author: Jesse B. Daggett, Special Justice.

text:
    Charles CULPEPPER, d/b/a Chuck’s Swimmin Whole v. C.D. SMITH, Wayne Matthews, John W. Cone and Horace J. Fikes
    89-301
    792 S.W.2d 293
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      Downing & Ledbetter, by: Samuel E. Ledbetter, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr., and Brian Allen Brown, for appellee C.D. Smith.

      Gibson & Deen, by: Charles S. Gibson, for appellees Wayne Matthews and John W. Cone.

      Mitchell, Williams, Selig & Tucker, by: Richard L. Angel and Coleen M. Barger, for appellee Horace J. Fikes.
   Jesse B. Daggett, Special Justice.

This court has jurisdiction of this appeal pursuant to Ark. Sup. Ct. R. 29(l)(o).

This case presents an appeal from a ruling of the Circuit Court of Desha County, Arkansas, granting summary judgments in favor of the appellees. By its final order, dated August 8,1989, the court ruled:

The pleadings in this cause, along with the Depositions, Answers to Interrogatories, Admissions on file, together with the Affidavits, show there is no genuine issue as to any material fact and the Motions for Summary Judgment of Smith, Matthews, Cone and Fikes, should be and the same are hereby granted.

We find the ruling to be clearly erroneous.

The procedures to be followed and the assumptions to be made in reviewing rulings granting summary judgments have now become axiomatic. Summary judgment is an extreme remedy which should be allowed only when there is no issue of fact to be litigated. Saunders v. National Old Line Ins. Co., 266 Ark. 247, 583 S.W.2d 58 (1979). The burden is on movant to demonstrate the absence of a genuine issue of fact. All emphasis is drawn against the moving party, and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not appropriate. Hurst v. Field, 281 Ark. 106, 661 S.W.2d 393 (1983). The purpose of a summary judgment is not to try issues, but to determine if there are issues to be tried. If doubt exists, summary judgment should not be granted. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969); Southland Ins. v. Northwestern Nat’l Ins. Co., 255 Ark. 802, 502 S.W.2d 474 (1973). When considering the facts, the court should view the testimony relating thereto in the light most favorable to the party against whom the judgment is sought. Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981).

In this case, the appellant, Charles Culpepper, is a contractor doing business as “Chuck’s Swimmin Whole”. He resides in Dumas, Arkansas, and his business is selling and installing swimming pools. He entered into an agreement on or about June 27,1985, with appellee, C.D. Smith, to install a swimming pool at Smith’s residence in Pine Bluff, Arkansas. At that time, the projected date of commencement of work was estimated to be July 12, 1985. Contemporaneously with the execution of the contract, Smith made a down payment to Culpepper in the amount of $9,959.00.

On or about July 12, 1985, Smith contacted Culpepper advising him that he had decided to erect a roof structure over the pool, using his own carpenter, and requested Culpepper to delay commencement of his work so as to coordinate the efforts of both contractors. Culpepper agreed to do so.

Between July 12 and August 20, Smith contacted Culpepper and told him that Smith’s wife no longer wanted the pool. He was undecided as to what he would do and requested that construction be put off again. Later, Smith demanded a return of his money. Culpepper then refused to refund the deposit in its entirety, stating that he wanted to consider the matter.

On August 21, 1985, one day after the original projected completion date, Horace J. Fikes, Jr., as attorney for Smith, sent a letter to Culpepper demanding that Culpepper return Smith’s down payment. In this letter, Fikes advised Culpepper that he had contacted the Jefferson County Prosecuting Attorney’s office and had been told by them to write Culpepper advising him that unless he returned the down payment to Smith within five (5) days, criminal charges would be filed against him.

On September 4, 1985, Fikes wrote a letter to Wayne Matthews, the Prosecuting Attorney for Jefferson County, Arkansas, requesting that criminal charges be filed against Culpepper unless Culpepper returned the down payment before September 9, 1985. A copy of the letter was sent to Culpepper.

On September 9, Smith had a meeting with Culpepper, demanded the return of his money, and told him that he (Smith) “would have him picking peas” unless his money was returned. Smith testified that what he meant by this statement was that he would have Culpepper put in prison unless the money was returned. Smith advised Culpepper that he was revoking the contract and again demanded a refund of his down payment. On September 23, 1985, Culpepper wrote Smith, saying that he would not agree to a cancellation of the contract, but he would install the pool when advised to do so.

Matthews called the State Police Criminal Investigation Division (CID) Officer to conduct an investigation, which took place on October 2, and both Smith and Culpepper were interviewed. A report of this investigation was not reduced to writing until October 15-16, 1985. The report revealed the existence of a civil dispute over the contract between Smith and Culpepper. Matthews, in his affidavit filed in support of his motion for summary judgment, states that the investigation confirmed what Fikes had previously told him.

Sometime prior to October 10, Smith informed the deputy prosecuting attorney Jodi Raines Dennis that he could supply names of witnesses who would testify that Culpepper had taken deposits from other parties and had failed to perform as contracted. Deputy Dennis, by her affidavit filed in support of the motion for summary judgment, stated that she considered this evidence to be vital and would enable them to procure a conviction. The deputy testified that she relied heavily upon Smith’s statement as to the witnesses and intimated that she would not have filed the charges in the absence of such information.

Smith, in his deposition, admitted that he never provided such witnesses and actually never knew the names of any such witnesses.

On or about October 10, 1985, and December 9, 1985, appellee, John W. Cone, as deputy prosecuting attorney, swore out a criminal information, charging Culpepper with the crime of “theft by deception for knowingly obtaining the property of C.D. Smith by deception and with the purpose of depriving C.D. Smith of such property.” A bench warrant was issued for the arrest of Charles Culpepper and he was taken into custody. The case was set for trial on March 20, 1986, on which date the State nolle prossed all charges against Culpepper.

On April 11,1986, C.D. Smith filed the present civil action against Culpepper in the Circuit Court of Desha County, Arkansas, alleging breach of contract by Culpepper and seeking the return of his money. In response to the complaint filed against him, Culpepper filed an answer and counter-claim against Smith and filed a third party complaint against Fikes, Matthews and Cone, alleging malicious prosecution, abuse of process, and civil conspiracy against Smith, Fikes, Matthews and Cone.

On April 18, 1988, Smith filed his motion for summary judgment. On December 8, 1988, Fikes filed his motion for summary judgment. On April 21,1989, appellees, Matthews and Cone, filed their motions for summary judgment. Culpepper responded to each motion by filing affidavits, excerpts from deposition testimony, and other documents. A hearing was conducted, and on August 9, 1989, the trial court granted all motions and entered a final judgment in favor of each defendant.

The sole issue presented to us by this appeal is the propriety of the granting of these summary judgments. A resolution of this issue involves a simple determination of whether or not there is a genuine issue of material fact remaining to be tried. The legal questions, some of which are mentioned and referred to in the briefs filed, are not before us for present consideration and will become applicable only when the case is tried on its merits and the factual issues fully developed.

1. Summary Judgment granted C.D. Smith

There is clearly a relevant, material, and genuine issue of fact for determination in the counter-claim against C.D. Smith. Concisely stated, Smith defends against the counter-claim contending that he is entitled to a summary judgment for the reason that he is an uneducated, lay citizen without any technical knowledge of criminal law or the propriety or impropriety of invoking criminal procedures to collect a civil debt. He states that all he did was to suggest to his counsel that Culpepper be told that he was going to be imprisoned if he did not “pay off.” This contention is perhaps logical from the lay point of view, but there is more to its application than “meets the eye.”

The law in Arkansas, and in general, is well established that “where the defendant makes a full, fair and truthful disclosure of all the facts known to him before competent counsel and then acts bona fide upon the advice of that attorney in instituting a prosecution, the courts are in general agreement that this may be given in evidence on the issue of existence of probable cause, and if provable, will constitute a good defense,” Wallace, Malicious Prosecution—The Law in Arkansas, 22 Ark. L. Rev. 340 (1968); Jennings Motors v. Birchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931); Rodgers v. General Elec. Co., 341 F.Supp. 971 (W.D.Ark. 1972). The general rule contemplates — ifitisnot actually conditioned upon — a full, complete, honest, and impartial disclosure of all facts known to the defendant. Parker v. Brush, 276 Ark. 437, 637 S.W.2d 539 (1983); Crockett Motor Sales, Inc., supra. Smith fell considerably short of making such a disclosure by failing to reveal two very essential facts. First, he failed to disclose that he had asked for an extension or delay in the performance of his contract with Culpepper and, in fact, subsequently breached the contract by advising Culpepper that he had decided to completely revoke it. Second, although he had advised Deputy Dennis that other people had been defrauded by Culpepper in that he had contracted with them, taken their money, and failed to perform the contract, he never furnished her any names or identified any such witnesses.

The disclosure of these facts — now accepted as being true — was a condition precedent to the availability of Smith’s defense. The deputy prosecutor testified in her deposition that she felt this evidence to be essential to a successful prosecution. “I was firmly convinced that we could do that (obtain a conviction) with that evidence.” She stated that Smith told her that he had such witnesses, but he did not name them and that was one of the two reasons that she nolle prossed the case — the second being to avoid the expense of the prosecution to the State.

