text:
    HOUSTON CONTRACTING COMPANY and CONTINENTAL INSURANCE COMPANY v. Jessie T. YOUNG
    CA 80-310
    607 S.W. 2d 83
    Court of Appeals of Arkansas
    Opinion delivered November 5, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Shackleford, Shackleford & Phillips, P.A., for appellee.
   Marian F. Penix, Judge.

This case is before our Court for the second time. Jessie T. Young was injured August 11, 1974 while working for Houston Contracting Company in the state of Texas. Jessie Young has been receiving payments under the Texas Workers’ Compensation Act since 1974. In December, 1977 the claimant filed a claim for benefits under the Arkansas Workers’ Compensation Act. He is a resident of Arkansas and was at the time of his injury. The Commission held the claim to be barred on the theory it was filed more than one year from the date of the last payment of compensation. The claimant appealed this decision to this Court. The Court reversed the Commission and held the Statute of Limitations had not run against the claimant and remanded the case to the Commission. The Supreme Court reviewed the case and reversed this Court ordering a remand to the Commission for the taking of additional testimony on the question of whether or not the Statute of Limitations had run. Houston Contracting Company et al v. Jessie T. Young, 267 Ark. 322, 590 S.W. 2d 653 (1979). The Supreme Court found the record to be incomplete on the question of whether or not the claimant actually had knowledge he was receiving benefits under the Workers’ Compensation laws of the state of Texas. Upon remand to the Commission, additional testimony was heard and the Commission found the claim was not barred by the limitations period because the claimant did not actively participate in the procurement of an official award of compensation in Texas and was unaware his benefits were paid pursuant to the Texas Law. Houston Contracting Company and Continental Insurance Company appeal.

The sole issue stipulated to by both parties is whether there is evidence the claimant knew he-was being paid under the laws of the state of Texas. The Supreme Court held it was a question of fact as to whether the statute was tolled. Both Texas and Arkansas have concurrent jurisdiction. There is a limit on the benefits paid in the state of Texas while there is no such limit in Arkansas. The Commission awarded the claimant permanent total disability pursuant to thé Arkansas Workers’ Compensation Act, the respondents to receive credit for all payments made under the Texas Act.

The Commission found as a fact that the claimant did not actively participate in the procurement of an official award of compensation in Texas and was not aware he was receiving benefits pursuant to the Texas law until shortly before he filed his claim in Arkansas.

The claimant had retired from Houston Contracting Company in 1972. In August 1973 Houston rehired claimant to come to Texas to help with some road boring. He continued to draw his retirement pay. On October 11, 1974 the claimant ruptured three discs in his back. He was sent to a Dr. Lloyd Smith at Vidor, Texas then to Beaumont for X-rays. The claimant asked Dr. Smith if he could enter the hospital in El Dorado which was close to his home at Felsenthal. Claimant returned to El Dorado and entered the hospital. Subsequently Dr. Callaway, an orthopedic surgeon, operated on claimant’s back. Later he was referred to Dr. Fletcher, a neurosurgeon in Little Rock. Later the claimant had additional surgery in Houston. He testified he knew he was receiving compensation payments and the checks came from Beaumont. He did say he didn’t know under which state law he was being paid. After receiving payments for eighteen weeks, the claimant received a form from the Texas Industrial Accident Board requesting that he describe how the accident happened and the treatment he had received. No official award was ever entered in Texas.

The claimant further stated he did not know there was more than one Workers’ Compensation Law, but rather he thought it was like social security — alike in all states. When the claimant asked for travel expenses from Felsenthal to Houston for medical treatment, the adjustor, Steve Arrambide, told him he could not be reimbursed for his trips to Dr. Ponder in Houston.

The Texas Industrial Accident Board wrote the claimant suggesting the claimant might benefit from services of Rehabilitation in his home state and provided claimant with the address in Little Rock.

The respondents contend that the Commission’s specific finding that the claimant did not know until he filed his present claim for benefits under Arkansas law that he was being compensated under the laws of Texas, is not supported by substantial evidence.

As we have reiterated on numerous occasions, our role is not to make factual findings. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979). Rather, we must determine if there is any substantial evidence to support the fact findings of the Commission. In our examination of the record, we find there is substantial evidence to support the decision of the Commission. First of all, it is the claimant’s testimony he thought Workers’ Compensation benefits were determined by one law effective in every state much like Social Security. For the uninformed layman, this is not a preposterous assumption. The claimant further stated he received payments for eighteen weeks before he ever received any forms to fill and that he himself did nothing to precipitate or initiate the compensation. He did not file a claim nor have any advice about the compensation until he was advised he would not be reimbursed for his travel expenses. This is substantial evidence. It is logical to assume the injured worker has no way of knowing nor any reason to know the compensation under the laws of his home state of Arkansas is more beneficial.

The Supreme Court’s decision cites Auslander v. Texile Workers’ Union of America, 379 N.Y.S. 2d 232, 59 A.D. 2d 90 (1977) for the illustration of two situations. One situation results in the second state’s statute being tolled. The other situation results in the statute running. Where the employee has actively sought benefits or initiated the claim with the Commission of the particular state, the Statute of limitations would run. Payment of compensation in this situation would not toll the statute. Instances of the tolling of the statute are those situations where the recipient of benefits under the law of the first state is not on notice he is being paid pursuant to a specific state law. We find the case at hand to be a situation where the claimant was not on notice his payments were made pursuant to the law of Texas, and that such law was different from the Workers’ Compensation Law in Arkansas.

Finding there to be substantial evidence to support the Commission’s findings, we therefore affirm with regard to the evidentiary question.

The respondents’ second point for reversal is a request for a remand to clarify the imposition of the controversion penalty. The respondents contend they have never controverted the Texas payments. The claimant concedes there has been no controversion of the Texas payments. According to the claimant, a remand is unnecessary. The Commission’s order states the respondents shall pay the maximum allowable attorney’s fee on the controverted portion of this award and the respondents are further directed to pay the claimant’s attorney an additional fee of $100.00 for services rendered on appeal to the Full Commission. We find no ambiguity in this order. The penalty is imposed on the portion of the award which was controverted, namely the compensation to be paid in Arkansas.

The respondents are directed to pay the claimant’s attorney the maximum fee for services rendered on appeal to this Court.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Judge.

license: Public Domain

text:
    Edward TURNER and SOUTHERN FARM BUREAU INSURANCE COMPANY v. Finis Lee HAYNIE
    CA 80-255
    607 S.W. 2d 86
    Court of Appeals of Arkansas
    Opinion delivered November 5, 1980

      Griffin, Rainwater & Draper, for appellants.

      Denver L. Thornton, for appellee.
   David Newbern, Judge.

The appellants contend there is no substantial evidence in the record to support the workers’ compensation commission’s determination that the appellee is totally disabled. The appellee sustained a scheduled injury when his arm was mutilated, in the course of his employment, resulting in amputation between the wrist and elbow. The commission determined the physical injury, coupled with its aggravation of the preexisting mental condition of the appellee, caused him to be totally disabled. We agree and, therefore, affirm the commission’s decision.

