author: TOM Glaze, Justice.

text:
    Russell BERGER v. STATE of Arkansas
    CR 00-210
    36 S.W.3d 286
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001

      Kenneth G. Fuchs, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Russell Berger was convicted by a jury of two counts of rape of a five-year-old boy, D.C. He received two consecutive life sentences. Although he does not question the sufficiency of the evidence which led to his convictions, Berger does urge on appeal that the trial court erred (1) in allowing State witnesses to testify concerning Berger’s proficiency in using computers; 2) in permitting the State to introduce pictures of his computer and its hardware and software; (3) in failing to grant a mistrial when the prosecutor made reference before the jury to the words “pornographic pictures”; and (4) in allowing two boys, T.G. and D.M., to testify that, prior to Berger’s sexual abuse of D.C., he had committed homosexual acts on them.

The significance of Berger’s points dealing with his computer proficiency and the pictures of his computer operation introduced at trial is grounded on the manner and means Berger used to induce D.C. to join in having sexual conduct. D.C. testified at trial that Berger “touched his privates, put his mouth on my front part ... a whole bunch, and put his front part in my back part.” D.C. added that Berger took “bad pictures of me, and he put them on his computer.” He also averred that Berger would sometimes get pictures of other people on the Internet.

While the State had D.C.’s testimony regarding how Berger utilized his computer when he sexually abused D.C., the State was unable to access Berger’s password to his computer to find any pictures that he may have entered. The State did offer testimony through four other witnesses that depicted Berger as a person who possessed a special expertise in operating a computer. Although Berger found such testimony objectionable, he waited until the State’s third witness, Conway Police Department Detective Chris Lewis, to interpose his objection. In fact, Berger’s objection came long after both D.C.’s mother, Ronna C., and Lewis had already identified pictures and offered related testimony describing Berger’s computer, its hardware, and software. The State’s first witness, Crystal Rhodes, Ronna’s friend, also had testified without objection as to Berger’s special computer knowledge and that D.C. told her Berger had taken a picture of him and put it on the computer. This testimony and evidence regarding Berger’s computer acumen and the photos of his computer do not appear to contain prejudicial material, but even if they did, Berger failed to preserve his objection to such evidence because he did not make an objection at the first opportunity. See Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

Next, Berger asserts the trial court should have granted him a mistrial when the prosecutor inteijected a remark to which Berger objected. The prosecutor’s remark was made after State witness, Aaron Hoyt, testified that Berger was “pretty knowledgeable” with computers and that Berger had said that he had a collection of pictures on his computer. Hoyt also stated that Berger had asked him to delete certain files to which Hoyt had access. Hoyt said that he complied without looking at the contents. The following colloquy reflects the testimony Berger’s counsel elicited from Hoyt, which related to Hoyt’s having deleted Berger’s files and which prompted the prosecutor’s statement:

Q: You don’t have any idea or anything about this encryption what was on his files or anything of the sort, do you?
A: No, I don’t [know] what the contents of it were.
Q: Okay. And you don’t know whether the IRS is after him for — for his financial records could be encrypted, correct?
A: I didn’t ask. I didn’t want to know the contents but —
Q: All right. The truth of the matter is a lot [of] people encrypt their files, do they not?
A: I’m sure they do, yes.
Q: OK.
A: I — I myself don’t but I’m —•
Q: Right.
A: •— sure there are several that do.
Q: Right? Not everybody is an illegal pedophile or or running from the IRS or anything like that, correct?
A: That’s correct.
Q: Okay. So, there is nothing abnormal about what the prosecutor is asking you, is there?
PROSECUTOR: Your honor, I would object if there’s pornographic pictures on that, you know
Defense Counsel: Whoa, now, that’s the first time we’ve heard that term. Can we approach? (Emphasis added.)

Upon defense counsel’s request, the trial court admonished the jury that they were to “disregard the statement made by [the prosecutor] regarding pornographic pictures.”

We initially point out that, although Berger’s counsel exclaimed that the prosecutor’s mention of the term “pornographic pictutes” was new, he was in error. In fact, defense counsel, in his earlier cross-examination of D.C.’s mother, Ronna G, had asked Ronna whether D.C. had been in a pornographic situation when Berger had previously taken D.C.’s picture. Thus, it was Berger who first used such terminology. Nonetheless, after defense counsel objected, the trial judge admonished the jury to disregard the prosecutor’s remarks. We have held that such an admonition to the jury generally cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). Moreover, we have repeatedly held that the decision whether to grant a mistrial is a matter soundly within the trial court’s discretion, and this court will not reverse in the absence of an abuse of that discretion. See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997) (trial court’s refusal to grant a mistrial not erroneous, even when prosecutor asked defendant during cross-examination, “How long have you been a pervert?”). Considering the circumstances that occurred here, we conclude the prosecutor’s remark does not constitute reversible error.

Finally, Berger urges that error occurred at trial when the judge allowed two boys, who live in Englewood, Colorado, to testify that Berger had molested them in 1996, when he lived and worked in Englewood. Berger then lived in the basement of his employer’s house, and the sexual acts to which the boys referred occurred in the basement where Berger also kept his computer. Berger’s counsel argued below (and now on appeal) that the boys’ testimony should be excluded under Ark. R. Evid. 404(b) as being evidence of other crimes, wrongs, or acts that are inadmissible to prove his character or to show that he acted in conformity therewith. Citing the case of Mosley v. State, 325 Ark. 469, 929 S.W.2d 779 (1992), to the trial court, Berger recognized that this court has allowed evidence showing similar acts with the same child or other children when the evidence is helpful in showing a “proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” However, he asserted that such evidence is admissible only when those children are in the same household. In sum, Berger claimed that because the two boys lived in Colorado and not in the same household as D.C., their testimony was inadmissible. The trial court rejected Berger’s argument, and on appeal, we affirm that ruling.

The rule Berger advances is referred to as the pedophile exception to Rule 404(b). Rule 404(b)’s provision in its entirety reads as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

We have held that the list of exceptions set out in Rule 404(b) is exemplary and not exhaustive, Mosley v. State, supra. We have further stated that testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. In recognizing the so-called pedophile exception to Rule 404(b), this court has approved allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Mosley v. State, supra, citing Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). The rationale for recognizing this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).