Smith, in his deposition, stated that he had never had such names, but that he believed they existed. At any rate, the information that Smith gave the deputy prosecutor was not stated to be a matter of belief, but given as a statement of fact. In reliance upon that information, the deputy prosecutor determined that she could get a conviction. It is fair to believe that without such information, she either would have entertained a different belief or would have at least given further consideration to the matter before having Culpepper arrested, arraigned, and charged with a criminal offense.

Fikes denied in his deposition that Smith made any disclosure of these essential facts. Fikes testified that he did not know that Culpepper was ready to start construction on Smith’s job site and that he had no knowledge that Smith had ever expressed or made a statement that he was unsure about having the pool installed in the latter part of August due to his wife’s uncertainty. Fikes also stated that he was unaware Culpepper was still planning to build the swimming pool, but was only waiting to hear from Smith because Smith wanted to build a structure over the swimming pool.

In short, there is clearly an existing conflict in whether or not Smith made a full, complete, and honest disclosure of all material facts known to him either to his attorney or to the prosecuting attorney’s office. There is direct evidence to the effect that he did not and, for present purposes, we assume that this evidence is true and correct.

Another factual dispute arises in that Culpepper states that he orally and in writing informed Smith that he stood ready, willing, and able to complete the contract but that he was financially unable to refund the money. However, he could procure materials and furnish labor necessary to fulfill the contract. This evidence would have bearing upon Culpepper’s motive and intent, which would be essential in determining his guilt or innocence of the criminal charges made against him.

We conclude that genuine and material questions of fact are present for determination in the litigation pending against Smith, and that the trial court was in error in granting him a summary judgment.

2. The summary judgment of Fikes

Fikes is a licensed practicing attorney in Pine Bluff, Arkansas. By his testimony, he establishes that he engages in criminal practice. He contends in support of the summary judgment granted him that he merely acted as a conduit through which the information given him by Smith was transmitted to the prosecuting attorney’s office. He denies that Smith furnished him with certain material information and steadfastly contends that he conveyed all information to the prosecutor. He also insists that he did not in any manner participate in or cause the filing of the information against Culpepper. To the contrary, he contends that this was the act of the prosecutor, who arrived at his decision independent of any influence or any request emanating from Fikes. Whether this is true is clearly a disputed question of fact.

The correspondence between Fikes and Culpepper is germane. On August 21, 1985, Fikes wrote a letter to Culpepper wherein Fikes advised Culpepper as follows:

I have contacted the Prosecuting Attorney in Jefferson County and he has advised me to inform you that you have five days from the date of this letter to return the sum of $9959.00 to Mr. C.D. Smith or criminal charges will be filed against you.

On September 4, Fikes wrote the prosecuting attorney a letter, the final paragraph of which reads as follows:

I am forwarding Mr. Culpepper a copy of this letter and I am notifying him that unless the sum of $9,959.00 has been paid in full on or before September 9,1985,1 am requesting that you file criminal charges against him.

The criminal charges were filed the 10th day of October, 1985.

It thus appears that Fikes affirmatively and knowingly participated in and requested an unlawful use of the criminal process for the purpose of pressuring Culpepper to return to Smith $9,959.00, which was known by Fikes to have been paid to Culpepper under a contract between Smith and Culpepper. Fikes, as an attorney engaging in both civil and criminal practice, knew, and is charged with knowledge, that neither he nor his client should use the criminal process as an affirmative weapon to force or coerce payment of any debt, whether disputed or undisputed. In this particular instance, Fikes was certainly aware that the obligation arose out of an alleged failure to perform a contract that could give rise to civil litigation. He denies any knowledge of Culpepper’s defenses and argues that he is entitled to rely upon the facts related to him by his client. Even so, this would not entitle him to invoke the criminal process to enforce collection of a civil debt.

This question has been before the courts on innumerable occasions. In Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988), Worthen Bank’s attorney issued six writs of garnishment between October 1983 and July 1984 against Ms. Peterson’s employer. In November 1984, a seventh writ was issued against her bank account. Ms. Peterson filed suit for abuse of process and Worthen Bank moved for summary judgment. The trial court granted the summary judgment, and the supreme court reversed, holding:

One who uses legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed, is liable to another for the pecuniary loss caused thereby. ** The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance of any formal use of the process itself, which constitutes the tort. (Emphasis added.)

We entertain no doubt that Smith’s intent was to use the threat of imprisonment to intimidate Culpepper and to force and coerce him into refunding his money. Smith candidly testified that he communicated this intent to his attorney Fikes and solicited his assistance in further pursuit of this goal. Fikes, at the request and direction of his client, contacted Matthews (whom he identified as a good friend) and requested his assistance as prosecuting attorney in making the collection. Pursuant to the request, Matthews’ office did institute criminal proceedings against Culpepper, but alleges that this was done as an independent act, wholly unrelated to any activity of Fikes.

This same argument was advanced in Peterson, supra. In Peterson, Worthen Bank’s attorney denied certain assertions, but we stated:

Mr. Bosshart denies the assertion, but on review of summary judgment, we assume the allegation to be true, and decide only whether a fact is material and in dispute.
Here we find the facts to be both material and in dispute.

Even after the criminal charges were filed, Deputy Prosecutor Dennis, in her deposition, states that on March 4, 1986, she made an offer to plea bargain to Brooks A. Gill, as attorney for Culpepper, and that the offer was probably made with Mr. Matthews’ approval. She identified and acknowledged receipt of a letter written to her by Mr. Gill on March 17,1986, a portion of which reads as follows:

As I understood your offer of March 4,1986, you have conferred with Mr. C.D. Smith and you will agree to drop the charges against Mr. Culpepper if he will pay Mr. Smith the sum of $9,959.00 without interest. Mr. Culpepper explained to Mr. Smith before these charges were filed that he could not refund his money because he did not have $9,959.00. I met with Chuck Culpepper today and he states that he is having a tough time financially and that he cannot refund Mr. Smith’s money. However, Chuck states that he can purchase his supplies on credit and that he is still willing and able to install Mr. Smith’s pool as originally agreed in the contract.
In addition, Mr. Culpepper is not willing to plea bargain on the basis proposed in your most recent offer whereby your office and Mr. Smith will agree to drop the charges if Mr. Culpepper will forfeit his legal right to bring a civil action for malicious prosecution and abuse of process. It is Mr. Culpepper’s feeling that your decision as to whether to continue the criminal prosecution against him should be based solely on the facts and not on an unrelated matter such as whether Mr. Culpepper elects to pursue his legal rights against Mr. C.D. Smith.
Mr. Culpepper does wish to avoid any further embarrassment which will result from going through a criminal trial and is willing to negotiate a fair resolution of this case. In all honesty, we feel that the charges should be nolle prosequed in view of your disclosures of March 12, 1986, and in view of Ark. Stat. Ann. Section 41-2201(3).

Thus, it is apparent that there has been a consistent course of action, beginning with threats of instituting criminal proceedings and continuing after such institution and even up to the day of trial when the case was nolle prossed, intended to force Culpepper by use of the criminal processes to refund money to Smith. As appears from the Gill letter, the plea bargain now included another condition to be imposed upon Culpepper: his agreement to “forfeit his legal right to bring a civil action for malicious prosecution and abuse of process” against Smith, Fikes, and the prosecutors.

Fikes insists that Matthews made, or caused to be made, an independent investigation of the facts involved and that this relieved him (and also Smith) of all obligations to fully disclose all facts known to him. We disagree.

The obligation is initially imposed upon Smith, before any action is contemplated by the prosecutors, to make a full disclosure of all the facts known to him. This will enable the prosecutor, one learned in the criminal laws of the state, to evaluate the facts disclosed in determining whether or not the person accused should be charged with a criminal offense. To contend that the independent investigation supplies the missing facts is an erroneous assumption. From a practical standpoint, the investigator may fail to discover facts not revealed. In addition, all of the facts revealed might lead the investigator to additional information bearing upon the guilt or innocence of the accused. Also, the source from which the information is obtained is of importance. Consequently, the trial court was in error in granting Fikes a summary judgment.

3. The summary judgment granted Matthews and Cone

We perceive a distinction between a situation where a debtor is advised by a layman or a lawyer that unless he pays the debt, the matter will be referred to the prosecuting attorney and the situation where, after the matter is referred to the prosecuting attorney and after charges are filed, the prosecutor engages in plea bargaining with the criminal defendant.

Obviously the creditor has a right to refer the matter to the criminal courts, and this right is in addition to the creditor’s right to pursue the debtor in the civil courts. The expectation is that the prosecuting attorney will examine the facts and if, in his opinion, the debtor’s actions have contravened the criminal statutes of the State, then the State will proceed to punish him for such transgressions. The criminal system is not required to blindly ignore damages which the creditor has sustained as a result of the defendant’s criminal acts, and it is laudatory that the prosecutor would include in his plea bargaining a requirement of restitution. However, restitution tempers the punishment and does not absolve the crime.