It is clear from the record that before the injury to his arm the appellee would have been classified as illiterate and as a person with considerable psychological disabilities. The contention of the appellants is that there has been no showing that the appellee’s condition has been significantly if at all worsened by the physical injury he suffered.

We affirm this award because the testimony of a psychologist, Dr. D. A. Stevens, admitted in the form of a letter, was that the appellee had developed a psychotic reaction to the traumatic amputation. In addition, the testimony by deposition of a psychiatrist, Dr. Walter S. Mizell, was to the effect that the traumatic injury could trigger a new episode of schizophrenia and “it might be the triggering experience that caused him to begin to manifest another [schizophrenic] episode of increasing severity.” Another psychiatrist, Dr. William Wood, testified by deposition that the appellee was psychologically affected by the loss of a part of his body and that the ability of an amputee to overcome the tendency to have a reduced level of self esteem would depend upon the strength of the individual. The appellee was not a “strong” individual at the time of his injury. All of this medical testimony constitutes substantial evidence that the injury aggravated the previous mental ailments suffered by the appellee. Rooney v. Travelers Insurance Co. & Charles, 262 Ark. 695, 560 S.W. 2d 797 (1978); Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974).

The parties, in their briefs, have simply emphasized different aspects of the testimony of the witnesses to whom we have referred. Our responsibility is to affirm if we find substantial evidence in support of the commission’s decision. Mosley v. El Dorado School Dist., 254 Ark. 326, 493 S.W. 2d 427 (1973). Having found it, we affirm.

Affirmed.


text:
    Sharon HAWKINS v. STATE of Arkansas
    CA CR 80-30
    607 S.W. 2d 400
    Court of Appeals of Arkansas
    Opinion delivered November 5, 1980
    Rehearing denied December 10, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah Davis Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold Jochums, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The first question presented is whether the appellant can complain for the first time on appeal that the trial judge failed, in revoking her probation, to comply with Ark. Stat. Ann. § 41-1209(2) (Repl. 1977), which requires the judge to furnish “a written statement of the evidence relied on and the reasons for revoking suspension of probation.” We hold that the failure to raise this question below makes it one which should not be considered on appeal. The appellant’s second contention is that the preponderance of the evidence did not support the revocation of her probation. We hold the evidence presented supported the revocation.

The appellant pleaded nolo contendere to a charge of theft and was placed on three years probation on March 1, 1979-The petition to revoke her probation was filed on August 23, 1979, alleging that the appellant had committed theft by deception by obtaining monies of Electric Motor Center, Inc., and again by obtaining property of a Mr. McCoy. During a three-day hearing, evidence was presented with respect to these charged offenses, and on January 3, 1980, the court found that the appellant had violated her probation by committing a criminal act. A judgment was rendered setting aside the probation, finding the appellant guilty of the original charge and sentencing the defendant to two years in the Arkansas Department of Correction. Nothing in the record suggests any objection was made below to failure of the trial judge to furnish a written statement to the appellant as the statute requires.

1. Failure to object.

The argument of the appellant here is that although the judgment of the court and the commentary of the court stating he was relying on “all of the evidence” was reduced to writing, it was not sufficient to comply with the statute. We tend to agree that the recitation of the trial judge was not sufficiently specific to apprise the appellant of the evidence upon which the judge relied and his reasons for doing so. One purpose of the statute requiring the written statement of evidence and reasons must be to permit the defendant to know the precise bases of the trial court’s decision so that she or he may conduct an intelligent appeal by being able to center it upon errors which could only be perceived if the decision process were known.

However, in this case, we must affirm because of the lack of objection, below. On that point, which has been raised by the appellee, the appellant has cited only McGee v. State, 262 Ark. 473, 557 S.W. 2d 885 (1977). That case stands only for the proposition that the word “shall” is mandatory and thus the requirement of the statute is not discretionary with the court. That does not mean, however, that the right to the written statement cannot be waived. Our supreme court has held that failure to object at the proper time waives rights otherwise clearly to be afforded to a criminal defendant. See, Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980); Jeffers v. State, 268 Ark. 329, 595 S.W. 2d 687 (1980); Parker v. State, 266 Ark. 13, 582 S.W. 2d 34 (1979). We see no reason to apply a different rule with respect to revocation hearings. A timely request or objection would have enabled the judge to have corrected whatever insufficiency there may have been in his efforts to comply with the statute.

2. Sufficiency of the evidence.

The state has the burden in a probation revocation hearing to show the appellant has inexcusably violated the terms and conditions of probation by a preponderance fo the evidence. Ark. Stat. Ann. § 41-1208(4) (Repl. 1977); Ellerson v. State, 261 Ark. 525, 549 S.W. 2d 495 (1977). On review, we view the evidence in a light most favorable to the appellee. Chaviers v. State, 267 Ark. 6, 558 S.W. 2d 434 (1978); Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977).

Although there is some evidence that the appellant simply made mistakes while working for her last two employers from whom she is accused of stealing, or that with respect to one of them she was a pawn in a corporate officer’s scheme to deceive his company, there was strong testimony to the contrary. For example, Mr. Bob Becker, a principal officer of Electric Motor Center, Inc., testified that when he discovered that checks had been, by the appellant, his bookkeeper, made payable to the bank for cash for which he could not account, he confronted the appellant and advised her she might need an attorney. He further stated an attorney spoke with him on behalf of the appellant and stated she wanted to put the money back rather than face criminal charges. A factual issue was presented for the trial judge, and we cannot find his decision was incorrect.

Affirmed.


author: John A. Fogleman, Chief Justice.

text:
    Kozy KITCHEN v. STATE of Arkansas
    CR 80-66
    607 S.W. 2d 345
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Steven G. Howard and Gerald W. Carlyle, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant Kozy Kitchen was found guilty of rape, carnal abuse in the first degree and carnal abuse in the third degree. His conviction was reversed by this court on November 13, 1978, because of error in the summoning of the jury. Kitchen v. State, 264 Ark. 579, 572 S.W. 2d 839. Thereafter, venue was changed from Jackson County to Lawrence County. After a jury trial on January 27, 1979, appellant was sentenced to a total of 49 years imprisonment pursuant to the jury’s verdict finding him guilty on all three charges. Appellant asserts the following points for reversal:

I
THE LOWER COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR PSYCHIATRIC EXAMINATION OF PROSECUTION WITNESS.
II
THE LOWER COURT ERRED IN DENYING THE DEFENDANT’S MOTION IN LIMINE TO SUPPRESS TESTIMONY.
III
THE LOWER COURT ERRED BY INTERJECTING ITSELF INTO THE TRIAL TO SUCH A DEGREE THAT IT PREJUDICED THE APPELLANT.
IV
THE VERDICT OF THE JURY WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.
V
THE LOWER COURT ERRED IN SEVERAL RULINGS ON THE EVIDENCE WHICH SINGULARLY AND CONSIDERED AS A WHOLE AFFECTED SUBSTANTIAL RIGHTS OF THE DEFENDANT.

We find reversible error.

We will first treat appellant’s last point, because we find reversible error o'n one ruling on the admissibility of evidence which, as we see it, affected a substantial right of appellant.