Berger argues on appeal as he did below, that, because the pedophile exception specifically allows evidence only to show “similar acts with the same child or other children in the same household,” the trial court erred in allowing T.G.’s and D.M.’s testimonies because the boys did not live either in Berger’s household or in D.C.’s household.

We note that the language “another child in the same household” contained in the pedophile exception by no means appears in every case where such evidence involving a defendant’s prior sexual acts on other children was allowed into evidence. For example, in Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995), the court, with no mention of the words “in the same household,” stated the rule that evidence of other sexual acts with children is admissible when it tends to show a proclivity toward a specific act with a person or class of persons with whom the accused has had an intimate relationship. The Thompson case further explained that the testimony of other rape victims is relevant in a criminal trial for the rape of an underage victim to show “motive, intent, or plan.” Id. at 589-590; see also Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992).

It is also significant that in some cases this court has applied the pedophile exception using the “same household” language to allow a child’s testimony relating prior sexual acts even though the victims never lived with defendant. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998) (testimony allowed regarding a child who spent the night at defendant’s home on occasion). In Greenlee, supra, for example, evidence was introduced that showed the defendant had four prior convictions for sex-related offenses involving children, but none of those children lived with the defendant; rather, he was only their babysitter. Our court of appeals has also been faced with a situation where the other child victim did not live with the defendant. Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999). In Brewer, the defendant urged the same point argued by Berger here — that, because the other victim did not live in the same household, the pedophile exception did not apply. The court of appeals rejected that argument, noting that the sexual abuse occurred when the victims were “in [Brewer’s] care or under his authority” and that this was “sufficient to trigger the pedophile exception.” Id. at 220. We agree with the rationale and decision in Brewer.

We apply the pedophile exception in this case as we did in Greenlee, where the accused babysat for the other victims, but did not five with them. In that case, the previous child victims were entrusted to Greenlee’s care. In discussing the similarities between Greenlee’s earlier sexual offenses and the one at issue on appeal, this court noted the following:

Appellant committed the prior offenses against young children, just as he was accused of doing in this case, and in committing the prior offenses, he was successful in luring the children into his lair by baby-sitting, just as he was accused of doing in this case. We have long held that such evidence helps prove the depraved sexual instinct of the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912).

Greenlee, 318 Ark. at 197.

Likewise, in the present case, there are numerous similarities between the earlier instances of sexual abuse in Colorado and the rape of D.C.: (1) in both cases, he lived in close physical proximity to the children and was apparently able to gain their parents’ trust (in Colorado, Berger lived in the household of his employer, who was a business partner of one boy’s mother and a scout leader with the other boy’s father; here, he lived with the victim’s mother); (2) all of the children were entrusted to Berger’s sole care, and they were alone with him on numerous occasions; (3) Berger used his computer with all three boys, letting them play games on it and showing them pornography on it. Thus, as in Greenlee, there was evidence that these two boys were placed into Berger’s care by friends and Berger took advantage of that period of entrustment to induce the boys to join in sexual acts, including those consummating in rape. Therefore, we conclude that this is an appropriate case for the application of the pedophile exception, because the testimony of the two boys from Colorado was relevant to show Berger’s proclivity toward sexual acts with children, as well as his motive, intent, or plan. See Thompson, supra.

We must examine this challenge to the evidence as we do all others — that is, under an abuse of discretion standard. Here, we hold that the trial court did not abuse its discretion in permitting these boys’ testimony under the pedophile exception, because their statements revealed Berger’s motive, intent, and plan involving D.C. by showing his proclivity for a specific act with a person or class of persons with whom he had an intimate relationship. See Hernandez, 331 Ark. at 306.

Berger has failed to demonstrate that any of the evidentiary rulings he challenges, or the court’s refusal to grant a mistrial, amounted to an abuse of the trial court’s discretion. Because he has not made such a showing, his convictions must be affirmed.

The record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h) to ensure that all rulings adverse to Berger have been abstracted; they have, and no additional points appear to merit briefing.

       Berger did make an objection, without obtaining a ruling, that Rhodes appeared to have no personal knowledge that Berger took the pictures; however, Rhodes then averred without objection that D.C. had told her of the pictures.

       The trial judge did exclude from evidence those pictures of Berger’s computer system in which condoms were also depicted.


source: Caselaw Access Project

author: DONALD L. Corbin, Justice.

license: Public Domain

text:
    Glenda Buryl DYER v. STATE of Arkansas
    CR 00-500
    36 S.W.3d 724
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001
    [Petition for rehearing denied March 1, 2001.]

      Paul E. Revels, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

On the evening of December 4, 1998, William “Bill” Dyer was found dead on his driveway in Horatio, Arkansas. He had been shot through the neck with a high-powered rifle. The investigation of the crime led police to suspect that Dyer was shot with his own 30/30 rifle by Steven Swim, a man who worked with Dyer’s wife, Appellant Glenda Buryi Dyer. Police also suspected that Appellant had solicited Swim to kill her husband. Before police could make an arrest, however, Swim committed suicide by a single shotgun blast to his chest. Police subsequently arrested Appellant for the murder. Appellant was convicted in the Pike County Circuit Court of first-degree murder and sentenced to life imprisonment. On appeal, Appellant argues that the trial court erred by (1) admitting statements made by a coconspirator, under Ark. R. Evid. 801 (d) (2) (v); (2) denying her motion for continuance to obtain an independent mental evaluation; and (3) admitting testimony from six witnesses concerning prior threats made by Appellant. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(2). We find no error and affirm.

I. Statements of Coconspirator

For her first point for reversal, Appellant argues that the trial court erred in admitting testimony from Steven Swim’s wife, Silvia Swim, and her son, David Swim, concerning statements that Steven made to them. Collectively, Steven told them that a blonde woman in her forties would bring them some money, $10,000 to $15,000, as payment for Swim’s role as a hit man. The trial court allowed the statements under Rule 801 (d) (2) (v), as being statements by a coconspirator made in the course of and in furtherance of the conspiracy. Appellant challenges the trial court’s findings that (1) Appellant and Swim were involved in a conspiracy to kill Bill Dyer, and (2) the statements were made by Swim in furtherance of the conspiracy.

