author: Per Curiam. John I. Purtle, Justice,

text:
    Daniel Eugene REMETA v. STATE of Arkansas
    CR 87-214
    761 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988
    J. Randolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Daniel Eugene Remeta, moves to be appointed co-counsel in his appeal and to be allowed to argue orally in person. Those motions are denied. We deny as well his motion to supplement the brief to be filed by his attorney. However, we note that if, after his attorney’s brief is filed, Remeta files a motion demonstrating that his attorney’s brief is inadequate he may be permitted to file a supplemental brief, pro se. See Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986).

We also deny, without prejudice, Remeta’s request to be allowed additional pages in the argument portion of his brief. See Pemberton v. State, 291 Ark. 198, 723 S.W.2d 372 (1987).

The brief to be filed by Remeta’s attorney is due in sixty days.

Purtle, J., would grant.

John I. Purtle, Justice,

dissenting. It is fundamental that a person has the right to represent himself in any legal proceeding. It is also fundamental that any attorney may employ or associate another attorney to assist him or handle the case. This court, usually by way of per curiam, frequently requires pro se petitioners to comply with the same standards which apply to lawyers. If we are going to hold inmates to the same standard of performance as practicing attorneys, it seems to me that we are bound to allow them the same privileges in trying their own case — including the opportunity to argue their own case before the court.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Clarence WEST v. STATE of Arkansas
    RC 88-68
    763 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered December 19, 1988

      James P. Massie, P.A., by: James P. Massie, for appellant.
    No response.
   Per Curiam.

The petitioner was convicted on May 27,1988, after his suspended sentence was revoked due to his possession of cocaine and drug paraphernalia. His notice of appeal was filed on June 27,1988. The record was tendered to the clerk’s office after the ninety day time limit had lapsed. See Ark. R. App. P. 5(a).

The petitioner filed a motion for rule on the clerk to compel the clerk’s office to accept the record. In his motion, it is contended that the petitioner’s mother called and inquired about the transcript after the notice of appeal was filed. The court reporter remembered telling her the cost of the transcript, but he did not treat the inquiry as a request for a transcript. The petitioner’s attorney waited until the day before the ninety day time period for filing the transcript expired to call and check on the transcript. The court reporter returned his call the next day and told him that he was not aware of a request for the transcript and therefore no extension was requested.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part but instead implies that there was a misunderstanding on the part of the court clerk. We have held that a statement that it was someone eise’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the petitioner’s motion must be denied.

If the appellant’s attorney files a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, then the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

Purtle, J., would grant.


author: Jack Holt, Jr., Chief Justice.

text:
    Charles D. RAGLAND, Commissioner of Revenue Division, Department of Finance and Administration v. GENERAL TIRE AND RUBBER COMPANY, INC.
    88-99
    763 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered January 9, 1989

      Timothy J. Leathers, John H. Theis, Ann Kell, Joe Morphew, Robert L. Jones, William E. Readies, and Rickey L. Pruett, by: Philip Raia, for appellant.

      Friday, Eldredge & Clark, by: Barry E. Coplin and William Thomas Baxter, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Charles D. Ragland (Commissioner), challenges the trial court’s determination that the appellee, General Tire and Rubber Company, Inc. (General Tire), is exempt under Ark. Code Ann. § 26-52-401(12)(A) and (B) (Supp. 1987) from paying use tax on chemicals used in the manufacturing of tennis balls and rubber moldings. We hold that the trial court erred in its ruling. Therefore, we reverse the judgment entered in favor of General Tire and remand the case for further proceedings.

The Commissioner conducted a use tax audit of General Tire’s records for the audit periods of August 1, 1979, through June 30, 1982, and July 1, 1982, through June 30, 1984. Based upon purchases by General Tire of the chemical hexane, which it uses in the manufacturing of tennis balls; toluol, which it uses to make rubber moldings; and a compound referred to as “slab dip,” the Commissioner assessed additional tax, interest, and penalties in the amount of $32,695.63 for the first audit period and $23,563.13 for the second audit period. General Tire had treated these chemicals as exempt from the use tax.

In challenging this assessment, General Tire exhausted its administrative remedies as set forth in Ark. Code Ann. § 26-18-404 (1987). Unsuccessful at the administrative level, General Tire filed suit in chancery court. After considering the testimony, exhibits, stipulations, and briefs, the chancellor determined that General Tire’s purchases of hexane, toluol, and “slab dip” were exempt from the use tax and that General Tire had established its right to the exemption. The chancellor ordered that the tax, interest, and penalty assessments against General Tire be set aside. The Commissioner appeals only from the portion of the order setting aside the tax and interest assessments on General Tire’s purchases of hexane and toluol.

There is a presumption in favor of the taxing power of the State, and the claimant has the burden of establishing the right to an exemption beyond a reasonable doubt. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 753 (1976). See also C.J.C. Corp. v. Cheney, Commissioner, 239 Ark. 541, 390 S.W.2d 437 (1965). Any tax exemption provision must be strictly construed against the exemption. Qualls v. Georgia-Pacific Corp., 269 Ark. 426, 602 S.W.2d 646 (1980). Any doubt suggests that the exemption should be denied. Id. On appeal we review exemption cases de novo and do not set aside the findings of the chancellor unless they are clearly erroneous. Southern Steel & Wire Co. v. Wooten, 276 Ark. 37, 631 S.W.2d 835 (1982).

The use tax (compensating tax) assessments against General Tire on hexane and toluol were made pursuant to Ark. Code Ann. § 26-53-106 (1987) [the “Arkansas Compensating Tax Act of 1949,” Ark. Code Ann. §§ 26-53-101 — 26-53-206 (1987)]. Ark. Code Ann. § 26-53-112 (1987) provides that the exemptions for tangible property under the “Gross Receipts Act of 1941” [Ark. Code Ann. §§ 26-52-101 — 26-52-804 (1987)] are applicable to the “Compensating Tax Act.”

Ark. Code Ann. § 26-52-401 (Supp. 1987) describes transactions which are exempt from the gross receipts tax. Paragraphs (12)(A) and (B) provide as follows:

(12) (A) Gross receipts or gross proceeds derived from sales for resale to persons regularly engaged in the business of reselling the articles purchased, whether within or without the state if the sales within the state are made to persons to whom sales tax permits have been issued as provided in § 26-52-202;
(B) Goods, wares, merchandise, and property sold for use in manufacturing, compounding, processing, assembling, or preparing for sale can be classified as having been sold for the purposes of resale or the subject matter of resale only in the event the goods, wares, merchandise, or property becomes a recognizable integral part of the manufactured, compounded, processed, assembled, or prepared products. The sales of goods, wares, merchandise, and property not conforming to this requirement are classified for the purpose of this act as being ‘for consumption or use.’ (Emphasis added.)

In Hervey v. International Paper Co., 252 Ark. 913, 483 S.W.2d 199 (1972), we considered the question of whether International Paper was entitled to a use tax exemption under Ark. Stat. Ann. § 84-1904(i) (Repl. 1960), currently Ark. Code Ann. § 26-52-401(12)(A) and (B) (Supp. 1987), on chemicals and other substances used in the manufacturing of paper.

In Hervey, the manufacturer made paper by cooking wood at a high temperature in a white “cooking liquor” in order to separate cellulose from other substances found in wood. In this process the white liquor turned black when the unwanted substances were absorbed. After completion of the cooking procedure, the black liquor was separated from the cellulose. However, a 100 % separation was too expensive. Consequently, traces of the chemicals used in the liquor remained in the cellulose and could be detected by chemical analysis in the finished paper.

We held that one of the chemicals present in the “cooking liquor,” sulfur, did not come within the “sale for resale” exemption since the sulfur evaporated or was consumed during the manufacturing process.

As for other ingredients, such as a defoaming agent used to inhibit the formation of foam on the “cooking liquor,” and acetic acid, which was used to make dye more solvent, we held that they were not integral parts of the paper in that they were not essential to the completeness of the finished product, but rather found in the paper only because it was economically impractical to remove them.

