by Sheriff Ross, it was not necessary for the affidavit to establish the reliability of a public official. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). We hold that the affidavit in this case met the requirements of Rule 13.1(b).

Finally, Judy Owens argues that the search warrant itself was facially deficient. At issue is the following part of the warrant:

YOU ARE HEREBY COMMANDED to search the place named for the property specified, serving this warrant and making the search (at any time in the day or night) (between the hours of 6:00 A.M. and 8:00 P.M.). . . .

Even though the judge found that circumstances existed to justify a nighttime search, he neglected to circle or otherwise mark one of the alternatives set forth in parenthesis above. We addressed this issue in Holloway v. State, 293 Ark. 450, 742 S.W.2d 550 (1987) (Supp. opinion on denial of rehearing), and refused to declare the warrant invalid. We noted that such technical attacks on warrants are not favored. As in Holloway, we are satisfied that the warrant showed a nighttime search was authorized.

Testimony of Barbara Sparks

Barbara Sparks was a State’s witness who testified that she had known the appellants for seven years. She said that, approximately two months before the appellants were arrested, she worked with them in manufacturing methamphetamine. Six months prior to the arrests, she purchased chemicals for the appellants to use in the manufacturing process. She said that, primarily, Gary Dean Owens made the drug while Judy Owens handled business. She had purchased methamphetamine from Judy Owens about one month before the arrests, in a bedroom of the Owens home. In the year before the arrests, she had observed others going back to the bedroom and leaving a short time later. She also stated that she had observed the appellants using methamphetamine and that their preferred method was to inject the drug.

Prior to trial, the appellants filed a motion in limine to prohibit the introduction of this testimony. They argued at trial, as they do on appeal, that the evidence violated A.R.E. 404(b) and A.R.E. 403. The trial court allowed Ms. Sparks to testify as to her knowledge of the appellants’ activities, so long as they were not too remote in time.

A.R.E. 404(b) reads as follows:
Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Generally, evidence of other crimes, wrongs, or acts is not admissible merely to prove the bad character of the defendant and to show that his actions conformed to that character. However, if the evidence is relevant to the main issue of the case, in the sense of tending to prove some material point rather than to prove the defendant is a criminal, the evidence may be admissible with a proper cautionary instruction by the court. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), we said the following:

We interpret Rule 404(b) as meaning that if the evidence of prior bad acts is relevant to show the offense of which the appellant was accused occurred, and is thus not being introduced to show only bad character, we will not exclude it.

Barbara Sparks’s testimony falls within the “independent relevance” concept enunciated in Sullivan and Lindsey. The jury in this case had the task of deciding whether the appellants engaged in the manufacture of methamphetamine, possessed methamphetamine with the intent to deliver, and possessed drug paraphernalia. Barbara Sparks’s testimony was relevant to the issues of whether, in this case, the appellants were actually manufacturing methamphetamine, were actually using certain ordinary household items in the manufacturing process, merely possessed the drug or possessed it with the intent to deliver, and whether the items found in the house could be used as drug paraphernalia. See Ark. Code Ann. § 5-64-101 (v) (Repl. 1993). Her testimony was relevant to show that these offenses of which the appellants were accused occurred. Thus, Rule 404(b) was not violated.

The appellants cite Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977) in support of their argument. In that case, the appellant was charged with delivery of marijuana. The State presented evidence that, after the sale of marijuana occurred, the appellant sold another drug later that day. We held that the admission of the other drug sale was reversible error. In Rios, the subsequent sale was not independently relevant, nor did it pertain to the offense actually charged, nor was it useful in shedding any light on the appellant’s intent.

In several recent cases, we have recognized that when a defendant is legitimately charged with possession with intent to deliver, evidence of prior drug sales, if not too remote in time, are admissible to show intent. Scroggins v. State, 312 Ark. 107, 848 S.W.2d 400 (1993); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). While Barbara Sparks testified to more than prior drug sales, the cases are analogous because they recognize the value of such evidence to the jury in those drug cases in which intent or purpose is an issue.

A trial court is accorded broad discretion in ruling on Rule 404(b) questions. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). In light of the foregoing, we find no abuse of discretion in admitting the testimony of Barbara Sparks. A trial court is likewise entitled to great discretion in ruling on issues which arise under A.R.E. 403. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993). We are convinced that, although Ms. Sparks’s testimony was detrimental to the appellants, its probative value was not outweighed by the danger of unfair prejudice.