Rule 801(d) (2) (v) provides that a statement is not hearsay if it is offered against a party and it is a statement by a coconspirator of a party made during the course and in furtherance of the conspiracy. Before such statements can be admitted, the State must make a prima facie showing that a conspiracy existed between the declarant and the defendant. See Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992); Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). The statements themselves may be considered along with other independent evidence in determining the existence of a conspiracy. Haire v. State, 340 Ark. 11, 8 S.W.2d 468 (2000) (citing Bourjaily, 483 U.S. 171). The sufficiency of the evidence of a conspiracy is a preliminary matter decided by the trial court. Spears, 321 Ark. 504, 905 S.W.2d 828. As with any other evidentiary matter, we will not reverse the trial court’s ruling absent an abuse of discretion. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

In the present case, the trial court found that the State had made a prima facie showing that a conspiracy to kill Bill Dyer existed between Appellant and Steven Swim. The State presented evidence that Appellant and Swim worked together at the Regional Care Facility (RCF) in DeQueen. Appellant was Swim’s supervisor. About one month prior to the murder, Debbie Hibbs, a coworker who was also Swim’s girlfriend, overheard Appellant say to Swim that she wished she knew someone that could kill her husband; Swim replied that he might know somebody that could help her, and then just kind of laughed. Appellant made numerous other threats and statements regarding her desire to be rid of her husband. For instance, Appellant had previously made inquiries about killing her husband with poison, so that his death could not be traced to her. She also made the statement that the only way she could get out of her marriage was if her husband were dead.

Medical evidence showed that Bill Dyer had been killed by a high-powered rifle shot to the neck. Investigation of the scene revealed that the fatal shot was likely fired from inside an old farmhouse situated on the Dyers’ property. Police found a bullet hole in the screen of the farmhouse window and an expended shell casing nearby. Less than two months prior to his murder, Dyer discovered that one of his rifles, a 30/30 caliber Winchester hunting rifle, was missing. David Swim testified that Steven Swim was not a hunter and did not own a gun. About one month prior to Dyer’s murder, however, Steven Swim somehow obtained possession of Dyer’s missing rifle. Jason Hibbs testified that sometime in late October or early November 1998, he discovered a 30/30 hunting rifle in Swim’s tool box. Jason took the gun hunting and also fired it in his father’s backyard. Shell casings recovered from that location were given to police. The police, in turn, sent them to the state crime laboratory to be compared against the shell casing found at the crime scene and some casings found in the victim’s gun cabinet. Ballistics testing revealed that all of those shell casings were fired from the same gun.

The month before the murder, right around the time that he obtained possession of Dyer’s 30/30 rifle, Steven Swim told his wife, Silvia, not to worry about money, because there is a woman in her forties that will “bring you some money,” about $15,000. When Silvia asked why, Swim told her that whatever happened, she would hear about it on the radio. Similarly, Swim told his stepson, David, that a blonde lady in her forties would bring them a bag of money, $10,000 to $15,000. When David asked why, Swim told him it was for “being a hit man.” Prior to his suicide, Swim told his wife that the woman in her forties was Appellant.

On the date of the murder, Appellant was working at the RCF with Swim. Late in the afternoon, Appellant left work for the purpose of retrieving Christmas decorations from her house to bring back to the RCF. Around 3:15 or 3:20 p.m., Appellant was seen at DeQueen High School, talking to her husband, who was a teacher there. Two students observed Appellant in her white Ford pickup truck near the school parking lot. Inside the truck, slumping down in the passenger’s seat, was a man who appeared to be trying to hide his identity. The man had facial hair and was wearing a black leather jacket. Other evidence showed that Swim had facial hair and wore a black leather jacket.

Between 4:10 and 4:15' that same afternoon, a witness saw Appellant driving her white Ford pickup truck toward her house in Horatio. Around the same time, Appellant’s neighbor observed a white Ford truck of the same make and model as Appellant’s driving in the direction of her residence. The neighbor heard a gunshot a short time later, and then saw the white Ford truck drive away from the residence.

During this same time, coworkers noticed that both Appellant and Swim were absent from the RCF. Additionally, Swim’s wife telephoned the RCF looking for Swim around 4:00 p.m., but he was not there. Both Appellant and Swim returned to the RCF later that afternoon. Dyer’s body was discovered by his daughter, Kelli, around 6:00 p.m. Kelli then called Appellant at work and told her that something was wrong with her dad. Kelli did not tell Appellant that Dyer was dead; however, upon receiving the call, Appellant became hysterical and began screaming, “He’s dead, he’s dead.”

On February 1, 1999, around the time that the police investigation began to focus on him, Steven Swim attempted suicide by drug overdose. One month later, on March 3, 1999, Swim was scheduled to take a polygraph examination regarding Dyer’s murder; he never showed. The next day, Swim’s body was discovered in a concrete culvert near his home. Swim left a note to his wife, saying that he could not take the pressure anymore. According to the medical examiner, the official cause of his death was suicide by a single shotgun blast to the chest.

After his suicide, Kelh Dyer began to suspect that Appellant had put Swim up to committing the murder. As a result, she began to prod Appellant about her role in the murder. One day, in front of her two sisters and her aunt, Kelli asked Appellant “How did you get Steven to kill our dad?” Appellant did not deny playing a part in her husband’s murder. Instead, she rather calmly responded that she did not do anything that her daughters did not want done before.

After Swim’s suicide, his wife, Silvia, went to the police and told them about the statements that Swim had made to her and David regarding the money that Appellant would bring to them. At the direction of the police, Silvia had conversations with Appellant, on the telephone and in person, about the money. During one of those conversations, Silvia informed Appellant that her son, David, knows everything about the murder. According to Silvia, Appellant became very upset and said “David knows?” Appéllant then assured Silvia that she would give her money, but that she could not get the insurance money until her name was cleared. Appellant told Silvia in no uncertain terms: “If I go down, there is no money.” Other evidence showed that Bill Dyer was insured for over $200,000, and that Appellant was the primary beneficiary of the policies. Additionally, at the time of trial, Appellant was receiving Dyer’s retirement pay, which was approximately $1,680 per month.