In addition, we held that various other ingredients, such as Kelgin, Ludox, aluminum sulphate, and sodium aluminate, qualified for the statutory exemption in that they were added to the paper to improve the finished product and became recognizable integral parts of it.

Under Ark. Code Ann. § 26-52-401 (12)(A) and (B), General Tire is exempt from paying use tax on its purchases of hexane and toluol only if the two chemicals become recognizable integral parts of the manufactured tennis balls and rubber moldings.

The manufacturing of tennis balls is done in stages. First, natural and synthetic materials are blended together. The rubber is then formed into pellets and pressed into ball halves. Next, an adhesive is made by first breaking the rubber down until its consistency is somewhere between bread dough and Silly Putty. This material is taken to the mixing room where hexane and curatives are added to it. Hexane, a solvent which evaporates into the air as it is mixed, lowers the viscosity of the adhesive; curatives cause the rubber to cure or vulcanize.

Once the adhesive is made, it is applied to the ball halves. The ball halves are then pressed together in a large high pressure press. This molds the halves together and traps air pressure in the ball. Next, the core is prepared to receive a felt covering by dipping it in an adhesive containing a higher content of green tack than that used to press the ball together. Green tack is an adhesive which allows the material to stick together without going through the curing operation.

In a third and separate operation, the felt is prepared by applying an adhesive with a viscosity different than that used in the other processes to the back of the felt itself and dipping it in another adhesive. After the felt is dry, it is cut into the shape of a dumbbell. Next, the felt is dipped in another adhesive in order to make a seam and is placed on the ball core. The ball is then vulcanized and the logo applied. Finally, the ball is placed in a pressurized container and prepared for shipment.

William C. Douglas, an expert for General Tire, testified that only .022% of the hexane used to make a tennis ball is detectable in the finished ball and that the amount of hexane in the ball decreases with use. In addition, he testified that the tennis balls could not be made without hexane.

The manufacturing process for rubber moldings is as follows: First, the rubber moldings are made. Next, toluol (a carrier solvent) is mixed with polyurethane paint to thin the paint. Finally, the paint is applied to the moldings by running them through an automated painting device. Toluol is the carrying medium for the paint. The urethane makes the surface of the moldings slick.

Robert K. Sampson, another expert for General Tire, testified that most of the toluol evaporates during the manufacturing process. He also testified that he is quite sure that toluol is detectable in the paint. However, he did not conduct a test to conclusively establish whether it is or not.

In scrutinizing the manufacturing process, we conclude that hexane and toluol do not become integral parts of the tennis balls and rubber moldings. First, most of the hexane and toluol evaporates in the manufacturing of both products. See Hervey, supra. Secondly, we are not convinced that hexane and toluol are essential to the completeness of the finished balls and moldings. Id. Granted, there was expert testimony at trial that hexane and toluol are necessary in the manufacturing process of both products. However, the record is devoid of testimony that the finished products would cease to perform or would perform unsatisfactorily if the hexane and toluol remaining in the products were totally removed from them.

In light of our finding that hexane and toluol are necessary in the manufacturing process of both products but do not become integral parts of the balls and moldings, it is unnecessary for us to consider whether the chemicals become recognizable parts of the products.

In conclusion, General Tire is not entitled to an exemption for its use of hexane and toluol. The trial court was clearly erroneous in ruling to the contrary. We reverse and remand this case for proceedings consistent with this opinion.

Reversed and Remanded.


author: Darrell Hickman, Justice.

text:
    Jerry WHITLOCK v. Brad SMITH
    88-194
    762 S.W.2d 782
    Supreme Court of Arkansas
    Opinion delivered January 9, 1989

      Boswell, Tucker & Brewster, by: Ted Boswell, for appellant.

      Wallace, Dover & Dixon, by: Mark F. Hampton and Steve Morley, for appellee.
   Darrell Hickman, Justice.

This is a simple battery case. The parties were both truck drivers for Arkansas Best Freight, and during a layover in Dallas, Texas, they had an altercation in a bar. Actually, only one blow was struck; Whitlock hit Smith in the face with his fist. The blow fractured Smith’s cheekbone, requiring two surgeries. Smith lost twelve or thirteen weeks of work as a result of the injuries and resulting complications.

Whitlock did not deny striking Smith, but he contended that the blow was struck in self-defense. Another truck driver, Larry Bradbury, was an eyewitness, and his version of the events in Dallas could have been taken by the jury to support Smith’s account, that the blow was unprovoked. The jury believed Smith’s version and awarded him $24,414.00.

The appeal presents three legal questions. We conclude that the judgment should be affirmed.

First, the appellant’s lawyer, an experienced trial advocate, questioned the judge’s interruption of his examination of the eyewitness Bradbury. It is argued that the trial judge commented on the evidence, violating Ark. Const, art. 7, § 23 (1874).

During a critical part of Bradbury’s testimony involving Smith’s actions when Whitlock had left his seat to approach Smith, the following exchange took place before the jury:

[Defense counsel]
Q. Was he [Smith] straddling the chair?
A. Yes.
Q. He stood from the straddle position?
A. Yes, sir.
The Court: I gather you didn’t know if he was headed for the door or not?
A. I didn’t know what was going on.
The Court: This man [Whitlock] asked him to leave?
A. Yes, sir.
The Court: You didn’t know if he was leaving or not?
A. No. sir. But at that point by him asking that and standing —

At that point Whitlock’s lawyer asked for a mistrial. While the judge perhaps should have let the lawyer finish his examination and try his case, we cannot say the questions asked amount to a comment on the evidence in violation of the constitution; nor can we say the conduct of the judge clearly prejudiced the jury. The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears, there is no abuse of that discretion. Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971); Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959). The judge made no further remarks or asked any other questions and Bradbury testified at length as to what he saw.

The second question concerns an instruction. The suit was for battery, but the appellee amended his complaint before trial to allege negligence. The trial judge instructed the jury on battery and refused to give an instruction offered by the appellant on comparative fault. It is argued that this was error. It is the duty of the judge to review the evidence presented, decide what the applicable law is, and instruct the jury. Life and Casualty Ins. Co. of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974). This was a battery case, pure and simple, not a negligence case, and the judge correctly refused to give the instruction on comparative fault.

Finally, it is argued that the jury rendered a verdict by lot, which would be error. Scheptmann v. Thorn, 272 Ark. 70, 612 S.W.2d 291 (1981). The appellant contends that the verdict form had twelve numerical figures on it. Arkansas Supreme Court Rule 9(d) prevents us from reviewing this argument because the form was not abstracted. See Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Debra K. FIELDS v. Anna C. STOVALL
    88-258
    762 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered January 9, 1989

      Eddie N. Christian, for appellant.

      Hardin, Jesson & Dawson, by: Rex M. Terry, for appellee.
   Robert H. Dudley, Justice.

The sole point of appeal is the alleged inadequacy of a jury verdict. A car wreck occurred when the appellee, the defendant below, ran a stop sign and struck the appellant’s car. The jury returned a verdict which awarded the full amount of claimed property damage, but only a part of the claimed medical expenses and nothing for lost wages, mental anguish, or future medical expenses. The trial court denied appellant’s motion for a new trial. We affirm the trial court’s ruling.

Under ARCP Rule 59(a)(5), the inadequacy of the recovery can be a ground for a new trial. When the primary issue is one of liability, as distinguished from the inadequacy of the award, we sustain the trial judge’s denial of a new trial when the verdict is supported by substantial evidence. But when the primary issue is the alleged inadequacy of the award, we sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).

In such a review of the trial court’s discretion, an important consideration is obviously whether a fair-minded jury might reasonably have fixed the award at the challenged amount, here $1,082.00. The verdict in this case is understandable and defensible.

The appellant testified that two days after the accident she found a lump on her right breast, and that for four days her back hurt severely and then ached for a longer period of time. She did not miss any work because of the bruise or back ache. She went to four different medical doctors, and she stated that she missed work when she went for the visits with the doctors.