Failure to Give Proffered Jury Instruction

Both appellants proffered a jury instruction on the manufacturing of methamphetamine charge which included the following language:

Except that “manufacturing” does not include the preparation or compounding of a controlled substance by an individual for his own use.

That language is contained in AM Cl 2d 6405 as a bracketed part. The appellants claim that, since there was some evidence at trial that the amount of methamphetamine and the drug paraphernalia found in the house was consistent with personal use, the proffered instruction was warranted.

At the outset, we address the State’s contention that the appellants’ argument is procedurally barred due to their failure to abstract the manufacturing instruction which was actually given by the court. Since the appellants did abstract the proffered instruction and their presentation of the issue to the court, and since this is a case involving life imprisonment which requires us to review the record for all errors, see Ark. Sup. Ct. R. 4-3(h), we will, out of an abundance of caution, address the merits of this issue. See Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995).

The record reflects that the jury was instructed on the manufacturing charge as follows:

Gary Dean Owens and Judy Christine Owens are charged with the offense of manufacturing methamphetamine. To sustain this charge, the State must prove the following things beyond a reasonable doubt [:] that Gary Dean Owens and/or Judy Christine Owens knowingly or purposely produced or prepared or propagated or compounded or converted or processed methamphetamine directly or indirectly by means of chemical synthesis or by a combination of extraction and chemical synthesis.

The appellants claim that this instruction should have contained the “personal-use exemption” language from the bracketed portion of AMCI 2d 6405. Implicit in the appellants’ argument is their contention that a person cannot be charged with manufacture of methamphetamine if that substance is manufactured for the person’s own use. This is incorrect. As we explained in Patty v. State, 260 Ark. 539, 542 S.W.2d 494 (1976) and Bedell v. State, 257 Ark. 895, 521 S.W.2d 200 (1975), cert. denied, 430 U.S. 931 (1977), the personal-use exemption applies only to the preparation or compounding of a controlled substance. It is not applicable when other means of manufacture have been used. In State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654 (1979), the North Carolina court made this cogent observation:

The plain meaning of the exception is to avoid making an individual liable for the felony of manufacturing a controlled substance in the situation where, being already in possession of a controlled substance, he makes it ready for use (i.e., rolling marijuana into cigarettes for smoking) or combines it with other ingredients for use (i.e., making the so-called “Alice B. Toklas” brownies containing marijuana).

Other courts have recognized that the personal-use exception does not apply to the creation of the controlled substance, but to the preparation or compounding of a substance already in existence. State v. County Court for Columbia County, 82 Wis. 2d 401, 263 N.W.2d 162 (1978); People v. Pearson, 157 Mich. App. 68, 403 N.W.2d 498 (1987).

There is abundant evidence in this case that, irrespective of whether the appellants made personal use of their product, they created the product, manufacturing it by means other than mere preparation or compounding. Thus, the personal-use exception is not applicable, and the trial court was correct to refuse the instruction.

The appellants also argue that the trial court failed to express its reasons for modifying AMCI 2d 6405. Without deciding whether the refusal to give the bracketed portion of an AMCI constitutes a modification, we note that this issue was not raised below until after the trial was completed. The appellants’ objection on this ground was not timely and therefore will not be considered. See Houston v. State, 293 Ark. 492, 739 S.W.2d 156 (1987).

Failure to Limit Sentencing Range

The appellants asked the court to limit the sentencing range to the term of years received in the first trial: twenty-five years on the manufacturing and possession with intent to deliver counts and ten years on the possession of paraphernalia count. They also proffered verdict forms on the manufacturing and possession with intent to deliver counts which reflected that range of sentences. The trial court allowed the jury to consider the full range of punishment available on all offenses. As a result, the appellants received greater sentences on retrial than they had in the first proceeding.

