author: Donald L. CORBIN, Justice.

text:
    Troy Lee MAYO v. STATE of Arkansas
    CR 95-802
    920 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      Lewellen & Associates, by: Roy C. Lewellert, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Donald L. CORBIN, Justice.

Appellant, Troy Lee Mayo, appeals the order of the Monroe County Circuit Court sentencing him to forty years’ imprisonment, following a jury’s verdict of guilty on the charges of rape, robbery, and first-degree battery. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2).

Appellant raises two points for reversal of the judgment and sentence: First, that a criminal defendant is not required under the Equal Protection Clause of the United States Constitution to follow the ruling of Batson v. Kentucky, 476 U.S. 79 (1986), in exercising peremptory challenges of jurors; and second, that the trial court erred in finding that appellant did not articulate non-discriminatory reasons for exercising its peremptory challenges in response to the state’s objection.

As to appellant’s first point, we do not reach the merits as the issue was not properly preserved below nor was it argued to the trial court. We have repeatedly held that this court will not address arguments, even constitutional arguments, raised for the first time on appeal. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994). However, even if this point had been properly preserved for appeal, we are persuaded that the argument is without merit, in light of the United States Supreme Court’s ruling in Georgia v. McCollum, 505 U.S. 42 (1992), which held that, “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” Id. at 59 (emphasis added). As to appellant’s second point, again, we do not reach the merits as the abstract of the record is flagrantly deficient, due to the fact that critical portions of the record necessary for review of this issue are omitted. Accordingly, we affirm the judgment of conviction.

From the abstract provided, we can ascertain that appellant had used five peremptory challenges to strike white jurors and that the state had objected to these strikes as being racially-based in contravention of the ruling in Batson. After hearing the state’s objection, the trial court found that as to four of the five jurors it was not “immediately obvious” that the appellant may have had a “nonracial,” or racially neutral, reason for striking them. The trial court then required appellant’s counsel to explain why he had struck the remaining four jurors.

As to two of the four jurors, Mr. Davis and Ms. Hickman, appellant’s counsel stated that he had peremptorily challenged them because they were nonresponsive, both verbally and physically, to some of the questions posed by him. Appellant’s counsel then explained to the trial court that he had chosen to strike the third juror, Ms. Nash, because she was a beautician, and he felt that her exposure in the community would make her more likely to know something about the case, or to have heard about the case. Finally, with regard to the fourth juror, Ms. Porter, appellant’s counsel stated that he was concerned with the fact that she was a pharmacist by profession and that because her work was some distance away in Little Rock, she may not have the ability to pay attention at trial.

After hearing the explanations provided by appellant’s counsel, the trial court announced that it was not convinced there were “non-racial” reasons for striking Mr. Davis and Ms. Hickman, and thus, the court seated them on the jury, over the appellant’s objection. With regard to Ms. Nash, the beautician, the trial court accepted appellant’s counsel’s explanation for striking her and denied the state’s motion. Lastly, concerning Ms. Porter, the trial court noted that although she was a pharmacist, she was no more medically knowledgeable than a nurse (who presumably had been selected as a juror, although the abstract does not reveal this), and that there had been nothing to indicate that she was so concerned about her job in Little Rock that she could not maintain attention at trial. The trial court ultimately found that appellant’s counsel had not provided a “non-racial” explanation for striking Ms. Porter, and she, too, was seated on the jury.

As to the Batson argument made by appellant, we have been provided very little information with which to reach the merits of the issue. Pursuant to Ark. Sup. Ct. R. 4-2 (a) (6), an appellant’s abstract should consist of an impartial condensation of “only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” (Emphasis added.) In the event this court finds an abstract to be “flagrantly deficient,” Ark. Sup. Ct. R. 4-2(b)(2) provides that the judgment below may be affirmed for noncompliance with the Rule. We find the abstract submitted in this case to be flagrantly deficient, as it fails to provide the documents or materials necessary to an understanding of the issue presented.

Specifically, this abstract sinks to the level of being flagrantly deficient in that it does not contain those documents which are the bare essentials of an abstract, such as the information, the judgment and commitment order, and the notice of appeal. Particularly, as to the Batson issue, the abstract does not provide the final composition of the jury which heard the case, the number of white persons who sat on the jury, the total number of white persons in the jury venire, or the total number of peremptory strikes exercised by the appellant. Furthermore, the abstract does not provide the relevant colloquy between appellant’s counsel and each of the aforementioned jurors during the voir dire proceeding, nor does it even state for certain that the appellant is not white — we are only to assume that fact. Moreover, it is only from the supplemental abstract provided in appellee’s brief that we are informed the trial court reimbursed appellant with three additional peremptory strikes to make up for the three jurors the court had seated over his objection. Due to appellant’s failure to include this necessary information in his abstract, we are unable to determine whether the trial court erred in seating the three white jurors over the appellant’s objection.

We do not presume error simply because an appeal is made. It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987). We have repeatedly held that as there are seven justices on this court, it is virtually impossible for all seven to read the one record filed with the appeal. See, e.g., Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995); Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). Due to appellant’s failure to adequately abstract the record as to the Batson issue raised in his brief, we find that the record is insufficient to demonstrate error. See, e.g., Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Acklin v. State, 319 Ark. 363, 896 S.W.2d 423 (1995). We hold that appellant’s abstract is flagrandy deficient in violation of Ark. Sup. Ct. R. 4-2(a)(6), and we affirm the judgment of conviction.

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

author: Andree Layton Roaf, Justice.

license: Public Domain

text:
    Bobby Joe McADAMS, Attorney in Fact for Shelby L. McAdams and Theresa McAdams, and Bob McAdams v. AUTOMOTIVE RENTALS, INC.
    96-85
    924 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996
    Substituted opinion delivered June 24, 1996
    [Petition for rehearing denied June 24, 1996.]

      Appellant, pro se.

      Eichenbaum, Scott, Miller, Liles & Hester, PA., by: James H. Penick, III, for appellee.

      Substituted opinion issued on denial of rehearing. Dudley, J., not participating.

   Andree Layton Roaf, Justice.

Appellants bring this appeal from a chancellor’s order entered in a foreclosure action. This court affirmed a previous appeal by the appellants in this case because of a flagrandy deficient abstract. McAdams v. Automotive Rentals, Inc., 319 Ark. 254, 891 S.W.2d 52 (1995). We again affirm without reaching the merits of appellants’ appeal.

This case arose from a foreclosure action filed by Twin City Bank against Bobby Joe McAdams (McAdams) and other parties that held liens against McAdams’ property. Twin City’s mortgage was deemed first in priority and was subsequently assigned to Shelby and Theresa McAdams, the brother and sister-in-law of Bobby Joe McAdams. After a sale was ordered, Shelby and Theresa McAdams purchased the property, giving what they later claimed to be a conditional bid in the amount of $166,960.72. The chancellor determined that appellee Automotive Rentals, Inc. (ARI), was second in priority and therefore entitled to any excess proceeds from the sale of the property in a September 17, 1993 order. The McAdamses apparently attempted to appeal from this order in their prior appeal. The chancellor also determined in a March 10, 1994 order that McAdams was entitled to a homestead exemption if he proved within five months that he intended to use the excess proceeds to procure another homestead. ARI appealed from this order. These appeals were consolidated. The McAdamses’ appeal was dismissed by mandate dated February 28, 1995, because of a deficient abstract. McAdams, supra. Upon remand, the chancellor determined that all prior orders had become final, nonappealable orders and are the law of the case, that McAdams had failed to timely prove that he was going to use any excess proceeds towards another homestead, that his homestead exemption would be extinguished and that ARI would therefore be entitled to any excess proceeds. This order was entered on August 9, 1995. The McAdamses now appeal from this order.