In light of the foregoing evidence, we conclude that the trial court did not err in finding that there was prima facie evidence of a conspiracy between Appellant and Swim to kill Bill Dyer. We conclude further that the statements made by Swim to his wife and son were made during the course and in furtherance of the conspiracy. In the first place, the statements were made during the course of the conspiracy, as they were made prior to Dyer’s death, sometime during November 1998. This is near the time that Swim obtained possession of Dyer’s rifle and was overheard talking to Appellant about killing her husband.

In the second place, the statements were made in furtherance of the conspiracy. Although this court has had few opportunities to discuss the “in furtherance of’ element of Rule 801(d)(2)(v), it has held that statements designed to further the specific objective of the conspiracy are made in furtherance of the conspiracy. Dixon, 310 Ark. 460, 839 S.W.2d 173. Federal cases interpreting the corresponding federal rule of evidence hold that this requirement should be interpreted broadly. See Cordova, 157 F.3d 587; United States v. Edwards, 994 F.2d 417 (8th Cir. 1993). Thus, statements that have an overall effect of facilitating the conspiracy or that somehow advance the objectives of the conspiracy are said to be in furtherance of the conspiracy. Id.; United States v. Garcia, 893 F.2d 188 (8th Cir. 1990). Statements that identify a fellow conspirator are also considered to be in furtherance of the conspiracy. Id. (citing United States v. Handy, 668 F.2d 407 (8th Cir. 1982)). Moreover, statements that are designed to enlist a third party’s assistance or to induce the listener’s aid in achieving some objective of the conspiracy meet the “in furtherance of’ requirement. Id. (citing United States v. Bentley, 706 F.2d 1498 (8th Cir. 1983), cert. denied, 467 U.S. 1209 (1984)).

Appellant relies heavily on the case of Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992), in which the court of appeals held that statements made by a coconspirator to his wife, who was not part of the conspiracy, were not admissible under Rule 801(d) (2) (v). Leach relied primarily on two federal cases, United States v. Wood, 834 F.2d 1382 (8th Cir. 1987), and United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979). Those cases held that statements made by a coconspirator to his wife were not made in furtherance of the conspiracy where the statements were nothing more than a report of the coconspirator’s activities or casual admissions of culpability. While we do not dispute the legitimacy of these holdings, we conclude that the present case is distinguishable.

Here, the statements made by Swim to his wife, Silvia, and stepson, David, may be viewed as being designed to enlist their assistance or to induce their aid in achieving one of the objectives of the conspiracy, namely the receipt of payment from Appellant for Swim’s role as a hit man. Notably, Swim’s statement to his wife was that a woman in her forties, later identified by him as Appellant, would bring “you,” meaning Silvia, some money. Similarly, the statement to David was that the money would be brought to “us,” meaning the family. Thus, the statements had the effect of involving Silvia and David in the conspiracy, as far as collecting payment for Swim’s participation. Accordingly, we cannot say that the trial court abused its discretion in finding that the statements were made during the course and in furtherance of the conspiracy to kill Bill Dyer.

II. Continuance to Obtain Independent Mental Evaluation

For her second point for reversal, Appellant argues that the trial court erred in denying her motion for a continuance so that she could obtain an independent mental evaluation. The record reflects that Appellant received a court-ordered mental evaluation to determine whether she was competent to assist in her trial. Appellant then filed a motion for an independent evaluation on the ground that the report from the first evaluation contained inaccurate information, such as listing her husband’s name incorrectly. Appellant also filed a motion for continuance until the independent evaluation could be done. The trial court denied the continuance for three reasons: (1) Appellant was not diligent in seeking an independent evaluation; (2) there was no evidence that she had a history of mental illness or was otherwise not capable of assisting in her defense; and (3) her claim that the psychologist’s report contained inaccuracies was self-serving. Appellant now contends that the trial court’s ruling was erroneous. We disagree.

This court has repeatedly held that the grant or denial of a continuance is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion amounting to a denial of justice. See Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997); Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997); Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). The following factors are to be considered by the trial court: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id. To demonstrate error on appeal, an appellant must show that he or she was prejudiced by the trial court’s denial of the continuance. Id.

When an accused raises the defense of mental disease or defect or places his or her competency in issue, the trial court must follow the procedures for evaluation set out in Ark. Code Ann. § 5-2-305 (Repl. 1997). An evaluation performed under section 5-2-305 does not ordinarily require a second opinion, and further evaluation is discretionary with the trial court. Dirickson, 329 Ark. 572, 953 S.W.2d 55. In other words, “the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who wall declare him incompetent to proceed with his trial.” Id. at 577, 953 S.W.2d at 57 (citing Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994)). Indeed, the law is well settled that an accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. See Turner, 326 Ark. 115, 931 S.W.2d 86.

Here, the record reflects that Appellant sought and was granted an evaluation pursuant to section 5-2-305. Appellant was then evaluated by Dr. Lillian Chaney, a psychologist in Hot Springs. During the hearing below, Appellant’s attorney explained that they had initially sought an evaluation because there was some question as to whether Appellant, who was under medication and had experienced some memory loss, was able to aid in her defense. Although the report is not contained in the record, we may presume that Dr. Chaney determined that Appellant was competent to proceed with her trial.

In denying the motion for continuance, the trial court emphasized that Appellant had not been diligent in attempting to get a second evaluation. The record demonstrates that Dr. Chaney’s report was received by the defense on August 30, 1999; however, no request was made for an independent evaluation until September 16, 1999. The trial court pointed out that Appellant had private counsel and had her own source of funds, such that she did not need a court order to obtain a second evaluation. The trial court also noted that the State had offered to assist in providing funds for an independent evaluation. Moreover, the trial court found that the delay requested by Appellant was due to her psychologist’s schedule and was not related to the length of time necessary to complete the tests, which the psychologist testified could be done in two to three days.