Examining the evidence in the light most favorable to Culpepper as we are required to do on a motion for summary judgment, it appears that the primary, if not sole, motive of Smith, Fikes, and the prosecutor’s office was to obtain a refund of Smith’s money. Should their goal have been accomplished, the criminal prosecution would not have been pursued, no punishment would have been imposed upon Culpepper, and the charges would have been eradicated. When the impropriety of the criminal proceeding was recognized, an additional condition was imposed upon “exonerating” Culpepper in the form of an agreement by him to forego his right to seek redress in a civil action for the wrongful acts of Smith, Fikes, Matthews, and Cone.

The prosecutors, Cone and Matthews, plead as a defense to the civil action brought against them by Culpepper and as a basis for granting them the summary judgment, their absolute immunity from suit for acts committed by them in the performance of the duties of their office. We hold that their immunity is absolute and is established by precedents of this court and the Supreme Court of the United States of such long standing as to now permit no exception or modification.

It has long been held that public policy demands such immunity for the prosecutors and has permitted no diminution or erosion of this defense when the acts complained of are committed within the scope of the duties of the prosecuting attorney’s Office. Decisions to this effect are myriad. The decision most often cited is that of Imbler v. Pachtman, 424 U.S. 493 (1976). In that case, the supreme court granted certiorari “to consider the important and recurring issue of prosecutorial liability. . . .” The supreme court referred to “common law immunity” and spoke of the doctrine as being “well grounded in history and reason.”

We conclude that the considerations outlined above dictate the same absolute immunity under paragraph 1983 that the Prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a Prosecutor’s immunity would deserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.

The court then found itself “in agreement with Judge Learned Hand,” who wrote of prosecutor’s immunity from actions for malicious prosecution:

As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance, it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

The Eighth Circuit Court of Appeals has strictly adhered to these pronouncements. In Leeuwen v. U.S.A., State of Arkansas, et al, 868 F.2d 300 (8th Cir. 1989), a civil rights suit brought against federal and state judges, prosecuting attorneys, and attorneys general, Leeuwen sued for damages alleging violation of his legal rights. The district court dismissed the complaint holding that the parties sued were immune, specifically holding that “state prosecuting attorneys and attorneys general were immune from suit, because their alleged illegal acts were based upon their exercise of prosecutorial functions.” The appellate court affirmed, holding that the immunity was absolute.

The decision of a prosecutor to file criminal charges is within the set of core functions which are protected by absolute immunity. This is so even if the prosecutor makes that decision in a consciously malicious manner, vindictively, without adequate investigation, or in excess of his jurisdiction. Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987). See also, Ginter v. Stallcup, 641 F. Supp. 939 (E.D. Ark. 1986), appeal dismissed 802 F.2d 462 (Ark. 1986); Fogle v. Benton County SCAN, 665 F. Supp. 729 (W.D. Ark. 1987); Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

Thus it would appear that the only condition to applying the immunity to prosecutors Matthews and Cone here is the determination of whether the acts Culpepper complains of were acts (committed) within the scope of their prosecutorial duties.

We find this issue to be determined by the pleadings. In Culpepper’s amended counter-claim and third party complaint, Count Two, Paragraph 7, he alleges the following:

The defendant Wayne Matthews was acting within the course and scope of his duties and employment as Prosecuting Attorney when the acts complained of in this complaint occurred.

In paragraph 8 he alleges the following:

The defendant John W. Cone was acting within the course and scope of his duties and employment as Deputy Prosecuting Attorney when the acts complained of in this complaint occurred.

In the joint answer of third party defendants, Wayne Matthews and John W. Cone, they both allege the following:

It is admitted that defendant Wayne Matthews was, and is, the duly elected Prosecuting Attorney for and within Jefferson County, Arkansas, and that said defendant’s involvement herein was conducted pursuant to said defendant’s authority as Prosecuting Attorney.

Further,

It is admitted that John W. Cone was, and is, a Deputy Prosecuting Attorney for and within Jefferson County, Arkansas, and that said defendant was acting pursuant to that authority with regard to the prosecution of Charles Culpepper.

Arkansas R. Civ. P. 8(d) provides that “(a) Averments in a pleading to which a responsive pleading is required . . . are admitted when not denied. . . .”

A party is bound by his own pleadings and cannot maintain a position inconsistent therewith. International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W.2d 351 (1972): Arkansas-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S.W.2d 866 (1968).

We therefore hold that all of the elements conditioning the application of the absolute immunity defense are present here and that the order of the court granting Matthews and Cone summary judgments must be affirmed.

We do not imply in so holding that we approve the actions of these prosecutors in this case. We have previously held that such immunity, while in fact providing a legal defense against personal liability, does not provide such immunity from disciplinary action by our Committee on Professional Conduct. In Selby v. Burgess, 289 Ark. 491, 712 S.W.2d 898 (1986), an attorney was afforded absolute immunity from suit filed against him for allegedly making scandalous and unsupported allegations in a complaint. We noted that “although the privilege is absolute . . . and will prohibit an attorney from being subject to litigation, it will not make him immune from professional discipline.”

The Selby case cites with approval Theiss v. Scherer, 396 F.2d 650 (6th Cir. 1968) which stated that “an attorney is an officer of the court and is subject to disciplinary action by the court and his bar association.”

If the action of the prosecutors is referred to the Committee on Professional Conduct and their independent investigation convinces them that these prosecutors have wrongfully and improperly utilized the processes of the law for an improper and unwarranted purpose in contravention of the rules of professional conduct, then the committee has authority to adopt such disciplinary procedures as they deem advisable.

We do not here recommend or suggest that Culpepper refer, or cause to be referred, this matter to the committee. We only intend to make clear that this opinion does not preclude such procedure.

Action of the trial court in granting summary judgments to Smith and Fikes is reversed, and the case is remanded for further proceedings not inconsistent herewith. The action of the court below in granting the summary judgment to appellees Matthews and Cone is affirmed.

Glaze, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PHILLIPS COUNTY NAACP v. The PHILLIPS COUNTY ELECTION COMMISSION and Its Members, Greg Davis, et al.
    90-142
    790 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered June 25, 1990

      J.L. Wilson and Sam Whitfield, Jr., for appellant.

      L. Ashley Higgins and David Solomon, for appellees.
   Per Curiam.

The order of the lower court granted to the appellants leave to amend their complaint. Appellants opted to stand on their pleadings and appealed. We deem the order of the trial court to be one of dismissal and appellees’ Motion to Advance and Affirm is granted.


author: Jack Holt, Jr., Chief Justice.

text:
    Edwin BOYLES v. Tammy CLEMENTS
    90-44
    792 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Lohnes T. Tiner, for appellant.

      John C. Wisner III, Arkansas Department of Human Services, Office of Chief Counsel, Child Support Enforcement Unit, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a paternity case in which the appellee, Tammy Clements, claims that the appellant, Edwin Boyles, is the father of her child, Michelle Pugh, who was born out of wedlock on December 6, 1985. Clements introduced the results of a blood test report from National Paternity Laboratories, Inc. into evidence over Boyles’s objection. The trial court found that Boyles was Michelle’s father.

On appeal, Boyles claims 1) that the trial court erred in refusing to dismiss the cause of action when Clements concluded her case and when he concluded his case, and 2) that the trial court erred in permitting the introduction of the results of the blood tests.

We agree that the trial court erred in permitting the introduction of the results of the blood tests and reverse and remand; consequently, we need not address Boyles’s first point of error.

Arkansas Code Ann. § 9-10-108 (Supp. 1989) addresses blood tests in a paternity action and provides in pertinent part as follows:

(a) At the request of either party in a paternity action, the trial court shall direct that the defendant, complainant, and child submit in one (1) or more blood tests or other scientific examinations or tests ... to determine whether or not the defendant can be excluded as being the father of the child and to establish the probability of paternity if the test does not exclude the defendant.
(b) The tests shall be made by a duly qualified physician or physicians, or by another duly qualified person or persons, not to exceed three (3), to be appointed by the court. (c)(1) The results of the tests shall be receivable in evidence.
(c)(2)(A) A written report of the test results by the duly qualified expert performing the test, or by a fully qualified expert under whose supervision and direction the test and analysis have been performed, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling the expert as a witness. If either party shall desire to question the expert certifying the results, the party shall have the expert subpoenaed within a reasonable time prior to trial.
(c)(2)(B) If the results of the paternity tests establish a ninety-five percent (-95 %) or more probability of inclusion that the defendant is the natural father of the child and after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity and the burden of proof shall shift to the defendant to rebut such proof.
* * * *

Boyles claims that the blood test report did not comply with the requirements of section 9-10-108, thereby precluding the introduction of the results of the report into evidence, because the report did not have the proper jurat, was not in affidavit form, did not state who performed the test or give the qualifications of such person, and did not show who was sworn and to what they had subscribed.

