author: Donald L. Corbin, Justice.

text:
    Angela G. GATLIN v. T. Gary GATLIN
    91-133
    811 S.W.2d 761
    Supreme Court of Arkansas
    Opinion delivered June 24, 1991

      Hartsfield & Mixon, P.A., by: Larry James Hartsfield and H. Clarke Mixon, for appellant.

      Judieth P. Balentine, for appellee.
   Donald L. Corbin, Justice.

This is an appeal from a July 16, 1990 order of the First Division of the Chancery Court of Pulaski County holding appellant, Angela G. Gatlin, in contempt for failure to comply with a previous order of the court. Jurisdiction of this appeal is in this court pursuant to Ark. Sup. Ct. R. 29(l)(a).

Appellant makes three assignments of error, two of which are based on insufficient evidence. The third is based on the constitutionally guaranteed prohibition against imprisonment for debt. We find no merit in any of appellant’s arguments and affirm.

In a decree filed November 3, 1988, the chancellor granted appellee, T. Gary Gatlin, an absolute divorce from appellant. The decree provided for joint custody of their child, with no provision for child support or alimony. All marital assets were sold and the proceeds of the sale were divided between the parties. Included in the decree was an order that “the parties are each responsible for one-half of the indebtedness owed to the Internal Revenue Service. The parties are to make individual payment plans with the Internal Revenue Service for their portion. The Plaintiff is responsible for all other debts.”

On June 22,1989, appellee served appellant with a motion to show cause, asserting he had continued to make regular monthly payments on the Internal Revenue Service (hereinafter referred to as IRS) indebtedness. Appellee alleged that neither had appellant made payments to the IRS nor had she set up any payment plan with the IRS by which to discharge the indebtedness. On August 23,1989, the chancellor entered an order finding that appellant had made reasonable efforts to make payments to the IRS, but that no payments had been accepted by the IRS, as the appropriate documentation was not in appellant’s possession.

On March 22, 1990, appellee filed a motion with the court claiming to have made all payments to the IRS since the date of the decree. In the motion, appellee requested the court to order that he be responsible for making payments to the IRS and that appellant be required to make payments through the court payable to him until she paid her half of the indebtedness.

On June 28, 1990, appellee filed a second motion to show cause. He alleged that though appellant reportedly went to the IRS, she had not made any payments toward retiring the debt. The chancellor ordered appellant to appear on July 16, 1990, to show cause why she should not be cited for contempt of the previous order. A show cause hearing was held as scheduled and the court announced from the bench that appellant was in willful contempt of the November 3,1988 order of the court for failure to pay one-half of the indebtedness due the IRS. The court ordered appellant to be incarcerated until such time as she posted a $5,400.00 cash bond to absolve herself of contempt.

In its written order, which was filed July 17,1990, the court made the following findings:

3. That pleadings have been filed before this Court as to the contempt of Angela G. Gatlin in failing to comply with this provision of this Court Order on more than one occasion, and Angela G. Gatlin has continued, despite prior Motions, to fail to make payment on this indebtedness.
4. That evidence before the Court is that Angela G. Gatlin has been regularly employed since the date of the Decree and is now earning more than $ 1,700.00 per month.
6. That this Court finds Angela G. Gatlin to be in willful and open contempt of the Orders of this Court and to have made no attempt to pay this indebtedness since the Decree of this Court of November 3, 1988. Angela G. Gatlin is ordered to be held in the Pulaski County Jail until she has paid $5,400.00, being $4,600.00 she was ordered by the Court to pay on November 3,1988 and the $800.00 in interest which T. Gary Gatlin has been required to pay to the Internal Revenue Service due to her failure to pay her share of this indebtedness.

On July 18, 1990, appellant paid $5,400.00 to the Pulaski County Sheriff and was released from jail. The court in an Order of Release filed July 20, 1990, ordered that she be released from custody, that all contempt charges against her be dismissed, and that the funds be released to appellee’s attorney to forward to the IRS.

I.

THE COURT BELOW ERRED WHEN IT ISSUED A CONTEMPT CITATION BASED UPON INSUFFICIENT EVIDENCE THAT DEFENDANT HAD FAILED TO OBEY THE PREVIOUS ORDERS OF THE COURT.

In support of this point appellant first asserts that the findings made by the chancellor in the orders of August 23,1989, and July 17,1990, are inconsistent. She cites Leslie v. Leslie, 174 Conn. 399, 389 A.2d 747 (1978), for the proposition that where the court’s findings in a contempt proceeding are inconsistent and the conclusions are ambiguous to the extent they are irreconcilable, a remand for a new trial on the issue of contempt is required.

The order of August 23, 1989 was entered following a motion by appellant to modify visitation and custody and the counter motion by appellee for appellant to show cause for failure to comply with the order of the court to pay her portion of the indebtedness to the IRS. The court on August 23, 1989 recognized that appellant had not been in possession of the appropriate documentation to make payments to the IRS but that appellee provided her with the same that day. We fail to see that this order is so ambiguous or inconsistent with the other order as to require a new trial. Clearly appellant was still under order of the court to take necessary steps to retire one-half the debt to the IRS.

Appellant also maintains that fair play and due process require that she be put on notice as to what was required of her to avoid or to purge contempt. She maintains both that the November 3, 1988 order was too inconsistent to inform her of what she was required to do as it set neither a final payment date nor a minimum payment, and that prior to July 16, 1990, she was not ordered to pay the $800.00 interest which had accrued on her part of the debt. It is her position that she could not be incarcerated for failure to pay amounts she had never been ordered to pay by a written order of the court and, therefore, the inclusion of the $800.00 in the purge amount requires reversal of the contempt citation.

Disobedience of any valid judgment, order, or decree of a court having jurisdiction to enter it may constitute contempt; punishment for such contempt is an inherent power of the court. Hilton Hilltop, Inc. v. Riviere, 268 Ark. 532, 597 S.W.2d 596 (1980). The general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986).

In the decree filed November 3,1988, the chancellor clearly ordered the parties “to make individual payment plans with the Internal Revenue Service for their portion” of the indebtedness. The record shows that appellant has not established a payment plan. After hearing appellant’s testimony, the chancellor found that she had made no payment toward retiring the debt.

Our review of a finding of contempt is limited to examining the findings of the trial court and we reverse only if the trial court’s decision is against the preponderance of the evidence. In the Matter of Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991). From our review of the record before us, we are unable to say the order was indefinite or the trial court’s finding of contempt is clearly against the preponderance of the evidence.

II.

THE COURT BELOW ERRED WHEN IT ISSUED A CONTEMPT CITATION BASED UPON INSUFFICIENT EVIDENCE THAT DEFENDANT’S FAILURE TO OBEY THE PREVIOUS ORDERS OF THE COURT WAS WILLFUL.

In support of this point appellant makes the same argument she made previously concerning the inconsistent findings in the orders of August 23, 1989 and July 17, 1990. In her first argument, it was her position that a new trial was required. However, now she contends that a reversal of the contempt citation is required. For the reasons stated there, this argument is without merit.

Appellant also maintains that even if she failed to comply with the previous order of the court, her noncompliance was not willfull. She relies on Barker v. Barker, 271 Ark. 956, 611 S.W2d 787 (1981) in making the assertion that Arkansas case law demands that before a party may be incarcerated for contempt, the trial court must specifically find an ability to pay and a willful refusal to do so. She maintains that her uncontroverted testimony establishes that she was at all times unable to make substantial payments on the IRS debt, and that her inability to pay was the reason for her failure to comply.

We find no merit in this argument. The chancellor was not required to believe appellant’s testimony. After hearing appellant’s testimony regarding her income and expenses, the chancellor in making his ruling from the bench stated, “[sjhe’s had enough income to [make] at least some payment. She hasn’t made any.” In the order filed July 17,1990, he specifically found appellant “to be in willful and open contempt of the Orders of this Court and to have made no attempt to pay this indebtedness since the Decree of this Court of November 3, 1988.”

On appeal from a finding of contempt this court will reverse only where the finding of the chancellor is against the preponderance of the evidence. C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980). Based on the foregoing, we cannot say the chancellor’s finding willfulness in appellant’s failure to comply with his previous order is against the preponderance of the evidence.

III.

THE COURT BELOW ERRED WHEN IT ISSUED A CONTEMPT CITATION AND JAILED DEFENDANT FOR FAILURE TO PAY A DEBT TO A THIRD PARTY.

Appellant relies on the Ark. Const, art. 2, § 16 as limiting the court’s authority to use contempt proceedings to enforce its orders. Section 16 states that, “[n]o person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” Appellant maintains that while generally orders for alimony, maintenance or support are not considered debt for the purposes of the constitutional prohibition, an order for a property division is such a debt.

On July 25, 1990, appellant filed a motion to sequester the $5,400.00 until such time as an appeal could be taken from the contempt order. On July 26,1990, appellant filed a motion to set aside the entry of the July 18,1990 order pending a hearing on the July 25, 1990 motion.