Additionally, the trial court was not persuaded by the legitimacy of the reasons given for the second evaluation. There was simply no evidence offered by Appellant that she had actually suffered from a mental disease or defect or was otherwise incompetent to stand trial. Rather, the reasons given for the second evaluation was to correct factual inaccuracies contained in Dr. Chaney’s report, such as the name of Appellant’s new husband and the location where they were married. Neither the motion for the second evaluation nor the testimony of the defense’s psychologist asserted that Appellant was not competent to stand trial. Moreover, Appellant’s defense was one of general denial and was not based on a claim of mental disease or defect. Accordingly, Appellant has failed to show that she was prejudiced by the trial court’s denial of her motion for continuance. See Turner, 326 Ark. 115, 931 S.W.2d 86. We thus cannot say that the trial court abused its discretion.

III. Prior Threats

For her last point for reversal, Appellant argues that the trial court erred in admitting testimony of Appellant’s prior bad acts and statements made by her about killing her husband. The evidence in question came from six witnesses. The first, Brenda Cranford, testified that, during the warm months of 1997, Appellant asked if Brenda “had any knowledge of how she could do away with Bill and there not be any trace to be traced back to her such as poison, pesticides and things like that.” Cranford stated that approximately four to six weeks after Appellant’s inquiry, Bill Dyer was hospitalized.

Busta Willis testified that during the fair season of 1998, Appellant had confided in Willis that she and her boyfriend had been caught in an extramarital affair by her boyfriend’s wife. According to Willis, Appellant stated that her boyfriend’s wife told her that she was going to tell Appellant’s husband about the affair. When Willis asked Appellant if she was going to get out of her marriage, Appellant stated that the only way that she could get out of it was if her husband were dead.

Debbie Hibbs, the girlfriend of Steven Swim, testified that about one month prior to the murder, she overheard a conversation between Appellant and Swim. According to Hibbs, Appellant “said that she wished she knew someone that could kill her husband, and Steven said, ‘I might know somebody that can help you,’ and then he just kind of laughed.”

The remainder of the challenged testimony was provided by Appellant’s three daughters. Kelli Dyer, the youngest daughter, testified that she suspected Appellant’s involvement in her father’s murder because Appellant had “made threats before that' she wishe[d] my dad was dead, and that she was gonna kill him[.]” Kelfi stated that within three years prior to the murder, one of Appellant’s boyfriends, a farm-hand that had lived with the family, asked Kelfi if she would move away with him and Appellant if they were to get rid of her father. Kelfi stated that they were talking about making it look like a farming accident so they could collect more insurance money. Kelfi also described an incident involving a glass of iced tea prepared for her father by Appellant:

My mama told me before that she was gonna get rid of dad, and a week later we were eating supper, and dad drank some tea, and he took a drink of it, and he said, he said, “Something’s wrong with this tea.” And I was like, “Well, let me taste it,” and he handed me the glass of tea, and mom jumped up and grabbed it, and she said, you know, she took it from me, and she went towards the sink with it, and she acted like she took a drink of it and she dumped it out, and she said, “Nothing’s wrong with this tea. I don’t taste anything.” And later that night dad, after we finished supper, dad got up and he was real pale, and he laid down on the couch, and he got up later off the couch and he collapsed on the concrete, and he busted his head open[.]

According to Kelfi, her father was hospitalized that night. This was the same period of hospitalization described by Brenda Cranford.

Jodi Dyer, Appellant’s middle daughter, testified about an incident that occurred when Appellant worked for a doctor in DeQueen. Jodi stated that one afternoon when she stopped by the office, she saw Appellant and Dr. Brown talking. Jodi stated that prior to that date, she had had an argument with her father that resulted in her being disciplined. According to Jodi, Dr. Brown told her that she should not have to put up with her father’s discipline, and that they could kill her father “by giving him a pill that would speed up his heart and it would look like a heart attack and nobody would ever know.” In response to Dr. Brown’s statement, Appellant asked Jodi if she would tell anybody if that happened. Jodi responded that she would. Jodi also testified about an incident involving one of her former boyfriends, in which Appellant told her that she knew the boy hunted a lot and was good with a gun. Appellant then asked Jodi: “Why don’t you ask him if he would go hunting with your dad and make it look like an accident?”

Lastly, Appellant’s oldest daughter, Nicki Harris, testified that during the three years before the murder, Appellant made ongoing threats about killing her father. On one of those occasions, Appellant informed Nicki that Appellant’s boyfriend, Chuck Lange, “knew people, and that he could have him killed, or knew how she could get stuff to kill him.” Nicki also described an occasion in which Appellant stated that if she killed her husband, she would not feed the family’s pigs for several days so that she could then dispose of her husband’s body by throwing it in the pig pen, where the pigs would eat it.

Appellant objected to the foregoing testimony on the ground that the acts and statements were too remote and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, in violation of Ark. R. Evid. 403. The trial court allowed the testimony under Ark. R. Evid. 404(b), but limited the State to acts or statements that occurred within three years prior to trial. On appeal, Appellant argues only that the trial court’s ruling is erroneous under Rule 403. There is no merit to this argument.

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The test for admitting evidence under Rule 404(b) is whether evidence of the other act has independent relevance. Haire, 340 Ark. 11, 8 S.W.3d 468. Evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Id. Although evidence may be relevant under Rule 404(b), it nonetheless may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. See Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rules 403 and 404(b), and those decisions will not be reversed absent an abuse of discretion. Id.; Haire, 340 Ark. 11, 8 S.W.3d 468.

Appellant was charged with having killed her husband, alone or in conjunction with Steven Swim. It was the State’s theory that Appellant did not actually commit the act that killed her husband. Rather, the State alleged that Swim fired the shot that killed the victim, but that he had done so at Appellant’s request. It was thus crucial to the State’s case to show Appellant’s intent or motive to kill her husband. As this court has held, intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Gaines, 340 Ark. 99, 8 S.W.3d 547. Thus, “[t]hreats made by a defendant prior to the time a homicide occurred are admissible to establish motive and ill will, even where they are never communicated to the victim.” Id. at 111, 8 S.W.3d at 555 (citing Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990); Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981); Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975)). In Lang, this court held that there was no error in admitting testimony that, two years prior to the murder of her husband, the defendant had asked the witness if he knew anyone that she could hire to kill her husband, for which she would pay $10,000 to $30,000 from the insurance proceeds. This court held:

The testimony was properly admitted in evidence. Threats, although not communicated to the victim of the homicide, are admissible as tending to show ill will and motive. Crowe v. State, 178 Ark. 1121, 13 S.W.2d 606 (1929). Remoteness in time is to be considered when the interval between former difficulties and the homicide is so great as to indicate that they had their origin in independent causes. Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). In McElroy v. State, 100 Ark. 301, 140 S.W. 8 (1911), we upheld the admissibility of threats made about a year and a half before the homicide. Underhill points out, with regard to proof of marital difficulties, that the fact that such troubles cover a period of years and continue down to the death strengthens such evidence. Underhill, Criminal Evidence, 645 (5th ed., 1957).