Her testimony that she lost wages because she had to see four different doctors is disputed as a matter of law because she was an interested party. Raiborn v. Raiborn, 254 Ark. 711, 495 S.W.2d 858 (1973). The jury may well have decided it was neither reasonable nor necessary for her to visit four doctors, and they may have been unable to determine by a preponderance of the evidence which visits reasonably and necessarily caused a loss of wages, if any. The alleged suffering of mental anguish was also disputed as were the future medical expenses.

With regard to the medical bills, the jury may well have found that only a portion of claimed medical expenses was properly attributable to the accident since the thickening of the right breast caused by necrosis dissipated within a few weeks. Further, one doctor found fibrocystic changes in both breasts, not just the right breast, in which the necrosis was found after the accident.

Under these circumstances, we cannot say the trial court clearly and manifestly abused its discretion in denying a new trial.

Affirmed.


author: Tom Glaze, Justice.

text:
    STATE of Arkansas v. Steve RISINGER
    CR 88-129
    762 S.W.2d 787
    Supreme Court of Arkansas
    Opinion delivered January 9, 1989

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellant.

      David H. Williams, for appellee.
   Tom Glaze, Justice.

Appellee is charged with one count of felony possession of a controlled substance (cocaine) and two misdemeanor counts of possession of a controlled substance (marijuana and valium)..The contraband involved was seized by three police officers when they executed several outstanding felony warrants on appellee at his apartment. At trial, appellee moved to suppress the evidence, and the trial court granted the motion finding that the officer, who actually discovered the evidence, was impermissibly in appellee’s apartment when the marijuana and cocaine were found. Pursuant to A.R.Cr.P. Rule 36.10(a)(1), the state brings this interlocutory appeal to challenge the trial court’s order granting appellee’s motion. We reverse the trial court’s ruling concerning the cocaine and marijuana but uphold its decision to suppress the valium.

On the evening of September 3, 1987, the three police officers went to arrest appellee at his apartment. Two officers, Hutson and Siegler, appeared at the front door, and Officer King went to the rear of the apartment to secure its back door. The two officers knocked at the front door, and appellee opened it. After the officers identified themselves and told appellee that he was wanted by the El Dorado Police Department, appellee invited the officers into the foyer of the apartment and explained to them that police departments sometimes get him and his cousin mixed up. Because the foyer area was small, the two officers and the appellee stepped into the living room area to further discuss and effect the appellee’s arrest. In addition, the appellee had apparently asked to put on his shoes, which were located in the living room. Officer King was on the patio immediately outside the sliding door of the living room, so when the officers entered the room, they were able to allow King to enter. Apparently from his position outside the patio door, Officer King observed an ash tray containing a hemostat holding a cigarette. After entering the living room, King went over to the hemostat and cigarette on top of a coffee table, and at that time, he saw a glass tray with a straw and razorblade protruding from under a couch. When he pulled the tray all the way out, King saw that it had white powder residue, which was confirmed to be cocaine. On the same tray, King also found a “bunch of marijuana” and cigarette papers that were used to roll marijuana. One of the other officers subsequently discovered a curio box, which, when opened, was found to contain three valium pills.

Appellee argues the trial court was correct in suppressing the contraband found in the living room of his apartment because the officers’, especially King’s, intrusion into that room was not legally justified. We cannot agree.

Appellee in no way questions the validity of the felony warrants the officers executed on him. It is clear that, for fourth amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Payton v. New York, 445 U.S. 573 (1980). In the present case, Officers Hutson, Siegler and King knew appellee was in his apartment, and in addition, appellee invited Hutson and Siegler into the apartment. The officers, once properly in appellee’s apartment to effect his arrest, could monitor appellee’s movements in order to ensure their safety — as well as the integrity of the arrest. Washington v. Chrisman, 455 U.S. 1 (1981).The Washington holding also established that the absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer’s authority to maintain custody over the arrested person. Id. Also, important to resolving the seizure issue raised here, we note that the Washington decision provided that the “plain view” exception to the fourth amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be.

Appellee argues that, unlike Officers Hutson and Siegler, King was uninvited and impermissibly in the apartment when he discovered the cocaine and marijuana. Appellee’s argument totally ignores the fact that all three officers were at the appellee’s apartment to execute the outstanding arrest warrants and that King was only at the back door to ensure the appellee could not escape. King’s role in securing and entering the back door was a reasonable one, which was designed to ensure appellee’s arrest. As noted earlier, the back door, through which King entered, was off the living room, where the appellee and Officers Hutson and Siegler had gone to talk and to permit appellee to put on his shoes. Because we hold that King gained lawful access to appellee’s area of privacy, viz., his living room, we further conclude that the incriminating evidence which fell within the plain view of King permitted him to seize it. Here, King’s testimony clearly reflects that he recognized the hemostat, razorblade arid straw to be paraphernalia used in connection with the marijuana and cocaine which he found and properly seized. Accordingly, we hold the trial court erred in failing to admit the marijuana and cocaine into evidence.

We reach a different holding concerning the three valium pills contained in the small box found by Officer Siegler. The box was located on the coffee table where the hemostat was found, and Siegler had to open the box to discover the pills. Obviously, the pills were not in plain view, and the officers’ seizure of them must be premised on some other legal theory in order to permit the state to introduce them into evidence.

In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court discussed the “search incident to arrest” principle and noted its proper extent as follows:

[W] hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less. (Emphasis added.)

In view of the limits set forth in Chimel above, we are of the view that the record in the present case does not depict a situation that justified a contemporaneous search incident to a valid arrest so as to prevent the arrestee from destroying evidence or gaining possession of a weapon. In fact, there is little evidence in the record regarding the pill box in issue. Officer Siegler testified that he and Hutson were stationed near appellee who was seated by the television in the living room, and the contraband was “over on the coffee table and underneath the couch.” Siegler further said that he later discovered and opened the pill box, which was on the coffee table, sometime after King located the other contraband. While there was other limited testimony concerning the pill box, none of it can be read to justify the officers’ warrantless search under the rationale set forth in Chimel. See also New York v. Belton, 453 U.S. 454 (1981). Because the record fails to show the pill box was within the appellee’s immediate control, we uphold the trial court’s ruling to suppress the valium pills that were discovered in the container or box opened and seized by Officer Siegler.

For the reasons stated above, we reverse and remand in part and affirm in part the trial court’s holding.

Hickman, J., dissents in part, would also overrule the trial court’s suppression of the valium pills.


author: H. Vann Smith, Special Chief Justice. John I. Purtle, Justice,

text:
    Robert E. McBRIDE v. STATE of Arkansas
    CR 88-144
    762 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered January 9, 1989

      W.H. Drew, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   H. Vann Smith, Special Chief Justice.

This is an appeal from the Circuit Court of Chicot County involving the speedy trial rule, A.R.Cr.P. Rule 28.

On November 20, 1984, the appellant was charged with DWI and refusal to take a breathalyzer test in the Municipal Court of Lake Village, Arkansas. Appellant was tried and convicted of both charges on December 5,1984, and subsequently filed an Affidavit of Appeal, Appeal Bond, and the transcript in the Circuit Court of Chicot County on December 14, 1984.

On March 3,1986, the Circuit Court set the trial for June 17, 1986. Appellant filed a Motion to Dismiss on June 4, 1986, asserting a violation of the speedy trial rule in that more than 18 months had passed from the arrest to the June 17,1986, trial date. It should be noted that the 18-month time period has been changed to 12 months pursuant to the 198 7 revisions, but that this case is subject to the previous rule. The trial court heard oral arguments on June 10, 1986, and took the motion under advisement until June 13, 1986.

On that date, the court held that the speedy trial rule began running from the date the appeal was perfected, December 14, 1984, and without any excluded periods pursuant to Rule 28.3 of the Rules of Criminal Procedure, there would have been an absolute bar for prosecution after June 14,1986. The Court found that the three days it held the motion under submission were excludable under Rule 28.3(a) and that the Motion to Dismiss should be denied.

On June 17,1986, the case was called for trial, but appellant failed to appear. Appellant’s attorney was in attendance and stood on the motion to dismiss. On August 25, 1986, the trial judge filed his findings of fact and conclusions of law, from which this appeal resulted.