All five points raised by the McAdamses, to the extent they can be understood, appear to take issue with orders, deeds and other matters which transpired in 1993 and 1994, prior to the first appeal of this case. Not all of these prior orders are abstracted. Three of the points do not even allege that the trial court erred with regard to the matters under discussion. Although the caption of one point does refer to the August 9, 1995 order which is the subject of this appeal, the McAdamses primarily argue in this point that the trial court erred in a March 1, 1994 order.

All of the arguments are unintelligible. None appear to be direcdy related to the trial court’s order of August 9, 1995. As the trial court correcdy pointed out, the decision of the first appeal became the law of the case and is conclusive not only of questions decided in the former appeal, but also of those which might have been, but were not presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994); Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990). Moreover, we do not reach the merits of an issue unsupported by convincing argument or authority. Pledger v. Halvorson, 324 Ark. 302, 921 S.W.2d 576 (1996); Haase v. Starnes, M.D., 323 Ark. 263, 915 S.W.2d 675 (1996); Equity Fire & Casualty Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).

Affirmed.

Dudley, J., not participating.


author: ANDREE LAYTON Roaf, Justice.

text:
    Marco Kodell PROWELL v. STATE of Arkansas
    CR 95-1007
    921 S.W.2d 585
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996
    [Petition for rehearing denied June 10, 1996.]

      McLean Law Firm, by: William A. McLean, for appellant.

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

      Dudley, J., not participating.

   ANDREE LAYTON Roaf, Justice.

Appellant Marco Kodell Prowell appeals his conviction of capital murder and aggravated robbery and sentence of life imprisonment without parole. Prowell challenges the sufficiency of the evidence and the trial court’s failure to suppress identification testimony and to grant his objection to the state’s peremptory strikes based on Batson v. Kentucky, 476 U.S. 79 (1986). We affirm.

At approximately 8:00 p.m. on March 25, 1994, two men entered Andre’s Cuisine in the Hillcrest area of Little Rock. One of the men approached Andre Simon, the owner of the restaurant, and pulled a gun. Simon and the assailant struggled; Simon was knocked to the floor and shot in the back. After shooting Simon, the assailant turned toward Richard Wilson, the manager of the restaurant, and demanded that he open the safe. Wilson opened the safe and handed him a bag containing about $400.00; the two men then fled the restaurant. Simon died as a result of the gunshot wound.

At trial, Richard Wilson identified appellant Marco Prowell as the person who shot Simon. Bill Byrd, a patron of the restaurant, identified Prowell as one of the men who entered the restaurant. Jeff Gilger, also a patron of the restaurant, testified that he saw Prowell enter the restaurant shortly before Simon was shot, but he did not see a gun.

Í. Sufficiency of the evidence

Prowell first contends that because of overly suggestive pretrial identification procedures and the unreliable nature of the identification by Richard Wilson, his motions to suppress Wilson’s in-court identification and for a directed verdict should have been granted. Prowell submits that the motion for directed verdict should have been granted because, without the erroneously admitted identification testimony, the evidence was insufficient to sustain his conviction. Although Prowell combines his challenge to the sufficiency of the evidence with his challenge to the pretrial identification procedures, the preservation of an appellant’s right to freedom from double jeopardy requires that we review the sufficiency of the evidence prior to examining trial error. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Consequently, we address Prowell’s challenge to the sufficiency of the evidence prior to considering his other assignments of triad error. In determining the sufficiency question, we disregard any alleged trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994).

On appeal, we determine whether the evidence in support of the verdict is substantial. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Young v. State, supra. In a criminal case, we review the evidence in the light most favorable to the state, and consider only that evidence which supports the guilty verdict. Id. In the instant case, Robert Wilson identified Prowell as the assailant who shot Andre Simon. His credibility is for a jury, not an appellate court, to determine. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). Further, the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Galvin v. State, 323 Ark. 125, 912 S.W.2d 232 (1996); Gray v. State, 318 Ark. 601, 888 S.W.2d 302 (1994). Thus, the evidence is sufficient to sustain Prowell’s conviction.

2. Suppression of identification testimony

Prowell also asserts that the trial court erred in failing to suppress the in-court identification by Richard Wilson. Prior to trial, Prowell moved to suppress all identification testimony. He contended that both pretrial and in-court identifications should be suppressed because the pretrial photographic lineup procedures were suggestive and would taint and render unreliable any subsequent in-court identification.

We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995); Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995); Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). In determining whether an in-court identification is admissible, we look first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; it is the appellant’s burden to show that the pretrial identification procedure was suspect. Mills, supra; Hayes, supra.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996); Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Even when the process is impermissibly suggestive, the trial court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be submitted to the jury, and then it is for the jury to decide the weight the identification testimony should be given. King, supra; Chenowith, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. King, supra; Mills, supra.

In Prowell’s case, the trial court conducted a suppression hearing to determine the admissibility of Richard Wilson’s identification testimony. The following evidence was presented at this hearing. On the evening of the incident, March 25, 1994, Wilson provided a statement to the police in which he described the person who shot Simon as a black man, about 185 or 190 pounds, clad in a jacket and oversized clothes which made him appear overweight. He stated that the second assailant was heavier than the gunman.

On March 27, 1994, Wilson viewed a photographic lineup of six individuals. Prowell’s photograph was not included. He picked one of the individuals as a “look-alike” of the person who shot Simon. At approximately 1:50 a.m. on March 31, Wilson again went to the police station to view a photographic lineup which included a picture of Prowell. Wilson testified that he was disoriented that night because he had not slept in four or five days. Wilson did not select anyone from this lineup.

At approximately 3:22 p.m. on March 31, Wilson viewed another photographic lineup which included the picture of Prowell. He picked one of the men as a look-alike of the second assailant — not the person who shot Simon.

Wilson viewed a final photographic lineup on April 8, 1994. However, he testified that prior to the April 8 lineup, he saw a newspaper photograph of Prowell and two other men all clad in orange suits; they were identified as involved in the Simon shooting. Wilson testified that he recognized Prowell in this photograph as the person who shot Simon. He did not notify the police that he had seen the gunman’s picture in the newspaper until he arrived at the police station on April 8.

On April 8, Wilson viewed the same photographs shown to him on March 31. Wilson selected the photograph of Prowell, but he stated that he “thought the picture didn’t look like Mr. Prowell” and that the newspaper picture of Prowell was significantly different. Wilson testified that the newspaper picture was a full body shot, while the police photograph showed an individual looking directly into the camera with a dazed expression, and that the light in the police photograph “washed the face out.”

We cannot say that it was all but inevitable that Wilson would identify Prowell because of the newspaper photograph. See King v. State, supra. A suspect was identified under similar circumstances in Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). There, the witness was present at the police station and saw Van Pelt as he arrived in custody. We noted that there was no evidence suggesting that the police brought Van Pelt to the station to facilitate an identification. The witness made his initial identification spontaneously and before Van Pelt was taken inside the building; the witness could not have known for certain that Van Pelt was even the suspect in the crime. In the instant case, there is also no suggestion that the police were involved in any way with Wilson’s viewing of the newspaper photographs. Further, although three men were depicted in the newspaper photograph as suspects in the Simon shooting, Wilson specifically identified Prowell as the one who shot Simon.