Although the chancery court has broad discretion in determining whether such reports should be admitted into evidence, we hold that the chancellor abused his discretion in this case.

The court of appeals addressed the necessity of compliance with section 9-10-108 in the admission of reports containing the results of blood tests in Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990). In that case, the appellee totally failed to establish the prerequisite statutory foundation for the admission into evidence of the results of a blood test report because there was nothing in the report to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert. Although the report was signed by a Dr. Smith and stated that Dr. Smith was the laboratory director, there was nothing in the report to indicate that Dr. Smith was the person who performed the test, or that he was a qualified expert.

We adopt the rationale and conclusion of the court in Ross v. Moore, supra, when it discussed the admissibility of a blood test report and requirement for strict compliance as follows:

Prior to the adoption of Ark. Code Ann. § 9-10-108, this report would have been considered inadmissible hearsay, and in order to be admissible and fall into one of the exceptions to the hearsay rule, certain foundational requirements must have been met. . . .
The purpose of § 9-10-108 is to relax these foundational requirements and make it less difficult to introduce paternity testing results into evidence. However, to insure the reliability of this type of testing, the foundational prerequisites in the statute must be met. In light of the fact that recently developed genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits, we do not think that strict adherence to the statutory prerequisites is unreasonable.

(Citations omitted.)

In this case, the report from National Paternity Laboratories, Inc. stated:

On April 7, 1988 blood specimens were received from the Poinsett County Child Support Enforcement Agency on Edwin Boyles (alleged father), Tammy Clements (presumed mother) and Michelle Pugh (child) for the purpose of paternity exclusion studies. Completed identification forms of all parties are in our files.
* * * *
The HLA data listed above indicates that Edwin Boyles cannot be excluded as a possible father of Michelle Pugh.
* * * *
The Red Cell data listed above indicates that Edwin Boyles cannot be excluded as a possible father of Michelle Pugh.
Utilizing the HLA and Red Cell data, two calculations have been performed to determine the likelihood of paternity. The first calculation is the Probability of Paternity which computes the chances that a single sperm carrying all the necessary genes could be produced by the alleged father in contrast to the frequency in which a sperm might be produced by a random man. This is expressed as the percentage certainty. 100% would be equivalent to proof of paternity, 0 % would be equivalent to non paternity. A value of 50% would mean that the alleged father and the random man have an equal chance of being the biological father. In this case, the Probability of Paternity is 95.44 %.
The next calculation, the Paternity Index, is a means of expressing the likelihood of paternity as a ratio. In this case, the Paternity index is 21 to 1.
The likelihood of paternity based on the calculations according to verbal predicates assigned by Hummel is considered very likely.

The report was signed by Dr. Randall A. Smith, Ph.D., Laboratory Director, and Robert W. Gutendorf, M.S., M.T. (ASCP) SBB, Scientific Director, and their signatures were notarized.

As in Ross v. Moore, supra, there is nothing in the report to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert. Although the report is signed by Dr. Smith and Mr. Gutendorf and states their positions to be Laboratory Director and Scientific Director respectively, there is nothing in the report to indicate that these two men performed the test or that they are qualified experts.

As a result, Clements has failed to establish the prerequisite statutory foundation for the admission of this evidence, and on this record we cannot say that a proper foundation was laid. See also Newton v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979); Simolin v. Wilson, 253 Ark. 545, 487 S.W.2d 603 (1972).

On appeal, we consider the evidence in the light most favorable to the appellee. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988) (citing Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987)). Although we try chancery cases de novo on the record, we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. McGuire v. Bell, supra (citing Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987)).

In reviewing Clements’s testimony, we note that, at best, the evidence is in conflict as to the date of termination of her relationship with Boyles. She affirmatively stated during the course of the trial that:

Q Okay. Let me ask you this. In 1985, uh, did you know Mr. Edwin Boyles?
A Yes.
Q Did y’all have any type of relationship in 1985?
A Uh, we broke up on June, uh, the 18th of the year before she was born.
Q Okay. What do you mean, “broke up?”
A Uh, we never seen each other any day after that. And the reason I know that date so well, it was my Mom’s birthday.
Q Now, what year are you talking about? Was it after Michelle was born?
A No, it was before.
* * * *
Q Okay. Uh, do you remember about when this baby was conceived?
A It was late March or April — or the first of April of ’85 — uh—’84. She was born nine months later.
Q But she was born December, 1985?
A Yes.
* * * *
Q Okay. Now, when did you start seeing Mr. Boyles? A I don’t know, exactly.
Q Do you remember the year?
A Uh, no.
Q When did you stop seeing him?
A June the 18th, of ’84 — was the last . . .
* * * *
Q Okay. We start with: “The child was born in December, ’85.” That was my first question. Then I asked you: “During 1985, did you have sexual relations with Edwin Boyles in 1985?”
A Uh, (shaking head.)
Let the record show she is shaking her head in the negative . . .

Yet, Clements also testified that she was pregnant and still going out with Boyles and that Boyles took her to the Health Office for a doctor’s appointment one day.

It is not at all clear on what basis the trial court made its judgment, as the chancellor found that Boyles “by virtue of the testimony, evidence submitted herein, and for other reasons, is hereby found to be the biological father of Michelle Lee Pugh.” We cannot tell what weight, if any, the trial court gave to Clements’s testimony, especially since the trial court also admitted and considered the paternity report, which we now exclude. In this matter, the credibility of the witnesses is a critical factor, and the chancellor obviously is in a superior position to decide such issues.

For these reasons, we are unable to decide this case on de novo review. Therefore, we reverse and remand for proceedings consistent with this opinion.

Dudley and Hays, JJ., would affirm.

Price, J., would reverse and dismiss.


text:
    Norman Jean HAWKINS v. STATE FARM FIRE AND CASUALTY COMPANY
    89-326
    792 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Sexton Law Firm, P.A., by: Sam Sexton III, for appellant.

      Pryor, Barry, Smith and Karber, by: Thomas B. Pryor, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Norma Jean Hawkins, purchased an insurance policy from appellee, State Farm Fire and Casualty Company (State Farm), on June 9, 1986, that provided uninsured motor vehicle bodily injury coverage with limits applicable to each person in the amount of $50,000. On October 7, 1986, Hawkins was involved in a motor vehicle accident in which the driver of the other vehicle had the minimum liability insurance required by our Motor Vehicle Safety Responsibility Act, Ark. Code Ann. §§ 27-19-101 to -721 (1987 and Supp. 1989), with limits of coverage applicable to one person in the amount of $25,000.

Hawkins claimed that she sustained injuries that exceeded $25,000 and demanded coverage from State Farm under the uninsured motorist provision of her policy. State Farm declined coverage on the basis that the driver of the other vehicle was not uninsured, as he had the requisite minimum liability coverage of $25,000.

Hawkins initially filed suit in the Crawford County Chancery Court and alleged three counts in her complaint: 1) that the policy as written provides such coverage, 2) that the policy as written does not provide such coverage, but that it should have done so, and therefore the policy should be reformed to provide such coverage, and 3) that if the relief requested in the first two counts should be denied, then she is entitled to recover against State Farm’s agent, Ken Clark, for misrepresenting the provisions of the policy.

The chancery court granted State Farm’s motion for summary judgment as to the second count, in which Hawkins sought reformation of the policy. As a result, the case was transferred to the Crawford County Circuit Court because the remaining two claims alleged causes of action at law. No appeal was taken from the chancery court’s dismissal of the second count.

State Farm filed a motion in circuit court to dismiss the first count, and Hawkins responded by filing a motion for summary judgment in her favor. Prior to the circuit court’s ruling on these motions, Hawkins dismissed her third count against State Farm’s agent. Subsequently, the circuit court granted State Farm’s motion to dismiss and denied Hawkins’ motion for summary judgment.

Hawkins now appeals the orders of the circuit and chancery courts and alleges five points of error on appeal: 1) the insurance policy issued to her provides coverage on its face, 2) the insurance policy fails to clearly exclude coverage so that it should be construed to afford coverage, 3) recovery should be afforded to her under the Arkansas Uninsured Motorist Act, 4) to construe the insurance policy as not affording coverage to her violates Arkansas public policy, and 5) the chancery court erred in finding that State Farm’s agent did not have apparent authority to bind State Farm.

We find no merit in any of these points of error and affirm.

Hawkins initially claims that the insurance policy that she purchased from State Farm provides coverage on its face. The pertinent provision of the policy, SECTION III — UNINSURED MOTOR VEHICLE — COVERAGE U, provides as follows:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

Uninsured Motor Vehicle — means:

1. a land motor vehicle, the ownership, maintenance or use of which is:
a. not insured or bonded for bodily injury liability at the time of the accident; or
b. insured or bonded for bodily injury liability at the time of the accident; but
(1) the limits of liability are less than required by the financial responsibility act of the state where your car is mainly garaged; or
(2) the insuring company denies coverage or is or becomes insolvent ....