On July 30,1990, a hearing was held to consider the two motions. Appellee’s attorney stated that she forwarded the funds to the IRS and that they were received there on July 26, 1990. Appellant’s counsel stated that following the July 16, 1990 hearings, the orders were entered without his knowledge, and, as the $5,400.00 was already paid to the IRS, the sequestration of the funds was a moot issue. He also said that at the hearing on the 16th he was in the process of making an argument to the court when the court made its ruling on the contempt issue and that he would like to make a record of that argument for purposes of appeal. The objection made for the record was that the court did not have authority to incarcerate someone for contempt of the court for failure to pay a third party debt. However, appellant’s counsel failed to obtain a ruling on the matter. Failure to obtain a ruling constitutes waiver of the issue on appeal. McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

For the reasons stated above we affirm the rulings of the chancellor.


source: Caselaw Access Project

license: Public Domain

text:
    Richard A. HUBBARD v. STATE of Arkansas
    CR 90-262
    812 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered June 24, 1991

      Raymond R. Abramson, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. A’tty Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant shot his ex-wife, Paula M. Hubbard, in the presence of police officers at the parking lot of the McDonald’s restaurant in Brinkley, Arkansas. Approximately one month after the shooting, the victim died and appellant was charged by amended felony information with murder in the first degree, a violation of Ark. Code Ann. § 5-10-102 (1987). Appellant was tried and convicted by a Monroe County jury; he was then sentenced to life in prison without parole. He appeals the judgment of conviction of first-degree murder entered by the Monroe Circuit Court. We affirm.

There are five issues presented in this appeal. Appellant’s counsel assigns four points of error to the trial court. We discuss these in the language and in the order in which they were presented to us. Finally, we discuss the issue of whether appellant received a speedy trial, an issue on which appellant received our permission to argue pro se.

I.

THE COURT ERRED IN ADMITTING DR. MICHAEL SIMON’S TESTIMONY EXPRESSING AN OPINION AS TO APPELLANT’S MENTAL CAPACITY BECAUSE HE WAS NOT QUALIFIED AS A PSYCHIATRIST.

The only testimony offered by the state concerning appellant’s mental capacity was that of Dr. Michael Simon, a forensic psychologist at the Arkansas State Hospital. Appellant claims Dr. Simon’s opinion as to appellant’s capacity to conform his conduct to the requirements of the law should not have been admitted because Dr. Simon is not a psychiatrist; appellant maintains the trial court’s order for appellant’s psychiatric evaluation required the evaluation be conducted by a psychiatrist. Appellant argues further that Dr. Simon’s testimony did not comply with the requirement of the court’s order and Ark. Code Ann. § 5-2-305 (1987) in that neither did he express an opinion as to whether appellant possessed the requisite culpable mental state for first-degree murder nor, in making his evaluation of appellant, did he consider any of appellant’s prior psychiatric and psychological records.

Appellee responds by stating that the trial court’s order tracks the language of section 5-2-305 and that while the order requires psychiatric evaluation of appellant, the statute does not so require. Appellee argues it is reasonable to assume that since the trial court’s order tracks the statutory language, it intended that the statutory procedure be followed. In support of this argument, appellee cites Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983), for the proposition that there be substantial compliance with section 5-2-305.

Appellant’s challenge is to the admission of Dr. Simon’s testimony. In evidentiary determinations, the trial court has wide discretion, and we will not reverse absent an abuse of that discretion. State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). Determinations of an expert’s qualifications lie within the sound discretion of the trial court; the standard for measuring an expert’s qualifications is flexible, and if some reasonable basis exists from which it can be said that the witness has knowledge of the subject beyond the knowledge possessed by ordinary persons, his testimony is admissible. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). As Dr. Simon is a forensic psychologist who evaluated appellant pursuant to the trial court’s order, we cannot say the trial court abused its discretion in allowing Dr. Simon to testify concerning his evaluation of appellant’s mental capacity. The trial court acted within its discretion in permitting Dr. Simon’s testimony.

Whether Dr. Simon’s evaluation substantially complied with the trial court’s order appears to be a sub-issue argued by appellant. The trial court entered three commitment orders in this case. On October 7, 1988, the trial court entered an “Order for Commitment of Indigent Defendant for Psychiatric Examination.” This order committed appellant to “the East Arkansas Regional Mental Health Center, Helena, Arkansas, as an outpatient, for expert medical and psychiatric observation, examination, and treatment.” On February 16, 1989, the trial court entered a second “Order for Commitment of Indigent Defendant for Psychiatric Examination.” Inter alia, this order acknowledged that the court had previously entered a commitment order on October 4,1988, re-committed appellant to the East Arkansas Regional Mental Health Center, and stated:

5.
That the “psychological evaluation conducted by the East Arkansas Regional Mental Health Center does not address itself to the issue of the Defendant’s lack of capacity; that it is necessary for the indigent defendant to be evaluated by a qualified psychiatrist for a determination of his psychiatric state at the time of the offense alleged.
6.
That the defendant has informed his counsel that he has been institutionalized for psychiatric problems several times in the past, and the records from such former institutionalization should be made available to a qualified psychiatrist for a determination of his lack of capacity to commit the crimes with which he is charged.

Following these previous two orders, on October 6, 1989, the court entered nunc pro tunc an “Order for Commitment to the Arkansas State Hospital for Psychiatric Evaluation.”

The relevant statute, section 5-2-305, states in pertinent part:

(a) Whenever a defendant charged in circuit court:
(1) Files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause; or
(2) Files notice that he will put in issue his fitness to proceed, or there is reason to doubt his fitness to proceed, the court, subject to the provisions of §§ 5-2-304 and 5-2-311, shall immediately suspend all further proceedings in the prosecution. . . .
(b) Upon suspension of further proceedings in the prosecution, the court shall enter an order:
(1) Directing that the defendant undergo examination and observation by one or more qualified psychiatrists at a local regional mental health center or clinic; or
(2) Appointing at least one (1) qualified psychiatrist to make an examination and report on the mental condition of the defendant; or
(3) Directing the Director of the Arkansas State Hospital to examine and report upon the mental condition of the defendant; or
(4) Committing the defendant to the Arkansas State Hospital or other suitable facility for the purpose of the examination for a period not exceeding thirty (30) days, or.such longer period as the court determines to be necessary for the purpose.
(c) Upon completion of an examination at a local regional mental health clinic or center pursuant to subsection (b) of this section or in lieu of such an examination, the court may enter an order providing for examination pursuant to subsections (b)(2) or (3) of this section and may further order the defendant committed to the Arkansas State Hospital for further examination and observation if the court determines that commitment and further examination and observation are warranted.
(d) The report of the examination shall include the following:
(1) A description of the nature of the examination;
(2) A diagnosis of the mental condition of the defendant;
(3) An opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense;
(4) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time of the conduct alleged; and
(5) When directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.

The October 6, 1989 Commitment Order mirrors the language of section 5-2-305 and states that:

IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the Defendant shall be admitted to the Arkansas State Hospital for inpatient psychiatric evaluation to determine the competency of the Defendant to stand trial on the charges filed herein; that the psychiatrist shall provide the Defendant, the State and the Court with an opinion as to the extent, if any, to which the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time of the conduct alleged; and also for an opinion as to the capacity of the Defendant to have the culpable mental state that is required to establish an element of the offense charged, namely, intent.

We have previously held that a trial court must substantially comply with the requirements of section 5-2-305. Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983). In Ball, we held there was substantial compliance with the statute where a psychiatrist issued his report in the form of two letters. The letters contained all the statutorily required information, although they were not written in the language of the statute.

We adhere to the view that the statute requires substantial compliance. The trial court’s actions did indeed substantially comply with section 5-2-305. We note that while parts of the statute speak in terms of “psychiatric” examination or “psychiatric” evaluation, section 5-2-305(b)(4) speaks only in terms of “the examination” which is to be conducted during a thirty day stay at the state hospital. Thus, the examination conducted during appellant’s stay at the state hospital by Dr. Simon, who is admittedly a psychologist rather than a psychiatrist, substantially complies with the statute.

The record is abounding with evidence of the trial court’s concern with appellant’s psychiatric evaluation. The trial court committed appellant for evaluation, then re-committed him for further evaluation after having determined the initial evaluation was lacking in some respects. After the second commitment order was entered, the trial court, apparently still not satisfied with the report of appellant’s evaluation, entered nunc pro tunc an order committing appellant to the state hospital for further psychological evaluation. At trial then, the court allowed Dr. Simon’s testimony over appellant’s objections. Given the detailed attention of the trial court to the issue of appellant’s evaluation, we are confident the trial court was satisfied that Dr. Simon’s testimony was in substantial compliance with section 5-2-305. Again, we cannot say the trial court abused its discretion in allowing Dr. Simon’s testimony.

II.