For the reasons stated below, we affirm the trial court’s decision.

The initial issue is whether or not the appeal was perfected from municipal court to circuit court. We find it was.

Rule 9, Inferior Court Rules, controls appeals from an inferior court to circuit court. Rule 9(b) states that appeals from an inferior court to the circuit court are taken by filing a record of the inferior court proceeding in circuit court within 30 days of the entry of judgment.

In this case, the appellant filed an Affidavit for Appeal, Appeal Bond, and caused the transcript to be filed in the circuit court on December 14, 1984. A notice of appeal to circuit court was never filed by the appellant. However, we find that such a filing is not necessary to perfect the appeal from municipal court to circuit court. As long as the record of the inferior court proceeding was filed with the circuit clerk within 30 days of the entry of the judgment, the appeal is perfected.

The second issue raised concerns the application of the speedy trial rule. Appellant was arrested for DWI and refusal to take the breathalyzer on November 20, 1984, and was found guilty in municipal court on December 5, 1984. His appeal was perfected in the circuit court on December 14, 1984.

Appellant contends that the speedy trial rule, Rule 28, should begin running on the date of the arrest, November 20, 1984, rather than the date the appeal was perfected to circuit court. Rule 28.2(a) states:

“The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.”

The Arkansas Court of Appeals in Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986) has considered a factual situation similar to the present case. In Shaw, the Appellant was issued a traffic citation on July 17, 1983, convicted in municipal court on August 4,1983, and appealed to circuit court on August 17,1983. The appellate court held that the time within which the defendant must be brought to trial after appeal of a misdemeanor conviction begins running under Rule 28.1 (c) and 28.2 on the day a case is appealed to circuit court.

Even though Rule 28 does not specifically address appeals from municipal court, we agree with the holding in Shaw and find that upon an appeal of a municipal court decision to circuit court, the speedy trial rule begins to run from the day the appeal is filed in circuit court. Accordingly, the application of the speedy trial rule commences on December 14, 1984.

The appellant next argued that the three days the trial court held the Motion to Dismiss under advisement should not be excludable under Rule 28.3.

Rule 28.3(a) states:

“The following periods shall be excluded in computing the time for trial; (2) . . . hearings on pretrial motions.”

This court in Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988), held that the period of time a trial judge takes a motion to dismiss under advisement is excludable under Rule 28.3(a). Therefore, the three days in which the appellant’s Motion to Dismiss was under submission to the trial court was excludable.

Affirmed.

Holt, C.J., not participating; Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I vigorously dissent from the majority opinion. First, I do not agree that the initial issue is whether an appeal was perfected from the municipal court to the circuit court. It is absolutely not necessary to make any determination on that particular issue.

The sole issue in this case is whether the appellant’s right to a speedy trial was violated. Arkansas Rules of Criminal Procedure Rule 28.2(a) states that the time for trial commences running:

from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal eposide, then the time for trial shall commence running from the date of the arrest. [Emphasis added.]

The majority opinion clearly shows that the appellant was arrested on November 20,1984. Eighteen months later the state was barred from trying him for the offense for which he was arrested, unless there was excludable time as set out in Rule 28.3. The trial court and the majority of this court simply created out of ether a three-day “excludable period” in order to extend the maximum time for trial up to the date for trial. Obviously, the defense attorney was on the horns of a dilemma in as much as he could not file his motion for dismissal under the speedy trial rule until the time had run. When the eighteen months expired he filed the motion to dismiss. The trial court then discovered a three-day “excludable period.” (The three-day exclusion was revealed by the trial court on August 21,1986, long after the time for a speedy trial had expired.) This court today affirms such action. This is clearly a judicial erosion of our own rules.

The inevitable result of the majority opinion will likely be that there will no longer be any violations of the speedy trial rule. All the trial court now need do is find that he had held one of the motions under consideration for a period of thirty days and another for a similar time and on ad infinitum. The speedy trial rules were thoroughly considered before they were adopted. I see no reason to continue them in force if we are going to constantly erode them by completely ignoring the plain meaning of their words. But as Humpty Dumpty said: “The words mean what we say they mean.”

Perhaps we should change the rules; until that time we should follow them.


text:
    Raymond Randy GREEN v. STATE of Arkansas
    RC 88-66
    762 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered January 9, 1989

      Davis H. Loftin, for appellant.
    No objection.
   Per Curiam.

Appellant, Raymond Randy Green, by his attorney, has filed for a rule on the clerk.

His attorney, Davis Loftin, admits that the record was tendered late 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:
    Clarence TORAN v. PROVIDENT LIFE & ACCIDENT INS. CO.
    88-183
    764 S.W.2d 40
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Kincaid, Home & Trumbo, by: David Home, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Wyman R. Wade, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

The issue in this appeal is whether the trial court erred in holding that appellant Clarence Toran is precluded by the doctrine of res judicata from litigating certain issues and claims made below against the appellee, Provident Life & Accident Insurance Company (Provident). We find that the trial court’s decision was wrong. Accordingly, we reverse its judgment and remand the case for proceedings consistent with this opinion.

On July 1,1974, Provident issued and delivered a long-term disability policy insuring Toran and other employees of Federal Compress & Warehouse Company. On November 2, 1978, Toran sustained serious injuries in a truck accident.

In August 1980 he became totally and permanently disabled for purposes of the policy, and on September 9, 1981, was discharged from his employment because he was physically unable to perform his job duties.

After applying for Social Security disability benefits, Toran began receiving disability payments in May of 1982. Shortly thereafter, Provident reduced his policy benefits of $576.66 per month to $149.76 per month pursuant to a policy provision permitting Provident to reduce Toran’s policy benefits by the amount of Social Security benefits to which he or his dependents are entitled as a result of his disability.

Thereafter, Toran sued Provident for the total sum of the reduction, contending that Ark. Stat. Ann. § 66-3709, as amended in 1979, precluded reduction of his policy benefits. The trial court rendered judgment in favor of Toran, and Provident appealed this decision.

In Provident Life and Accident Ins. Co. v. Toran, 288 Ark. 63, 702 S.W.2d 10 (1986), we reversed the trial court’s decision. In doing so, we construed § 66-3709 to permit Provident to reduce Toran’s policy benefits by the amount of Social Security benefits to which he was entitled as a result of his disability, resulting in a net payment to Toran of $149.76.

In June of 1986, Provident reduced Toran’s policy benefits from $149.76 to $50.00 per month. On September 1, 1986, Provident elected to pay him no further benefits, claiming an overpayment because of Social Security benefits applied for by his illegitimate children and paid directly to them.

In May of 1987, Toran filed suit against Provident alleging essentially as follows:

(1) To construe Ark. Stat. Ann. § 66-3709 to allow an insurance carrier to deny or reduce benefits because of the insured’s receipt of like benefits is contrary to the legislative intent of the statute and public policy;
(2) Section 66-3709 prohibits Provident from reducing an insured’s policy benefits by the amount of Social Security disability benefits received by him;
(3) Section 66-3709 prohibits Provident from reducing an insured’s policy benefits by the amount of Social Security disability payments applied for and paid to his illegitimate children;
(4) Provident’s policy terms and § 66-3709, as amended, prohibit reduction of insured’s benefits to an amount less than $50.00 per month; and
(5) By collecting premiums to insure against total disability by its insureds with knowledge that the great majority of employee insureds who are rendered “totally and permanently disabled” will receive Social Security disability benefits, Provident in reality is providing nominal coverage or in some cases, no coverage, except for a $50.00 per month minimum provided for in the policy. This action violates public policy.

Based upon these allegations, Toran prayed for all benefits wrongfully reduced by Provident.

Thereafter, Provident filed a motion to dismiss on the grounds that Toran’s action was barred by the doctrine of res judicata. The trial court granted this motion, finding that the suit was precluded by res judicata and that the complaint failed to state facts upon which relief could be granted. From this order, Toran appeals.

Toran first asserts that the trial court erred in finding he is precluded by res judicata from litigating his claim for policy benefits withheld by Provident because of Social Security benefits paid to his illegitimate children. This contention has merit.