Id. at 505, 527 S.W.2d at 901.

In the present case, Appellant’s prior threats to kill her husband were highly probative of her ill will toward him and of her motive or intent to kill him, especially since she had evidently succeeded in her threats. They further demonstrate her willingness to solicit others to carry out her plans, just as she had done by getting Steven Swim to commit the murder. We agree with the State that the probative value of the prior threats is strengthened by the fact that they were made throughout the three-year period preceding the murder, thus estabHshing a continuing course of conduct that persisted until the victim’s death. Furthermore, the testimony offered by Kelli Dyer about Appellant’s apparent attempt to poison the victim was highly probative of Appellant’s motive and intent to kill him. We thus conclude that the trial court did not abuse its discretion in ruling that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice to Appellant.

IV Rule 4-3 (h) Compliance

Because Appellant was sentenced to life imprisonment, we have reviewed the record for adverse rulings objected to by Appellant but not argued on appeal, in accordance with Ark. Sup. Ct. R. 4-3 (h). No such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

       Our rule is based upon Federal Rule of Evidence 801(d)(2)(E). Under the federal casés interpreting the federal rule, the existence of a conspiracy must be shown by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987); United States v. Cordova, 157 F.3d 587 (8th Cir. 1998).


author: DONALD L. Corbin, Justice. RAY THORNTON, Justice,

text:
    NATIONSBANK, N.A. v. MURRAY GUARD, INC.
    99-891
    36 S.W.3d 291
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001
    [Petition for rehearing denied March 1, 2001. ]

      Anderson, Murphy & Hopkins, L.L.P., by: Mariam T. Hopkins and Scott D. Provencher, for appellant.

      The Laser Law Firm, P.A., by: Dan F. Bufford and Donna L. Gay, for appellee.

       Glaze and Imber, JJ., not participating. Thornton and Hannah, JJ., would grant.

   DONALD L. Corbin, Justice.

Appellant NationsBank, N.A., appeals the judgment of the Pulaski County Circuit Court entered in favor of Appellee Murray Guard, Inc. For reversal, NationsBank argues that the trial court erred by: (1) entering judgment in Murray Guard’s favor based on the jury’s apportionment of fault; (2) allowing the testimony of a city planner regarding alleged code violations; (3) allowing Murray Guard to introduce into evidence a management agreement between NationsBank and its property management company; and (4) allowing an expert witness to testify that NationsBank failed to comply with Section 601 of the National Fire Prevention Association. This appeal involves issues of first impression, as well as issues of substantial public interest and statutory construction; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l), (4), and (6). We affirm.

The present appeal stems from damages caused by a fire that occurred January 24, 1994, on the fourteenth floor of the Worthen Bank Building. At the time of the fire, the building was owned by Worthen National Bank of Arkansas, but the fourteenth floor was leased to KPMG Peat Marwick (“KPMG”), an accounting firm. The fire was the result of a space heater igniting papers on a nearby desk. The space heater was either left on by a KPMG receptionist, or was accidently turned on by a Laidlaw, Inc., janitor cleaning KPMG’s offices.

At approximately 10:00 p.m., on the evening of the fire, a Laidlaw supervisor, William Muse, reported smelling an odor of “extremely hot wood” on the fourteenth floor to the building’s security guard, Don Hutchins. Hutchins was an employee of Murray Guard. According to Hutchins, he investigated the report, but after finding no problem determined that the smell was probably burned sawdust emanating from a workshop in the basement. Muse testified that he again notified Hutchins about an unusual smell he detected while checking on an employee on the eighteenth floor. Hutchins then dispatched his supervisor, Larry Minor, to the eighteenth floor to check out Muse’s report. According to Muse, he repeatedly instructed Hutchins to contact the fire department. The fire alarms, however, did not go off until 11:56 p.m. According to Gary Jones, an Assistant Fire Marshal for the City of Little Rock, it took the fire department twenty-five minutes to locate the fire because security personnel initially reported that they smelled smoke on the eighteenth floor. NationsBank and two of its tenants, KPMG and the law firm of Wright, Lindsey & Jennings (“Wright”), suffered significant damages as a result of the fire.

NationsBank and KPMG filed suit against Murray Guard and Laidlaw alleging negligence in failing to detect the fire and failing to timely contact the fire department. Flake, Tucker, Wells & Kelley, Inc. (“Flake”), NationsBank’s property management company, was also made a party to the suit when Murray Guard filed a third-party complaint against them. Wright filed a separate suit against Worthen, KPMG, and Laidlaw for its damages caused by the fire. The Wright suit was eventually consolidated with the present action. St. Paul Fire and Marine Insurance Company (“St. Paul”) intervened to recover damages for the amounts it paid out for the business interruption losses of Wright.

Following mediation, all claims, cross-claims, and counterclaims were settled, with the exception of the claims against Murray Guard. These settlements included a payment of $22,535 from KPMG to NationsBank, in exchange for a release in accordance with the Uniform Contribution Among Joint Tortfeasors Act. Murray Guard subsequently settled the claims against it, except for those filed by NationsBank, KPMG, and St. Paul. St. Paul’s claim was ultimately dismissed on a motion for summary judgment.

NationsBank and KPMG’s claims and cross-claims were tried before a jury on March 29, 1999, through April 1, 1999. The parties stipulated to the amount of damages prior to trial. This stipulation provided that NationsBank sustained damages in the amount of $1,635,000 and that KPMG sustained damages in the amount of $888,600. The case was submitted to the jury on interrogatories on the issue of liability. The jury returned a verdict apportioning liability as follows: KPMG, twenty-one percent; Murray Guard, thirty-two percent; and NationsBank, forty-seven percent. Following the jury’s verdict, the trial court entered judgment in favor of Murray Guard on the basis of its interpretation of Arkansas’s comparative-fault law, codified at Ark. Code Ann. § 16-64-122 (Supp. 1997). Specifically, the trial court ruled that under the statute, KPMG’s fault could not be combined with the fault of Murray Guard for purposes of determining whether NationsBank was barred from recovering due to its own negligence. This appeal followed.