Even assuming the pretrial identification procedure was imper-missibly suggestive, Wilson’s identification was sufficiendy reliable. See Chenowith, supra. Wilson testified that he viewed the person who shot Simon for approximately forty-five seconds during the incident and that he was within a few feet of the assailant at the time of the shooting. The shooter was within approximately two feet when he held the gun on Wilson. Although there was some confusion about which of the two assailants was heavier, Wilson informed the police that the gunman weighed 185 or 190 pounds; according to the arrest records, Prowell weighs 160 pounds.

Wilson never identified any other person as the individual who shot Simon. He advised the police that if he saw the person who shot Simon, he could identify him; he did in fact identify Prowell as the gunman. Further, Wilson testified that his identification was based upon his independent recollection of the events that happened on the evening of the murder. Although Wilson did not identify Prowell during the March 31 photographic lineups, he explained that the newspaper photograph was significantly different than the line-up photograph and that the police photograph was not a good likeness of Prowell.

We cannot say, under the totality of the circumstances, that the trial court was clearly erroneous in permitting the in-court identification to proceed.

Prowell also contends that the photograph which Richard Wilson and Jeff Gilger viewed during the photographic lineups was obtained in violation of his constitutional rights and that their identification testimony was therefore inadmissible as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471 (1963); see also, Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988).

Prowell asserts that the photograph was obtained as a result of his unlawful arrest on March 31, 1994. At a separate pretrial suppression hearing, Detective Ronnie Smith testified that when Pro-well was located at a friend’s apartment on the evening of March 30, 1994, he was a suspect, but the police did not have probable cause to arrest him at that time. Smith stated that he told Prowell that his name had come up in connection with the Simon homicide and that he just wanted to ask him a few questions about the matter. Smith further testified that he told Prowell that his cooperation was voluntary, but Smith acknowledged that he did not specifically advise Prowell that he was under no legal obligation to accompany the officers to the police station, as required by A.R.Cr.P. Rule 2.3.

Prowell’s testimony concerning his arrest was at odds with that of the officer. Prowell testified that while he was standing in the parking lot of the apartments where he lived, six or more plain clothes police officers jumped out of two vehicles with guns drawn, ordered him to get down, handcuffed him, placed him in one of the cars, and took him to the police station. The photograph of Prowell used in the lineups was taken after he arrived at the station. Prowell further testified that no one told him that he did not have a legal obligation to accompany the officers to the police station.

In Burnett v. State, supra, this Court quoted the test for whether one has been seized from United States v. Mendenhall, 446 U.S. 544 (1980):

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

In determining that Burnett was seized at his home in violation of the Fourth Amendment, we noted that officers did not comply with the rule of criminal procedure which requires that a person be informed he is free not to accompany the officer if the officer does not have a warrant. See A.R.Cr.P. Rule 2.3. Burnett was not told he could stay at home; he was simply told to get his clothes on and come to the station.

Arkansas Rule of Criminal Procedure 2.3, Warning to Persons Asked to Appear at a Police Station, provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

(Emphasis added.) Here, Smith testified that he never specifically informed Prowell that he was under no legal obligation to accompany the officers and that he was not even aware of Rule 2.3 at the time of Prowell’s arrest. Smith merely stated that he advised Prowell that his cooperation was voluntary and that he was only a suspect. This does not comply with the requirements of Rule 2.3. See Addison v. State, 298 Ark 1, 763 S.W.2d 566 (1989).

However, Prowell has suffered no prejudice from the photograph taken at the police station. Wilson was unable to identify Prowell from this photograph in the photographic line-ups conducted on March 31. Wilson instead identified Prowell as the shooter from the newspaper photograph, and he further testified that his in-court identification of Prowell was based upon his independent recollection of the events that happened on the evening of the robbery and murder.

3. Peremptory challenges

For his final argument, Prowell asserts that the state’s use of peremptory challenges to excuse three blacks from the jury violated the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky 476 U.S. 79 (1986). The procedures to be followed when a Batson objection is raised are well established:

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995). Further, this Court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire. Id. The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Id.

During voir dire, the state exercised one of its peremptory challenges to strike David King, a black man. At the time King was excused, two persons had been selected to sit on the jury panel. Prowell asked that the state be required to enunciate its reasons for the strike. The prosecutor responded that six prospective jurors had been questioned and one black person was sitting on the panel. The prosecutor stated that King, in answering the questions concerning the death penalty, had “some pause in considering that issue,” and that King had discussed his Christian conviction, including grace and mercy, and stated that he could not consider the death penalty for an accomplice. The prosecutor asserted that he believed King’s religious conviction was such that he could not consider the death penalty.

The state also used a peremptory challenge to strike Alberta Maxwell, a black woman. Once again, Prowell asked that the state provide a reason. In response, the state indicated for the record that five jurors had been selected — three black women and two white men. As to Ms. Maxwell, the state explained that when asked about the burden of proof on capital murder cases, she paused a very long time and gave several answers that indicated she would hold the state to a higher standard.

Finally, the state exercised a peremptory challenge to strike Verline Hardaway, a black woman. Prowell then made a Batson objection and asked that the state provide a reason. The state submitted that although Hardaway eventually said she could probably consider the death penalty, she initially stated that she had “deeply held personal beliefs that would keep her from considering the death penalty.” Further, the prosecutor submitted that Ms. Hard-away said several times that in a death-penalty case she would want to be convinced beyond all doubt. The trial court accepted the state’s explanations and upheld all three strikes.

Although the defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge, here, the prosecutor volunteered explanations for the challenges; the trial court made no rulings on whether a prima facie case was made. In Hernandez v. New York, 500 U.S. 352 (1991), the Court stated that once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Id.; see also Sims v. State, 320 Ark. 528, 900 S.W.2d 508, (1995).

The standard by which we review the trial court’s evaluation of the sufficiency of the prosecutor’s explanation is whether those findings are clearly against a preponderance of the evidence. Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991). The prosecutor’s explanation need not rise to the level justifying the exercise of a challenge for cause. Id.

Here, the prosecutor’s explanations were clearly based on something other than race and without anything more, the reasons he offered in striking the jurors must be deemed race neutral. See Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995). We have accepted as racially neutral an explanation that the prosecutor felt he “had gotten some mixed signals about what [a prospective juror] would require in terms of the State’s proof.” Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). Under the circumstances, we cannot say that the trial court’s Batson rulings were clearly against the preponderance of the evidence.

4. Ark. Sup. Ct. R. 4-3(h)

The record has been examined in accordance with Arkansas Supreme Court Rule 4-3 (h), and there were no rulings adverse to Prowell which constituted prejudicial error.

Affirmed.


author: PER CURIAM.

text:
    Calvin LEAVY v. Larry NORRIS, Director
    CR 96-268
    920 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      Appellant, pro se.
    No response.
   PER CURIAM.

Calvin J. Leavy was found guilty by a jury in 1992 of participating in a continuing criminal enterprise, public servant bribery, delivery of cocaine, and use of a communication facility in furtherance of a drug felony. He was sentenced respectively to terms of imprisonment of life, six years, twenty-five years, and ten years. We affirmed. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993).

In 1995, Mr. Leavy filed a pro se petition for writ of habeas corpus in the circuit court in the county in which he was incarcerated. An order was entered denying the petition on September 19, 1995. An appeal of the order was not perfected, and petitioner Leavy now seeks to proceed with a belated appeal.