As we recognized in Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985), res judicata and collateral estoppel are separate concepts. Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Restatement (Second) of Judgments § 19 (1982). See also Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985); Fish v. McLeod, 206 Ark. 142, 174 S.W.2d 236 (1943). Furthermore, res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Bailey, supra; Seaboard Finance Co. v. Wright, Admx., 223 Ark. 351, 266 S.W.2d 70 (1954). In contrast, the doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Smith, supra; Restatement (Second) of Judgments § 27 (1982).

Toran’s claim concerning policy bénefits withheld by Provident because of Social Security benefits paid to Toran’s illegitimate children was not litigated in the first action. In addition, it could not have been litigated in that Provident did not reduce Toran’s policy benefits by the amount of Social Security benefits paid to his illegitimate children until after the first action was decided. Therefore, res judicata does not preclude Toran from litigating this matter. We reverse on this point.

Toran also argues that the trial court erred in finding that he is precluded by res judicata from litigating his claim for policy benefits denied him by Provident’s reduction of his benefits from $50.00 per month to zero. We agree.

Under the heading, “Reductions applicable to Basic Benefit Amount,” the insurance policy in question provides in part that the benefit amount shall be reduced by “any periodic cash payment to which the Employee, or a dependent of the Employee is entitled as a result of the Employee’s disability.” In addition, it provides that “[i]n no event, however, will the employee’s basic benefit amount be reduced to an amount less than $50.00.”

Toran is not precluded from litigating his claim for policy benefits wrongfully denied by Provident’s reduction of his benefits from $50.00 to zero per month. Not only was this claim not adjudicated in the first suit, it could not have been litigated since Provident did not reduce Toran’s policy benefits below $50.00 until after the first case was decided.

Finally, Toran argues that the trial court erred in finding that he is precluded by res judicata from arguing that Provident’s policy reduction provisions operate contrary to good public policy and are, therefore, void. We agree with Toran in part.

In May of 1982, Provident reduced Toran’s policy benefit to $149.76 by subtracting the amount of Social Security benefits to which he was entitled ($426.90) from the amount of benefits due under the policy ($576.66). Toran then sued Provident for the total sum of the reduction contending that Ark. Stat. Ann. § 66-3709 precluded reduction of his policy benefits. The trial court rendered judgment in favor of Toran, and Provident appealed the decision. This court reversed the decision of the trial court, holding that such a reduction was not contrary to § 66-3709. See Provident Life & Accident Ins. Co., supra. Thereafter, Provident reduced Toran’s policy benefits to $50.00 per month and later elected to pay him no benefits, claiming an overpayment because of Social Security benefits applied for by his illegitimate children and paid directly to them.

Since Toran litigated in the initial lawsuit his claim for the amount of policy benefits wrongfully denied by Provident’s reduction of his benefits from $546.66 to $149.76 due to Social Security benefits received by him, he is barred by res judicata from litigating this claim in the present action. Consequently, he is precluded from making public policy arguments in support of this claim.

Toran is not barred by res judicata from litigating his claim for policy benefits denied him by Provident’s further reduction of his benefits from $149.76 to $50.00 in that this claim was not litigated and could not have been litigated in the first action. Furthermore, he is not barred by collateral estoppel from contending that Provident’s policy reduction provisions operate contrary to public policy in support of this claim in that this issue was not adjudicated in the first action. However, he is precluded by collateral estoppel from asserting that Ark. Stat. Ann. § 66-3709 prohibits reduction of his policy benefits by the amount of Social Security benefits to which he is entitled as a result of his disability in support of this or any other claim since this issue was adjudicated and determined in Provident, supra.

In addition, Toran is not barred by res judicata from pursuing his claim for policy benefits denied him by Provident’s reduction of his policy benefits from $50.00 to zero due to Social Security benefits received by his illegitimate children in that this claim was not litigated and could not have been litigated in the first suit. Moreover, he is not precluded from asserting that the policy reduction provisions in question contravene public policy in support of this claim.

Reversed and remanded for proceedings consistent with this opinion.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    John Russell LEE v. STATE of Arkansas
    CR 88-86
    762 S.W.2d 790
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Fred D. Davis III, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

John Russell Lee was convicted of manufacturing a controlled substance and sentenced to 40 years imprisonment and a $75,000 fine.

Lee, a former Drew County resident, returned to Arkansas after living in California. He and his stepson, Allan Pavatt, spent the night of July 2, 1986 alone at Lee’s sister’s house in Collins, Arkansas. The state proved to the jury’s satisfaction that the men set up a laboratory in the bathroom of the house to manufacture methamphetamine. Evidently, a toxic glue was employed to repair a flask used in the manufacturing process. As the laboratory operated, poisonous fumes spread throughout the house. The fumes killed a cat and a gerbil. Lee and Pavatt were both hospitalized, and Pavatt died.

While investigating the cause of Pavatt’s death, the sheriff’s office searched the residence and discovered the laboratory. Several other items related to the manufacture of the drug were also found and confiscated. Lee was charged with manufacturing a controlled substance.

Lee makes six arguments on appeal, all of which we find meritless.

Two errors are alleged regarding the prosecutor’s closing argument: a comment on an item not in evidence and a comment on the appellant’s failure to testify. The appellant did not abstract the closing argument of the prosecuting attorney or the court’s rulings but only set them out in the argument section of his brief. See generally Blount v. Hughes, 292 Ark. 166, 728 S.W.2d 519 (1987).

We find the appellant’s failure to include the closing argument in his abstract of the record leaves us unable to deal with these issues. It is fundamental that the record on appeal is confined to that which is abstracted. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987); Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982). We held in Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986) that the appellant’s failure to abstract an opening statement precluded our consideration of any improper comments in the statement.

One of the arguments is meritless for another reason. The alleged comment on an item not in evidence involved a flask which the state contended had been transported by rental truck from California. The flask was introduced in evidence in a box with newspaper on the bottom. It was not clear whether the exhibit consisted of the flask alone, or of the newspaper and box as well.

In closing argument, the prosecutor referred to a statement by the appellant that he had been in California on a certain date. He then referred to the date on the newspaper to show the appellant was “still out in California on the date that that newspaper was printed, and we contend, was used to package. . . the items there.” The appellant objected saying the newspaper was never offered into evidence. But earlier in the closing argument, the prosecutor said the following:

There is something else that you should take into consideration. . . . You’ll notice that these flasks are packaged in boxes and that there’s newspaper in the bottom of the boxes. . . . The.newspaper is the . . . Los Angeles Times dated June 23, 1986, some ten days prior to the death of Allan Pavatt. We know that circumstantially we can show that that stuff came on that rental truck.

The appellant did not object to this earlier reference to the newspaper. An objection must be timely. Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987). Here, the allegedly improper reference was already before the jury without objection.

It is argued that the trial judge should have allowed a defense character witness to explain what he knew about a conviction Lee had for theft. The appellant’s brother, Frankie Lee, testified Lee had a good reputation for truth and veracity. On cross-examination, he conceded he knew of a conviction for theft against Lee in Chicot County but said his opinion of Lee was unchanged because Lee was innocent of the charge. On redirect, the defense attempted to elicit more information about the conviction. The trial judge would not allow further discussion.

This is testimony by a character: witness.ifbF-thfc accused, governed by A.R.E. Rules 404 and 405. Should the trial judge have allowed the defense to explore further what the character witness knew? It was a discretionary decision by the judge. In Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982), we dealt with a defendant who wanted to explain tfab Circumstances of a prior conviction. We made this statement:

When a witness, as here, admits a previous conviction, he is not absolutely precluded from offering an explanation of the offense unless it tends to retry the case and demonstrate innocence. Again, this is an issue of relevancy, and the trial court is permitted a wide range of discretion. . . .

Although that case concerned a witness who was trying to explain his own conviction, the same standard should apply in this case. The issue is still one of relevancy. The witness said his brother was innocent. The trial court had the discretion to prevent a digression to retry that case.