I. Comparative Fault

For its first point on appeal, NationsBank argues that the trial court erred in entering judgment in favor of Murray Guard based on the jury’s apportionment of fault. NationsBank contends that the fault of KPMG should be combined with the fault of Murray Guard, and thus NationsBank is less at fault and entitled to damages in the amount of $523,200, or thirty-two percent of $1,635,000, the amount of the stipulated damages, plus prejudgment interest. NationsBank supports this argument by pointing to the fact that it reached a settlement agreement with KPMG in the amount of $22,535. Murray Guard responds that it is improper to combine the fault of KPMG and Murray Guard because KPMG was a co-plaintiff in this action, not a defendant. In other words, KPMG was not a party from whom NationsBank was attempting to recover damages. We agree with Murray Guard.

This court reviews issues of statutory construction de novo, as it is for this court to decide what a statute means. Simmons First Bank v. Bob Callahan Servs., Inc.,340 Ark. 692, 13 S.W.3d 570 (2000); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id.; Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000).

NationsBank relies on the case of Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972), to support its argument that KPMG’s fault should be combined with the fault of Murray Guard. In Riddell, this court held that the fault of two codefendants could be combined for purposes of determining whether the fault of the plaintiff barred his recovery. This court reasoned that the legislature did not mean to go any further than to deny recovery to a plaintiff only when his negligence was at least fifty percent of the cause of the alleged damages. Id.

Riddell and its progeny, however, are inapplicable to the instant appeal. The comparative-fault statute analyzed by this court in Riddell was amended by the Arkansas General Assembly in 1975. Prior to its amendment, the statute allowed recovery where the negligence of the person injured or killed “is of less degree than the negligence of any person, firm, or corporation causing such damage.” Id. at 689, 488 S.W.2d at 36 (emphasis added) (citing Ark. Stat. Ann. § 27-1730.1 (Repl. 1962)). The amended version of the comparative-fault statute, section 16-64-122, clearly limits the comparison of fault:

(a) In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
(b) (1) If the fault chargeable to a party claiming damages is of a lesser degree than the fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is entitled to recover the amount of his damages after they have been diminished in proportion to the degree of his own fault.
(2) If the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is not entided to recover such damages.

Thus, the statute in its current form no longer provides for a comparison of fault among all those responsible for the harm.

The basic rule of statutory construction is to give effect to the intent of the General Assembly. Stephens, 341 Ark. 939, 20 S.W.3d 397; Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). in determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect is given to every word therein, if possible. Id. If the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. Id.

In light of this court’s rules regarding statutory construction, we reject NationsBank’s argument that KPMG was a party from whom they sought to recover damages for purposes of section 16-64-122. At no time did NationsBank and KPMG claim damages from one another. In fact, the settlement between the two parties was the result of each party being exposed to potential contribution claims. Because Murray Guard had filed counterclaims against NationsBank and KPMG seeking contribution, both parties faced the possibility that one could end up paying a share of Murray Guard’s liability, depending on the jury’s apportionment of fault.

Moreover, NationsBank is the party that requested the jury instruction on comparative fault. The trial court instructed the jury as follows:

[ I]f the negligence chargeable to a party claiming damages was equal to or greater in degree than the negligence chargeable to a party from whom he seeks to recover ... then the party claiming damages is not entitled to recover from that party.

Such an instruction was opposed by Murray Guard. Counsel for NationsBank also argued to the jury that they could recover nothing if the jury found their fault to be greater than that of Murray Guard’s. After hearing NationsBank’s argument and being instructed on comparative fault, the jury returned a verdict apportioning the most fault to NationsBank. Based on this jury verdict, the trial court, in turn, entered judgment for Murray Guard. In light of the plain language of the statute and the events at trial, we cannot say that the trial court erred in refusing to combine the fault of Murray Guard and KPMG. Having determined that Nations-Bank is not entitled to entry of judgment, it is unnecessary for us to address NationsBank’s argument regarding an award of prejudgment interest.

II. Testimony of Mark Whitaker

For its second point on appeal, NationsBank argues that the trial court erred in allowing the testimony of Mark Whitaker, a Little Rock Plans Examiner Administrator, regarding NationsBank’s alleged failure to comply with applicable building codes during its 1992 remodeling of the fourteenth floor. NationsBank contends that because Whitaker was specifically declared a lay witness, his testimony should have been limited to only those matters within his personal knowledge. The decision whether to admit relevant evidence, opinion testimony or otherwise, rests in the sound discretion of the trial court, and our standard of review of such a decision is whether the trial court has abused its discretion. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).

Prior to trial, NationsBank filed a motion in limine attempting to exclude the testimony of Whitaker under Arkansas Rules of Evidence 401, 403, and 602. NationsBank argued that Whitaker was going to testify that the Worthen Bank Building did not meet the requirements of the city’s building codes, despite the fact that the city issued a certificate of occupancy for the building, and that Whitaker’s testimony was not based upon matters within his personal knowledge. The trial court denied this motion, ruling that Whitaker could testify as a lay witness. The court stated that Murray Guard’s counsel could elicit testimony about discussions between Whitaker or one of his employees and bank officials regarding remodeling of the building in 1992.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid 401. This court has repeatedly held, however, that a trial judge may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); see also Ark. R. Evid. 403. Evidence regarding fire-safety measures on the fourteenth floor are certainly relevant to the issue of NationsBank’s own liability. The question then becomes whether the probative value of Whitaker’s testimony was substantially outweighed by unfair prejudice. NationsBank argues that it was highly prejudicial to allow a city employee to testify about applicable.code regulations. This argument is without merit, however, because NationsBank fails to demonstrate how it was prejudiced by Whitaker’s testimony. Indeed, NationsBank was allowed to cross-examine Whitaker with regard to the fact that the city ultimately issued a certificate of occupancy to NationsBank.