THE COURT ERRED BY ALLOWING THE PROSECUTING ATTORNEY TO CONFUSE THE JURY ON THE ISSUE OF STANDARDS FOR INVOLUNTARY COMMITMENT TO THE STATE HOSPITAL.

Dr. George Jones, witness for the defense and clinical psychologist at East Arkansas Regional Medical Health Center, testified that he examined appellant, pursuant to the trial court’s order, to determine appellant’s fitness to stand trial and aid in his defense. On cross-examination, during the same general discussion, Dr. Jones testified about the standards for both involuntary commitment to the state hospital and the standards for determining a mental disease or defect for criminal purposes.

Appellant relies on Ark. R. Evid. 403 and argues the standards concerning involuntary commitment are wholly irrelevant to the standards concerning the legal definitions of mental disease and defect and are of no probative value to this case, but serve only to confuse or mislead the jury. The trial court allowed Dr. Jones’ testimony regarding the standards for involuntary commitment over appellant’s relevance objection because Dr. Jones had referred to these standards in his written report.

Ark. R. Evid. 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. “The relevancy or prejudice matter must be decided by someone. The trial court has been assigned that responsibility in our system and it is the logical and proper place to make such determination. Unless that discretion is abused, we will not reverse the trial court.” Hoback v. State, 286 Ark. 153, 158, 689 S.W.2d 569, 572.(1985). We cannot say the trial court abused its discretion here.

III.

THE COURT ERRED BY ALLOWING A SERIES OF LETTERS EXCHANGED BETWEEN APPELLANT AND HIS EX-WIFE, THE VICTIM, TO BE INTRODUCED INTO EVIDENCE.

During May and June of 1988, several months prior to the murder on September 9, 1988, appellant and his victim exchanged a series of letters relating their personal lives. These letters were admitted by the state as evidence of appellant’s state of mind during the period after the divorce from his victim until the time he shot her.

Appellant argues the letters were too remote in time to the date of the offense to be relevant and that their probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The balancing of probative value against prejudice is a matter left to the sound discretion of the trial court, and his decision on such a matter should not be reversed absent a manifest abuse of discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). As the letters were written just a few months prior to the murder and as they related to appellant’s motive or state of mind, we cannot say the trial court abused its discretion in admitting the letters into evidence.

IV.

THE COURT ERRED BY REFUSING TO GIVE A PROPOSED JURY INSTRUCTION TO THE EFFECT THAT AN ACQUITTAL ON THE BASIS OF MENTAL DISEASE OR DEFECT WOULD NOT MEAN THAT APPELLANT BE SET FREE.

Appellant proffered a jury instruction concerning the consequences which result when a defendant is acquitted on the grounds of mental disease or defect. The trial court denied appellant’s proposed instruction which was based on Ark. Code Ann. § 5-2-314 (1987). The proffered instruction stated that if appellant were acquitted on the ground of mental disease or defect, he would be committed to the custody of the Director of the Department of Human Services, and he would have the burden of proving by clear and convincing evidence that his release therefrom would not create a substantial risk of bodily injury to another person or serious damage of property of another due to mental disease or defect.

We have held that a jury is not to be told the options available to the trial court when a defendant is found not guilty by reason of mental disease or defect. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981). We have most recently affirmed this position in Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991).

Appellant concedes this argument is contrary to our present case law. However, appellant asks us to reverse the current law and adopt his view that since the jury is informed about the possible sentences if appellant were to be found guilty, the jury should also be informed about the nature and extent of the consequences to appellant should he be acquitted by reason of mental disease or defect. Appellant cites us to no authority supporting his position and we decline to reverse our current law to adopt his viewpoint. The trial judge was correct in refusing appellant’s proposed instruction.

V.

SPEEDY TRIAL.

On motion, appellant received our permission to argue pro se the speedy trial issue. The dates which are relevant to the speedy trial date are as follows. On September 9, 1988, appellant was arrested for shooting his wife. On October 7,1988, on appellant’s motion, the trial court entered its first order committing appellant to the East Arkansas Regional Mental Health Center for psychiatric evaluation. On November 17,1988, the East Arkansas Regional Mental Health Center issued its report of appellant’s psychological evaluation. As a result of deficiencies in this report, a second order for commitment to the East Arkansas Regional Mental Health Center was entered on February 16, 1989. After experiencing delays in obtaining the ordered evaluation, an order for the commitment of appellant to the state hospital was entered on October 6, 1989 nunc pro tunc to February 16, 1989. On December 29, 1989, appellant filed a motion to dismiss on speedy trial grounds pursuant to Ark. R. Crim. P. 28.1 and 28.2(a). His motion was dismissed, and appellant was tried on February 13, 1990.

Pursuant to Ark. R. Crim. P. 28.1, the state has twelve months from the time provided in Ark. R. Crim. P. 28.2 to bring appellant to trial, excluding only such periods of necessary delay as provided in Ark. R. Crim. P. 28.3. It is undisputed that the time for trial commenced running on September 9, 1988, the date of appellant’s arrest. The trial was some five months after the speedy trial deadline.

Once it is determined that a trial is held after the speedy trial date has expired, the state has the burden of showing that any delay was the result of appellant’s conduct or was otherwise legally justified. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We hold the state has met its burden here. The period of delay resulting from an examination and hearing on the competency of the defendant is excludable from the twelve-month period. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988); Ark. R. Crim. P. 28.3(a).

Here, the speedy trial date was September 9, 1989, and appellant was tried on February 13,1990. Clearly then, with the period in excess of eight months excluded as a result of appellant’s psychiatric evaluations, the state has complied with the speedy trial rules.

In holding that appellant was not denied a speedy trial, we note appellant’s argument that the trial court failed to make a written order or docket entry stating the number of days to be excluded as required by Ark. R. Crim. P. 28.3(i). We have previously stated that a trial court should enter written orders or make docket notations specifying the reasons for the delays and the specific dates or number of days to be excluded. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). However, we have also stated that a trial court’s failure to comply with Ark. R. Crim. P. 28.3(i) does not result in automatic reversal. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). When a case is delayed by the accused and that delaying act is evidenced by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Id.; see Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).

Here, the details relating the specifics of exactly when appellant was admitted for his various examinations, the length of his stay, and the date any reports were filed are absent from the record. However, the commitment orders entered in this case reveal that appellant made one petition for commitment and two motions for psychiatric evaluation. All three of these actions resulted in commitment orders and consequent psychiatric evaluations of appellant. Appellant cannot now complain about the delays he requested for psychiatric evaluation. We hold the record is sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i).

As required by Ark. Sup. Ct. R. 11(f), the objections decided adversely to appellant have been abstracted; we have reviewed these objections and find that none of them merits reversal.

For the foregoing reasons, the denial of appellant’s motion for new trial is affirmed.


author: Robert L. Brown, Justice.

text:
    John P. GILL; W.W. Elrod, II; Joseph D. Calhoun, III; and Gill Law Firm n/k/a Gill and Elrod, and Arkansas Partnership v. ARKANSAS EMPLOYMENT SECURITY DIVISION of the Arkansas Department of Labor, et al.
    91-15
    812 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered June 24, 1991

      Gill and Elrod, by: Glenn E. Kelly, for appellant.

      Ronald A. Calkins, for appellee.
   Robert L. Brown, Justice.

The appellants, including John P. Gill, filed a complaint wherein they contended that they were entitled to participate in the experience rate of Gill’s predecessor law firm for purposes of determining their unemployment compensation taxes. After answering, the appellees, which include the Arkansas Employment Security Division (AESD), moved for summary judgment, and the chancery court granted that motion. The appellants appeal from that order.

The facts reveal numerous communications involving the three entities: AESD, Gill’s predecessor law firm, and the present Gill law firm. On April 1, 1986, Gill officially terminated his relationship with his old firm. Shortly thereafter, he was advised by AESD that the agency had established 3.4 percent (the amount fixed by statute for new employers generally) as the experience rate applicable to his new firm. Ark. Code Ann. §§11-10-702 (1987) and 11-10-706 (Supp. 1989). At John Gill’s predecessor law firm, the unemployment compensation rate was 1.3 percent due to its favorable past experience. Gill began a campaign to convince AESD that his new firm should have part of the favorable experience associated with his old law firm transferred to it. From April 1, 1986, to June 1987, Gill negotiated with his predecessor law firm over the percentage of business acquired and the portion of the experience to be transferred.

On May 29,1986, Gill sent a Report to Determine Liability form to AESD, which showed that he had acquired 40 percent of the predecessor business. He was subsequently advised by letter that his new firm qualified as an employer for unemployment compensation purposes and that if he disagreed with the decision, he could ask for a hearing. Gill requested a hearing the next day, June 20, 1986. In August 1986, AESD sent a second letter advising him of his new employer status and right to a hearing. He again requested a hearing on his liability status on September 2, 1986.