V

The principle witnesses against appellant were his wife, Daisy, and her three daughters, the alleged victims of the sexual crimes with which appellant was charged. The credibility of these witnesses was probably the most important issue in the case. Appellant called Richard Allen, an attorney, who was the deputy prosecuting attorney who had participated in appellant’s first trial and who had conversed with Daisy Kitchen and at least one of her three, daughters. Appellant’s counsel examined Allen about occasions when Mrs. Kitchen had brought the girls to his office and wanted to change the stories they had earlier told accusing Kitchen of the crimes with which he was charged. These stories had been told under oath in the juvenile court when Arkansas Social Services had brought a proceeding to take custody of the three girls. Appellant also brought out on direct examination that Allen had explained the penalties of perjury to Mrs. Kitchen and whichever of her daughters were present when he was told they wanted to change their testimony. On cross-examination, the state’s attorney elicited testimony that he had heard Mrs. Kitchen and the three girls testify during the trial, in several hearings in Newport, and in the hearing in the Juvenile Court of Jackson County. The state then elicited from Allen the statement that these four witnesses had told essentially the same story each time they had testified under oath. Appellant’s counsel objected on the ground that the state was trying to rehabilitate its witnesses by use of prior consistent statements. The objection was well taken. The prior consistent statements were hearsay. Ark. Stat. Ann. § 28-1001, Rule 801 (c) (Repl. 1979). They could be admissible as an exception to the hearsay rule if they were offered to rebut an express or implied charge of recent fabrication or improper influence or motive. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (ii). These is no doubt about appellant’s efforts to show that these witnesses had fabricated their accusations and that their motives were improper. Still, there is nothing to indicate that there could have been any fabrication subsequent to the juvenile court hearing or that the motive of these witnesses was any different at the time of the second trial than it had been at any of the previous hearings. A highly regarded authority has taken the position that, where the attack on the witness is by inconsistent statements, the proof of a consistent statement is admissible only if it was made before the plan or contrivance to give false testimony was formed. According to this authority, the fabrication is not required to be recent as related to the trial, but it is necessary that the contrivance be more recent than the consistent statement. We have followed this interpretation in our first , decision on the point after the adoption of the Arkansas Uniform Rules of Evidence. In Brown v. State, 262 Ark. 298, 556 S.W. 2d 418, we held at the word “recent,” describing the fabrication is a relative term meaning that the challenged testimony was fabricated to meet the exigencies of the case (not the trial). Under the Brown interpretation, the prior consistent statements of these witnesses were not admissible because the motive for fabrication was as great when the first statement was made as when the testimony was given. See George v. State, 270 Ark. 335, 604 S.W. 2d 940 (1980). We cannot say that the error did not affect a substantial right of appellant because the testimony of these witnesses was essential to his conviction and the evidence to corroborate them was, to say the least, slight. We will consider all other contentions made by appellant under the broad coverage of this point and under the other points stated by appellant we consider likely to arise on a retrial.

Appellant contends that testimony that he ejaculated into the mouths of the girls was irrelevant because this testimony was not necessary to show the essential element of the crimes — penetration of a body cavity of the victim by a penis. We note that appellant made no objection to that testimony by two of the girls. Although appellant says that under Ark. Stat. Ann. § 28-1001, Rule 103 (d) (Repl. 1979), we may take notice of errors in admission of evidence if they affect substantial rights, even though they were not called to the attention of the trial court, we do not. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

The relevance is not outweighed by the inflammatory nature of the testimony by reason of the explanation given by the witnesses for the conduct of appellant. They testified similarly. According to them, appellant expressed the desire to adopt the daughters of his wife “as his blood kin” or “through his bloodline,” not by legal means, and wanted to change the Wilson nature, which he did not like, to the Kitchen nature. Mrs. Kitchen explained that this meant that each of the children had to take his sperm in her mouth and swallow it in order to be a Kitchen, and that this explanation was made to each of the children. All this testimony was relevant to the issues. We will treat this matter further when we consider appellant’s point II.

Appellant says that the court erred in permitting Daisy Kitchen to testify about whippings of her and the three minor girls. His objection was that the testimony was not relevant, but if relevant, its probative value was outweighed by its inflammatory nature.

The matter of the whippings was brought out on cross-examination of Daisy Kitchen. Appellant’s counsel had examined this witness about her statements that her accusations were not true, her love for appellant, her having written letters to him after he was imprisoned professing her love for him, her fear of appellant, appellant’s desire that a baby born to them be brought up by his first wife, her delay in reporting the sexual offenses and her visits to appellant at Cummins Prison. After extensive examination along these lines, appellant’s counsel questioned her about a letter, which she said she had written at appellant’s dictation and, when asked why she had written it, explained that it was because of her fear that appellant’s friends would kill her if she did not. Thereafter, appellant’s counsel presented her with another letter she had written expressing affection and she read it to the jury at his request. In this letter, Mrs. Kitchen had said that she was “so scared” of appellant before their baby was born and that his whippings were not like the kind she had had when she was a little girl. It also contained a statement that he had caused the girls to whip one another and to whip her. Appellant offered this letter in evidence. Another letter was introduced in which Mrs. Kitchen had asked appellant to forgive her for the terrible lies she had told and had had the girls tell, about his having engaged in sexual activity with them. Appellant’s counsel, after having the witness confirm that she had testified that she did not love appellant and was afraid of him, obtained an admission from her that she had engaged in sexual intercouse with appellant in the Jackson County jail. When asked why, she stated that she was afraid not to do what he told her to because of his previous threats and something else that had happened.

On redirect examination, Mrs. Kitchen was asked to explain the statement in her letter to appellant about whippings. She then told about appellant making the girls strip naked and whip each other for something they had done or failed to do or for failure to answer questions as he desired them to. She also told of his having whipped her with a belt or shoe and of making her stip naked, except for her panties, while she was pregnant, and causing the children to whip her on her hands and knees and making her go up and down the hall, while the children chased and whipped her. She was then asked why she had written the letters and responded by saying that it was because of her fear of the whippings and knowledge of what would happen if she did not and because appellant had told her that if she did anything to cause him to go to prison, he would make sure that she went, too.

Appellant opened up the subject of the whippings at his own risk. Parker v. State, 265 Ark. 315, 578 S.W. 2d 606. The basic function of redirect examination is to enable a witness to explain and clarify any relevant matters in this testimony that have been weakened by cross-examination and to rebut the discrediting effect of any damaging statements or admission elicited on cross-examination. We have said that a witness should be allowed a full opportunity to explain matters brought out on cross-examination, to rebut any discrediting effect they may have had or to correct any wrong impression that may have been created. Allen v. State, 260 Ark. 466, 541 S.W. 2d 675. Certainly the letters were statements that tended to discredit Mrs. Kitchen’s testimony. There was no abuse of the trial court’s discretion in permitting this redirect examination.

Appellant called as witnesses several persons he now identifies as inmates of Cummins Prison. He says that he attempted to have these witnesses testify about statements made by the prosecution witnesses and that the state’s objection on the ground of hearsay was sustained. We cannot say that there was error on this question because the abstract of the record reveals no proffer of the testimony of any of the witnesses.