Near the end of its case, the state moved to amend the information to allege that Lee acted “in complicity with Allan Pavatt.” The trial judge eventually granted the motion and instructed the jury on accomplice liability over the appellant’s objection. Again, we are hampered in our review because the information, jury instructions and some pertinent discussions by the court are not abstracted.

An information may be amended during trial if the nature or degree of the crime is not changed and if the defendant is not prejudiced through surprise. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982); Prokos v. State, 266 Ark. 50, 282 S.W.2d 36 (1979). There is no distinction between the criminal responsibility of an accomplice and a principal. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). So the nature or degree of the crime did not change.

The trial judge found the appellant was not prejudiced by the amendment, and we agree. We dealt with a similar situation in Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). The state asked for an accomplice liability instruction even though the appellant had not been charged as an accomplice. The appellant claimed surprise. We said that an allegation in the information that the accessory himself committed the crime is sufficient even though he only aided and abetted the offense. We also stated that, since there is no distinction between principal and accomplice liability, the appellant was not unfairly surprised.

There was sufficient evidence to warrant giving AMCI 401 on accomplice liability. Strong circumstantial evidence supported Lee’s complicity, if not his guilt as a principal. Lee and Pavatt were the only occupants of the house. The state proved Lee bought locks and other hardware used to set up and conceal the laboratory. Pavatt’s wife testified she saw Lee repairing a glass object that could have been used in the manufacturing process.

The appellant asked for a directed verdict on two grounds: the state had not proved the weight of the controlled substance and, since the substance was not in its final form and fit to be sold, there was only an attempt to manufacture. A directed verdict is a challenge to the sufficiency of the evidence. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

The state used a crime laboratory analyst, Gary Sullivan, to prove the weight of the substance. The witness took a portion of the substance from a flask which he had confiscated at the scene, weighed it, then used it to determine the total weight in the flask, which he estimated was 38 pounds. The weight of the pure drug, not including by-products, was then calculated to be 660 grams. Similar testimony of samples has been approved. See Mullins v. State, 277 Ark. 93, 639 S.W.2d 514 (1982); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974).

The witness also testified that the substance in the flask could be identified as methamphetamine but “it was not down to the actual powdered out product, which is sold on the streets.” The substance does not have to be in a form to be sold before a “manufacture” occurs. The Controlled Substances Act defines manufacture as “the production, preparation, propagation, compounding, conversion, or processing of a controlled substance. . . .” Ark. Code Ann. § 5-64-101 (m) (1987). There is ample evidence that preparation and processing of the drug took place.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I write primarily to call attention to the unfairness with which I believe this court sometimes handles appeals. Many times we refuse to consider an argument because the appellant did not abstract a particular pleading or portion of the trial. On the other hand, we frequently look to the record in order to affirm even though the relevant portion of the record has not been abstracted by the appellee. A good example of this legal inequity is found in the majority opinion where it states: “We find the appellant’s failure to include the closing argument in his abstract of the record leaves us unable to deal with this issue.” Then, disposing of another point, the majority states: “But earlier in the closing argument, the prosecutor said the following: . . . .”

This last remark leads to my other point of disagreement with the majority. During closing argument the state’s attorney commented on a newspaper (which had not been introduced) taken from a packing box containing a flask which was introduced into evidence. The introduction of this particular evidence was as follows:

STATE: State’s exhibit 12, do you recognize those as items in the shed?
WITNESS: Yes, sir, they were in the shed also.
WITNESS: Here is the glass beaker.
STATE: With the yellow —
WITNESS: Tab on it.
STATE: Okay as shown in state’s exhibit —
WITNESS: Yes, sir.
STATE: And that flask with the yellow beaker, yellow tab on it, is state’s exhibit No. 48.
STATE: We would offer to introduce state’s exhibit No. 47 A and B and state’s exhibit No. 48.
THE COURT: The boxes with contents labeled 47 A and B for the state are both admitted. Objection noted. And the other one is 48.
STATE: Yes, sir.
THE COURT: What is in box 48? Is that what was referred to as the Erlenmeyer flask?
STATE: Your Honor, I think that is correct.

It is obvious that the only object introduced as exhibit 48 was the flask with the yellow tab on it. It happened that this particular newspaper was in the box containing the flask. The comment by the prosecutor was most likely not prejudicial to the appellant, but the newspaper was never introduced into evidence, and it was improper to allow the state’s attorney to comment on it. Had it been offered into evidence, the defense counsel may have had valid questions concerning the newspaper.

Finally, I do not think the evidence supported this conviction for possession of a controlled substance. The material which they had on hand was in the process of being manufactured. The substance was still in a state which could not have been used for human consumption. Obviously, it could not have been sold in its existing state and therefore there could not have been any intent to sell it. I believe the charge should be reduced to an attempt to manufacture a controlled substance.

       The appellant claims the trial judge never granted the motion to amend the information. At first, the court took the motion under advisement, then denied it. But after further discussion, the court found that “amending the information will not subject the defendant to even the remote possibility of any greater punishment. ... It does not change the nature of the offense nor the manner in which the alleged offense was committed. I’m satisfied on those points. . . .”


text:
    Barry STEWART v. STATE of Arkansas
    CR 88-125
    762 S.W.2d 794
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      William R. Simpson, Jr., Public Defender, by: Howard W. Koopman, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Jeannette Denhammcclendon, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellant was convicted of the rape of a ten-year-old girl and was sentenced to life imprisonment. On appeal he challenges the sufficiency of the evidence to support his conviction. We affirm the conviction.

The victim was the daughter of the appellant’s former girlfriend. The child testified that in November of 1987, she and her younger cousin accompanied the appellant on a trip to a laundromat. The appellant had brought along other children, who were his relatives.

The appellant told the victim he would take her to the store to get some candy. They left the laundromat alone, leaving the other children behind. After going to the store, the appellant drove to a dead-end street. At trial, the victim gave the following description of the incident:

He put his private spot inside of mine.
He got on top of me. He put his private spot in mine.
Q. When he got on top of you, what did he do then?
A. He started going up and down.
Q. Was he inside of you?
A. Yes.

The following January, the victim’s two-year-old cousin was taken to the doctor and diagnosed as having gonorrhea. Consequently, all other members of the household were tested.. The victim tested positive. At that point, she revealed that the appellant had raped her. The child’s mother testified that her daughter had been withdrawn and had been in and out of the bathroom several times the night of the incident. But until the doctor’s visit, the mother did not know of the rape.

The examining physician testified that the child’s genital area showed no trauma or bruising, but she did in fact have gonorrhea, and the opening in her hymen was suspiciously large, indicating sexual abuse.

After the state’s presentation of the above mentioned evidence, the defense moved for a directed verdict. The trial judge denied the motion.

Stewart’s argument is the state’s evidence was insufficient because the anatomical terms in the rape statute were not used by the victim in describing the incident. Stewart also argues that the state’s witnesses were not credible.

The appellant was charged with having sexual intercourse with a person less than 14 years of age. Sexual intercourse is defined as penetration, however slight, of a vagina by a penis. See Ark. Code Ann. § 5-14-101(9) (1987).

In a rape case, the requirement of substantial evidence is satisfied by the rape victim’s testimony alone. There need not be corroboration. Roper v. State, 296 Ark. 292, 756 S.W.2d 124 (1988). In this case the victim’s testimony is sufficient if it can be said that her use of child-like terms to describe the act of intercourse constitutes substantial evidence.

We have held that, even though a child may not use correct terms for a body part but instead uses his own terms or demonstrates a knowledge of what and where those body parts referred to are, that will be sufficient to allow the jury to believe that a rape occurred. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986) (child victim asked if appellant touched her with his private parts); see also Harris v. State, 9 Ark. App. 253, 657 S.W.2d 566 (1983) (child victim testified appellant put his “twinkle” in her private place).

Here, the child said that the appellant was “inside” her and was on top of her and, while he was inside her, “started going up and down.” The jury could conclude, without resort to speculation, that this was a child’s description of sexual intercourse.

The appellant’s argument regarding credibility fails because that question is for the jury to resolve, not us. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). The jury chose to believe the child and to believe the doctor’s opinion that sexual abuse had occurred.