The communications between Gill and AESD came to a head on September 15,1986, when William D. Gaddy, administrator of AESD, wrote Gill a letter explaining his status:

This is to confirm the telephone conversation you had with one of our staff attorneys, George Wise, Jr., on September 10, 1986, wherein it was agreed that the administrative hearing scheduled for your law firm on October 29, 1986 would be cancelled.
As Mr. Wise explained, we thought your request for a hearing was to contest the liability of your law firm for unemployment contributions. It appears, however, you are seeking a transfer of a portion of the experience rate of your former law firm. This is a procedure for which no hearing is allowed by law or actually needed. To request such a transfer you simply need to send me a petition (it may be in letter form) signed by all interested parties (your former law partners) setting out the percentage of experience that should be transferred. The relevant law is found at Ark. Stats. Ann. §81-1108(c)(2).
Mr. Wise tells me that you have agreed to submit your petition by October 29, 1986. If you are unable to submit such a petition, we will have no choice under the law but to deny the transfer request.

Neither Gill nor his former law partners filed a petition by October 29,1986. It should be noted in this regard that an AESD supervisor wrote Gill a letter dated August 15,1986, in which he stated that a spokesman for Gill’s predecessor law firm had told the supervisor on three occasions that the firm would not agree to any transfer of the experience to Gill’s new firm. The next contact between AESD and Gill occurred in March 1987, when AESD advised Gill that his experience rate would be 3.4 percent. In reaction to this, Gill wrote his predecessor law firm on March 30, 1987, and requested that the firm execute an authorization transferring 35 percent of the firm’s experience in accordance with “our settlement agreement.”

Rather than execute the authorization form, Mike Rainwater, on behalf of the predecessor firm, wrote AESD administrator Gaddy on April 2, 1987, advising him that the firm and Gill had reached an agreement for the assignment of 35 percent of the firm’s experience to Gill. Rainwater stated that the agreement further provided that if the assignment cost the firm additional expense, Gill would pay the amount to the firm. Rainwater then asked Gaddy to provide him with the amount of any additional cost to the firm that might be occasioned by the transfer. Rainwater concluded by saying that his firm would assign 35 percent of the experience to Gill after receiving figures for any additional cost from AESD.

Gaddy replied to Rainwater by letter dated April 10, 1987, notifying him that any future costs could not now be calculated. Gaddy then set out the position of AESD relative to Gill’s failure to meet the October 29, 1986 deadline:

Efforts by members of our Contribution staff to resolve the transfer of experience issue last summer proved futile. One of our staff attorneys, George Wise, Jr., explained our position to Mr. Gill in a telephone conversation last September 10, 1987. Mr. Gill agreed to submit a petition requesting transfer of the experience rate signed by all interested parties by October 29,1986. In confirming this agreement, I advised Mr. Gill that should he be unable to meet the October 29, 1986, deadline, we would have no choice under the law but to deny his request.
Although you may submit a petition requesting transfer of the experience rate, a petition submitted now would be untimely. Your letter of April 2,1987, is not acceptable as a petition as it is not signed by all interested parties. Further, in our opinion, a petition may not be conditioned on future experience rates (see Arkansas Statute Annotated Section 81-1108(e)(2).

Gill was not sent a copy of this letter until the latter part of 1987.

From April 1, 1986, forward, Gill paid unemployment compensation taxes based on the 1.3 percent experience rate assigned to his former firm. AESD, however, adhered to the 3.4 percent rate and assessed additional taxes and interest against Gill in the amount of $4,860.70. To enforce the assessment, AESD filed liens against the appellants’ property. On October 6, 1988, the appellants filed their complaint against the appellees in chancery court and prayed 1) to enjoin AESD from executing on the liens and to expunge those liens; 2) to declare that AESD’s actions were violative of Gill’s due process rights; and 3) to order a transfer of part of the experience from Gill’s predecessor law firm to his present law firm. AESD moved for summary judgment on May 1, 1989, and the chancery court granted the motion.

Gill argues first that there were issues of material fact that militate against summary judgment in this case. The appellants are correct that we have held many times that summary judgment is an extreme remedy; that if there are issues of material fact to be decided, summary judgment is not appropriate; that the burden of proving no issues of material facts was on the appellees; and that all proof submitted must be viewed in favor of the appellants and all inferences and doubts resolved against the appellees. See, e.g., Car Transportation v. Garden Spot Distributors, 305 Ark. 82, 805 S.W.2d 632 (1991); Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991); Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782 (1990); see also Ark. R. Civ. P. 56(c).

In this case, however, the law is clear and specific on what is required to transfer part of a predecessor firm’s experience from one employer to another. See Ark. Code Ann. § 11 -10-710(b)(1) (1987). The statute first contemplates an acquisition by the successor employer of part of the predecessor’s business. It then requires that “if the successor desires to obtain any benefit of his predecessor’s experience, the successor must file with the administrator a petition, signed by all interested parties, within thirty (30) days after the transfer setting out the percentage of the predecessor’s experience that should be transferred to the successor’s account.” Under the statute, if the AESD administrator finds the facts “substantially as represented,” he shall transfer the proportionate share of the predecessor’s experience to the new employer. See Ark. Code Ann. § 11-10-710(b)(2) (1987).

Here, no petition signed by all interested parties was ever filed with AESD. Indeed, under the facts before us there is no evidence that Gill’s predecessor law firm and his new law firm ever consummated a transfer of experience. Rainwater’s letter to Gaddy only contemplates such a transfer. And under the statute it is the consummated transfer that triggers the filing of the petition. Moreover, according to the complaint and discovery, Gill and his predecessor firm did not even agree on the portion of the predecessor business acquired by Gill until June 1987. The percentage of the business acquired would have a bearing on, if not be conclusive of, the portion of experience to be transferred.

Gill argues before us that the Rainwater letter to Gaddy dated April 2,1987, was, in effect, evidence of the transfer of the experience rate to Gill and that it should have been treated also as a petition to AESD for the transfer of the segregable experience under Ark. Code Ann. § 11-10-710(b)(1).

But the Rainwater letter only sets forth the percentage of the experience tax rate to be transferred, and therein lies the problem. If no portion of the experience had been finally transferred as of April 2,1987 (and the letter from Rainwater to Gaddy confirms that), there could be no valid petition to submit to AESD. A transfer of the experience between employers must necessarily precede the filing of the petition signed by all interested parties under § 11-10-710(b)(1). Even had a transfer occurred as of the date of Rainwater’s letter, the letter does not qualify as substantial compliance with the petition requirement because it does not ask for approval and was not signed by all interested parties. The chancellor, therefore, was eminently correct in her finding of lack of compliance with the requirements of § 1 l-10-710(b)(l).

We have held in the past that substantial compliance with §11-10-710(b)(1) is sufficient for the transfer of a predecessor’s experience. See Hayes v. Ward Ice Cream Co., 258 Ark. 309, 523 S.W.2d 923 (1975). In Hayes the new employer mailed to AESD the Report to Determine Liability signed by him and reflecting the names and addresses of the predecessor and successor firms and the date of acquisition of a portion of the business. The successor employer did not file a petition with AESD, however, requesting a transfer of part of the predecessor’s experience rating. Nevertheless, we held that the information contained in the Report to Determine Liability was enough information to constitute an application for a portion of the predecessor’s experience rating. It bears mention, however, that the acquisition in Hayes occurred in 1970, which was prior to the enactment of Act 35 of 1971. Act 35 required for the first time that a petition, signed by all interested parties, be filed with the AESD. {See, for example, Act 93 of 1963, which was in effect in 1970 and which required that only an “application” be submitted by the successor employer.)

Here, insufficient information was provided to AESD to evidence a definite acquisition of part of the business by Gill or any transfer of part of the predecessor’s experience. First, Gill does not argue that his Report to Determine Liability was in the nature of a petition, as was done in Hayes, though that Report, filed on June 2, 1986, shows an acquisition of 40 percent of the predecessor firm. He argues instead that Rainwater’s letter to Gaddy dated April 2, 1987, was in the nature of a petition. Yet, that letter quotes their agreement whereby the predecessor firm will “use their best efforts” to assign 35 percent of their rating to Gill, conditioned on there being no additional cost to the firm. By its terms the letter is void of the definiteness and specificity necessary to qualify for a factual finding by the AESD administrator that a transfer of experience should occur.

The chancery court was further correct in finding that Gaddy’s response to Rainwater did not amount to a “determination” by AESD under the Code. See Ark. Code Ann. § 11-10-710(d)(1) (1987). Without the completed acquisition of a portion of the predecessor’s firm’s business and without the actual transfer of a specific percentage of the predecessor firm’s experience and without a petition filed with AESD and signed by all interested parties so that AESD could finalize the transfer, it logically follows that there can be no determination of the allocated experience by the AESD administrator. Under these circumstances the existence of a determination was not a material issue of fact remaining to be decided.