I

On December 27, 1978, appellant filed a motion to require a psychiatric examination of the four principal witnesses against him. The step-daughters of appellant were 15, 13 and 11 years of age at the time of the trial. He alleged that they were pathological liars, mentally incompetent, and therefore incompetent to testify. He also alleged that the daughters were so dominated by their mother that they were incapable of telling the truth. He supported the motion with an affidavit, which we do not consider because it is not abstracted. The motion was heard and denied on February 8, 1979.

Insofar as it is pertinent to our inquiry, appellant was justified in taking the position that without the testimony of these witnesses, there could have been no conviction and that the corroborating evidence was slight. Appellant correctly perceives that the common law tests of competency of a witness in a criminal case in Arkansas have been clearly established. They are: the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact-finder a reasonable statement of what was seen, felt or heard. Batchelor v. State, 217 Ark. 340, 230 S.W. 2d 23; Keith v. State, 218 Ark. 174, 235 S.W. 2d 539; Reynolds v. State, 220 Ark. 188, 246 S.W. 2d 724; Harris v. State, 238 Ark. 780, 284 S.W. 2d 177; Allen v. State, 253 Ark. 732, 488 S.W. 2d 712. The question of competency is a matter lying within the sound discretion of the trial judge and, in the absence of clear abuse of discretion, or manifest error, its exercise is not reviewable on appeal. Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589; Harvey v. State, 261 Ark. 47, 545 S.W. 2d 912; Williams v. State, 257 Ark. 8, 513 S.W. 2d 793; White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216; Keith v. State, supra; Allen v. State, supra; Crosby v. State, 93 Ark. 156, 124 S.W. 781.

In determining the competency of a witness, the court must begin with the presumption that every person is competent to be a witness except as provided in the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 601 (Repl. 1979). There is no exception applicable under the circumstances presented here. The qualification of a person to be a witness is a preliminary question to be detemined by the trial court. Ark. Stat. Ann. § 28-1001, Rule 104 (a) (Repl. 1919). Error may not be predicated upon a ruling admitting evidence unless a substantial right of the objecting party is affected. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979). To uphold appellant’s argument on this point, we must find that a substantial right of appellant has been affected. Thus, appellant has the burden of showing that he has a substantial right which was affected by a clear abuse of the trial court’s discretion in admitting the testimony of those four witnesses without prior psychiatric examination.

We take the position that the fact that the testimony of an alleged victim in a trial on a charge of sexual offense will be without corroboration, or will be only slightly corroborated, does not compel a psychiatric examination or evaluation of a witness considering her competency to testify, in the absence of a statutory requirement, although there is respectable authority supporting a contrary view. We also adopt the position that the question whether there should be a psychiatric examination as an aid to the trial judge in exercising his discretion is a matter which itself should lie within the sound judicial discretion of the trial judge, at least when he is otherwise satisfied as to the competency of the witnesses. We believe this to be not only the majority view but the better view of this matter. State v. Klueber, 81 S.D. 223, 132 N.W. 2d 847 (1965); State v. Manning, 162 Conn. 112, 291 A. 2d 750 (1971); Ballard v. Superior Court, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 R 2d 838, 18 ALR 3d 1416 (1966); State v. Miller, 35 Wis. 2d 454, 151 N.W. 2d 157 (1967); Wilk v. State, 217 So. 2d 610 (Fla. Dist. Ct. App., 1969). See also, Annot, 18 ALR 3d 1433 (1968). This rule has been applied, appropriately we feel, where the witness, a relatively young girl who was allegedly the victim in a rape charge, was subject to attacks on her crediiblity. McDonald v. State, 307 A. 2d 796 (Del. 1973).

Although we do not consider the case of Mangrum v. State, 227 Ark. 381, 229 S.W. 2d 80, relied upon by appellant, to be in point on the issue before us, it is more nearly supportive of the position we take than of appellant’s arguments. The opportunity of the trial judge to observe the proposed witness, his manner, his capacity, his intelligence, and his understanding of the obligations of the oath are important factors in deciding the question of competency. Keith v. State, supra; Mangrum v. State, supra.

Appellant obviously recognized his burden of showing that these four witnesses against him were not competent to testify by seeking to require that they be psychiatrically examined. There are no statutory provisions either requiring or providing for any such examination.

Viewing the matter as we do, we turn to the question whether the trial judge abused his discretion in denying the motion for a psychiatric examination of the witnesses in this case. Appellant offered the testimony of David Simmons, an attorney employed by the Northeast Arkansas Legal Services in Newport; Richard Allen, Deputy Prosecuting Attorney for Jackson County, when appellant was first tried; Mrs. Daisy Kitchen; the 15-year-old daughter, to whom we will refer as A; the 13-year-old daughter to whom we will refer as B; and the 11-year-old daughter, to whom we will refer as C. We put little emphasis on the fact that each of the four witnesses, on some occasion and some of them on several occasions, had made inconsistent statements, some of which were inconsistent with appellant’s guilt. The inconsistency of these statements was a matter going to their credibility as witnesses and inconsistent statements made prior to the second trial, whenever made, were admissible in evidence for impeachment purposes. Scifres v. State, 228 Ark. 486, 308 S.W. 2d 815; Baysinger v. State, 261 Ark. 605, 550 S.W. 2d 445. The only conditions for their admission were met by affording the witness and the state the opportunity to explain or deny them. The interests of justice did not recognize exclusion of the inconsistent statements. Ark. Stat. Ann. § 28-1001, Rule 613 (b) (Repl. 1979).

David Simmons had represented Mrs. Kitchen in a proceeding in juvenile court when Arkansas Social Services was attempting to take custody of her three daughters. He testified that she had come to his office about two or three weeks prior to appellant’s first trial and had asked him what would happen if the statements she had made in juvenile court were not true. He said that he had advised her that the state might seek perjury charges and that she might be sent to prison and thereby lose custody of her children. According to Simmons, Mrs. Kitchen was only concerned about the effect changing her story might have on losing her children. Simmons said he also talked with A, who told him that her earlier testimony that appellant had committed certain acts of oral sex were not true. A appeared to Simmons to be upset and nervous all during the time she was in his office. Neither the mother nor the daughter was under oath at the time.

Richard Allen said that he had talked with Mrs. Kitchen while he was preparing for the first trial and that she had told him that the accusations she had made against appellant were false. All three daughters were present. Mrs. Kitchen and the girls indicated that the accusations they had made against appellant were untrue and that they had made up their story about appellant. Allen said that he explained to them the possible consequences of changing the story they had given up until that time and that he felt that it was his duty to explain to Mrs. Kitchen that if she lied under oath in juvenile court, she could be prosecuted for, and was guilty of, perjury. Allen said that he had probably informed the mother and her daughters of the statutory penalty for perjury. Allen said that he had had a second conversation with this group after he had sent them to Little Rock and had received a report of their visit there which indicated that Mrs. Kitchen had been lying on the occasion of the first conversation with him. This conversation also took place before appellant’s first trial on the charges. Allen said that when he showed these witnesses the results of the report, they admitted that what they had said all along was the truth.