Arkansas Code Ann. § 23-89-403(a) (1987) requires uninsured motor vehicle coverage of “. . .not less than limits described in § 27-19-605. . . .” Ark. Code Ann. § 27-19-605(a) (1987) provides in pertinent part that:

No policy or bond shall be effective [as security]. . .unless the policy or bond is subject, if the accident resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than twenty-five thousand dollars ($25,000) because of bodily injury or death of one (1) person in any one (1) accident and subject to said limit for one (1) person, to a limit of not less than fifty thousand dollars ($50,000) because of bodily injury or death of two (2) or more persons in any one (1) accident. . . .

The State Farm policy defines an uninsured motor vehicle to include an insured vehicle, the limits of liability of which are less than required by the financial responsibility act of Arkansas. The Motor Vehicle Safety Responsibility Act, supra, defines the minimum requirements for liability insurance as noted in section 27-19-605(a).

Hawkins’ insurance policy clearly provides that it applies only with respect to an accident involving an uninsured motor vehicle. The driver of the other vehicle involved in Hawkins’ accident was insured for the minimum liability coverage of $25,000. In Payne v. Farm Bureau Mut. Ins. Co., 298 Ark. 540, 768 S.W.2d 543 (1989), we held that a motorist who carried at least the required minimum amount of insurance did not become an uninsured motorist if the policy limits became exhausted.

Consequently, the driver of the other vehicle was not an uninsured motorist under the unambiguous terms of Hawkins’ policy, and the policy, therefore, does not provide coverage on its face.

Hawkins next claims that the insurance policy fails to clearly exclude coverage so that it should be construed to afford coverage. However, the definition of uninsured motor vehicle appears prominently in italicized letters set in bold type immediately following the insuring clause wherein the term is used. Reading the language and construing its plain meaning, we are unable to find any ambiguity in the definition under these circumstances. The policy merely and clearly provides uninsured coverage, not the underinsured coverage requested by Hawkins.

Hawkins’ third point of error alleges that she should recover under the Arkansas Uninsured Motorist Act. This point of error simply repeats the arguments of the first two points of error and is redundant. However, we appropriately note that Hawkins’ contention that “any driver who does not carry enough insurance to pay damages that he may cause should be considered ‘financially irresponsible’ ” is contrary to our holding in Payne v. Farm Bureau Mut. Ins. Co., supra. In that case, we clearly stated our analysis of an uninsured motorist as follows:

Armenda Mathis was not a financially irresponsible motorist. She had purchased the required coverage and that amount of money was available to the claimants as a group.
She was not an uninsured motorist simply because her policy limits were exhausted. There are provisions in the law and in appellee’s contract of insurance to provide relief if a claim is not paid because of the insolvency of an insurance company or if a motorist failed to carry the minimum coverage required by the Motor Vehicle Safety Responsibility Act. However, neither of those apply in this case.
Armenda Mathis was not by definition an uninsured motorist nor was she operating an uninsured automobile, and appellee has no exposure under the uninsured motorist provision of its contract.

The analysis in Payne of an uninsured motorist is applicable to the facts of this case because the driver of the other vehicle in Hawkins’ accident had liability insurance coverage in the amount of $25,000. In sum, he had purchased the required coverage and that amount of money was available to Hawkins; he was not an uninsured motorist simply because his policy limits were exhausted, and State Farm has no exposure under the uninsured motorist provision of its contract.

In her fourth point of error, Hawkins contends that construing the insurance policy as not affording coverage to her violates Arkansas public policy. Her argument essentially demands that the provisions of the insurance policy be interpreted as providing underinsured liability coverage to the extent that her $50,000 uninsured motorist liability coverage exceeds the limits of the other drivers’ $25,000 liability coverage.

Hawkins’ reliance on Travelers Ins. v. National Farmers Union Property and Casualty Co., 252 Ark. 624, 480 S.W.2d 585 (1972), is misplaced. In that case, we stated that the amount of recovery under the uninsured motorist provisions of a liability policy could not be reduced by the amount the injured party received under workmen’s compensation coverage where a setoff provision reduced the limit of liability under uninsured motorist coverage. The purpose of the uninsured motorist legislation was to protect the insured, not the insurer, and thus precluded any windfall to the insurer by a reduction in benefits.

Here, however, Hawkins paid premiums for uninsured motorist liability coverage, and, at the time she purchased her policy, State Farm did not even offer underinsured motor vehicle coverage. As a result, Hawkins’ receipt of the very type of insurance for which she paid premiums does not reduce her coverage, does not give a windfall to State Farm, and is not against the public policy of the State.

Hawkins’ final argument alleges that the chancery court erred in finding that State Farm’s agent did not have apparent authority to bind State Farm. The chancery court granted State Farm’s motion for summary judgment based on the fact that the printed provisions of an insurance contract cannot be altered to extend coverage to a risk not covered by its terms on the basis of oral representations by a soliciting agent of the company. See Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978).

We decline to consider this argument as Hawkins is attempting to improperly appeal an order of the chancery court filed on November 21, 1988. Arkansas R. App. P. 4(a) provides in pertinent part that “. . .a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. . . .” See Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986).

In LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980), we also noted that the timely filing of a notice of appeal is, and always has been, jurisdictional. Additionally, whether the question is raised by the parties or not, it is not only the power, but the duty, of a court to determine whether it has jurisdiction of the subject matter. See Arkansas Sav. & Loan Ass’n v. Corning Sav. & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972).

In Johnson v. Carpenter, supra, we stated that, even in the event of unavoidable casualty, the failure to file a timely notice of appeal deprives the appellate court of jurisdiction. The time for filing the notice of appeal runs from the date the judgment or decree is filed in the circuit or chancery clerk’s office. Shaefer v. McGhee, 284 Ark. 370, 681 S.W.2d 353 (1984).

The chancery court’s order granting the summary judgment as to count II, dealing with the reformation of the insurance policy, was filed on November 21,1988. As a result, the thirty day time limit in which Hawkins had to file an appeal began running on that date. She did not comply with that requirement and is precluded from appealing that issue at this time.

We have also found from an examination of the record that both counsel agreed by stipulation, which was neither mentioned in the briefs nor abstracted by either counsel, that “the ruling of the Chancery court regarding Count II of the original complaint precludes relitigation of the allegations in Count II of the amended complaint against State Farm. . . .’’The circuit court then entered its order on March 17, 1989, which entitled State Farm to summary judgment as to count II of Hawkins’ amended complaint. Suffice it to say, the chancery court’s determination of count II was final and appealable and, at this time, is beyond our appellate jurisdiction.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    David MASSEY v. Jody WYNNE and Judy Wynne
    90-16
    791 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Penix Law Firm, for appellant.

      Skillman and Durrett, by: Chadd L. Durrett, Jr., for appellees.
   Robert H. Dudley, Justice.

The T.V.W. Corporation, a salvage company which is principally owned by T.V. Wallis, borrowed money from the Bank of Tyronza to purchase the Federal Compress Company’s seventeen acres of real property in Marked Tree. T.V.W. intended to raze the old compress buildings, remove the large pieces of debris, bury the small ones, and then sell the reclaimed real estate for enough to pay off the bank note, and also make a profit for itself.

On December 18, 1987, T.V.W. entered into a written contract to sell fifteen of the acres to the appellees, Jody and Judy Wynne, for $50,000.00. The purchase price was to be paid when the land reclamation was finished, but in no event more than one year from the date of signing. Neither party recorded the contract. On September 7, 1988, while the contract with appellees was still executory, T.V.W. conveyed the same property by warranty deed to appellant, David Massey, for $6,000.00 cash and assumption of the $82,000.00 debt to the bank. Appellant recorded his warranty deed. Appellees subsequently recorded their contract. This case involves the competing claims of appellant and appellees for the fifteen acres.

Recordation of an instrument which affects title to real property is constructive notice of that interest to all persons from the time the instrument is filed. Ark. Code Ann. § 14-15-404(a) (1987). If an instrument affecting title to real property is not recorded in the clerk’s office of the county where the real estate is situated, then it shall not be valid against a subsequent purchaser of the real estate unless that purchaser had actual notice of the prior interest. Ark. Code Ann. § 14-15-404(b) (1987). A subsequent purchaser will be deemed to have actual notice of a prior interest in the property if he is aware of such facts and circumstances as would put a man of ordinary intelligence and prudence on such inquiry that, if diligently pursued, would lead to knowledge of those prior interests. Bowen v. Perryman, 256 Ark. 174, 506 S.W.2d 543 (1974). The Chancellor found that appellant had actual notice of appellee’s interest in the property, and accordingly, vested title in the appellees. We affirm that finding.

Appellant contends that the question of whether he had actual notice of appellees’ prior interest in the property is a mixed question of law and fact. First, he argues that the evidence, as a matter of law, was not sufficient to establish such facts and circumstances as would put a man of ordinary intelligence and prudence on inquiry. Second, he argues that even if the evidence was sufficient to put him on inquiry, he satisfied that inquiry by consulting an attorney and by searching the records. There is no merit in either argument.