Nor did the chancery court err in finding that Gill never sought a hearing before AESD regarding its acquisition of part of the predecessor firm in June 1987. It is clear that Gill requested two hearings pertaining to his liability as a new employer in 1986. But equally as clearly, those requests could not have related to a June 1987 acquisition and the resulting transfer of experience, and it is that acquisition to which the chancery court referred. Even if Gill is correct that the experience transfer was evidenced by Rainwater’s April 2,1987 letter, requests for hearings made in 1986 were premature. Moreover, § 11-10-710(b)(1) does not contemplate hearings on experience transfers, and Gaddy so advised Gill in his letter of September 15, 1986.

But the statute does provide ample opportunity for a disgruntled employer to pursue his remedies. First, he has the right to file an application for review and redetermination within twenty days of a determination. Ark. Code Ann. § 11-10-711(d)(1) (1987). Gill believed that the AESD administrator made a determination in his April 10, 1987 letter to Rainwater, but Gill did not apply for review. An employer’s remedies also lie in chancery court. See Ark. Code Ann. § 11-10-710(d) (3) (1987); Jones v. Crouch, 231 Ark. 720, 332 S.W.2d 238 (1960). And this is the course that Gill chose to pursue.

For his second issue Gill argues that a material issue of fact exists regarding whether the General Assembly has delegated to predecessor employers the authority to control successor employers’ unemployment compensation taxes. To be sure, §11-10-710(b)(1) appears to contemplate an agreement between predecessor and successor employers on the experience to be transferred, when it refers to a petition “signed by all interested parties.” Contrary to Gill’s argument, however, the General Assembly has not delegated taxing authority to the predecessor firms. The tax rate for new employers is fixed by legislative enactment. See Ark. Code Ann. §§ 11-10-702 (1987) and 11-10-706 (Supp. 1989). The General Assembly has also specifically established a statutory mechanism for AESD to administer transfers of portions of a predecessor’s experience, when the predecessor and successor employers agree. In effect, the AESD administrator performs a ministerial function in examining the accuracy of the experience to be transferred. In the event there is no agreement, or, as Gill argues, the predecessor firm is recalcitrant, the successor employer may pursue his remedies against the predecessor in court. These remedies against the predecessor are in addition to any remedies that the successor employer may have against AESD under the statute, as already noted. Here, Gill pursued his remedy in chancery court, and the chancellor found no illegal delegation due to the requirement that the predecessor firm concur in the petition to transfer. We agree.

Nor does the process set out in Ark. Code Ann. §11-10-710 constitute an illegal exaction due to predecessor control for the reasons already stated.

The chancery court order is affirmed.

Newbern, J., not participating.


author: William I. Prewett, Special Justice.

text:
    Gerald W. DILLON v. RESOLUTION TRUST CORPORATION, as Conservator for Madison Guaranty Savings and Loan Association
    90-334
    811 S.W.2d 765
    Supreme Court of Arkansas
    Opinion delivered June 24, 1991

      Crockett & Brown, P.A., by: Richard E. Worsham, for appellant.

      Wetzel & Pruniski, by: Frederick S. Wetzel III, for appellant.
   William I. Prewett, Special Justice.

On March 21,1985, appellant Dillon executed a promissory note in the principal amount of $14,000 providing for 23 monthly payments of $161.53 plus a 24th payment of the principal amount of $14,000 plus $161.53. The stated interest rate was 13% per annum. Payments of $161.53 per month as provided in the note with the 24th payment being in the amount of the original principal plus the monthly stated amount is an interest charge of 13.84543 % per annum at a time when the maximum legal rate was 13%. The trial court found the note to be usurious; the monthly payment of $161.53 was obviously intended in interest only. However, the trial court further found interest in excess of the maximum lawful rate had not been paid and awarded no relief for the usurious contract. Dillon has appealed from the refusal of the trial court to award relief.

We reverse and remand to the trial court for further proceedings in accordance with this opinion.

Although appellee does not admit the 1985 note is usurious, no serious argument is or can be raised with this decision by the trial court. The principal amount of the note was $14,000 at the time of its execution. The final and 24th payment provided for a balloon payment of $14,000 plus the monthly installment of $161.53. Subsequent to the filing of this litigation, appellee caused to be prepared a schedule whereby an amount equal to thirteen percent (13 %) per annum was allocated to interest with the balance of the payment allocated to principal. The fallacy in this is threefold: (1) it directly conflicts with the specific payment provisions of the note; (2) the note provides for a “Finance Charge” of $3,876.50 (24 x 161.53); and (3) the principal allocations were not made during the term of the note. Dillon paid 23 installments, all of which were interest under the terms of the note. The issue in this appeal is whether interest in excess of the maximum lawful rate was paid by appellant. Article 19, § 13 of the Arkansas Constitution provides: “A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid.”

According to the payment history submitted by appellee, the first payment of $161.53 was made on April 16, 1985; interest at thirteen percent (13%) per annum to the date of the first payment was $ 129.64. As stated by the trial court, “the note did not contemplate or authorize the lender to allocate such payments in part to principal and in part to interest. . . . Defendant (appellant) correctly argues that interest payments of $161.53 exceed the maximum permissible rate of 13% per annum, and render the note usurious.” We agree. The after-the-fact payment history presented by appellee credits the excess payment of $36.82 to principal, but under the terms of the note, the $36.82 was interest and appellant thereby paid interest at a rate in excess of the maximum lawful rate.

Appellee correctly states that findings of fact made by the trial court shall not be set aside unless clearly erroneous. The facts in this case are not in dispute. Terms of the note and dates of payments are admitted. It requires no expert testimony to compute the interest which would be owed at 13 % per annum. From the first payment, the interest paid was in excess of the maximum lawful rate. In Brookshire v. Coffman, 287 Ark. 112, 115, 696 S.W.2d 748, 750 (1985), this court stated, “[W]e will not countenance an attempt to evade our pre-Amendment 60 usury law through tricky, multiple transactions.” Once it is determined that a charge of excess interest is made by the terms of the note, it is usurious. Subsequent unilateral action whereby the excess interest is called principal will not give new life to the usurious contract. The usurious nature of the 1985 note simply cannot be purged by the subsequent allocation of a part of the interest payment to principal. Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W.2d 68 (1973).

The trial court, in holding no interest in excess of the maximum rate was paid, used the total dollars of $3,683.60 paid by appellant from the first payment of April 21,1985, to the date of the Modification Agreement of September 23, 1987, and concluded that appellant had failed to pay any “excess interest” since 12 % per annum on $ 14,000 for this period of time would be more than the sum of $3,683.60. The computation by appellee, however, shows that payments totaling $3,876.73 (including unilateral principal allocations) were made through March 24, 1987; accrued interest according to appellee’s computation at that date was $3,716.74 (included interest on $1,151.00 from July 1, 1986, to October 17, 1986, for insurance purchased by appellee). By appellee’s own computation, it received $159.99 more than the lawful interest. Amendment 60 becomes operative when interest is paid at a rate in excess of the maximum lawful rate.

Assuming all payments were made on the exact due date, appellee intended a “Finance Charge” of $3,876.50 when the maximum of 13 % would be $3,640.00. During the first year, appellant made payments totaling $1,938.46; in its reconstruction, appellee calls $1,798.39 interest and allocates the difference of $ 140.09 to principal. However, under the terms of the note, this was not principal; it was interest. The test of whether the note is usurious is judged as of the time the note was made. General Contract Corp. v. Duke, 223 Ark. 938, 270 S.W.2d 918 (1954).

Amendment 60 amended Art. 19 § 13 of the Arkansas Constitution to specifically make the contract “void as to unpaid interest;” thus the 1985 note was void (not voidable) from the beginning as to unpaid interest thereby making all interest paid unlawful. Recovery of twice the “amount of interest paid” is authorized provided the obligated person “has paid interest in excess of the maximum lawful rate.” Amendment 60 does not limit the recovery to “excess” interest but provides that a person who has paid interest in excess of the maximum lawful rate may recover “the amount of interest paid.” Appellant argues that the part of Amendment 60 “making it unlawful for any person to knowingly charge a rate of interest in excess of the maximum lawful rate” brings into effect the permissible recovery of interest; we do not consider the argument as it is not necessary to determine the meaning of this provision for this appeal. Nor is it necessary to decide what the effect would be if the total payments did not exceed the maximum lawful interest even though the appellee charged a rate in excess of the maximum lawful rate.

On September 23, 1987, Dillon executed a “Modification Agreement” to pay $14,543.75 at 11 % interest per annum (the legal maximum) installments of $300 per month. In addition, he paid back interest on October 29,1987, in the amount of $1,097.31, commenced the $300 per month installments on November 28,1987, and last made a payment on April 11,1988. This litigation then ensued.The 1987 Modification Agreement is not in itself usurious but is clearly a continuation of the 1985 note. The 1985 note is still in effect modified as to interest and payment amount by the 1987 Agreement. Usury is determined as of the inception and the subsequent modification will not purge the original vice.