Mrs. Kitchen testified that she had made statements that the accusations against her husband were untrue and that she had written a letter to him saying that she had lied about his having had sex with the girls. She said that she was told to tell Simmons that the accusations were untrue by appellant who said that this would help him. She did not think she had told Allen that the accusations were untrue but she remembered that he had told her about the penalty for perjury. She said that she had written the letters to appellant because he had said this would help him, because he had said “they” would kill him, and she did not want him killed. Another reason she gave for writing the letters was to stop appellant from fussing at her about coming to see him at the penitentiary. She said that she was afraid appellant would kill her if he were released but that she had gone to the penitentiary to see him five or six times.

A testified that she lied in school, sometimes pretty regularly, and that she lied to her parents to keep from getting in trouble. She remembered having told Allen that the accusations against appellant were false, but did not remember having told Simmons this. She said that between the time of appellant’s arrest and his first trial, she had talked with her mother about how she was going to testify and that her mother told her what to say. A did not remember whether she had told a lie in appellant’s first trial, and did not remember whether her mother had told her to say certain things so the mother would not go to prison. She admitted having visited with appellant when he was in Cummins prison, but did not know whether she had told people there that he had not done anything. Upon cross-examination by the court, this witness said that she knew that one would be punished for not telling the truth, particularly when under oath. She said that she had told the truth when the case was first tried and that she was now telling the truth.

B was qualified by the court as a competent witness as to her ability to know the difference between a lie and the truth and her knowledge that one would be punished for lying. She recalled that she was under oath when she had first testified against appellant at his first trial and said that her testimony then was true. She admitted that she had gone to Allen’s office and told him the accusations against appellant were untrue, but said that she had lied to Allen. She said that she would not tell a lie to keep her mother from going to prison.

C said that she knew the difference between a lie and the truth, that it was wrong to tell lies, and that one would be punished for telling lies. She remembered going to Allen’s office and telling him that the things she had said about appellant were not true, but she did not remember going there with her mother and telling him that appellant did not do anything to her and her sisters. She later said she remembered going to Allen’s office but did not remember whether she had said anything herself. She said that she had told a lie in school, had told a lie to her mother, but would not tell a lie to keep her mother from going to prison. She said that her testimony in appellant’s first trial was the truth and that the testimony she would give in the second trial also would be the truth.

The trial judge could readily have found from this testimony that all of these witnesses recognized the obligations imposed by an oath to tell the truth, that whatever inconsistent statements they may have made were not made under oath, that appellant’s arguments that they were pathological liars and mentally incompetent were either exaggerated or unfounded, and that a psychiatric evaluation was unnecessary. We find no abuse of the trial court’s discretion.

II

Appellant’s motion in limine to suppress testimony asked the court to suppress any testimony relating to any type of sexual activity involving appellant and any of the prosecution witnesses if the activity did not involve the penetration of any body cavity of any of the alleged victims. This motion was submitted to the court on argument only. It was also denied at the pretrial hearing just preceding the trial. In his brief, appellant gives examples of the sort of testimony he sought to suppress. The first as that of the witnesses relating to appellant’s ejaculation in their mouths. Other examples were testimony of one of the girls about her mother licking sperm off her vagina after appellant had rubbed his penis on it, and that concerning whippings administered by appellant. It does not appear that these specific items of testimony were mentioned in the motion. Yet, in appellant’s argument of the motion, appellant only pointed out that one of the girls had testified, at the first trial, that appellant’s penis had not “gone in” and that another had said that appellant had put his penis on her vagina and rubbed her. In neither the motion nor in defense counsel’s argument was there any other specification of the testimony that appellant wanted suppressed. Appellant asserts that this testimony had no probative value on the elements of the crime, and that it was inflammatory and of a prejudicial nature. The objection advanced in appellant’s argument in the trial court was that the testimony was irrelevant.

We might well dispose of this point on the basis that appellant has cited no authority and has not made a convincing argument on this point. See Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. It also appears that appellant has broadened the scope of his objection on appeal. We have treated the question pertaining to whippings under another point appellant has asserted. The argument relating to the actions of Mrs. Kitchen with reference to sperm on her daughter’s vagina does not appear to be within the scope of appellant’s motion. It is true that the offense with which appellant was charged required penetration of a body cavity with a penis. We simply cannot follow appellant’s argument that evidence pertaining to ejaculation was not of probative value on the question of penetration, which, as he points out, was an important element in each of the three charges against him. All elements of the charges were put in issue by appellant’s plea of not guilty. Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. Stat. Ann. § 28-1001, Rule 401. It should require no elaboration to illustrate the relevance of this testimony. Appellant argues, in effect, however, that the testimony should have been excluded because the danger of unfair prejudice to him outweighed its probative value. Ark. Stat. Ann. § 28-1001, Rule 403. This called for a balancing test by the trial court. The test calls for the exercise of a sound judicial discretion by the trial court, which will not be disturbed by this court in the absence of clear abuse. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342. We find no abuse of discretion in this regard.

We should also point out that there is no reversible error in the denial of a motion in limine where the motion is vague and indefinite. Bridges v. City of Richardson, 349 S.W. 2d 644 (Tex. Civ. App. 1961). It is properly used to prohibit mention of some specific matter, perhaps of an inflammatory nature, until its admissibility has been shown out of the hearing of the jury. Lewis v. Buena Vista Mutual Insurance Association, 183 N.W. 2d 198 (Iowa, 1971).

Furthermore, as to those matters specified in appellant’s motion in limine, appellant is in no position to claim prejudice. B testified that appellant put his penis in her mouth on two occasions. She did not mention any occasion on which his “penis did not go in.” Furthermore, she said that he had ejaculated in her mouth on both occasions. She made no reference to any of her testimony at the first trial. Although appellant’s abstract does not reveal it, the state has called our attention to the fact that this testimony was first brought out on appellant’s cross-examination with reference to B’s testimony at the first trial. The identical situation exists as to the anticipated testimony of C that appellant rubbed his penis on her vagina.

Ill

It is not possible for us to deal with this point as appellant would have us do for several reasons. Appellant says that the point must be considered by looking at the total transcript of the trial. This we will not do. Time and again we have pointed out the impossibility of seven judges reading the transcript of a trial. Tucker v. Haskins, 243 Ark. 826, 422 S.W. 2d 696. The record on appeal is confined to that which is abstracted. Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6. The mere scattering of transcript references throughout appellant’s argument is not a substitute for a proper abstract. No longer can the appellant in a criminal case depend upon the Attorney General to abstract the record or supply deficiencies. See Rule 11 (f), Rules of Supreme Court and Court of Appeals, Vol. 3 A, Ark. Stat. Ann. (Repl. 1979). Only in cases in which the sentence is life imprisonment or death do we review the record for prejudicial error. See Bly v. State, 263 Ark. 138, 562 S.W. 2d 605; Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73; Ark. Stat. Ann. § 43-2725 (Repl. 1977); Rule 36.24, Arkansas Rules of Criminal Procedure, Vol. 4A, Ark. Stat. Ann. (Repl. 1977). Even then we search only for rulings on objections and motions which were adverse to the appellant. See Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980); Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 935; Jenkins v. State, 222 Ark. 511, 261 S.W. 2d 784.