Petitioner contends that he forwarded a notice of appeal to the circuit clerk on September 26, 1995, which was not filed by the clerk. He argues that it can be determined from an affidavit attached to the motion for belated appeal that he filed the notice, but the affidavit is merely petitioner’s notarized statement that he had the notice of appeal notarized on September 26, 1995, and mailed it on September 27, 1995. There is nothing in the record or the motion to show that the circuit clerk received a notice of appeal from the petitioner within the thirty days allowed for filing a timely notice of appeal pursuant to Rule 4 (a) of the Rules of Appellate Procedure. We take judicial notice that petitioner forwarded a copy of a notice of appeal to this court which pertains to the September 19, 1995, order, but the filing date on the notice was November 28, 1995, making it untimely.

A petitioner has the right to appeal an adverse ruling on a petition for postconviction relief. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 4(a). If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se does not in itself constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983).

This court has specifically held that the litigant who claims to have mailed an item has the burden of proving that he mailed it, and the bare allegation that a notice of appeal was mailed is not good cause to grant a belated appeal. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). As we said in Skaggs,

If it [the allegation that a notice was mailed] were [sufficient], there would be no point in setting up rules of procedure since the procedural requirements could be circumvented by a simple claim that the petitioner’s failure to comply with the rules was caused by the post office.

The petitioner here appears to blame the circuit clerk rather than the post office for the fact that a notice of appeal was not filed in a timely manner, but the fact remains that he has presented nothing to show that he mailed it in a timely manner. It must be assumed that if the petitioner had mailed the notice to the clerk, it would have been delivered. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from, did not file it, and has stated no good cause for his failure to file a timely notice of appeal, the motion for belated appeal is denied.

Motion denied.

Dudley, J., not participating.


text:
    Larry RAYFORD v. STATE of Arkansas
    CR 96-428
    920 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      John F. Gibson, Jr., for appellant.
    No response.
   PER CURIAM.

The Clerk of the Court refused to docket this case when the record was presented on April 2, 1996. Appellant’s counsel, John F. Gibson, Jr., filed this motion on behalf of his client asking that the record be accepted, despite its being tendered more than two years after final judgment was entered. We deny the motion at this time.

The grounds set forth in support of the motion are: 1) the trial court erroneously extended the time for preparing the transcript beyond the seven-month period allowed by Ark. R. App. P. 5(b), and 2) the appellant was indigent and could not afford the cost of the transcript. The record reflects that on February 17, 1994, Rayford’s motion for a new trial was denied and a final judgment entered. Notice of appeal was timely filed on March 17, 1994. On May 6, 1994, counsel filed a motion for an extension of time in which to file the transcript. The motion did not specify an extension date, but asked for “the full seven months allowed.” A timely order was entered on May 26, 1994, which extended the time for filing the transcript until October 17, 1994. That date was one month beyond the time allowed by Ark. R. App. P. 5(b), which specifies that:

In no event shall the time [for filing the record on appeal] be extended more than seven (7) months from the date of the entry of the judgment, decree or order. . .

It appears that the seven months was erroneously calculated from the date that notice of appeal was filed, rather from the date that judgment was entered.

We have consistently held that the appellant’s attorney is responsible for filing the record, not the trial judge or other court personnel. Norman v. State, 323 Ark. 447, 916 S.W.2d 724 (1996); Parrish v. State, 313 Ark. 313, 853 S.W.2d 284 (1993). An attorney must admit fault or show other good cause before a rule on the clerk is granted.

It is also contended in this case that the appellant’s indigency prevented him from paying for a timely prepared transcript. The record reveals that as early as July 14, 1994, court reporter Michael Ashcraft notified appellant’s counsel that he had received neither a deposit nor an order of indigency to allow him to begin preparation of the transcript. Another notification followed in August. Finally, on December 20, 1994, after a certificate of no appeal had been issued by the clerk of this court, a hearing was requested by the prosecution and the appellant declared indigent. At the same hearing, the court re-appointed John Gibson to pursue any remedies that might be available for a belated appeal. However, it was not until October of 1995 that an order to this effect was entered, and then only after inquiries by the court reporter and the appellant himself. Once the order was entered, the court reporter began preparation of the transcript. It was prepared on Friday, March 29, 1996, and tendered to our clerk the following Tuesday, April 2, 1996.

Under the circumstances of this case, we cannot grant the relief requested. The appellant’s attorney shall file within thirty days of the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and, upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


author: Per Curiam.

text:
    Robert WATSON v. STATE of Arkansas
    CR 96-425
    920 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      John F. Stroud, III, for appellant.
    No response.
   Per Curiam.

Appellant Robert Watson asks this Court to grant a writ of certiorari to complete the record in his case. We deny the writ.

Watson was convicted of delivery of a controlled substance and sentenced to thirty years imprisonment. The judgment and commitment order was entered on September 7, 1995, and the notice of appeal was filed on September 26, 1995. The time to file the record was extended by the trial court to April 6, 1996, which was a Saturday. On Monday, April 8, 1996, Watson filed a partial record with the Clerk and filed this petition for writ of certiorari for complete record. In his petition, Watson states:

the Court Reporter, Betty Voltz, has indicated that she cannot have the record completed prior to April 6, 1996. Due to an administrative oversight caused by the lengthy illness of Judge Purifoy, which resulted in his office being closed for several months, the preparation of the transcript in this matter has not been completed due to the lack of timely notice but, given an additional 30 days, she will be able to do so. A copy of her Affidavit is hereto attached.

The affidavit of Ms. Betty J. Voltz provides:

I, Betty J. Voltz, Official Court Reporter for the Eighth Circuit and Chancery District of Arkansas, state that due to an administrative oversight caused by the lengthy illness of Judge Philip Purifoy, which resulted in his office being closed for several months, the preparation of the transcript in State of Arkansas v. Robert Watson, Lafayette County Case. No. CR-92-50-3 has not been completed due to my lack of timely notice of the need for preparation of this transcript and that the aforementioned appeal transcript can be completed and filed with the Clerk by the 6th day of May, 1996.

(Emphasis supplied.)

Rule of Appellate Procedure 3(e) provides in part that “[t]he notice [of appeal] shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.” (Emphasis supplied.) Thus, Watson should have immediately ordered the reporter’s transcript. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995). However, there is no indication in the partial record filed that this was done.

On December 4, 1995, the trial court entered an order granting Watson “the maximum length of time until April 6, 1996, to lodge the transcript with the Arkansas Supreme Court.” Rule of Appellate Procedure 5(a) provides that the record on appeal shall be filed with the Clerk of the Supreme Court within ninety days from the filing of the notice of appeal. However, the trial court, upon finding that a reporter’s transcript of evidence or proceedings has been order by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal. Ark. R. App. P. 5(b). In the instant case, neither the partial record filled nor the trial court’s order extending the time to file the record indicates that the trial court made a finding that the transcript had been ordered. See Jacobs v. State, supra.

We have consistendy held that the appellant’s attorney is responsible for filing the record, not the trial judge, the court reporter, or the circuit clerk. Norman v. State, 323 Ark. 447, 916 S.W.2d 724 (1996). The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon fifing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

Writ denied.


text:
    Alvin WILLIAMS v. STATE of Arkansas
    CR 95-194
    920 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered May 6, 1996

      Webb & Wyatt, by: Ed Webb, for appellant.
    No response.
   Per Curiam.