Appellant paid interest in excess of the maximum lawful rate. We reverse the trial court’s finding that no excess interest was paid and remand to the trial court for a determination of the amount appellant is entitled to recover. The trial court has not passed on the questions of whether appellant is entitled to recover all interest paid or only the “excess” interest nor has it addressed the application or lack of application of the double interest provision; accordingly, we leave these questions for the trial court.

We remand for further proceedings and assessments under Amendment 60 not inconsistent with this opinion.

Reversed and remanded.

Brown, J., not participating.


author: Per Curiam.

text:
    Daniel L. MEDLOCK, et al. v. James C. PLEDGER, et al.
    89-89
    809 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered June 24, 1991

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellant.

      William E. Keadle, Revenue Legal Counsel, for appellee.

      Henry Law Firm, by: Joseph Morphew and David P. Henry, for appellee.

      Robert Parker, Benton City Att’y, for appellee.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee.

      Larry Vaught, Pulaski County Att’y, for appellee.

      James N. McCord II, for intervenor/appellee, City of Fayettville.
   Per Curiam.

After a per curiam order was delivered on June 3, 1991, a motion by the appellants to establish a briefing schedule was submitted. The appellants wish to brief both the equal protection issue referred to in the mandate of the United States Supreme Court and an issue concerning federal legislation and the supremacy clause which they raised, but which was not considered, in the first appeal. The appellants will be permitted to brief both issues. The briefing schedule is amended so that the appellants’ brief will be due 40 days from this date, and the times for remaining briefs to be filed will be governed by the provisions of Rule 7 of the Rules of this Court.


author: Per Curiam. Robert L. Brown,

text:
    Herbert WILSON a/k/a Herbert Jones v. STATE of Arkansas
    CR 91-23
    810 S.W.2d 337
    Supreme Court of Arkansas
    Opinion delivered June 24, 1991

      J.F. Atkinson, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant is appealing the denial by the trial court of a petition for post-conviction relief filed pursuant to Criminal Procedure Rule 37. The appellant’s brief filed by the attorney appointed to represent the appellant is flagrantly deficient in that there is no abstract of the information, judgment and commitment order, the Rule 37 petition, or the court’s order denying the Rule 37 petition. Counsel now seeks permission to supplement the abstract. The state argues that it would be unfair to permit the appellant to remedy the deficiencies with a supplemental abstract after the state’s brief has already been filed.

Although the appeal is from an order denying post-conviction relief and the right to effective assistance of counsel under the sixth amendment does not extend to collateral attacks on a judgment, we will not penalize the appellant by dismissing the appeal because his attorney prepared a deficient brief. If appellant had been proceeding pro se and had submitted a deficient abstract, we would not hesitate to affirm pursuant to our Rule 9 since a litigant who elects to proceed pro se is required to conform to the rules of procedure. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). Where the error was made by appointed counsel, however, we will permit the abstract to be supplemented.

A copy of this opinion shall be forwarded to the Committee on Professional Conduct.

Motion granted.

Dudley and Brown, JJ., concur.

Glaze, J., dissents.

Robert L. Brown,

concurring. There is a dramatic inconsistency in the majority’s treatment of the appellant, Herbert Wilson, and his court-appointed counsel in this case and the treatment of a pro se inmate a few short months ago. See Fruit v. Lockhart, 304 Ark. 457, 802 S.W.2d 930 (1991). In Fruit the majority held that an inmate without the benefit of counsel who failed to abstract testimony in his brief had no recourse under Ark. Sup. Ct. R. 9(e)(2). The trial court judgment in Fruit which denied the inmate relief was summarily affirmed.

Now, since the appellant has court-appointed counsel, the majority has decided that it is unduly harsh to affirm the trial court judgment, and we are giving an appellant with counsel a second chance to correct a deficient abstract at his own expense. Why was the situation not unduly harsh, when a pro se inmate was effecting on his own and neglected to abstract the record? The appellant in this case had the benefit of counsel who presumably was familiar with our Rule 9(e)(2), or should have been. The same cannot be said of an inmate without counsel. Yet we give the appellant with counsel a second chance. We should have held just the opposite in this case and in Fruit v. Lockhart. The clear message from these two decisions is that an unrepresented appellant does not receive the same consideration under our rules as an appellant with counsel.


author: Jack Holt, Jr., Chief Justice.

text:
    John McGALLIARD v. STATE of Arkansas
    CR 91-147
    813 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

      Ron Fields, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, John McGalliard, was convicted of sexual abuse in the first degree and sentenced to seven years imprisonment and a $2,000 fine.

On appeal, he argues that the Arkansas Criminal Code’s definition of “sexual contact” is unconstitutionally vague and that there was insufficient evidence to support the verdict. We disagree with both arguments and affirm.

The evidence of abuse in this case came primarily from the testimony of the victim, who stated that McGalliard touched her “between my legs . . . (indicating) right there in the middle. . . my private parts.” She stated that the touching occurred for “about an hour” and that “if I told, he would beat me black and blue.”

Because the victim was a nine year old minor, McGalliard was charged with violation of Ark. Code Ann. § 5-14- 108(a) (3) (1987), which provides:

(a) A person commits sexual abuse in the first degree if:
* m * *
(3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.

“Sexual contact” is defined as “any act of «exual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(8) (1987). McGalliard contends that because “sexual gratification” is not defined, the statute does not give fair warning of what behavior is prohibited and, therefore, violates the due process clause of both the Arkansas and the United States Constitution.

A law is void for vagueness if it lacks ascertainable standards of guilt such that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We fail to see how section 5-14-101(8) compels such persons to guess at its meaning and application.

“Sexual” is defined in Webster’s Third International Dictionary, unabridged (1961), as “of or relating to the male or female sexes or their distinctive organs or functions” or “of or relating to the sphere of behavior associated with libidinal gratification.” “Gratification” is defined as “something that pleases.” Id. When construed in accordance with their reasonable and commonly accepted meaning, and in context with the specific acts described in section 5-14-101(8), the words leave no doubt as to what behavior is prohibited under the statute.

Furthermore, we are guided by our rationale in Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989). There, Williams was convicted of rape in that he engaged in deviate sexual activity with the victim. The code’s definition of “deviate sexual activity” also includes acts involving “sexual gratification”. Williams argued that although there was evidence he inserted his fingers into the victim’s vagina, there was no evidence he did so for “sexual gratification” as required by the statutory definition of “deviate sexual activity.” We reasoned thusly:

Although there is no direct evidence that the petitioner put his fingers in the victim’s vagina for sexual gratification, it may be assumed that the desire for sexual gratification was the plausible reason rather than out of revenge or out of anger as the petitioner suggests. The plain fact is that when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.

298 Ark. 320, 766 S.W.2d at 934. Likewise, we may assume that McGalliard touched the victim for sexual gratification and it is not necessary that the State prove that he was so motivated.

McGalliard’s second contention, that the evidence was insufficient to support the verdict, is also without merit. The trial court noted that McGalliard raised this objection through timely motions for directed verdict. On appeal, we view the evidence in the light most favorable to the party against whom the motion is made and a directed verdict is only proper when there is no substantial evidence from which a jury could possibly find for the non-moving party. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); see also Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

The victim clearly described and indicated where she was touched. The victim’s testimony need not be corroborated to be sufficient. Jackson v. State, supra. Also, “even though the child may not use the correct terms for the body part but instead uses her 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 the act occurred.” 290 Ark. at 385, 720 S.W.2d at 287.

We affirm the judgment of conviction.


text:
    Jay SAMPLES v. Genell SAMPLES, D.L. Sitton Motor Lines, Inc., A Missouri Corporation, and Mark A. Summers
    91-68
    810 S.W.2d 951
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Merritt & Rooney, Inc. by: Michael T. Rooney, for appellant.

      Hardin, Jesson, Dawson & Terry, by: Robert T. Dawson and Gregory L. Crow for appellee Genell Samples.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Richard N. Watts, and Brian Allen Brown for appellee D.L. Sitton Motor Lines, Inc. and Mark A. Summers.
   Jack Holt, Jr., Chief Justice.

This case involves a negligence suit brought by the appellant, Jay Samples, arising from an automobile accident. Mr. Samples was a passenger in a Ryder truck driven by his wife, appellee Genell Samples, that was struck from behind by a truck driven by appellee Mark Summers during the course of his employment duties with appellee, D.L. Sitton Motor Lines.

On June 11, 1990, the trial court entered a judgment reflecting the jury’s verdict that none of the appellees were negligent and dismissed the case. Mr. Samples appeals and alleges 1) that the trial court committed reversible error when it improperly instructed the jury on the issue of “sudden emergency” where all of the evidence supported a finding of negligence on the part of one or all of the defendants, 2) that where a jury instruction is given that confuses or misleads a jury, the judgment must be reversed, and 3) that the jury’s verdict was not supported by substantial evidence because there was no evidence adduced at trial that the accident was unavoidable and all of the evidence clearly demonstrated negligence on the part of one or all of the defendants.