The imposition of a harsher sentence upon retrial is not, in and of itself, constitutionally offensive. When appellants are retried by a jury, a greater sentence is not prohibited so long as there is a properly controlled retrial in which the jury is not informed of the prior sentences. Chaffin v. Stynchcombe, 412 U.S. 17 (1973). The appellants point to the voir dire portion of the trial and note that there were at least two instances when the panel, through the responses of venirepersons, was informed that a previous trial had occurred. However, the record is bereft of any evidence that the jury was informed of the result of the previous trial. The Court recognized in Stynchcombe that, while the jury might be aware of a prior trial, it does not follow that the jury will be aware of its result. In the absence of any evidence that the jury was informed of the outcome of the appellants’ first trial, there is no need to delve further into this issue. See Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

Evidentiary Errors at Sentencing Hearing

The appellants were tried in a bifurcated proceeding. During the sentencing phase, the prosecutor made this remark in the rebuttal portion of his closing argument:

they got up here and they tried to give you this song and dance because they don’t want to go to prison. I can assure you I would have let them go to prison and I want them to go to prison.

The appellants moved for a mistrial on the ground that the prosecutor was making reference to a plea offer. The trial judge denied the motion.

The appellants claim this purported reference to a negotiated plea violates A.R.E. Rule 410. That rule prohibits the mention of, inter alia, offers to plead to the crime charged or any other crime. The evil to be avoided by Rule 410 is the use of a plea offer against a defendant as an admission against interest. Brown v. State, 288 Ark. 517, 707 S.W.2d 313 (1986). Even if the prosecutor’s remark can be characterized as a reference to a plea offer, and there is some doubt that it can, the remark was made during the sentencing phase of the trial. The appellants had already been convicted. We cannot say that they were so prejudiced that they were entitled to a mistrial.

Judy Owens raises an additional argument regarding an occurrence during the sentencing phase. During cross-examination of court clerk Janice Morris, the prosecutor asked, “Do you have knowledge that [the appellants] have been tried on possession of a controlled substance with intent to deliver and that they’ve been found guilty of that?” The appellants asked for a mistrial, asserting that the prosecutor was making a reference to the first trial. The prosecutor explained that he was talking about “this trial. They have been found guilty today.” The judge denied the mistrial motion and asked the prosecutor to make it clear that he was referring to the present trial. The prosecutor then asked Ms. Norris, “Are you familiar with the jury’s decision today on the trial we’ve had?”

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Clayton v. State, 321 Ark. 602, 906 S.W.2d 190 (1995). Such an extreme remedy was not warranted in this instance. Nothing in the prosecutor’s first question expressly or impliedly referenced the first trial. In his second question, the prosecutor made it clear that he was referring to the verdict just handed down.

Finally, in the conclusion to his brief, Gary Dean Owens urges us to consider the cumulative error in the record as a basis for reversal. As we have found no errors, there is no need to address that point.

Compliance with Rule 4-3(h)

The record has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellants not discussed above.

Affirmed.

DUDLEY, J., not participating.

       The appellants were subject to double the normal punishment because they had previously been convicted of violating the Controlled Substances subchapter of the Arkansas Criminal Code. Ark. Code Ann. § 5-64-408(a) (Repl. 1993).

       Owens does not argue on appeal, nor did he argue below, that the state failed to present sufficient evidence of possession of the drugs.

       The appellants did not ask the court to give the jury a cautionary instruction on the limited purpose of the evidence so we will not consider that issue. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1996).


author: BRADLEY D. JESSON, Chief Justice. David Newbern, Justice,

text:
    Max H. PEARSON v. FIRST NATIONAL BANK of DeWitt
    95-1084
    924 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Hoofman & Pike, PA., by: George E. Pike, Jr., for appellant.

      Russell D. Berry, for appellee.
   BRADLEY D. JESSON, Chief Justice.

This is an intervention case. Appellee First National Bank of DeWitt (“First National”), a secured creditor of a company that owned and operated a federally licensed radio station, successfully sought an ex parte order appointing it receiver for purposes of furthering its claim before the Federal Communications Commission (“FCC”) that it was entitled to the radio license. In this appeal, appellant Max H. Pearson, who also claims he is entitled to the license, contends that he should have been allowed to intervene in the cause of action as a matter of right. We agree and reverse and remand.