Appellant Alvin Williams has appealed a criminal conviction to this Court. He filed his brief with the Clerk’s Office on December 27, 1995. The State’s brief was thus due on January 26, 1996.

The Attorney General has not filed a brief and has not sought or obtained an extension of time for filing the State’s brief. The only record of any activity on the Attorney General’s part is our Clerk’s record showing that the Attorney General checked out the record on February 12, 1996.

If the Attorney General does not submit a brief before the close of business on May 24, 1996, the case will be submitted for decision solely upon the appellant’s brief.

DUDLEY, J., not participating.


author: BRADLEY D. Jesson, Chief Justice.

text:
    Benny Ray McDOUGAL v. STATE of Arkansas
    CR 95-1124
    922 S.W.2d 323
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996
    [Petition for rehearing denied June 10, 1996.]

      Ogles Law Firm, by: John Ogles, for appellant.

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

      DUDLEY, J., not participating.

   BRADLEY D. Jesson, Chief Justice.

The appellant was convicted of operating a gambling house in violation of Ark. Code Ann. § 5-66-103 (Repl. 1993). He received three years probation and was sentenced to thirty days in the White County Detention Center. We affirm his conviction.

The appellant operated an establishment in White County known as Benny’s Barn. Patrons paid membership fees and admittance fees in order to attend the cockfights which took place on the premises. In December of 1994, the White County Sheriff’s office began an undercover investigation of the operation. The Sheriff enlisted the help of officers from the Pulaski County Sheriff’s Department. On December 3, 1994, Pulaski County Detectives Lane and Doty went, undercover, to Benny’s Barn. They paid their membership fee and admittance charge and were “buzzed in” through an electronic door. Once inside they observed pit areas, where the cockfights took place, and bleachers along the side of the pits. Before a fight would begin, many of those in the bleachers would engage in loud, open betting, shouting their wagers, such as “five on the red” or “I’ve got ten dollars on that.” According to the officers, as many as half of those present were betting, and the wagering was so loud it could not be missed by anyone in the building. Detective Lane said that, at one point during the evening when they could plainly hear betting taking place, the appellant was sitting two seats in front of them in the bleachers.

Detective Lane further observed that one of the facility’s referees, Mr. Tharp, called out at least two times before a fight, “Place your bets.” Detective Doty heard another employee say, “Make sure you get your bets down.” Finally, the detectives saw the appellant exchange money with a patron in a manner which they characterized as placing a bet. Detective Lane testified that he actually overheard the appellant making the bet and paying off after he lost. One of the chicken handlers, Russell Rice, also said he saw the appellant exchanging money with someone.

On December 17, 1994, Detective Lane, along with another officer and DEA Special Agent Karen Fehrenbach, returned to Benny’s Barn. When they were permitted entry through the electronic door, Detective Lane asked why such a door was needed. An employee said, “to keep the Sheriff’s Department out.” Otherwise the visit on the 17th revealed the same loud, open betting which had been observed previously.

As a result of the undercover investigation, several arrests were made. The appellant and one of his employees were charged with operating a gambling house. Three others were charged with cruelty to animals. All five were tried together in a non-jury proceeding.

In the case against the appellant, the State introduced the abovementioned testimony of Detectives Lane and Doty, Special Agent Fehrenbach, and Russell Rice. In addition, an audio tape was introduced into evidence. On the December 3 visit, Detective Doty made an unsuccessful attempt to surreptitiously videotape the activities inside Benny’s Barn. However, the machine malfunctioned, leaving only a poor-quality audio tape. The judge listened to the tape and said he could clearly hear four occasions on which a person was attempting to make a bet. However, he noted that there was a lot of activity on the tape that could not be understood.

The appellant argued to the court that the State’s evidence was insufficient to convict him of operating a gambling house. He also argued that Arkansas’s gambling house statute was unconstitutionally overbroad. Finally, he alleged that Ark. Code Ann. § 5-66-101 (Repl. 1993), a statute that requires judges to construe gaming statutes liberally, violated the rule of strict construction of criminal laws. The judge ruled against the appellant in every instance, and this appeal followed.

Sufficiency of the Evidence

When reviewing the sufficiency of the evidence to support a criminal conviction, our inquiry is whether the conviction is supported by substantial evidence. Substantial evidence is of sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond speculation and conjecture. We view the evidence in a light most favorable to the trial judge’s decision. Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995); Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993).

The appellant was convicted under Ark. Code Ann. § 5-66-103(a) (Repl. 1993), which reads as follows:

Every person who shall keep, conduct, or operate, or who shall be interested, direcdy or indirectly, in keeping, conducting, or operating any gambling house or place where gambling is carried on, or who shall set up, keep, or exhibit or cause to be set up, kept, or exhibited or assist in keeping, setting up, or exhibiting any gambling device, or who shall be interested directly or indirecdy in running any gambling house or in setting up and exhibiting any gambling device or devices, either by furnishing money, or other articles for the purpose of carrying on any gambling house shall be deemed guilty of a felony and on conviction shall be confined in the Department of Correction for not less than one (1) year nor more than three (3) years.

The essence of the offense set out in § 5-66-103 is the keeping or maintaining of a house where those who wish to gamble may do so. Sorrentino v. State, 214 Ark. 115, 214 S.W.2d 517 (1948). In this case, there is substantial evidence that the appellant was maintaining a place where gambling took place and that he was well aware of the gambling. The undercover officers testified that the betting among patrons was loud enough and open enough that it would be virtually impossible not to be aware of it. They also testified that employees of Benny’s Barn made reference to patrons’ placing their bets. The trial judge said he could hear open betting on the audiotape. Finally, Detective Lane offered unequivocal testimony that he observed the appellant himself engaged in wagering.

The appellant argues that, 1) no witness could say with certainty that he had seen the appellant himself wagering on the cockfights, 2) some witnesses testified that no gambling took place in Benny’s Barn, and 3) the appellant had a rule against gambling as evidenced by the many signs posted throughout the establishment. First, Detective Lane did testify with certainty that he had seen the appellant making a bet with another man. In any event, it is not necessary that the State prove the appellant actually engaged in wagering. Liberto v. State, 248 Ark. 350, 451 S.W.2d 464 (1970). Second, the fact that some witnesses testified that no gambling occurred does not render the evidence insufficient; other witnesses testified with equal force that gambling did occur on the premises. We view the evidence in a light most favorable to support the conviction. Igwe v. State, supra. Finally, the presence of “No Gambling” signs, of which as many as twenty-five were observed by Detective Lane, was characterized by the trial judge as a “hollow gesture” on the part of the appellant. In light of the evidence of loud, open gambling on the premises, we cannot say that the trial judge was incorrect in his assessment.

Based upon the foregoing, we hold that the evidence was sufficient to support the conviction.

Constitutionality of Ark. Code Ann. § 5-66-103

A statute is presumed constitutional, and all doubts are resolved in favor of constitutionality. The party challenging the statute has the burden of proof. Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991).

The appellant contends that § 5-66-103 is unconstitutionally overbroad because its wording is so inclusive that it may criminalize perfectly innocent conduct. One example he offers is his claim that, if a person hosted a Super Bowl party at his home and gambling took place among those in attendance, the homeowner could be convicted of operating a gambling house.