We are unable to consider Mr. Samples’s plea for reversal because of a total noncompliance with Ark. Sup. Ct. R. 9. Rule 9(d) requires, in part, that an appellant’s abstract should consist of an impartial condensation of only such material parts of the pleadings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision.

A key issue in the case below, and the principal point on this appeal, concerns a contested jury instruction on sudden emergency. Yet, that jury instruction, though referred to in argument, is not abstracted. The abstract is likewise flagrantly deficient with regard to Mr. Sample’s claim of insubstantial evidence in that he has not included a motion for directed verdict, a material part of the proceedings, with regard to this issue. See Willson Safety Prod. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990); Ark. R. Civ. P. 50(e).

Additionally, in Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990) (citing Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987)), we stated that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. With particular reference to the pleadings in this case, Mr. Samples has failed to abstract the appellees’ answer, the notice of appeal, and the judgment.

In sum, then, Mr. Samples’s entire abstract of a 619 page, four-volume record consists of his petition and snippets of testimony, which are totally inadequate for an understanding, much less for a resolution, of the issues presented. Logan County v. Tritt, supra. We also note that Mr. Samples was given a second opportunity to appropriately abstract the record on appeal, yet he has failed to conform his abstract to our rules.

Consequently, the judgment is affirmed.

Glaze, J., not participating.


author: Steele Hays, Justice.

text:
    Billy J. WAWAK and Earlene WAWAK, His Wife v. AFFILIATED FOOD STORES, INC.
    90-296
    812 S.W.2d 679
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Hoof man & Bingham, P.A., by: B. John Biscoe Bingham, for appellant.

      David E. Smith, for appellee.
   Steele Hays, Justice.

By this appeal we must decide which of two conflicting claims to security interests in the inventory of a supermarket is subordinate under Article 9 of the Uniform Commercial Code.

Appellants Billy J. Wawak and Earlene Wawak began operating the Oak Grove Supermarket in 1978. The Wawaks acquired their stock from appellee Affiliated Food Stores, Inc., which secured its account with them by a security agreement and U.C.C. financing statement covering the inventory of the supermarket.

In 1986 the Wawaks made arrangements to sell the supermarket to Robert S. Davis, operating under the names Bob’s Thriftway and Bob’s Supermarket of Arkansas. Davis and the Wawaks signed an agreement under which Davis began operating the supermarket on January 28,1986, while the documents of sale were being prepared.

Davis made immediate arrangements with Affiliated Food Stores to purchase inventory for the Oak Grove supermarket and executed a security agreement and financing statement with Affiliated covering the inventory of the supermarket. The financing statement and security agreement were properly recorded on February 6, 1986.

In April Davis and the Wawaks completed their transaction and Davis executed a security agreement and financing statement covering the inventory to secure the indebtedness due the Wawaks. These instruments were properly recorded on April 8, 1986.

After some eighteen months Davis declared bankruptcy and on January 15, 1988, the Wawaks took possession of the supermarket and inventory from the trustee in bankruptcy. The Wawaks sought a declaratory judgment that their security interest was prior and superior to the security interest of Affiliated Food Stores, Inc. The circuit court ruled that the security interest of Affiliated Food Stores, Inc., was prior to that of the Wawaks and they have appealed. Since we agree with the trial court that the security interest of Affiliated was prior to that of Wawak, we affirm the judgment.

Appellants maintain that under Ark. Code Ann. §4-9-203(1) (1987) a security interest does not attach until the debtor has “rights in the collateral”. They contend that Davis had no rights in the inventory of the supermarket, the collateral, until April 7,1987, when the sale was completed. Prior to April 7, they submit that Davis was merely a “manager” or “bailee,” citing several authorities interpreting “rights in the collateral” under § 4-9-203: Uniform Commercial Code, 3d Ed., § 22-6 (1988); B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code § 2.4 (1980); D. Baker, A Lawyer’s Guide to Secured Transactions §2.4 at 85 (1983).

But those treatises are largely general, and relate to different situations, situations in which goods are owned by third parties, with mere possession by a debtor proving insufficient to establish rights in the collateral. In contrast, it can hardly be disputed that Davis had more than naked possession. He was effectively the buyer in possession of a going concern, fully empowered to convey title to the collateral to purchasers in the ordinary course of business. Ark. Code Ann. § 4-9-307 (1987). The profits, as well as the losses, were his from and after January 28, when he took possession and began operating the supermarket. Moreover, the final sale documents reflect that the sale to Davis became “effective as of January 27, 1986.” The fact that the sale was still in process on February 7,1986, does not mean he was without rights in the collateral within the context of § 4-9-203.

While the code does not define “rights in the collateral,” and this court has not had occasion to construe the term, other states have done so, compatibly with the result we reach. See e.g., First Security Bank of Idaho, N.A. v. Woolf, 111 Idaho 680, 726 P2d 792 (1986):

Possession of the collateral, accompanied by a contingent right of ownership, has been held sufficient for a security interest to attach. Amfax Mortgage Corp. v. Arizona Mall of Tempe, 618 P2d 240 (Ariz. App. 1980). An interest greater than naked possession has been deemed a sufficient right in the collateral to satisfy the requirements of statutes similar to I.C. Sec. 28-9-203 (l)(c). See Morton Booth Co. v. Tiara Furniture, Inc., 564 P2d 210 (Okla. 1977); Evans Products Co. v. Jorgensen, 421 P2d 978 [3 UCC Rep. Serv. 1099] (Or. 1966).

Appellants urge that in Exchange Bank and Trust Co. v. Glenn’s Marine, Inc., 265 Ark. 508, 579 S.W.2d 358 (1979), we recognized that possession alone, without ownership, was not a sufficient interest to allow a secured party of the debtor to attach the collateral in question, stressing that we looked to the actual agreement between the third party and the debtor to determine who had title to the collateral. But that case has only a passing likeness to the case at bar. There the issue was narrowed to the limited question of when title passes in a sale on approval, and we were not considering the question of a debtor’s rights in collateral being sufficient to sustain a security agreement under § 4-9-203.

Another factor militates for affirmance. Ark. Code Ann. § 4-9-303(1) (1987) provides that when all the applicable steps to perfect a security interest are taken before the interest attaches, it is perfected at the time it attaches. T. Quinn, Uniform Code Commentary and Law Digest, § 9-303 [B] (1978) has this comment;

Perfection [the completion of all security agreement steps, plus filing] under §4-9-303 does not require a particular sequence of events. Thus, a security interest was perfected even though the financing statement was filed prior to the time the security interest attached. In re Rivet, 299 F. Supp. 374 (E.D. Mich. 1969).

Here, even if we could agree that Davis’s rights in the collateral did not mature until April 7 when the sale was concluded, the Wawaks’ security interest was not perfected until April 8 when their documents were filed, whereas under § 4-9-303(2) the security interest of Affiliated Food was perfected on April 7 at the instant Davis’s rights in the collateral attached.

Finally, appellants propose in the alternative that these competing interests be prorated according to the equities. But appellants have cited no authority, nor have we found any, that considers such a remedy when, as here, the collateral is inventory. For a discussion of the limited situations where such a remedy might be applicable, see B. Clark, The Law of Secured Transactions § 3.09[5] (1988).

Affirmed.


author: Tom Glaze, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, Child Support Enforcement Unit v. John Henry PORTER, Jr.
    90-262
    810 S.W.2d 949
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      L. Suzanne Penn and Joe Childers, for appellant.

      Baxter, Eisele, Duncan & Jensen, by: Karen Wallace Duncan, for appellee.
   Tom Glaze, Justice.

This case involves the appellee’s arrearages in child support for his two children. Under the divorce decree filed on May 8,1980, appellee was ordered to pay $40.00 per week in child support for his two minor children, a son, Stacy Porter, and a daughter, Joyce Porter. Because of the appellee’s failure to pay the child support, the Arkansas Department of Human Services, appellant, filed a motion for citation and petition for relief on March 14, 1989. In his response, the appellee argued that since his son turned eighteen on February 23,1988, the child support on that child should have abated on his birthday, thus reducing the amount of child support arrearage to $20.00 a week from that date.

Before the hearing, the parties stipulated that the appellee’s arrearage would be $3,747.00 if no abatement or allowance was made for when the son turned eighteen, or the arrearage would be $1,787.00 if the court abated the son’s child support effective on his eighteenth birthday. The chancellor chose the latter and awarded $1,787.00 to the appellant. The appellant appeals from this ruling arguing that the chancellor erred in retroactively reducing the appellee’s child support arrearages. We agree and therefore on de novo appeal, we reverse and direct the chancellor to award $3,747.00 to the appellant.