Even though appellant recites an example or two of the conduct of the trial judge of which he now complains, none of them are such as to call for reversal and appellant frankly states that no one specific comment of the trial judge directed to defense counsel or to the testimony should cause reversal. We certainly agree with appellant that the trial judge should manifest impartiality in the conduct of a trial and refrain from impatient remarks or comments which tend to result prejudicially to a litigant or to influence the minds of the jury. Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W. 2d 676. We also recognize that it is improper for a trial judge to needlessly inject himself into a trial. See St. Louis Southwestern Ry. Co. v. Aydelott, 128 Ark. 479, 194 S.W. 873. On the other hand, the judge is not merely the chairman of the trial, who must remain mute until a party calls upon him to make a ruling; instead, he has some responsibility for the proper conduct of the trial and the achievement of justice. Jordan v. Guinn, 253 Ark. 315, 485 S.W. 2d 715. It is the duty of the trial judge to see not only that the trial proceeds in accordance with law but that it proceeds efficiently and effectively and in keeping with the ends of justice. He should be free to shut off long-winded and irrelevant testimony or questioning and to confine counsel to the actual issues in the case. Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988. It is the responsibility of the trial judge to maintain an appropriate balance in the performance of his role impartially and a clear transgression of the proper bounds must be demonstrated before an appellate court is justified in reversing a judgment because of the trial judge’s interjecting himself into the trial.

Not only has appellant failed to demonstrate impropriety on the part of the trial judge, the issue is first raised on appeal. Appellant has not called our attention to any objection or motion for mistrial made in the trial court. In the absence of either, or of any corrective action, we do not consider an assertion of error such as this. Kimble v. State, 246 Ark. 407, 438 S.W. 2d 705; Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93.

IV

Appellant recognizes that it is well settled that the verdict of a jury will not be disturbed on appeal, unless we can say there was no substantial evidence to support it. See Pope v. State, 262 Ark. 476, 557 S.W. 2d 887. Appellant points out that his wife and her three daughters had each admitted statements denying the truth of the accusations against him, that there was no corroboration by medical evidence of any sperm or physical evidence, that the crimes had not been reported for a matter of weeks, and that some of these witnesses had visited appellant in prison and some of them had written letters expressing affection for appellant. These arguments were undoubtedly addressed to the jury and appropriately so. Appellant says that the extent of the inconsistencies and the total lack of corroboration of these witnesses require that this court rule that the verdict was not supported by the weight of the evidence. We are not concerned with the prepondernace of the evidence; that was a concern of the jury. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938. We do consider that there was substantial evidence to support the verdict. No corroboration of the testimony of the victims was required. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320; Nowlin v. State, 253 Ark. 57, 484 S.W. 2d 339;Rogers v. State, 237 Ark. 437, 373 S.W. 2d 705; Stevens v. State, 231 Ark. 734, 332 S.W. 2d 482; Hawkins v. State, 223 Ark. 519, 267 S.W. 2d 1. The testimony of the three girls was corroborated by their mother. The matters emphasized by appellant bear upon the credibility of the witnesses. Rose v. State, 122 Ark. 509, 184 S.W. 60. This was a matter for the jury’s consideration. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370; Kitchen v. State, 264 Ark. 579, 572 S.W. 2d 839. This court is bound by the jury’s conclusion on the credibility of witnesses. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32. It does not matter that a witness is uncorroborated and that testimony to impeach him has been introduced. Blumenthal v. State, 134 Ark. 605, 135 Ark. 617, 204 S.W. 602. We have no right to disregard the testimony of a witness after the jury has given it full credence, at least where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370.

The judgment is reversed and the cause remanded.


author: John A. Fogleman, Justice. John I. Purtle, Justice,

text:
    Rodney Lee ROWE v. STATE of Arkansas
    CR 80-99
    607 S.W. 2d 657
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Rodney Lee Rowe was found guilty of aggravated robbery and attempted capital murder of Mrs. Katie Cage and sentenced to terms of ten years for aggravated robbery and 30 years for attempted capital murder, as fixed by the jury. After trial on December 11, 1979, the trial judge ordered that the sentences run consecutively. The offenses were committed on the night of January 23, 1979, as Mrs. Cage was preparing to enter her dwelling house at 22 Tallyho Lane.

Appellant contends that the trial court erred in accepting the jury verdicts with two convictions for one offense. He was charged in a two-count information with 'having committed the crime of aggravated robbery by holding a gun on Mrs. Katie Cage for the purpose of committing a theft and the crime of criminal attempt by purposely engaging in conduct constituting a substantial step towards the commission of capital murder of Mrs. Katie Cage during the course of, and in furtherance of, attempted robbery. Appellant admits that the evidence was sufficient to sustain the conviction on both charges, but argues that he could not legally be found guilty of both charges or sentenced on both. He contends that acceptance of the jury verdict violated the Arkansas statutes and the prohibition against double jeopardy contained in both the Fifth Amendment to the Constitution of the United States and Article II, § 8 of the Constitution of Arkansas.

Mrs. Katie Cage testified that she arrived at her home at about 11:30 p.m., got out of her car and walked to the back of the automobile in her driveway when she heard someone running toward her. Mrs. Cage said that she thought that this was one of the neighborhood joggers and kept walking toward her house, but when she realized that this person was coming toward her too fast and hard to be a jogger, she stopped at the edge of her driveway near the front steps of the house, looked around, heard someone say “help” and saw this person running frantically toward her with his hand extended. She thought that someone was chasing him, but when he came closer to her, she realized that no one was chasing him and that the cry had been “hey, hey, hey,” instead of “help.” The runner then came up to her with his hand "out.” She tried to defend herself with her hand, and said, “You are not going to do this.” When this person responded, “Oh, yes I am,” she demanded that he get his hand off her and “get out of here.” When she said this, she heard a gun go off and realized that she had been shot. She stepped back but did not fall. She felt that her assailant would shoot her again if she did not fall, so she fell to the ground and called out to her husband. As she was falling, her assailant grabbed her purse off her shoulder and ran. According to Mrs. Cage, she and her assailant had scuffled for about two minutes. She positively identified appellant as the assailant.

The information actually charged aggravated robbery under Ark. Stat. Ann. § 41-2102 (1) (a) (Supp. 1979). The specific language was that appellant did “threaten to employ physical force upon Mrs. Katie Cage by holding a gun to her with the purpose of committing a theft from her and did have in his possession the following deadly weapon, to-wit: a pistol, ***". This did not charge an offense under § 41-2102 (1) (b). The criminal attempt charged under Ark. Stat. Ann. § 41-701 (1) (b) (Repl. 1977) was that appellant “did unlawfully, feloniously attempt to commit an offense by purposely engaging in conduct constituting a substantial step in a course of conduct intended to culminate in the capital murder of Mrs. Katie Cage, in the course of and in furtherance of the attempted commission of robbery.” Appellant waived formal arraignment and entered pleas of not guilty. Several pretrial motions were made but no objections to the information or to being put to trial on both counts was ever made. The state was never asked to elect to proceed on one count or the other and there was no motion to sever the charges for trial. No pretrail objection of the nature of those now made was ever asserted.