On April 5, 1994, First National initiated a receivership action against Quadras Corporation, which owned and operated KDEW, an AM/FM radio station in DeWitt. According to First National’s petition, it was a creditor of Quadras, whose stockholders personally guaranteed the debt. The debt was secured by a pledge of all outstanding common shares. First National had perfected its security by taking actual possession of the stock certificates. When Quadras defaulted, First National in a separate action sought and obtained a judgment in Lonoke County Circuit Court against Quadras and its sole stockholder, Willie R. Harris. First National was awarded all outstanding common stock of Quadras.

Thereafter, Quadras filed applications with the FCC to sell and transfer the license to operate the station. According to First National, the FCC failed to recognize its interest as creditor and owner of Quadras’s stock, yet indicated that it would recognize its status if it were appointed receiver. The bank thus petitioned for the appointment “to make appropriate appearances before the FCC for the purpose of preserving assets and licenses in connection with Quadras and to ultimately liquidate same in an orderly fashion.” Pearson was not given notice of the proceeding.

On April 6, 1994, the day after First National filed its petition, the trial court entered an ex parte order appointing the bank as receiver. The order expressly provided that First National “is authorized to prepare, execute and file with the Federal Communications Commission the forms necessary, including FCC form 316, to effect the involuntary transfer of control and assignment of license and/or construction permits held by Quadras, Inc., to the receiver, and to undertake any other action with the Federal Communications Commission as it deems fit and proper.”

Pearson filed a motion to intervene on June 20, 1994, which is the subject of the present appeal. He claimed that, in July of 1993, he had entered into a contract, subject to FCC approval, to purchase the Quadras license and other property. Claiming that First National had a vested interest in the outcome of any receivership proceeding and that it had obtained the ex parte order for the exclusive purpose to interfere with his attempt to perfect an assignment of the radio license, Pearson requested to intervene for the purpose of setting aside the order.

In its response to Pearson’s motion, First National asserted that Pearson’s contract was void because it had not been authorized or approved by Quadras officers; rather, it had been signed by Lucille Harris, the wife of Willie R. Harris, whom the bank maintained had no authority to act on behalf of the corporation. The trial court denied Pearson’s motion to intervene. When Pearson asked the court to reconsider its ruling, the trial court conducted a hearing and again denied intervention. In so ruling, the trial court reasoned that Pearson had not shown that First National’s appointment as receiver would damage him, and that Pearson’s contract claim could be litigated in a separate action. It is from this order denying intervention that Pearson appeals.

The rule governing intervention as a matter of right in a civil case is Arkansas Civil Procedure Rule 24(a). It reads:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

We have articulated three requirements that an applicant must meet in order to intervene as a matter of right: (1) that he has a recognized interest in the subject matter of the primary litigation; (2) that his interest might be impaired by the disposition of the suit; and (3) that his interest is not adequately represented by existing parties. Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983). See also Bradford v. Bradford, 52 Ark. App. 81, 915 S.W.2d 723 (1996). Intervention as a matter of right cannot be denied. Schacht v. Garner, 281 Ark. 45, 661 S.W.2d 361 (1983). Flowever, we have also held that, if a party seeking intervention will be left with his right to pursue his own independent remedy against the parties in the primary proceeding, regardless of the outcome of the pending case, then he has no interest that needs protecting by intervention of right. Billabong Products, Inc. v. Orange City Bank, supra.

At first glance, it would appear that the trial court’s denial of intervention was correct for the reason that Pearson could have filed a primary action in state court and was thus not left without a remedy. While the receivership proceeding was an ancillary one, it was nevertheless a significant step that can affect the rights of the parties. Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995) In Boeckmann, we recognized the significance of appointments of receivers and emphasized that such appointments should be made with restraint and caution:

The power to appoint a receiver is, of course, a harsh and dangerous one. Kory v. Less, 180 Ark. 342, 22 S.W.2d 25 (1929). “The cases in which receivers ordinarily will be appointed are confined to those in which it can be established to the satisfaction of a court that the appointment of a receiver is necessary to save the property from injury or threatened loss or destruction, or that the claimants in possession are excluding another party from rights which the latter has in the land.” Saylor v. Hilton, 190 Ky. 200, 226 S.W.2d 1067 (1921).

322 Ark. at 203, citing Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985). In Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988), we described a receiver as a “fiduciary representing the court and all parties in interest” and an “embodiment of the creditors standing as an agent for them.” (Emphasis added.)