Here, there was testimony that appellee Jody Wynne and appellant had at least two conversations in which appellant asked appellee about the land that he had “purchased”:

A. The first occasion, my wife and I [appellee] went out to Polly’s Cafe, one night, and ate. And then he and his wife and children came in. And they brought up the fact to. . . he did, of the compress property that we had purchased, had we made any plans, or were we going to sell any. And I told him, at that point, that. . . uh . . .we hadn’t made any plans and were not going to make any plans on developing or selling anything until it was cleaned up and complete.
* * * *
A. Yes, sir. There was another occasion. I went to his grandfather’s store, ... He approached me at the doorway and asked me, would you consider selling me some of the land that you have purchased on the old Federal Compress. And at that point I said, yes, David, I would. I said, but I’m not really making any commitments to anyone on selling any property until it’s all completely finished up, cleaned up, and I’ve paid for it, and then I will make a decision on what I’m going to do with the land.

In addition, appellee testified that when appellant came to his office and showed him the warranty deed appellant “laughed and said. . .T.V. Wallis told me the contract you and he had wasn’t worth the piece of paper it was written on.” Finally, when asked if appellee had ever told him that he had bought the land, appellant himself testified, “No, sir. He indicated at one time that he was in the process of buying it.”

The chancellor found that appellant had actual notice of appellees’ prior interest in the property. We will not reverse a trial court’s finding of fact unless it is clearly erroneous. A.R.C.P. Rule 52(a). The chancellor’s finding that appellant had actual notice is not clearly erroneous. The above evidence was more than sufficient to put a man of ordinary intelligence and prudence on inquiry concerning appellees’ prior interest in the property.

Further, having been put on notice, appellant did not satisfy his obligation to inquire by consulting his own attorney, or by searching the records. There was no evidence that his attorney had any knowledge of the circumstances. Thus, inquiry of the attorney could not have been calculated to divulge information concerning the facts and circumstances about which appellant had notice. In addition, the “actual notice” exception to the protection afforded by Ark. Code Ann. § 14-15-404(b) (1987) clearly intended to cover situations in which a property interest does not appear in the records. Accordingly, neither can appellant’s search of the records constitute a diligent inquiry.

Appellant repeatedly argues that appellee never informed him about the contract for sale of real property. The point is, however, that appellant never directly inquired about the contract with the person who could give him the information, appellee. Having actual notice of a prior interest in the property, appellant was obligated to diligently pursue that inquiry. This he did not do.

Affirmed.


text:
    STATE of Arkansas v. Tracy SETZER
    CR 90-38
    791 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Terry Crabtree, for appellee.
   Robert H. Dudley, Justice.

The State charged appellee Tracy Setzer with criminal use of a prohibited weapon. The trial court directed a verdict in favor of the appellee. The State applies for an opinion certifying error. We dismiss the appeal.

On the evening in question the appellee, who had been previously convicted of either one or two felonies, was one of about thirty (30) people at a party. He was drinking. A bearded dark-haired man “run into me and spilled my drink down the front of my shirt and, you know, he was just kinda rude about it.” They had “a few words back and forth” and the man came at appellee with brass knuckles. Appellee took the knuckles away from the man “because I didn’t want to get hit with them.” “I put them in my back pocket and forgot about them.” “I wasn’t intending to use them or nothing. I just put them in my pocket.” About two hours later the police arrested appellee for public intoxication. At that time there were no other people around and appellee was not combative with the police. He was subsequently charged with use of a prohibited weapon.

The statute at issue, Ark. Code Ann. § 5-73-104(a) (1987), provides in pertinent part:

A person commits the oifense of criminal use of prohibited weapons if, except as authorized by law, he. . .possesses. . .metal knuckles, or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.

The State contends that the trial judge, in interpreting the statute, erroneously held that the phrase “for the infliction of serious physical injury or death” modifies “possesses” and, as a result, wrongly required the State to prove that the appellee possessed the knuckles with the intent to inflict serious injury or death on someone. We are not clearly satisfied that the court so ruled, and accordingly, we will not declare error.

Two additional matters of law are helpful in understanding the trial court’s ruling. First, the “Use of Prohibited Weapons” statute does not create a strict liability offense. It requires proof of a culpable mental state. The State admits that under the provisions of Ark. Code Ann. § 5-2-203(b) (1987), it had to prove that appellee purposely, knowingly, or recklessly possessed the knuckles. Second, the General Assembly could have criminalized mere possession of brass knuckles. It knows how to do so, but deliberately chose to write two exceptions into the law. One of them, Ark. Code Ann. § 5-73-104(b)(2) (1987), provides that it is a defense to prosecution under this statute if “The defendant . . . possessed . . . [metal knuckles] under circumstances negating any likelihood that the weapon could be used unlawfully.” While the trial judge’s ruling is not perfectly clear, it is doubtful that he ruled that the State was required to prove that appellee possessed the brass knuckles “with the intent to use them to inflict serious physical injury or death.” Instead, it seems more likely that he was discussing the two matters of law set out above. The ruling was as follows:

THE COURT: Well, the statute says except and as authorized by law a person cannot be in possession of this weapon, and certainly a person is authorized by law to defend himself; and as the testimony went in this case — I mean, Mr. Setzer made no aggressive act toward Officer Lott or the other officers at the time of the arrest, other than having a bad mouth, apparently. But as far as showing any aggressive behavior toward the officer, none was shown. Other than trying to get away, he wasn’t trying to commit any act of violence against the person or the officer who arrested him, and there’s no evidence on the record that Mr. Setzer has a habit or trade of committing acts of violence against the persons of other people.
It’s admitted that he’s been to the penitentiary once or twice for theft and burglary, I think that’s what they were, but in any event — and then we have the testimony of Ms. Setters and Mr. Setzer that he took the knuckles — knucks, or whatever you want to call them, brass knuckles — away from a person who attacked him with them at this party and that some two, three, three-and-a-half hours later.
I think there has to be some scienter here. There has to be some intent to possess the weapons, or the weapon, for the purpose of using it against another person. Now, it doesn’t have to be much because mere possession of this under other circumstances it might very well create a presumption of intent to use it or supply the necessary scienter.
In this case, based on the fact that they were removed from another person who made aggressive acts toward him and then his subsequent arrest in which he made no aggressive acts toward the officer, as far as acts of violence, and in the absence of proof that he had a habit of just acts of violence against other people, the Court finds Mr. Setzer not guilty.

Since it is not certain that the State was required to prove that appellee possessed the brass knuckles “with the intent to use them to inflict serious physical injury or death,” we decline to certify error. Accordingly, we dismiss the State’s appeal.

Dismissed.

Holt, C.J., and Hays and Glaze, JJ., dissent.

Steele Hays, Justice, dissenting. The wording of Ark. Code Ann. § 5-73-104(a) (1987) makes it clear that no proof of intent is necessary in the offense of criminal use of prohibited weapons:

A person commits the offense of criminal use of prohibited weapons, if, except as authorized by law, he uses, possesses, makes, repairs, sells, or otherwise deals in any bomb, machine gun, sawed-off shotgun, firearm specially made or specially adapted for silent discharge, metal knuckles, or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.

Moreover, the pattern for our statute is Section 5.07 of the Model Penal Code, the Comment to which reads:

This section, unlike 5.06, departs from the requirement of criminal intent in its coverage of the making, selling, repairing, dealing in or possession of certain instruments of crime. It does so with respect to a category of weapons, defined as “offensive weapons,” that have little or no lawful use and that thus are peculiarly suitable for criminal purposes. It was deemed right in this instance to pursue the approach of outright prohibition, rather than the more tolerant approach demanded by the broader coverage of Section 5.06.

Where the legislature intends a specific intent it includes that as an element of the crime. Thus Ark. Code Ann. § 5-73-120(a) (1987), “carrying a weapon,” reads:

A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person. [My emphasis.]

In finding the appellant not guilty of violating § 5-73-104(a), the trial judge remarked:

I think there has to be some scienter here. There has to be some intent to possess the weapons, or the weapon, for the purpose of using it against another person. [My emphasis.]

The only plausible interpretation of that comment is the trial judge concluded that the state must prove the defendant intended to use the prohibited weapon. That imposes an element of proof not required under the law and I believe this court should declare error.

Holt, C.J., and Glaze, J., join.


author: David Newbern, Justice.

text:
    Andrew ELLIS v. STATE of Arkansas
    CR 90-88
    791 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Satterfield Law Firm, by: G. Randolph Satterfield, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Andrew Ellis was charged with possession of cocaine with intent to deliver. There has been no trial. In a pre-trial hearing, Ellis moved to dismiss the charges against him because the officers who arrested him were not certified pursuant to Ark. Code Ann. § 12-9-108 (1987). The court entered an order denying the motion. Ellis filed a notice of appeal from that order, and the court granted a continuance pending disposition of the appeal. We dismiss the appeal as there is no authority permitting a criminal defendant to appeal when no judgment of conviction has been entered.