The jury was given instructions defining both offenses contained in the information. No objection was made by appellant to any of these instructions. No mention was made by the judge in his instructions to the jury that the offenses should be considered alternatively or that appellant should be sentenced on only one of the charges if it found him guilty of both. No such instruction was requested by appellant. The verdict forms which the judge submitted to the jury were described in one of the instructions given. They did not provide for consideration of the offenses charged in the alternative or for the fixing of only one sentence. No objection was made and no alternate or substituted verdict form was requested by appellant. When the verdicts were returned, no objection was made. Thereafter, the judge asked if there was any legal reason why sentence should not be imposed at that time and appellant’s attorney responded that there was not. The sentences were then pronounced, and the court ordered that they run consecutively. No objection was made, either to the sentences or their being made to run consecutively.

All of the arguments now advanced on appeal could have been raised in the trial court, but none of them were. Even though an alleged error is of constitutional proportion, we do not consider it for the first time on appeal. Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980); Clark v. State, 264 Ark. 630, 575 S.W. 2d 622.

Appellant contends that he could not be convicted or sentenced for both offenses because of the provisions of Ark. State. Ann. § 41-105 (1) (e) (Repl. 1977). That subsection provides that a defendant may not be convicted of more than one offense if his conduct constitutes an offense defined as a continuing course of conduct and is uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses. Appellant argues as if the italicized language was not even a part of the subsection on which he relies. Neither offense charged is defined as a continuing course of conduct. We might as well dispose of this argument of appellent by pointing out that neither aggravated robbery nor attempted capital muder is defined as continuing a course of conduct, relying upon Britt v. State, 261 Ark. 488, 549 S.W. 2d 84. We made it clear in Britt that a continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force. We emphasized the distinction made by Mr. Wharton in his treatise (Wharton’s Criminal Procedure) which was pointed out in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). According to that distinction, when the impulse is single but one charge lies, no matter how long the action may continue, if successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie; and the test is whether the individual acts are prohibited or the course of action they constitute; if the former, each act is punished separately, if the latter, there can be but one penalty. We made it clear that § 41-105 (1) (2) did not change the common law rule.

Here two distinct impulses exist, according to the Britt-Blockburger test. When appellant approached Mrs. Cage outside of her home, carrying a deadly weapon, with hand outstretched, and she told him, “You are not going- to do this,” he responded, “Oh, yes I am.” When she resisted, saying, “Oh, no you’re not,” he shot her, took her purse and fled. Mrs. Cage testified the encounter lasted three minutes. The first impulse setting off a course of conduct, the aggravated robbery, occurred when appellant, armed with a deadly weapon, approached Mrs. Cage with hand outstretched. When Mrs. Cage refused to willingly turn over her purse, the second impulse, the impulse to use the weapon to overcome her resistance, was instituted. If Mrs. Cage had not resisted appellant, the second impulse may never have originated. Clearly two separate offenses were committed, each commencing at a distinct point in time as the result of a separate impulse. We cannot say that the aggravated robbery and the attempted murder were germinated by a single impulse, therefore the protection sought by appellant under § 41-105 (1) (2) must be denied him. Appellant’s attempt to distinguish Britt on the basis that more than one victim was involved there demonstrates a deficient reading of Britt. In that case, three offenses against two victims were charged. In two of the counts, it was alleged that one person was the victim of both a robbery and a battery.

Appellant contends that the trial court erred in failing to suppress Mrs. Cage’s identification of him as the person who robbed and shot her. His entire argument is based upon the contention that the lineup procedure was improper. He says the issue is whether his participation in the lineup was an infringement upon his constitutional rights. Specifically, he asserts that he was denied his request for counsel in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article II, § 8 of the Arkansas Constitution.

Appellant is in error in his identification of the real issue in this case. The issue is whether the in-court identification of him, by the victim of the crime, was tainted by the lineup procedures. If it was, then the trial court should have suppressed it. If it was not, the identification testimony of Mrs. Cage was admissible. The state had the burden of establishing by clear and convincing evidence that, in the absence of counsel, the courtroom identification was based upon independent observation rather than upon a constitutionally infirm lineup procedure. Sim v. State, 258 Ark. 940, 530 S.W. 2d 182. In considering this question, it is important that it be remembered that when Mrs. Cage testified during the trial, no mention was made of the lineup or her previous identification of Rowe on direct examination. Her “lineup identification” was brought to the attention of the jury on cross-examination. Appellant opened up the subject at his own risk. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206. Perhaps this is the reason appellant made no objection to the in-court identification after his pretrial motion to suppress had been denied. It was not necessary for him to object in order to preserve his pretrial objection, but his failure to object or more to strike the testimony during the trial precludes him from relying upon anything then disclosed which had not been brought out in the pretrial hearing. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133. We do note, however, that Mrs. Cage’s courtroom identification of Rowe was positive, certain and unequivocal, and that it was made with assurance. In considering the question presented, we must recognize that the trial judge had an opportunity to observe Mrs. Cage, both in her in-court and pretrial testimony. See Sims v. State, supra.

For the purposes of our treatment of this point, we will assume, but not hold, that Rowe did not waive his right to the presence of counsel at the lineup at which Mrs. Cage first identified him. We have recognized that the criteria for determining whether the in-court identification is based upon independent observation or upon a lineup procedure where the accused is denied counsel emanate from the seminal case of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Sims v. State, supra; Wright v. State, 258 Ark. 651, 528 S.W. 2d 905. The factors to be considered are (1) the prior opportunity of the witness to observe the alleged criminal act, (2) the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, (3) any identification by picture of the defendant prior to the lineup, (4) failure to identify the defendant on a previous occasion, and (5) the lapse of time between the alleged act and the lineup identification. Although not one of the criteria, facts disclosed concerning the conduct of the lineup are relevant.

The only testimony pertaining to the opportunity of Mrs. Cage to observe her assailant was her own. Since it is uncontradicted, we will it as factual. About five minutes elapsed between the time her attention was attracted to the person running toward her and the time this person grabbed her purse and fled. A call which she interpreted as “help” focused her attention on this person. The night was bright and a “fairly large” moon was shining. Her back was toward the porch of the house where two lights were burning. They were shining directly in her assailant’s face. During the three-minute encounter, her assailant was never more than three feet away from Mrs. Cage. She admitted that she had imbibed about two drinks of intoxicants prior to her arrival at her home. If her testimony is to be believed, Mrs. Cage had ample opportunity to observe the perpetrator of the crime at the time it was committed.

Appellant points out only one flaw in Mrs. Cage’s prelineup description of Rowe as her assailant. She had described the person who robbed and shot her as being between 20 to 25 years old. It is asserted that Rowe was only 15. Perhaps he was, as a police detective stated, but, before making his ruling on the motion to suppress, the trial judge remarked that Rowe appeared to him to be considerably older than 15 years. This discrepancy certainly did not warrant suppression of Mrs. Cage’s identification.