In this case, First National did not seek receivership so it could represent all interested parties. To the contrary, as First National suggests in its complaint, the primary purpose of the receivership was to augment its own position in the proceedings before the FCC, as the FCC indicated it would only recognize the bank’s status if it were so appointed. While First National suggests that Pearson is not entided to the license because his contract with Quadras is void, this is not the issue before us. In the final analysis, the FCC makes radio license determinations, as the Commission is the entity charged with safeguarding the public interest in granting such licenses. Radio Station WOW v. Johnson, 326 U.S. 120 (1945).

The significance of the appointment in this case is thus demonstrated in the trial court’s order authorizing First National to prepare, execute, and file with the FCC the necessary forms to effect the voluntary transfer of the radio license to the receiver, First National. When examining the scope of the trial court’s order, we must conclude that it affected Pearson’s claim to the FCC that he is entitled to the radio license. See Beavers v. Espinoza, 803 P.2d 1111 (N.M.App. 1990) (appellate court concluded that the trial court’s order setting aside conveyance of radio station license due to lack of notice of probate proceedings enhanced the FCC’s power and responsibility by allowing interested parties, including plaintiff and defendants, an opportunity to assert any arguments regarding the assignment of the radio license).

We cannot overlook the fact that First National had itself appointed receiver even though it has an interest in the matter, an appointment which was in apparent violation of Ark. Code Ann. § 16-17-207 (1987). Basic fairness dictates that Pearson be allowed to contest the appointment of First National as receiver under these circumstances. Because we conclude that the trial court’s order of receivership affected Pearson’s claim, we hold that the trial court erred in refusing to allow Pearson to intervene as a matter of right.

Reversed and remanded.

Newbern, Corbin, and Roaf, JJ., dissent.

David Newbern, Justice,

dissenting. The sole issue in this appeal is whether the Trial Court erred in denying the petition of Max H. Pearson to intervene in the action of the First National Bank of DeWitt seeking to be declared a receiver.

Intervention as a matter of right is governed by Ark. R. Civ. P. 24(a). The rule requires a party seeking to intervene as a matter of right to show that “disposition of the action may as a practical matter impair or impede his ability to protect [his] interest.” There has been no such showing in this case, so we should not reverse the Trial Court’s order which denied Mr. Pearson’s petition.

We have no record of that which has occurred with respect to the Quadras, Inc., license before the Federal Communications Commission. We do, however, have before us the allegations of the Bank that it owns the Quadras stock and thus its assets, and that the FCC has declined to recognize the Bank’s interest in the license owned by Quadras, Inc., unless the Bank becomes a “receiver.” Mr. Pearson does not dispute any of those allegations.

Mr. Pearson’s argument is stated in his brief before this Court as follows:

But FNB admitted in its pleading that the FCC had refused to recognize FNB’s application for transfer of the license as a creditor and stockholder, but would recognize FNB’s application if it was a receiver.
Thus, Max Pearson’s rights are effectively terminated since, without the receivership, FNB cannot proceed before the FCC and if FNB is permitted to act as receiver, it will naturally act in its own self interest, and declare Max Pearson’s contract with Quadras, Inc., void. [Emphasis supplied.]

Allowing the Bank to be a receiver will not terminate Mr. Pearson’s rights. It will only put before the FCC another party who also has a claim to the license. There is no evidence the FCC will do anything, if both parties’ claims are before it, until the merits of the issues of the corporate ownership and the validity of the contract between Mr. Pearson and the corporation have been litigated elsewhere.

Mr. Pearson does not say how his rights before the FCC may be affected other than that he would have a competitor. If there is to be any effect upon his interest in the license or if, in the language of Rule 24(a), his ability to protect his interest is to be impeded or impaired, that will come about as a result of whatever the weaknesses of his own case before the FCC may be, and not because another party is present to expose them.

Mr. Pearson argues that if the Bank is allowed to be the receiver it will “declare Max Pearson’s contract with Quadras, Inc., void.” While that might well occur, Mr. Pearson has cited no authority whatever indicating such a declaration would affect his interest in the license. He either has such an interest or does not, and that issue will not be decided by a declaration by the Bank but will have to be decided in a court or before the FCC, the latter probably after litigation.