The state correctly points out that appeals are granted as a matter of statute. There is no right to appeal granted by the United States Constitution. Abney v. United States, 431 U.S. 651 (1977). Appealability is controlled by Ark. R. App. P. 2(a) which requires a final judgment or decree or one which, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action.

In the jurisdictional statement accompanying Ellis’s brief, it is stated that this is not a interlocutory appeal because granting the relief he requests would result in his absolute discharge. He has filed no reply brief responding to the state’s contention that there is no appealable order here, and his opening brief contains no argument or citation of authority in support of the position urged in his jurisdictional statement. All of his argument is directed to the illegality of his arrest.

Nothing contained in Ellis’s brief warrants our treating it as a request to this court of a writ of prohibition. We have held many times that an illegal arrest does not necessarily invalidate a conviction. Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984); Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).

In Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), we mentioned the invalidity of the arrest due to the failure of the arresting officer to comply with the qualifications statute. In that case and in Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), as well, however, the error causing dismissal was not the invalid arrest; it was the invalid charge. Here, the record shows Ellis was charged by information filed by a prosecutor rather than by a citation rendered by an unqualified police officer. We find no basis for Ellis’s statement that the relief he requests would result in a bar to his prosecution.

Appeal dismissed.


text:
    John Albert HENAGAN v. STATE of Arkansas
    CR 90-112
    791 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      William R. Simpson, Jr., Public Defender, by: Jerry J. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

John Henagan pleaded guilty to delivery of a controlled substance and was sentenced to 10 years imprisonment after asking for a sentence to probation. He contends the court erred in concluding that probation was not a possibility in his case. We dismiss the appeal because there is no authority for appeals from guilty plea proceedings.

Henagan filed a brief with the circuit court in support of his eligibility for probation. At the sentencing hearing, the state noted that the minimum sentence in the case was 10 years imprisonment and asked that at least that sentence be imposed. Counsel for Henagan argued that Henagan was a first time felony offender, held a regular job, and was supporting a family. He sought to have Henagan placed on probation and in a “home detention” program. The court responded that he had no authority to give such a sentence and then imposed the 10 year sentence.

The right of appeal is conferred upon a person convicted of a crime by Ark. Code Ann. § 16-91-101(a) (1987). Subsection (c) of that statute provides: “There shall be no appeal from a plea of guilty or nolo contendere.” Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). An exception to the rule appears in Ark. R. Crim. P. 24.3(b) which authorizes an appeal with the approval of the court and consent of the prosecuting attorney after a conditional plea of guilty. The exception does not apply in this case.

We recently decided in Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990), supplemental opinion on denial of reh’g, 301 Ark. 512-A (1990), that we could hear an appeal from a decision made pursuant to Ark. Code Ann. § 16-90-111(b)(1) (Supp. 1989) denying jail time credit against a sentence imposed pursuant to a guilty plea. That case is not cited in this appeal, but to avoid confusion we point out that it too is distinguishable. Here we are not dealing with an appeal from the decision of a post trial motion but with an appeal from the sentencing procedure which was an integral part of the acceptance of Henagan’s plea of guilty. The record contains a document signed by Henagan in which he acknowledged the punishment range for the class “Y” felony with which he was charged to be “10-40 years, life.”

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    Richard Lee McMILLEN v. STATE of Arkansas
    CR 90-5
    792 S.W.2d 315
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Helen Rice Grinder, for appellant.

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

This case is the third one involving the appellant that has reached us for review. Each case arose out of a series of crimes that occurred in Faulkner County over a six-month period. Appellant, a police officer, was charged with being involved in this criminal activity with another officer, Randy Dean Leach, and a Kenneth Ray Clements. As a result of various motions and court rulings, appellant was charged and scheduled for trial separately on (1) conspiracy to commit theft of a trailer; (2) accomplice to capital felony murder; and (3) another conspiracy that included four offenses involving burglaries at Unique Fashions, and at a residence (Wilkerson), and aggravated robberies at J.C. Penney’s and of a Wal-Mart courier.

Appellant was tried and convicted first on the conspiracy to commit theft of a trailer onMay!0,1989. Although he was found guilty, appellant received no sentence. Appellant appealed the conviction to our court, but later withdrew his appeal, and we dismissed it on March 26,1990. However, while that appeal was pending, appellant successfully challenged the accomplice to murder charge on double jeopardy grounds. McMillan v. Donovan, 301 Ark. 393, 784 S.W.2d 752 (1990). The conspiracy charge concerning the four felony offenses was tried commencing May 31,1989, and appellant was convicted on June 1,1989, and sentenced to no years and a $7,000 fine from which he lodged this appeal. Appellant again claims double jeopardy, arguing that this conspiracy should have been merged with the earlier conspiracy to commit theft charge with which he had already been tried and convicted.

In support of his argument, appellant cites Ark. Code Ann. § 5-3-403 (1987) which provides as follows:

If a person conspires to commit a number of criminal offenses, he commits only one (1) conspiracy if the multiple offenses are the object of the same agreement or continuous conspiratorial relationship.

In sum, appellant argues that the same agreement or continuous conspiratorial relationship involved the trailer theft for which he was convicted earlier and the four offenses involved here. In addition to § 5-3-403, he cites Braverman v. United States, 317 U.S. 49 (1942), wherein the petitioners were indicted on seven counts of conspiracy, each charging a violation of a separate and distinct internal revenue law. In holding that the petitioners should have been charged with only one count of conspiracy, the Supreme Court stated the following:

For when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for “The conspiracy is the crime, and that is one, however diverse its objects.”

In view of Braverman and the General Assembly’s adoption of § 5-3-403,the law seems well settled that a “single agreement” or “continuous conspiratorial relationship” constitutes a single conspiracy offense whether intended to culminate in distinct offenses or in successive violations of the same statute. Section 5-3-403 clearly precludes more than one conspiracy prosecution as a result of a single agreement or relationship. See Original Commentary to § 5-3-403.

Here the trial court determined that the conspiracy to commit theft of the trailer involved a separate agreement and relationship from the other four offenses that the trial court merged into the conspiracy count now the subject of this appeal. We find nothing in the record to support that view.

Although the state notes that it does not wish to concede error, it acknowledges that if the evidence reflects the appellant was involved in a relationship with Clements and Leach, then that relationship was both continuous and conspiratorial. The evidence does, indeed, reflect such a relationship. The state’s evidence bearing on this point consists largely of appellant’s statement given to the police on November 11, 1988, and the testimony of Kenneth Clements’ wife, Denise.

The appellant’s statement was a forty page interview wherein appellant gave a rather disjointed outline of his relationship with Clements and Leach. During his discourse, he explained that, as a deputy sheriff, he first knew Clements when Clements was incarcerated in the Faulkner County jail. He became reacquainted with Clements later when Clements’ wife was booked for shoplifting. He continued to see Clements and talked to him concerning the robberies and burglaries of certain businesses and a residence. Appellant conceded that, during their conversations, they discussed pulling a burglary and robbery and splitting the take, but he never admitted that he received anything or that he physically participated in a crime. The Wilkerson residence, the Wal-Mart courier, J.C. Penney’s and Unique Fashions were mentioned during these men’s meetings, and while each of these places was apparently robbed or burglarized, appellant never conceded that he was actively involved or participated in these crimes. From reading the appellant’s statement, the discussions, concerning the places robbed or burglarized, took place sometimes before and, in others, after the crimes were committed. Appellant admitted that he and Leach were aware that Clements was involved in illegal activity and that appellant led Clements to believe that if appellant was in a position to do so, he would “turn [his] head.” Appellant, in his statement, said that he told Clements that Leach needed a trailer, and did not expect to pay for one. Subsequently, a camper trailer and flat bed trailer were stolen from Loveless Tractor Company and an officer was killed during the theft. Clements immediately became a suspect for these crimes, and appellant, knowing Clements had the camper, informed his superior officers of this fact.

Denise Clements testified as to her husband’s contacts with appellant and related that Clements told her about the crimes he planned on committing. She gave some specifics surrounding the Wal-Mart courier crime and indicated an agreement existed between Clements, Leach and the appellant and that Leach or appellant would be on duty when the robbery occurred and they would shoot at, but not hit, Clements. She also offered knowledge that she had concerning the J.C. Penney’s crime. She added that none of the conspiracies were completed.

From our study of the above evidence and the remainder of the record before us, we are unable to find anything to support the trial court’s finding that more than one agreement or conspiratorial relationship existed between the appellant, Leach and Clements when they conspired to commit the trailer theft and the four other crimes involving J.C. Penney’s, Unique Fashions, the Wilkerson residence and the Wal-Mart courier. Nor does the state point to any evidence that suggests these parties entered into a separate agreement to commit the trailer theft. As a consequence, we must reverse and dismiss the conspiracy conviction before us now since it should have been merged with the conspiracy crime involving the trailer theft for which appellant was previously convicted.

We should note that at trial, the prosecutor distinguished the present conspiracy charge from the trailer conspiracy charge by arguing the theft of the trailer had been completed while the other four crimes had not. While that appears to be true, such a distinction has nothing to do with whether all of the conspiracy charges were required to be merged under § 5-3-403. This distinction is important, however, when considering what charges may be brought against a person who conspired to commit a crime and later that crime was consummated.