Mrs. Cage did, prior to the lineup in which Rowe appeared, say that another person looked like her assailant by selecting his picture from hundreds of pictures in two “mugbooks” shown her by a Little Rock police detective. There is no indication that she had ever seen a picture of Rowe prior to the lineup. The photograph Mrs. Cage selected was “a Polaroid” of Gerald Sims. He was picked up by the police, but as soon as Mrs. Cage looked at him, she said that he was not her assailant. This “misidentification” did not detract from the in-court identification.

There is no indication that Mrs. Cage had failed to identify Rowe on any previous occasion. Appellant finds great significance in the fact that Mrs. Cage testified that she did not inform the police of her decision that Rowe was her assailant until 20 or 25 minutes after she viewed the lineup. There were seven persons in the lineup. A photograph of the lineup was introduced. There is no suggestion that it was unfairly constituted. There was testimony that there was no great physical disparity among the participants. The lighting was good and Mrs. Cage said that she could see well. The officers and Mrs. Cage agree that no one suggested that Rowe was a suspect. One of the officers testified that three of the seven were suspects. After viewing the lineup, Mrs. Cage emphatically identified Rowe to the police officers present. The lineup was for identification purposes in connection with at least two independent crimes with different victims. The first observer was brought into the room at 2:35 p.m.; Mrs. Cage, the last, was brought into the room at 2:50 p.m. During her view of the lineup, each of the seven persons in it was required to put a rag in the form of a cap on his head, because Mrs. Cage had described her assailant as having worn a scarf tied around his head. Mrs. Cage siad that she immediately recognized Rowe as her assailant when she walked into the room and was stunned to see him, but she did look at the other persons. The officer who actually conducted the lineup said that Mrs. Cage was in the room only five to ten minutes. The delay on the part of Mrs. Cage was certainly not a sufficient basis for our saying that the evidence that the identification was untainted was not clear and convincing.

Finally, nine weeks elapsed between the date the crime was committed and the lineup. Mrs. Cage saw no photographs on the day of the lineup and it would be fair to conclude that she never saw a photograph of Rowe until he sent her one after she had identified him at the lineup. Mrs. Cage testified positively that her identification at the lineup was based upon her observations at the time of the crime and not upon anything that happened after the crime.

The central question is whether, viewing the totality of the circumstances, the courtroom identification was reliable, and we must receive questions of credibility as the trial court did; it is only when, after viewing the totality of the circumstances pertaining to the in-court identification, we can say that it was patently unreliable that we hold it inadmissible as a matter of law. Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420. We cannot say that Mrs. Cage’s in-court identification was inadmissible as a matter of law or that the state failed to show by clear and convincing evidence that the identification was not tainted in any way.

Appellant only mentions the Fourteenth Amendment in his argument as a vehicle for application of the Fifth and Sixth Amendments to the United States Constitution. He never argues any Fifth Amendment right. His entire argument is based upon his alleged deprivation of the right to counsel.

Appellant also complains that the trial judge refused his request for an instruction taken from AMCI 202 relating to limitation of the jury’s consideration of prior inconsistent statements. The request was made after both parties had rested rather than at the time the statement was introduced. The state objected because the instruction was not given at the proper time. The note on use accompanying the model instruction says that it should be given if requested by counsel at the time the prior inconsistent statement is made. The trial judge stated that he would have given the instruction if it had been requested in a timely manner.

Appellant had not convinced us that he was prejudiced by the denial of his belated request. He has not pointed out any particular prior inconsistent statement to which the instruction should have been applicable. Furthermore, the jury was instructed that it had a right to consider all the evidence in the light of its own observation and experiences in the affairs of life, and that, in determining the credibility of any witness and the weight to be given his testimony, it might take into consideration the consistency or inconsistency of his testimony, and any other fact or circumstance tending to shed light upon the truth or falsity of his testimony. Under all the circumstances, we cannot say that the trial judge erred in refusing to give this instruction at the time it was requested.

Since we find no reversible error, the judgment is affirmed.

Mr. Justice Purtle dissents.

John I. Purtle, Justice,

dissenting. In my opinion, the trial court erred in accepting the jury verdicts of two convictions for one offense. The court instructed the jury on two counts of aggravated robbery as defined by Ark. Stat. Ann. § 41-2102 (l)(a) and (b) (Repl. 1977) which reads as follows:

(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 (§ 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person. ■

The court also instructed the jury pursuant to the provisions of Ark. Stat. Ann. § 41-701 and § 41-1501 (Repl. 1977) as they related to attempted capital murder. The court’s Instruction No. 9 reads as follows:

Rowe is charged with the offense of attempted capital murder. A person commits the offense of capital murder if he commits robbery and in the course of and in the furherance of the felony, he causes the death of any person under circumstances manifesting extreme indifference to the value of human life. To sustain the charge of attempted capital murder the State must prove the following things beyond a reasonable doubt:
First: That Rowe intended to commit the offense of capital murder.
Second: That Rowe purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of capital murder, and
Third: That Rowe’s conduct was strongly corroborative of the criminal purpose.
“Purpose.” A person acts purposely with respect to his conduct when it is his conscious object to engage in the conduct.

The court did not indicate whether the jury should consider the acts of the appellant as one offense or as separate and distinct offenses.

It seems plain to me that all of the elements of aggravated robbery as given in the court’s instruction are included in the instruction on attempted capital murder. I agree with the appellant that the court erred in permitting the jury to assess multiple sentences for one offense. I do not contend that he could not have been properly tried on each charge but insist that he could be convicted of only one.

The sentences as handed down are prohibited by the double jeopardy provisions of the United States Constitution and the Constitution of the State of Arkansas. The United States Supreme Court held in North Carolina v. Pearce, 395 U.S. 711 (1969), that the constitutional prohibition against double jeopardy consists of three guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after a conviction; and (3) it protects against multiple punishments for the same offense. In the case before us, there was only one single continuous uninterrupted brief episode. The United States Supreme Court recently restated the prohibition against multiple punishment for the same offense in the case of Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed. 2d 228 (1980). In Vitale the test applied was whether each of the distinct statutory provisions defining the two offenses requires proof of a fact that the other does not. In my opinion, the attempt to commit capital murder required proof which was not required to prove aggravated robbery; however, all elements of proof of aggravated robbery were necessary to prove attempt to commit capital murder.

In Harris v. Oklahoma, 433 U.S. 682 (1977), the United States Supreme Court held that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for robbery.

The purpose of enacting Ark. Stat. Ann. § 41-105 (Repl. 1977) was to clarify the Fifth Amendment to the United States Constitution and Art. 2 § 8 of the Arkansas Constitution as they related to double jeopardy. I am not sure the legislation was as effective as it was intended. I agree with appellant that the conviction for both aggravated robbery and attempted capital murder is prohibited by § 41-105 (1)(2) which states:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(e) the conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

From a commonsense interpretation of the above statute it appears to me that it is nothing but an honest effort to prevent double jeopardy as defined by the state and national constitutions. Since I believe the appellant was guilty of conduct which constituted a continuing course of conduct which was uninterrupted until it was completed, he cannot be sentenced twice for the same offense.

       Appellant is represented by a different attorney on appeal.