While the majority’s inability to resist going beyond the intervention issue and commenting on the merits with respect to the legality of the receivership by referring to Ark. Code Ann. § 16-17-207 (1987) is understandable, it is improper. Again, the sole issue before us is the propriety of the refusal of the Trial Court to permit Mr. Pearson to intervene in the receivership proceeding and not the propriety of the order granting the receivership. He has failed to demonstrate that the receivership will affect his claim of an interest in the license, so the Trial Court’s decision should be affirmed.

I respectfully dissent.

Corbin and Roar JJ., join.


author: DAVID Newbern, Justice.

text:
    HAWKINS CONSTRUCTION COMPANY v. Richard MAXELL and Second Injury Fund
    96-298
    924 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Bethell, Callaway, Robertson, Beasley & Cowan, by: John R. Beasley, for appellant.

      Thompson & Lewellyn, BA., by: James M. Lewellyn, Jr., for appellee.
   DAVID Newbern, Justice.

This is a workers’ compensation case. Richard Maxell’s back was injured in the course of his employment with Hawkins Construction Company (Hawkins) in late 1992, but he continued to work until he again suffered a back injury in January, 1993. Surgery was performed after the 1993 injury, and Mr. Maxell was found to have a permanent disability of 10% to the body as a whole.

Hawkins contended before the Workers’ Compensation Commission that it had no responsiblity because the injury was only a recurrence of an injury suffered by Mr. Maxell in 1990 while working for a different employer. The Commission ruled against Hawkins and held the 1993 injury amounted to a compensable aggravation of the 1990 injury. The Second Injury Trust Fund was a party to the proceeding before the Commission. It was held that the Fund had no liability because the evidence was insufficient to show that the two injuries, when combined, produced a disability greater than that resulting from the 1993 injury alone. Hawkins appealed.

The Arkansas Court of Appeals affirmed the decision of the Commission. Hawkins Const. Co. v. Maxell, 52 Ark. App. 116, 915 S.W.2d 302 (1996). In seeking review in this Court, Hawkins does not again argue that Mr. Maxell’s condition is entirely attributable to the 1990 injury. The only issue presented in this review is whether it was error to hold the Fund was not responsible for any portion of the compensation to be paid to Mr. Maxell. We hold the evidence was insufficient to support that decision.

After his 1990 injury, Mr. Maxell was treated conservatively. He was able to do the same sort of labor he had previously done. Dr. Standefur, the surgeon who operated after the 1993 injury, testified the 1990 injury played a role in the severity of the injury suffered in 1993. He said the earlier injury was responsible for 7% of the 10% permanent disability rating. He said the disc material he removed in 1993 was extruded in the 1990 injury, and a part of Mr. Maxell’s current disability is the result of nerve root damage caused by the disc protrusion from the 1990 injury as shown in a 1991 magnetic resonance image.

The Fund was created by the General Assembly to see to it that a subsequent employer, such as Hawkins, does not become responsible for disability of an employee when a part of his or her condition results from an injury which occurred in previous employment with a different employer. Ark. Code Ann. § 11 — 9— 525(a)(1) (Repl. 1996). The only evidence before the Commission which might be considered as contrary to the medical testimony is that which showed that, from the 1990 injury, Mr. Maxell suffered no disability or impairment which kept him from continuing to do the same sort of labor he had done previously.

In Mid State Const. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1989), we stated the critera for determining whether the Fund was to share liability for compensating an injured worker:

First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status.

We said an “impairment” was a condition which need not be work-related and gave the example of a person who loses one eye, thus becoming impaired, but not disabled in a wage-loss sense, and then loses the other eye to become disabled. One may be impaired without being disabled. In Second Injury Trust Fund v. POM, Inc., 316 Ark. 796, 875 S.W.2d 832 (1994), we said an “impairment” may or may not be work-related, meaning that it may or may not have an effect on the injured worker’s ability to perform. The fact that Mr. Maxell suffered no wage-loss disability after the 1990 injury has no necessary bearing on the issue whether he suffered an impairment from that injury which contributes to his present disability.