As is noted in the Original Commentary to § 5-3-403, if multiple substantive offenses are committed pursuant to a single conspiracy, a conspirator may be prosecuted for each separate substantive offense in which he is a principal or an accomplice. Thus, in the present case, the state could prosecute only one count of conspiracy involving the five various crimes but when one or more of the crimes are committed, the conspirator may be prosecuted for each separate substantive offense in which he or she is a principal or accomplice. In any event, the two cases before us now concern conspiracy charges only and the distinction made by the prosecutor simply is not applicable.

For the reasons given above, we reverse and dismiss.

       The murder charge was later reduced to first degree murder.

       Ark. Code Ann. § 5-3-403 (1987) provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
      (1) Solicits, advises, encourages, or coerces the other person to commit it; or
      (2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
      (3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.


author: Otis H. Turner, Justice.

text:
    Bruce Lamont BAILEY v. A. L. LOCKHART, Director, Arkansas Department of Correction
    90-85
    791 S.W.2d 372
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: John D. Harris, for appellee.
   Otis H. Turner, Justice.

The appellant sought mandamus to require credit for time served earlier in the Department of Correction against a sentence he is presently serving. This appeal is from a denial of the appellant’s petition. We find that the appellant’s sentences and credits for time served have been correctly calculated, and we affirm.

On October 10, 1984, the appellant was convicted of kidnapping and rape and sentenced to two fifty-year terms, to run concurrently.

On October 25, 1984, he was convicted of robbery and sentenced to a term of ten years.

The appellant’s kidnapping and rape convictions were reversed on appeal on October 14, 1985. Facing a retrial, the appellant, on November 5, 1985, pled guilty to the kidnapping and rape charges and was resentenced on that date to concurrent two-year terms, to run concurrently with the existing robbery term.

If the appellant had been incarcerated only for the kidnapping and rape charges from October 10, 1984, until the reversal on October 14,1985, the appellant would be entitled to a credit for the time served. However, from October 25, 1984, he was also serving a concurrent sentence for robbery and is therefore not entitled to credit while serving time on an unrelated charge. Humphrey v. State, 300 Ark. 383, 779 S.W.2d 53 (1989); McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).

There is a fifteen-day hiatus between the original sentences for kidnapping and rape, which were imposed on October 10, 1984, and his conviction for robbery on October 25,1984. it is not clear from the record exactly how this was handled. However, the record clearly reflects that upon resentencing on the kidnapping and rape charges, the appellant was given credit for forty-two additional days against his sentence, which is presumed to include the fifteen days between October 10,1984, and October 25,1984.

Affirmed.


text:
    Sammie Lee EMBRY and John Wesley Phillips a.k.a. Ibraheem Shabazz v. STATE of Arkansas
    CR 90-36
    792 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered July 2, 1990

      James R. Marchewski, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

Sammie Lee Embry and John Wesley Phillips, aka Ibraheem Shabazz, were each convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. Embry was sentenced to 20 years on the cocaine charge and five years on the marijuana charge. Phillips was found to be an habitual offender, previously convicted of four or more felonies and was thus sentenced to life imprisonment on the cocaine charge and to 20 years on the marijuana charge. Both defendants appeal the convictions. We find the appeal of Embry to be meritorious and reverse and dismiss his convictions. Phillips’s appeal, however, is without merit, and we therefore affirm.

Embry and Patricia Booker had an off-and-on relationship; consequently, Embry spent considerable amounts of time at Booker’s residence at 1414 May Avenue in Fort Smith. Embry, who was the father of Booker’s child, kept clothing at Booker’s house and frequently stayed there.

Law enforcement authorities placed the house under surveillance as a probable outlet for drugs and gave identifiable currency to a confidential informant who was to make a drug buy at that address. When the informant returned, he delivered a quantity of crack cocaine to the authorities. The police obtained a search warrant, and at 2:50 p.m. the officers conducted a search of the Booker residence. They found illicit controlled substances and arrested Booker, Phillips, and others at the scene. Embry was not at the house at the time of the search and arrests. About an hour later, after leaving work, he arrived at the residence and was taken into custody.

Three alleged errors are asserted for reversal:

(1) The trial court erred in denying motions for a directed verdict on behalf of Sammie Embry on the basis that there was insufficient evidence to establish that Embry had constructive possession of the drugs;

(2) The trial court erred in denying motions for a directed verdict on behalf of John Wesley Phillips on the basis that there was insufficient evidence to establish that Phillips had constructive possession of the drugs;

(3) The trial court erred in permitting testimony about the “buy money.”

It is well established that the state need not prove that the accused had actual possession of a controlled substance; constructive possession is sufficient. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is the control or right to control the contraband, can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Plotts v. State; Osborne v. State.

Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the accused to the contraband. Plotts v. State; Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See also Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such instances, the state must prove that the accused exercised care, control, and management over the contraband and also that the accused knew that the matter possessed was contraband. Plotts v. State; Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986). To illustrate the requirements in a factual context, in Williams, an automobile search case, we held the. evidence insufficient to support a conviction for possession of marijuana when the accused was driving a vehicle containing traces of the substance on the vehicle floorboard and on his passenger’s clothing, but none on the accused. In Westbrook, contraband was found in the kitchen of a house owned by the accused and jointly occupied with another. The accused had a superior right to control the property, attempted to hide a jewelry box containing $3,700 from officers, and made an incriminating statement. In Plotts, the accused owned and occupied the vehicle in which the contraband was found, though it was operated by another person, and made a “somewhat suspicious statement” to the officers.

The appellant Embry was not present when the house was entered and searched and had no controlled substance on his person at the time of the arrest. He had no ownership interest in the house or furnishings, though he was a frequent (if not full-time) occupant and kept personal clothing there. It cannot be said that he had a superior or an equal right to the control of the house. He made no effort to dispose of any incriminating matter and made no incriminating statement.

The facts here are similar to those in Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). There, a conviction was returned on the theory of constructive possession where the accused was a resident of the apartment but had no ownership interest and was not where any of the drugs or paraphernalia was located. In reversing, this court stated that “the jury could only have speculated that [the accused] possessed these drugs because the state did not prove it.”

The same may be said with equal emphasis as to the appellant Embry. He possessed no contraband, and the state failed to prove that he constructively possessed either the marijuana or cocaine found at the residence. His conviction must therefore be reversed.

Considering next the challenge by the appellant Phillips/ Shabazz to the sufficiency of the evidence, the record reveals an entirely different scenario under the same facts. Though Phillips had no possessory interest in the house or furnishings, he had sold marijuana, according to testimony, and another substance thought to be cocaine inside the Booker house and at the front door; he was present at the time of the search and attempted to flee from the officer entering the front door; then, when confronted by officers entering through the back door, he tossed away a cigarette package later determined to contain marijuana cigarettes. During the search, the officers discovered a .25 caliber semiautomatic pistol in a closet which had been brought to the Booker house by Phillips and was later found to belong to Phillips’s girlfriend.

All of the recited evidence was abundantly sufficient to overcome a motion for directed verdict, and, as in Sanchez, was sufficient to support the jury’s finding of guilt.

The state contends that Phillips’s motion for directed verdict was made without stating any grounds and is therefore insufficient to preserve for appeal a challenge to the sufficiency of the evidence. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). In this instance we find it unnecessary to rule on the state’s contention.

Lastly, the appellants contend that the trial court erred in permitting testimony concerning the “buy money” recovered during the search.

The officers recorded the serial numbers of the currency before giving it to their informant. The informant was then sent to the Booker residence and returned with a portion of crack cocaine. The original informant did not actually make the buy but procured another to do so. When the residence was subsequently searched, eight of the bills were found in a woman’s jacket in the bedroom closet.

The appellants attack the “buy money” evidence as hearsay and also contend that its relevancy was outweighed, under A.R.E. Rule 403, by the unfair prejudice created. Answering first the relevancy argument, a trial court’s ruling on the relevancy of evidence is entitled to great deference and its determination will not be reversed absent an abuse of discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). We find no such abuse of discretion here.

The appellants’ hearsay argument gives us some concern. However, the officers testified from their own personal knowledge as to what they did, what they observed, and what they found when making a lawful search. This evidence, as a whole, tends to establish why the officers had the house under surveillance in the first instance and why they ultimately conducted their search. See Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987). Furthermore, the officer conducting the surveillance saw the informant coming from the Booker house, though he did not actually see the “buy.” From the testimony of the officers the jury could conclude that a purchase had been made inside Booker’s house. Under these particular circumstances, we agree with the ruling of the trial court that the evidence was admissible and was not hearsay.

Pursuant to the provisions of Supreme Court Rule 11 (f), we have examined the abstract and supplemental abstract and find no adverse ruling resulting in prejudicial error.

As to the appellant Sammie Embry, we reverse and dismiss. As to the appellant John W. Phillips, aka Ibraheem Shabazz, the judgment of the trial court is affirmed.