We find the record contains no other reversible errors. Ark. Sup. Ct. Rule 11 (f).

Affirmed.


author: John I. Purtle, Justice.

text:
    David CHANDLER v. STATE of Arkansas
    CR 88-127
    762 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Allen Law Firm, by: Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This appeal arises from the denial of post-conviction relief pursuant to Rule 37 wherein the appellant sought to prove ineffective assistance of counsel at trial and on appeal. It is these same two arguments which the appellant urges for reversal. As we find no prejudicial error, the decision of the trial court is affirmed.

In 1985 the appellant was charged and arrested for a burglary that occurred in Jacksonville, Arkansas. Attorney Marva Davis was appointed to represent the appellant on the burglary charge and on an unrelated charge which was to be tried later. The appellant was tried before the court on August 23, 1985, and sentenced as an habitual offender to a term of twenty years in the Arkansas Department of Correction. The appellant contends that, prior to commencement of the trial, he noticed that several alibi witnesses were not present in the courtroom and argues that he brought this to the attention of his attorney. The appellant insists that he had given the attorney the names of these witnesses in adequate time for her to have talked with and subpoenaed them for the trial. The appellate states specifically that he gave his attorney a work phone number for Terry Fulton, and the home phone number for Tammy, Julia, Darren, Alice and Patrick Fulton, and that they would have all been alibi witnesses at his trial had they been notified.

The attorney admitted that she did not contact the witnesses and that they were not at trial. However, she insisted that she had unsuccessfully tried to locate them and that it was the appellant’s decision to go to trial rather than ask for a continuance. The full name, address, or telephone number of any of the six witnesses is not contained in the record. There is no written evidence relating to the alibi witnesses. Therefore, the trial court had to choose between believing the appellant or his trial attorney. The court chose to believe the attorney, which is usually the case in situations like this. After all, the credibility of the witnesses is a matter within the discretion of the trial court. Obviously the trial court had the witnesses before it and no doubt had previously dealt with this attorney. We are in no position to say the trial judge abused his discretion in believing the attorney over the client.

The matter of who was at fault for not filing the appeal is also a credibility question. Again, the court believed the attorney’s version of what occurred after trial on the issue of whether notice of appeal should have been filed. Rule 11 (h) of the Rules of the Arkansas Supreme Court requires that an attorney representing an accused at the trial of his case who wishes to withdraw has a duty to request permission to do so from the trial court. He must also state the reasons for withdrawing and furnish his client a copy of the request. Additionally, if the request is granted, the attorney must furnish the defendant a copy of the order authorizing him to withdraw.

Ineffective assistance of counsel may result when there is a failure on the attorney’s part to take reasonable steps to procure the attendance of a witness if material to the defense. Walker v. Lockhart, 807 F.2d 136 (8th Cir. 1986). When counsel is not given complete information concerning the location of witnesses, the burden of the appellant to prove ineffective assistance of counsel is more difficult. We note that there is no record presented in the present case showing the addresses and telephone numbers of these six witnesses. This, no doubt, is something the trial court considered in weighing the credibility of the witnesses at the Rule 37 hearing. Credibility is peculiarly within the province of the trier of fact. Owens v. State, 296 Ark. 322, 756 S.W.2d 899 (1988). The decision of the trier of fact is binding on appeal in the absence of proof of abuse of discretion by the trial court.

Effective assistance of counsel is a fundamental requirement which cannot be denied any person accused or convicted of a serious crime. Finney v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). Failure of the trial counsel to perfect an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983). Trial counsel, whether retained or appointed, shall continue to represent a convicted defendant throughout the appeal unless permitted by either the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983). A.R.Cr.P. Rule 36.26. When counsel knows that his client desires an appeal he is obligated to file notice of appeal or to obtain permission to withdraw. Lewis v. State, supra.

A trial court is not always bound to take the word of an attorney over his client. The conflict in the testimony between the appellant and his attorney could have been avoided had the attorney made a written record to protect herself.

Affirmed.


text:
    Douglas JAMES, Fidelity and Guaranty Co., Inc., and Shelter Mutual Insurance Co. v. BILL C. HARRIS CONSTRUCTION CO., INC.
    88-213
    763 S.W.2d 640
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989
    [Rehearing denied February 13, 1989.]

      Frank Booth, for appellant Douglas James; Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: James A. Arnold II, for appellant Fidelity and Guaranty Company; and Jones, Gilbreath & Jones, by: Kendall B. Jones, for appellant Shelter Mutual Insurance Company.

      Warner and Smith, by: G. Alan Wooten, for appellee.
   John I. Purtle, Justice.

This is an appeal from the denial by the trial court of appellant’s motion for a new trial. The appellant’s six arguments for reversal are: (1) the court erred in failing to allow testimony of the defendant’s net worth; (2) the court erred in granting the defendant’s motion for a directed verdict on the issue of punitive damages; (3) the court erred in denying the plaintiffs (appellant’s) motion for a directed verdict; (4) the court erred in failing to admonish the jury after improper remarks by the defense attorney in closing arguments; (5) the court erred on several instructions to the jury; and (6) the court erred in failing to grant a new trial. Finding no reversible error the decision of the trial court refusing to grant a new trial is affirmed.

This claim for personal injuries grew out of the collision between an automobile driven by the appellant and a front-end loader owned by the appellee and driven by one of its employees. The driver of the front-end loader was proceeding west on Zero Street in Fort Smith at a speed between 15 and 20 miles per hour, when he slowed to make a right turn onto South 24th Street. The appellant testified that at this point he had driven up to the intersection of South 24th and Zero Streets and stopped at the stop sign. The driver of the front-end loader stated he did not see the appellant’s vehicle until he had made his right turn and the bucket on the front-end loader was pushing the appellant’s automobile along the street. At the time of impact the appellant’s vehicle was on his side of the road and the bucket on the loader extended over into the appellant’s lane of travel.

The appellant developed many medical problems over a period of time, including problems with his cervical spine which eventually necessitated surgery. At the time of the occurrence he was in the course of his employment and, therefore, as a result of his injuries, he received medical and disability benefits under the workers’ compensation law. Shelter Mutual Insurance Company also paid disability benefits under a separate policy. Both the compensation carrier, Fidelity and Guaranty Company, Inc., and the disability carrier, Shelter Mutual Insurance Company, intervened when the appellant filed suit.

At the commencement of the trial, it was stipulated that Shelter had paid $4,170.00 in disability benefits under its policy and that Fidelity had paid temporary total disability benefits under the workers’ compensation act in the amount of $21,296.00; permanent disability benefits in the amount of $7,623.00; and medical benefits in the amount of $21,750.00. Appellee agreed to this stipulation as to the amount and the reasonableness of the bills, but did not stipulate that the bills were owed by the appellee.

The jury found for the appellant on the issue of liability and fixed his damages in the sum of $8,000.00. The appellants moved for a new trial on the basis of the inadequacy of the award in view of the stipulations. It is from the denial of that motion that the appellants bring this appeal.

The first argument by the appellant is that the court erred in refusing to allow evidence of the appellee’s net worth in view of the claim for punitive damages. (A proffer was permitted.) The second argument is that the trial court erred in directing a verdict for the appellee on the issue of punitive damages. As these two arguments are closely interrelated, they will be addressed together in this opinion. The appellant relies primarily on the case of Missouri Pacific Railroad Co. v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). The facts in the Missouri Pacific Railroad case reveal that officials of the railroad had decided that it was less expensive to settle the lawsuits than to clear the right-of-ways as required by law. In the present case it has not been demonstrated that the appellee or its driver were acting in violation of the law nor that the conduct was of such a nature as to give rise to punitive damages.

The appellant also relies on AMI 2217. This instruction requires as a basis for an award of.punitive damages that a defendant “knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and he continued such conduct in reckless disregard of the consequences from which malice may be inferred.” We discussed punitive damages in Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). There we stated:

In order to support an award of punitive damages, the evidence must indicate the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Negligence alone, however gross, is not a sufficient basis to justify the award of punitive damages.