The unrebutted testimony of Dr. Standefur is that the impairment suffered in the 1990 injury contributes to the compensable injury. As there was nothing before the Commission to rebut that evidence, we cannot say that the evidence presented was sufficient to support the Commission’s decision. We remand the case for orders consistent with this opinion.

Reversed and remanded.

Dudley, J., not participating.


author: David Newbern, Justice.

text:
    Allen WHITTLE v. WASHINGTON COUNTY CIRCUIT COURT
    CR 96-189
    925 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Doug Norwood, for appellant.

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

Bradford Allen Whittle seeks a writ of prohibition to prevent the Washington County Circuit Court from trying him on charges of misdemeanor offenses which were brought against him in 1991. We grant the writ because Mr. Whittle has been denied a speedy trial.

Mr. Whittle stole a truck on August 12, 1991. A subsequent high-speed chase resulted in a collision with a police car. He pleaded guilty to a felony charge of theft of the truck and to two other unrelated charges and was convicted and sentenced to eight years imprisonment on September 9, 1991. He was incarcerated and failed to appear on October 25, 1991, in the Springdale Municipal Court for trial on misdemeanor traffic charges stemming from the incident.

On April 1, 1994, a warrant for Mr. Whittle’s arrest was issued by the Municipal Court. He was released from prison on April 28, 1995, and shordy thereafter moved to dismiss the misdemeanor charges pursuant to Ark. R. Crim. P. 30.1(a) because he had not been given a speedy trial. The motion was overruled, and Mr. Whitde was convicted of the misdemeanor charges on August 18, 1995.

Mr. Whitde appealed to the Washington County Circuit Court. An appeal to a circuit court of a municipal court judgment results in a trial de novo. Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993). Mr. Whittle again moved to dismiss for failure to provide a speedy trial, claiming violations of the Sixth and Fourteenth Amendments, Ark. Const. art.2, § 10, and Ark. R. Crim. P. 27-30. The motion was denied.

In his petition and brief before this Court, Mr. Whitde relies on our decision in Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988). Ms. Stephens was charged with driving while intoxicated on June 28, 1984. She was tried and convicted in a municipal court on January 23, 1986. She appealed to a circuit court where she moved to dismiss for lack of a speedy trial. Although there was no record of Ms. Stephens having moved to dismiss on speedy-trial grounds in the municipal court, we held that did not pose an impediment to raising the issue in circuit court because the proceeding was de novo. Our holding was that a municipal court speedy-trial violation may be raised in the circuit court proceeding although Rule 28.1, which now sets the speedy-trial limit at one year, only refers to trial in a circuit court.

In his letter opinion denying the motion to dismiss in the case now before us, the Circuit Judge relied on Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995), and McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989). In the McBride case, we held that a circuit court proceeding does not violate the speedy-trial rule, although it occurs outside the time limit set by the rules, if the municipal court trial being appealed was timely. We said in that situation the time for the trial in the circuit court begins to run when the appeal from the municipal court conviction is filed. We followed that decision when presented with similar facts in the Cook case.

In its response to Mr. Whittle’s petition for prohibition and in its brief the State acknowledges that the case now before us is like the Stephens case in that, if Rule 28.1 applies, the municipal court trial was held after the time prescribed by the rule had expired. It is unlike the McBride and Cook cases in which the municipal court trials were not in violation of the rule.

The State asks that we overrule the Stephens decision on one of the grounds stated by the dissenting opinion in that case, i.e., that Rule 28.1 states it applies to circuit court trials and does not refer to municipal court trials.

Rule 1.2. of the Arkansas Rules of Criminal Procedure states:

These rules shall govern the proceedings in all criminal cases in the Supreme Court and in circuit courts of the State of Arkansas. They shall also apply in all other courts where their application is practicable or constitutionally required.

The primary discussion in the opinion in the Stephens case was of the constitutional right to a speedy trial. We cited Barker v. Wingo, 407 U.S. 514 (1972), and applied a “balancing test” of factors leading to a decision that a violation of the Sixth Amendment right to a speedy trial had occurred. Upon concluding that a violation had occurred, we then said, “Ride 28 would likewise require a similar result.” We have been given no more reason to decline to apply our speedy-trial rule in this case than we had in the Stephens case, and we decline to overrule that decision.

Writ granted.

Dudley, J., not participating.

Glaze, J., dissents.