We addressed a similar challenge in State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992). In that case, we held that § 5-66-103 was not void for vagueness. However, we did not reach the overbreadth argument. The two constitutional challenges are often confused and do tend to overlap. An overbroad statute is one that is designed to punish conduct which the state may rightfully punish, but which includes within its sweep constitutionally protected conduct. 4 R. Rotunda & J. Novak, Treatise on Constitutional Law, § 20.8 (2d ed. 1992). By contrast, a statute is void for vagueness if its language is so indefinite that the line between condemned conduct and innocent conduct becomes a matter of guesswork. L. Tribe, American Constitutional Law, § 12-31 (2d ed. 1988).

The appellant’s overbreadth challenge fails for two reasons. First, even though § 5-66-103 itself imposes no requirement that the offender have a culpable mental state, Ark. Code Ann. § 5-2-203(b) (Repl. 1993) grafts such a requirement onto the statute:

if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required, and is established only if a person acts purposely, knowingly or recklessly.

When the mental culpability requirement is read into § 5-66-103, it is clear that a person must act purposely, knowingly or recklessly in order to violate the statute. That being the case, the overbreadth of which the appellant complains does not exist.

The second reason the appellant’s argument must fail is that, since the statute was properly applied to his conduct, he cannot challenge the statute on the ground that it may conceivably be applied in hypothetical situations not before the court. An appellant may challenge a law as being facially invalid only if he shows that the application of the law will restrict First Amendment rights. United States v. Salerno, 481 U.S. 739 (1986); New York v. Ferber, 458 U.S. 747 (1982). See also, R. Rotunda & J. Nowak, Treatise on Constitutional Law, supra.'Appellant has made no such showing in this case.

Validity of Ark. Code Ann. § 5-66-101

This statute was also challenged in the Torres case. It reads as follows:

The judges of the several courts in this state shall, in their construction of the statutes prohibiting gaming, construe the same liberally, with a view of preventing persons from evading the penalty of the law by changing of the name or the invention of new names or devices that now are, or may hereafter be, brought into practice, in any and in all kinds of gaming, and all general terms of descriptions shall be so construed as to have effect, and include all such games and devices as are not specially named; and in all cases, when construction is necessary, it shall be in favor of the prohibition and against the offender.

The appellant claims that this statute is in derogation of our established principle that penal statutes are to be strictly construed. In Torres, we said that, having found no ambiguity in § 5-66-103, we would not address the appellant’s challenge to § 5-66-101. In this case, we decline to address the issue because the record reflects that the trial judge did not utilize the statute. In ruling on the appellant’s argument, the judge stated that the statute had no application to this case.

Affirmed.

DUDLEY, J., not participating.

       The record reveals that the appellant’s employee was acquitted of operating a gambling house, and that the other three defendants were convicted of cruelty to animals. Their convictions are not challenged in this appeal.


author: Robert H. Dudley, Justice.

text:
    Harold McLAUGHLIN, Reliable Truck Brokers, Inc., d/b/a Champion Transportation Services, Inc. v. Toby James COX
    95-685
    922 S.W.2d 327
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Cypert, Crouch, Clark, & Harwell, by: James E. Crouch, for appellants.

      Austin & Osborne, by: Brenda Horn Austin, for appellee.
   Robert H. Dudley, Justice.

This malicious-prosecution case was before this court in a previous appeal. See Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). In that opinion, we reversed a summary judgment in favor of the defendants, Harold McLaughlin and Reliable Truck Brokers, Inc., d/b/a Champion Transportation Services, Inc. Upon remand, the case went to trial, and the jury found that plaintiff, Toby James Cox, was entitled to $18,000 in compensatory damages and $100,000 in punitive damages. The trial court entered judgment accordingly. As this is the second appeal of this case, this court has appellate jurisdiction. Ark. Sup. Ct. R. l-2(a)(ll). We affirm the judgment.

In March 1990, plaintiff Toby Cox operated a truck that was owned by his father, Floyd Cox, and was leased to Westport Trucking Company. Defendant Harold McLaughlin was employed by defendant Reliable Truck Broker, Inc., which did business as Champion Transportation Services, Inc. Defendant Champion was a brokerage company that contacted motor carriers and arranged for the transportation of cargo for various shippers. Defendant Champion contracted with Westport Trucking to haul a load of Alpo Pet Food from a factory in Crete, Nebraska, to a Sam’s Wholesale Club in Houston, Texas. The load was to be picked up on March 13 and delivered to Sam’s on March 15 or 16. Plaintiff Toby Cox picked up the load in Nebraska on the date scheduled, March 13, and hauled it to Trenton, Texas, where, on March 15, he learned that a check from Westport Trucking to his father had been returned for insufficient funds. He phoned Westport Trucking and was told that the company was without funds, could not pay for hauling the load currently on the trailer, and .could not pay other past amounts owed to plaintiff’s father. Plaintiff refused to haul the load the rest of the way to Houston unless he was paid. He testified that on that same day, the 15th, he phoned Terry Lafarlette, a broker for defendant Champion, and told him of his predicament. He stated that Mr. Lafarlette told him he would have to get his money from Westport Trucking. On Friday, March 16, defendant Champion was informed, apparently by Sam’s, that the load might not have been delivered as scheduled. On Monday, March 19, defendant Champion confirmed the fact that the load had not been delivered to Sam’s. Champion called Westport Trucking and got a description of the tractor and trailer, the license number, and plaintiff’s driver’s license number. Defendant McLaughlin testified that defendant Champion did not want to lose its valuable brokerage account with Alpo Pet Foods. Champion realized it owed money to Westport Trucking for other loads and that it might offset some of the money that it owed to Westport Trucking by paying Mr. Cox. In the meantime, plaintiff determined that Westport owed his father about $4,300 for hauling, including the payment for hauling the load currently aboard. On March 20, defendant McLaughlin, on behalf of defendant Champion, reached an agreement with plaintiff by which Champion would pay $4,200 to plaintiff if he would go ahead and deliver the load to Sam’s. Champion paid $2,100 to Mr. Cox at that time. The parties disagree about when the other $2,100 was to be paid. Plaintiff testified that it was due when he got to Houston, and Champion says it was due when the load was unloaded at Sam’s. Plaintiff arrived at Sam’s on March 22, five days after the originally scheduled date, and learned that, contrary to the information he had received from Champion, he would have to deliver half of the load to another location.

After receiving the information, plaintiff refused to unload the dog food. Champion then arranged for plaintiff to unload the dog food at another warehouse. Plaintiff called Champion from that warehouse and asked for the remaining $2,100. Defendant Champion refused to pay, and plaintiff refused to unload. Immediately afterward, an employee of the warehouse told McLaughlin that plaintiff had left the warehouse with the load. Defendant McLaughlin phoned the car-theft division of the Houston Police Department and told a policeman that plaintiff had just left the warehouse with his customer’s load. The same day, defendant McLaughlin, a resident of Washington County, contacted the office of the Prosecuting Attorney in Washington County and executed an affidavit. As a result, plaintiff was charged with “fraud in the acquisition of authorization to provide vehicle transportation of property.” See Ark. Code Ann. § 5-37-524 (Repl. 1993). Meanwhile, plaintiff hauled the load back to his home in Trenton, Texas. There is no evidence indicating that plaintiff ever attempted to remove any of the load from the trailer. He was arrested in Texas on the Washington County felony charge. Ultimately, after discussing the case with plaintiff’s attorney, the prosecuting attorney nolle prossed the charge.