The Freeman opinion went on to discuss “wilfullness, or conscious indifference to consequences from which malice may be inferred” as a basis for punitive damages. The opinion held that it must appear that the acting party either knew or had reason to believe that his action was about to inflict injury and that in spite of this knowledge he continued his course of conduct with a conscious indifference to the consequences. Only in such a case may malice be inferred and punitive damages awarded.

There simply is no proof in the record which would justify the introduction into evidence of the net worth of the appellant under the claim for punitive damages. There is no evidence of wilful and wanton conduct from which malice may be inferred. It is clear that the court was correct in directing the verdict against the appellant on the issue of punitive damages.

The third argument is that the court erred in failing to direct a verdict for the plaintiff at the close of all the evidence. The motion for the directed verdict and the argument on this appeal are premised upon the contention that the appellant was without fault in this occurrence. Therefore, if there was no fault on the part of the appellant, there was nothing to compare with the fault of the appellee. We considered this issue in the case of Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986), where the defendant had admitted fault for the accident. The jury returned a verdict for the plaintiff but awarded zero damages. In the motion for a new trial the appellant argued that since the defendant admitted fault the jury verdict must be set aside because of the absence of any award of damages. Thigpen held that an admission of fault by the defendant does not automatically entitle the plaintiff to recover damages. Damages must be proven even though fault is admitted.

In the present case the testimony of Tommy Phillips, the driver of the front-end loader, was that the appellant’s vehicle was “nowhere in sight” when he began making the turn from Zero Street onto 24th. There is an implication from this testimony that the appellant’s vehicle might have driven up to the intersection after the loader had started its turn. Although the appellant and an independent witness testified that his vehicle was stopped prior to the loader starting its turn, such testimony is not binding upon the jury.

In denying a motion for a directed verdict we give the proof against the motion its strongest probative force. The proof and all reasonable inferences must be examined in the light most favorable to the party against whom the motion is sought, and if there is substantial evidence to support the decision of the trial court, we will affirm. The testimony of the driver of the loader was contradicted by the testimony of the appellant and another witness. However, we cannot say that the testimony of the employee of the appellee is not substantial. A directed verdict in favor of the party having the burden of proof is improper because the jury need not necessarily believe his evidence.

Two cases cited by the appellee are quite similar to the present case: Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); and Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981). Gilbert’s vehicle was struck from behind by a vehicle owned by Diversified Graphics. In her personal injury and property damage claim in the amount of $300,000.00, the appellant offered proof that she had incurred $12,895.81 in actual damage. The jury returned a verdict in her favor for $6,700.00. The trial court overruled her motion for a new trial based on the assertion that the verdict was too small and was contrary to the preponderance of the evidence. We upheld the trial court’s refusal to grant a new trial and stated: “A fair-minded jury could easily have found that all of Gilbert’s medical costs, disabilities and property damage were not attributable to the accident with the Diversified Graphics vehicle.” In the Taylor case the appellant argued that the jury verdict in the amount of $633.10 was less than her medical bills and therefore she was entitled to a new trial. We upheld the trial court’s refusal to grant a new trial on the basis that all of the bills may not have been attributable to the accident.

Another case quite similar to the present one is that of Freeman v. Anderson, supra. In Freeman the plaintiff received a verdict for $500.00, in a case of the defendant’s clear liability for the property damage caused by the accident. It had been stipulated that plaintiff’s medical bills were $490.00 and that estimates on the damage to plaintiff’s automobile went as high as $731.23. However, the defendant denied that the medical bills were proximately caused by the accident. We upheld the trial court’s denial of a motion for a new trial based on the inadequacy of the award.

In Thigpen v. Polite, supra, we stated: “The trial judge’s refusal to grant a new trial, with the implication that he found the verdict was not clearly against the perponderance of the evidence, was not a clear and manifest abuse of discretion, as we would have to find to justify a reversal.” There was testimony by medical specialists that part of the appellant’s treatment resulted from problems unrelated to the injuries he received in the accident in question. The stipulation agreed to by the appellee was that the medical bills and the other benefits had been paid and that they were reasonable. There was no stipulation that the appellee owed the bills. Therefore, it was up to the appellant to prove the bills were related to the traffic accident. Given the proof presented, a reasonable-minded jury could have concluded that all of the medical bills and disability benefits were not attributable to the accident.

The fourth argument by the appellant concerns a statement by defense counsel in closing argument that “the plaintiff has not submitted to you one medical bill.” We first note the agreement entered into at the beginning of the trial where the defendant stipulated that the intervenors had paid the medical bills and disability benefits. This same argument was made in very similar circumstances in the case of Missouri Pacific Railroad Company v. Hood, 198 Ark. 792, 131 S.W.2d 615 (1939). In that case the court held that it was the duty of the trial court to admonish the jury not to consider improper remarks made by one of the attorneys. We agree that remarks based on matters outside the evidence are not proper and should not be allowed. Upon objection, the objection should be sustained, and upon request the jury should be admonished not to consider the improper remarks by counsel.

After the defense attorney made the improper statement that “the plaintiff had not submitted one medical bill,” the trial court sustained an objection by the appellant. The court at that time stated: “I remind the jury, like I did a while ago, statements by either attorney are not evidence. If anybody makes a statement that is in contradiction to your recollection of the testimony you will disregard it.” Although we are of the opinion that it would have been appropriate for the court to have admonished the jury to disregard this specific statement, we believe his admonition to the jury was sufficient to cure any prejudice resulting from the remark. However, we do not wish to encourage courts to refuse to admonish the jury to disregard such statements. It is the better practice to specifically admonish on such improper remarks.

The fifth argument asserts error by the court concerning several different jury instructions. Several of the objections under this point are to the court’s failure to give instructions proffered by the appellant, and others concern the instructions given.

The appellant objected to instructions on comparative negligence which were given by the court. This issue has already been addressed and we need only say that we think there is substantial evidence of the appellant’s negligence. The driver of the loader testified that the appellant’s car was nowhere near the intersection when he started the turn.

The plaintiff objected to the exclusion of paragraph (c) of AMI 901. This model instruction concerns the duty of a driver to drive at a speed no greater than prudent and reasonable under the circumstances. The testimony of the defendant’s driver was that he was not going more than 15 or 20 miles per hour. There is no substantial evidence of unreasonable speed under the circumstances.

The plaintiff also argues that the court erred in refusing to give part of a proffered instruction which reads as follows:

Any person who drives any vehicle in a manner as to indicate wanton disregard of the safety of others is guilty of reckless driving.

There is not evidence in the record to indicate the driver of the other vehicle acted wantonly in disregard for the safety of others. Therefore, it was not error for the court to refuse this instruction.

The appellant claims error by the court in refusing to give his proffered modified version of AMI 908 as follows:

No owner shall cause or knowingly permit to be driven or moved on any highway or street any vehicle which is in such unsafe condition as to endanger any person.

Again there simply is no evidence that the loader was in an unsafe condition. Consequently this argument fails also.

The appellant asserts error by the court in refusing his modified AMI 1107. This proffered instruction concerns the operation of a “dangerous instrumentality.” We find no evidence in the record that the loader was a “dangerous instrumentality.”

The appellant objected to the court’s refusal of this proffered instruction involving “probable increases in future earnings.” The jury was given the standard AMI instruction on loss of future earnings and earning capacity. The instruction given includes the essence of the one requested.

Our per curiam of April 19, 1965, adopting the Arkansas Model Jury Instructions (AMI) stated that the model instructions should be given unless the trial judge finds the instruction does not accurately state the law. If the trial judge so finds, his reasons for refusing the model instruction should be given. It is basic that any instruction must be supported by the evidence. From the record it appears that the AMI instructions were adequate or that there was no basis in the facts for giving the modified requested instructions.

The appellant’s sixth and final point for reversal is that the trial court erred in failing to grant a new trial. In the foregoing points we have fully discussed all of the issues under this argument. For the reasons stated above we find that the trial court did not abuse its discretion in refusing to grant a new trial.

Affirmed.