Before addressing the merits of this appeal, we note that the appellant failed to abstract the parties’ final divorce decree. However, the appellee provided the pertinent paragraph in his brief, and we will consider that as a supplemental appendix offered by the appellee. See Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991). For the purposes of this appeal, the essential paragraph in the divorce decree provides the following:

The Court further finds that two children were born to this marriage, to wit: Stacy Tyrone Porter, born 2/23/70 and Joyce Porter, born 2/4/73, who are presently in the care and custody of the plaintiff who is a fit and proper person for their care and custody. That the defendant is an able-bodied man capable of earning a livelihood and should pay to plaintiff the sum of $40.00 per week as child support for said minor children. . . .

The appellant argues that the chancellor could not reduce the appellee’s child support arrearages- since he never filed a motion to modify the child support when his son turned eighteen. Clearly, the appellant is correct. In Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962), this court held that the father could not, on his own volition, reduce his $200 child support payment when one of his children turned eighteen. In support of its holding, the court gave the following three reasons: 1) the court (and the court alone) had the right to change the amount of the award for the support of the children; 2) the court could have continued the original award for the child who had become eighteen; and 3) the award of $200 was for the maintenance for three children, and the appellant had no right to conclude that $66.67 or an equal '/i was for the child who had become eighteen. See also Thompson v. Thompson, 254 Ark. 881, 496 S.W.2d 425 (1973).

The Jerry decision and underlying rationale apply to the present case. Clearly there was no showing that the $40.00 per week child support in the parties’ decree was to be split equally between the two children. In this same vein, the chancellor, only, had the right to change the amount of support, and in fact, did so during this proceeding below by setting child support for the remaining minor child, Joyce, in the amount of $32.50 per week. Although appellee complains that it is inequitable to require him to file a petition to terminate child support payments when a child attains majority, this court has pointed out that such a procedure or resulting litigation can be avoided by setting forth in the decree under what circumstances child support payments will terminate without the necessity of a court’s intervention. Id., 254 Ark. at 884, 496 S.W.2d at 427.

Further, statutory law supports this holding. In particular, Ark. Code Ann. § 9-12-314 (Repl. 1991), provides the following:

(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion. . . .

In sum, since the appellee did not file a motion to modify child support when his son turned eighteen, the chancellor could not retroactively reduce the appellee’s child support arrearages which had become final judgments. We reverse the chancellor’s holding and award the appellant $3,747.00, the parties’ agreed sum for the appellee’s child support arrearages.


text:
    Vina Mae THOMPSON v. STATE of Arkansas
    CR 90-193
    813 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered July 1, 1991

      Charles L. Stutte, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals from her conviction for first degree murder sentencing her to life imprisonment. In her appeal, the appellant argues four points of error concerning evidentiary rulings by the trial court. We find no reversible error and therefore affirm.

The appellant and the victim, William Craig Barker, had an off-and-on relationship for approximately eight years. All of the witnesses agreed that they often fought. Throughout her trial, the appellant admitted shooting Barker, but she contended that she did so in self-defense. According to the appellant’s account, she and Barker had been fighting on the day of the shooting. Around 3:00 p.m., the appellant, after having visited with her mother, returned to Barker’s sister’s house where he was alone cooking beans.

Appellant recounts that Barker yelled at her and called her names for being late and accused her of being with her ex-husband. He then allegedly grabbed her and shoved her into the stove. Appellant testified that Barker told her, “You, bitch, you’re finally going (to) get what you deserve.” At this time, Barker went to the drawer and started pulling something out. Appellant stated that her first thought was that it was a gun and all that she could see was the handle as he was pulling it out. The only weapon the police found at the scene was a butcher knife. Appellant claimed that she shot at Barker, and continued shooting as he came towards her and until he went out the door. Barker died later at the hospital from four gunshot wounds. The medical examiner testified that the majority of these bullets were in the victim’s back.

The appellant’s first two points concern the admissibility of two statements made by Barker after he was shot. The trial court admitted into evidence, as a dying declaration hearsay exception, Barker’s statement, “Vana Thompson shot me,” but refused to admit into evidence under the same exception, Barker’s statement “Don’t do anything to harm Vina.” In order to qualify as a dying declaration under A.R.E. Rule 804, the statement must be made by a declarant while believing that his death was imminent, and it must concern the cause or circumstances of what he believed to be his impending death. See Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). We have held that the trial judge determines whether evidence is admissible, and on review, we reverse the decision only if there is an abuse of discretion. See, e.g., Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

We first address the appellant’s argument that the trial court erred in not admitting into evidence Barker’s statement that he did not want anything to harm appellant. As noted above, the appellant based her argument for admissibility on the dying declaration hearsay exception. Clearly, this statement does not fall within this hearsay exception because it in no way concerned or described the cause or circumstances of the declarant’s impending death. Accordingly, the trial court was correct in excluding this statement.

We next consider the appellant’s alternative argument that the trial court committed reversible error in admitting into evidence Baker’s other statement as a dying declaration, viz., that the appellant shot him. Appellant discusses in some detail that this statement was inadmissible as a dying declaration because no showing was made that Barker believed his death was imminent when he made it. While we could refer to evidence that runs counter to appellant’s position on this point, we find it unnecessary to do so because even if we could agree with the appellant’s argument, the trial court’s admission of Barker’s statement into evidence would be harmless error.

From the outset of appellant’s trial, she never denied that she shot Barker. As we have previously stated, appellant conceded she shot Barker, but she did so in self-defense. During voir dire of the jury, appellant’s counsel told the jurors that appellant would take the stand and further advised them that she had fired the gun that killed Barker. In addition, state’s witness Detective Steven Coppingner testified without objection that “it was made known to us through other emergency service personnel that Mr. Barker had named his assailant, and it was from that information that we started looking for Vina Mae Thompson.” And finally, the appellant, in her own case-in-chief, testified that she shot Barker in self-defense, thus confirming what her counsel had told the jury members earlier in voir dire. This court has held that a trial court’s error in admitting evidence is harmless where the same evidence has been introduced by other witnesses and was properly before the jury for its consideration. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). In light of the foregoing, we conclude no reversible error ensued from the trial court’s admitting Barker’s second statement even if that statement failed to meet the requirements of a dying declaration.

Next, we address the appellant’s argument that the trial judge erred in refusing to allow the appellant to introduce foundation testimony for the battered woman’s syndrome defense without first committing to calling expert witnesses on the subject. After the appellant testified that she had been sexually abused when she was eleven years old by her little brother’s father, the state objected to the relevancy of this evidence. The trial judge ruled that unless the appellant’s attorney intended to offer expert opinion evidence on the battered woman’s syndrome defense, the evidence would not be relevant. Appellant’s counsel responded that he did not know if he would call an expert because it depended upon how appellant’s testimony went. Counsel made no proffer on appellant’s foundation testimony pertaining to the battered woman’s syndrome defense, nor did he proffer what the expert testimony might be. Thus, we summarily dismiss the appellant’s argument on this point because appellant failed to proffer such testimonies. This court has held numerous times that where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial. See, e.g., Orr, 288 Ark. 118, 703 S.W.2d 438.

Finally, the appellant argues that the trial court erred in limiting testimony showing the victim’s violent character to one year before the shooting. Under A.R.E. Rule 405(b), in cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may be made of specific instances of his conduct. Again, the appellant asserted a self-defense theory at her trial, and we have held that evidence of a victim’s violent character is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981). Thus, as an essential element of her defense, appellant clearly had the right to introduce specific instances of Barker’s violent character that were directed at her or within her knowledge. See Halfacre v. State, 277 Ark. 168, 639 S.W.2d 734 (1982).

Appellant’s mother testified concerning the brutality Barker inflicted upon the appellant. The mother related her observations of the bruises, black eyes and split lips her daughter exhibited from fights with Barker. Appellant made no proffer of testimony concerning specific acts of violence that had occurred more than one year prior to Barker’s death. As a consequence, we have no way of knowing if the alleged acts of Barker in those other years were different from or merely cumulative to those acts already described by appellant’s mother. Appellant did relate Barker’s violent acts against her which included physical and sexual abuse as well as threats with a gun that Barker kept on his person at all times. Besides this testimony, Jackie Post, an emergency room nurse, testified that when she asked the appellant why she did it, appellant replied Barker had hurt her a lot of times.

In sum, appellant proffered no testimony of specific acts that extended over the entire period of appellant’s relationship with Barker. While there is no arbitrary point in time as to when a recital of such acts may prove needlessly repetitive, we conclude that, based upon the cumulative nature of the evidence presented here, we cannot say the trial court abused its discretion in limiting such evidence as it did. See Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979); A.R.E. Rule 403.

For the reasons stated above, we affirm. Pursuant to Ark. Sup. Ct. R. 11 (f), we have reviewed the record for rulings made adversely to the appellant, and find no reversible error.

       Paramedic William Layman who heard Barker’s statement testified that he thought Barker said Vana and not Vina shot him, but admitted that he had to get low to the ground to hear because of all the commotion going on.