Plaintiff filed suit for breach of contract and malicious prosecution. The trial court granted the motion for summary judgment on the contract count on the ground that plaintiff had a pre-existing duty to deliver the load to Houston; thus, there was a failure of consideration for the subsequent agreement with Champion. The trial court alternatively held that the contract was made under duress. The trial court granted summary judgment on the malicious prosecution count on the grounds that probable cause existed for the felony charge as a matter of law and alternatively on the ground that McLaughlin and Champion relied on the advice of the prosecuting attorney. Plaintiff appealed from the summary judgment. Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993). We reversed and remanded because genuine issues of material fact remained in regard to both the breach of contract and malicious prosecution claims.

The case was tried in Washington County Circuit Court in 1994, and a jury found for plaintiff on the malicious prosecution claim and awarded him $18,000 in compensatory damages and $100,000 in punitive damages. Defendants McLaughlin and Champion filed a motion for a judgment notwithstanding the verdict and alternative motions for a new trial and remittitur. The trial court denied these motions, and defendants appeal.

Upon trial, during the testimony of plaintiff’s father on direct examination, plaintiff’s counsel asked him what remedy was available if Westport did not pay. Defendant’s counsel objected on the ground that the answer called for a legal conclusion. The court overruled the objection and stated that the witness could testify to “matters he has come to know in the trucking business.” The witness testified that he had asserted a lien.

In overruling the objection, the trial court commented:

He’s probably got a right to say that he exercised what he claims is a lien on the load. Now whether he can do that or not, you all give me the statutes, and I will instruct them on it. You can ask him if that is what he did, but whether it’s legally right or not, that’s another matter. (Emphasis added.)

We allow the trial court broad discretion in evidentiary rulings. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Unless the trial court abuses that broad discretion, this court will not reverse. Id. Regardless of whether plaintiff’s family had a right to a possessory lien, their belief that they could assert one was relevant to their states of mind concerning delivery of the load.

Defendants argue that our case Car Transportation v. Garden Spot Dist., Inc., 305 Ark. 82, 805 S.W.2d 632 (1991) requires us to reverse, but that case is distinguishable. It was a conversion case in which the defendants attempted to defend by saying they had not converted the goods because they had a right to assert a lien. Their argument was that they could withhold the goods for payment of the freight charges. Id. at 87, 805 S.W.2d at 634. Here, the issue is not whether plaintiff wrongfully converted the freight, but whether he had the intent to commit “fraud in acquisition of authorization to provide motor vehicle transportation of property.” See Ark. Code Ann. § 5-37-524 (Repl. 1993).

The defendants next contend that the jury’s verdict was not supported by substantial evidence, and the trial court erred in denying their motion for a directed verdict and in denying their post-trial motion for a judgment notwithstanding the verdict. A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict of the jury and the moving party is entitled to judgment as a matter of law. Dr. Pepper Bottling Co. v. Franz, 311 Ark. 136, 842 S.W.2d 37 (1992). A trial-'court may not substitute its view for that of the jury, and the jury’s verdict must be clearly against the preponderance of the evidence in order to be set aside. Razorback Cab of Fort Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). The standard regarding a motion for a new trial is the same. See Ark. R. Civ. P. 50(b). On appeal, this court views the evidence and all reasonable inferences therefrom in the light most favorable to the party for whom the original judgment was entered. See McCuiston v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980).

In Arkansas, the essential elements of malicious prosecution are: “(1) [a] proceeding instituted or continued by the defendant against the plaintiff[;] (2) [t]ermination of the proceeding in favor of the plaintiff[;] (3) absence of probable cause for the proceedings^] (4) [mjalice on the part of the defendant[;] (5) [d]amages.” Farm Service Coop. v. Goshen Farms, 267 Ark. 324, 331-32, 590 S.W.2d 861, 865 (1979).

Absence of probable cause is an essential element in a claim for malicious prosecution. However, “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 [such] advice [this will be a good defense to a claim of malicious prosecution].” Culpepper v. Smith, 302 Ark. 558, 564, 792 S.W.2d 293, 298 (1990) (quoting Larry C. Wallace, Note, Malicious Prosecution - The Law in Arkansas, 22 Ark. L. Rev. 340, 350 (1968)); see also Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931) (holding that it is a complete defense to a malicious prosecution claim if defendant presented to counsel all facts available to defendant). In the context of malicious prosecution, probable cause means such a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crime for which he is charged. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989).

Appellant was charged with “fraud in acquisition of authorization to provide motor vehicle transportation of property.” Ark. Code Ann. § 5-37-524 (Repl. 1993) provides in material part as follows:

(b) A person commits fraud in the acquisition of authorization to provide motor vehicle transportation of property if that person obtains authority by telephone, wire, or other electronic means from any person in this state to transport goods within or without this state and thereafter:
(1) Fails to deliver the products in the time and manner prescribed by the contract, with intent to defraud the owner or shipper of the goods; or
(2) Appropriates to his own use the goods contracted to be transported; or
(3) Appropriates to his own use the proceeds from the sale, barter, or other transfer of ownership of the goods contracted to be transported.

Id. § 5-37-524(b).

It was essentially undisputed that plaintiff told defendant McLaughlin that Westport owed his family about $4,300, that plaintiff would not move the load unless someone paid him, and then they agreed McLaughlin would pay plaintiff and his family $4,200. Plaintiff testified that McLaughlin paid $2,100 and agreed to pay the other $2,100 when he arrived at Sam’s. Defendant McLaughlin testified he agreed to pay plaintiff and his family $4,200, and they agreed that plaintiff would be paid $2,100 before he took the load to Houston and would be paid the other $2,100 after the load was delivered to Sam’s. The jury obviously found in favor of plaintiff on this issue. The testimony of plaintiff and his family that he was to be paid when he arrived at Sam’s and that he would not unload the cargo until he was paid constituted substantial evidence of the agreement. This evidentiary finding was supported by plaintiff’s testimony that he never wanted to keep the dog food, but rather wanted to hold it only until someone paid him to deliver it. This constituted substantial evidence from which the jury could conclude that no reasonable person would think defendants were being defrauded.

Even if the absence of probable cause is found, it is a complete defense to a malicious prosecution action if it is found that the defendant made a full and fair disclosure to competent counsel of all facts known to the defendant, and defendant acted in good faith on this advice. Culpepper v. Smith, 302 Ark. at 564, 792 S.W.2d at 294. However, the burden is upon the person bringing the charges to show that they were brought on the advice of counsel. Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987).

The jury could have found that McLaughlin left out important facts when he discussed the case with the deputy prosecutor. There was evidence that he did not tell the prosecutor that he initiated the agreement to pay plaintiff; rather, he told the prosecutor that plaintiff refused to deliver the goods unless he gave him $4,300. A jury could have reasonably found that this omission resulted in a mis-characterization of fact. The investigator’s notes reflect further inconsistencies that support the jury’s findings. The notes reflect that McLaughlin said the load was two weeks overdue, but other evidence indicated that it was only six days late. The notes reflect that the load was not located until March 20, but plaintiff’s mother testified that she informed Champion where the load was on March 15. The prosecutor’s record shows that McLaughlin told her that plaintiff demanded “2,800.00 additional dollars” to off-load at Jo-Mar, a second warehouse in Houston. This statement could make the investigator think that plaintiff demanded another $2,800 in addition to the agreed-upon $2,100. This did not happen, and McLaughlin knew it.

McLaughlin’s testimony indicated that he sought to have plaintiff charged for the sole purpose of recovering the dog food. He testified that he “went down [to the prosecutor’s office] to see if there had been a criminal offense perpetrated by the load that was missing.” He stated that his intent was “to try to recover the load for Champion.” While this does not by itself imply malice, McLaughlin’s state of mind is illustrated by a later part of his testimony.

I have heard of the arrest that he endured. I have heard that he was arrested twice. As far as whether I made any efforts to see that he was arrested again, I had Shirley Fox call once he had been arrested and request the prosecutor’s office to tell us where the load of freight was. I found out that they arrested him but they didn’t recover the load. As far as whether I pursued efforts to make sure he was arrested again, I called the prosecutor’s office and said, “What has transpired has not accomplished my outset for coming down.” What I set out to do was to get my load. I couldn’t make the call whether it was criminal or civil.

This testimony supports an inference that defendant McLaughlin, regardless of whether the charges were justified, used the criminal process to pursue a remedy that was available through a civil action.

Defendants next contend that the trial court erred in refusing to direct a verdict on the issue of punitive damages, in submitting the issue of punitive damages to the jury, and in failing to enter a judgment notwithstanding the verdict on the issue of punitive damages. A motion for directed verdict should only be granted when there is insufficient evidence to support the verdict. Ark. R. Civ. P. 50. The standard for determining sufficiency on review is well setded: (1) the evidence is viewed in light most favorable to appellee; (2) the jury’s finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind past speculation and conjecture. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991). As noted earlier, judgment notwithstanding the verdict may only be granted if there is no substantial evidence to support the verdict of the jury, and the moving party is entided to judgment as a matter of law. Dr. Pepper Bottling Co. v. Franz, supra. An instruction for punitive damages may be given when there is evidence that a party likely “ ‘knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.’ ” Allred v. Demuth, 319 Ark. 62, 66, 890 S.W.2d 578, 580 (1994) (quoting Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 116, 732 S.W.2d 465, 467 (1987)).

It is clear that to support an award of punitive damages, there must be a showing of “wilfulness, wantonness, or conscious indifference.” Louisiana and Northwest R.R. Co. v. Willis, 289 Ark. 410, 415, 711 S.W.2d 805, 808 (1986). “Negligence alone, however severe, is not sufficient to sustain such an award.” Id. In Simpson v. Weeks, 530 F. Supp. 197 (E.D. Ark. 1977), a civil-rights suit under 42 U.S.C. § 1983, the federal district court articulated a helpful standard for wantonness. It said:

An act is wantonly done if done in reckless disregard or indifference to the rights of another. An act is oppressively done if done in a way or manner which violates the right of another person with unnecessary harshness or severity as by misuse or use of authority or power.

Id. at 207. In that case, punitive damages were awarded when the evidence showed that the defendants intended to intimidate the plaintiff from exercising a right. Id. Here, the jury could have concluded that McLaughlin and Champion mischaracterized the facts to the deputy prosecutor in order to intimidate plaintiff and force him to deliver the load without regard to their bargain.

Defendants next contend that the trial court erred in not reducing the amount of compensatory damages and punitive damages and this court should reduce both the compensatory and punitive damages. The jury awarded plaintiff $18,000 in compensatory damages. The jury had before it evidence that plaintiff Cox spent $7,500 for a bond, lost $4,200 in wages, and paid attorney’s fees of $1,800 to defend the charge, or a total of $13,500 out-off pocket expenses. In addition, there was evidence of mental suffering. The amount of damages growing out of mental anguish is ordinarily left to the determination of the jury. Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). In short, there was substantial evidence to support the award of compensatory damages.

When reviewing an award for punitive damages, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994). Appropriate compensation is not the test, but rather such damages are to be a penalty for conduct that is malicious or done with the deliberate intent to injure another. The penalty should be sufficient to deter others from such conduct. Interstate Freeway Servs. v. Houser, 310 Ark. 302, 310, 835 S.W.2d 872, 876 (1992).

Damages may be reduced if they are so large as to shock the conscience of the court, or if it is clear that the jury was influenced by passion or prejudice. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). The amount of the punitive damages awarded does not shock the conscience of this court, and there is no clear evidence that the jury was influenced by passion or prejudice. Defendants admit that the only evidence of “passion or prejudice” would be the possibility that the jury was influenced by plaintiff’s father becoming emotional at one time when he was on the witness stand. This occurred when defendant’s counsel was cross-examining him. Counsel asked if he had discussed terminating the lease with Westport in the past because Westport had been slow to pay. Plaintiff’s father stated that they had considered changing, but had decided not to do so when his other son was killed in a car wreck and they had a lot of funeral expenses. This one remark, which was elicited by defendants, cannot be said to be proof that the jury was swayed by passion or prejudice. Further, we will not substitute our judgment for that of the jury when there is basis in the evidence for the award. Clayton v. Wagnon, 276 Ark. 123, 633 S.W.2d 19 (1982).

Affirmed.


author: DAVID NEWBERN, Justice.

text:
    Craig and Judith CARRUTH v. DESIGN INTERIORS, INC.
    95-1279
    921 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996
    [Petition for rehearing denied June 17, 1996.]

      Shock, Harp & Associates, by: David K. Harp, for appellants.

      Southern & Allen, by: Byron S. Southern and Spencer R. Robinson, for appellee.

      Dudley, J., not participating.

   DAVID NEWBERN, Justice.

Design Interiors, Inc., the appellee, sued Craig and Judith Carruth, the appellants, for breach of contract. Damages were awarded to Design Interiors, Inc. The Car-ruths argue that the judgment must be reversed because there was no proper service of process. We agree with their argument and thus need not address their other points of appeal. The judgment is reversed and the case is dismissed.

In 1989, the Carruths hired Larry Brown, the owner and sole shareholder of Design Interiors, Inc., to decorate their new home. The Carruths orally agreed to pay Mr. Brown $50.00 an hour for his services and cost plus 20% for furniture and decorating items ordered through him. Mr. Brown testified the Carruths also agreed to pay him a $75-per-trip charge to cover his travel to Russellville from his place of business in Tulsa, Oklahoma. The Carruths, however, said they did not agree to the latter charge. The disputed charges were billed by Design Interiors, Inc.

On March 29, 1993, Design Interiors, Inc., filed its complaint against the Carruths. The Carruths moved to dismiss the complaint because it had been served by a constable and thus not in compliance with Ark. R. Civ. P. 4(b). Counsel for Design Interiors, Inc., wrote to counsel for the Carruths stating that the process had been sent to the Pope County Sheriff for proper service.

The record contains a copy of a summons apparently sent by electronic facsimile. The summons is not signed by the Clerk, as is required by Rule 4. The return portion, however, states that it was served upon Craig and Judith Carruth by service upon Judith Carruth on April 7, 1993. The return is signed by the Sheriff and Sgt. M. Briscoe, Deputy.

The Circuit Court held a hearing on a motion for default judgment filed by Design Interiors, Inc. The Court’s order denied the motion for default judgment and simultaneously denied the Carruths’ motion to dismiss for lack of proper service of process.

The motion to dismiss for failure of service of process should have been granted. Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). The same reasoning applies to service requirements imposed by court rules. Proceedings conducted where the attempted service was invalid render judgments arising therefrom void ab initio. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Edmonson v. Farris, 263 Ark. at 508. Actual knowledge of a proceeding does not validate defective process. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). According to these principles, both attempts to serve the Carruths were improper.

Reversed and dismissed.

Dudley, J., not participating.