Likewise, we reject NationsBank’s contention that Whitaker testified about matters outside of his personal knowledge. Rule 602 provides that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. The rule further provides that evidence to prove personal knowledge is not limited to the witness’s own testimony. Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989).

Here, Whitaker had been in his position as a Plans Examiner Administrator since 1989. As part of his job, he was involved in reviewing plans submitted by NationsBank in conjunction with remodeling the building’s fourteenth floor. Whitaker’s testimony was indeed limited to discussions that took place between his office and bank officials. At trial, Whitaker read for the jury provisions of the building code cited in a letter written by Charles Toland, one of Whitaker’s employees, and sent to a contractor after reviewing the remodeling plans for the fourteenth floor. The trial court allowed such testimony over the objection of NationsBank because Whitaker’s position with the Planning Commission made his looking at code violations, drafting reports, and assessing the code, a part of his job. The trial court, however, precluded Whitaker from rendering opinions about whether the building satisfied the applicable codes or whether the bank was negligent. Accordingly, we cannot say that the trial court abused its discretion in allowing Whitaker’s testimony.

III. Introduction of Lease Agreement

NationsBank next argues that the trial court erred in allowing Murray Guard to introduce into evidence a lease agreement between NationsBank and Flake, its property management company. NationsBank asserts that such an agreement is not relevant in an action between NationsBank and Murray Guard. The lease agreement provided that NationsBank would be responsible for hiring, training, supervising, and discharging all building personnel, including security personnel. NationsBank argues that under Arkansas case law, parties contract for themselves, and a contract will not be construed for the benefit of a third party unless it clearly appears this was the intention of the parities. See e.g., Cherry v. Tanda, Inc., 327 Ark. 600, 940 S.W.2d 457 (1997). Thus, according to NationsBank, this lease agreement could not be used for the benefit of Murray Guard. NationsBank’s argument on this point is without merit.

Questions of relevancy are for the trial court to determine and its decision will not be overturned absent an abuse of discretion. Lovell v. Beavers, 336 Ark. 551, 987 S.W.2d 660 (1999). Murray Guard argues that any agreement regarding obligations for the provision of building security are relevant to the issues in this case. We agree, particularly in light of the fact that Hutchins, the security guard who failed to detect the fire and promptly notify fire officials, was actually hired by NationsBank prior to the time that Murray Guard began providing security for the bank building. Moreover, the jury was entitled to hear evidence regarding any training provided by both NationsBank and Murray Guard. NationsBank’s argument on this point fails.

IV Testimony of Expert Witness

Finally, NationsBank argues that the trial court erred in allowing Murray Guard’s expert witness, Michael Slifka, to testify that NationsBank failed to comply with National Fire Prevention Association (“NFPA”) Section 601. Under section 601, building owners must provide their guard service with a complete layout of the building, as well as fire prevention equipment. NationsBank objected to Slifka’s testimony because the NFPA standards were not part of the contract between NationsBank and Murray Guard, but rather are a set of guidelines applicable to innocent third parties, not contracting parties.

This court has long recognized that the admissibility of expert testimony rests largely within the broad discretion of the trial court, and NationsBank bears the burdensome task of demonstrating the trial court abused its discretion. Mercantile Bank v. B & H Associated, Inc., 330 Ark. 315, 954 S.W.2d 226 (1997); Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). Generally, the tendency is to permit the jury to hear the testimony of the person having superior knowledge in a given field, unless clearly lacking in either training or experience, and too rigid a standard should be avoided. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989). If there is some reasonable basis from which it can be said that the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible. Id.

Here, Slifka opined that property management for Nations-Bank should have informed the guards about the limited automatic-detection system in the building, particularly since a single guard was stationed in the lobby once everyone was gone for the day. He also testified that in his expert opinion, the Worthen Bank Building had been below minimum requirements for fire and life safety since at least the early 1980s. Finally, he testified that, in his opinion, had there been a sprinkler system on the fourteenth floor, it would have extinguished the fire with little damage assuming that the sprinkler system worked and that it met the recommended code requirements.

Slifka’s opinion testimony was clearly pertinent to the issue of fault in this case. Any references made to national standards simply informed the jury of the standard of care within the industry. Moreover, NationsBank had the opportunity to cross-examine Slifka both on the validity of his expert opinion and on the limitations of the NFPA standards. Accordingly, we cannot say that the trial court erred in allowing him to testify about such matters.

Affirmed.

Joseph P. Mazzanti III and Frank H. Bailey, Spl. JJ., join in this opinion.

Arnold, C.J., Thornton and Hannah, JJ., dissent.

Glaze and Imber, JJ., not participating.

RAY THORNTON, Justice,

dissenting. For more than thirty years, it has been the law in Arkansas that a plaintiff can recover damages from those whose negligence caused a loss if the negligence of the plaintiff is of a lesser degree than the combined negligence of the other parties whose negligence contributed to the loss. Today the majority overturns that well-established principle, and concludes that because the plaintiff had settled its claim against one of the tortfeasors, the twenty-one percent apportionment of negligence against that tortfeasor could not be combined with the thirty-two percent negligence of a second tortfeasor for the purpose of allowing recovery by a plaintiff whose own negligence was less than fifty percent of the total negligence of all those whose negligence caused the loss. Disallowing a plaintiff, whose negligence is less than fifty percent of the total negligence of all parties whose negligence contributed to the loss, stands our law of comparative fault on its head, and I respectfully dissent.

A review of the development of law on comparative fault shows clearly that it has never been the legislative intent to prohibit recovery by a plaintiff found by a jury to have been less that fifty percent at fault. By enacting the Act 191 of 1955, the “Prosser Act,” the General Assembly established the first comparative fault statute in Arkansas. See, e.g., Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962). Under the provisions of the “Prosser Act,” the recovery of damages was apportioned among all those whose negligent acts caused the damages in accordance with the degree of fault attributable to each of them. A plaintiff, whose own negligence was sixty percent of all negligence causing the loss, could still recover the forty percent of the damages attributable to others. The intent was to distribute the total liability so that each party would bear his fair share, taking both his injuries and his percentage of fault into account. Id. (citing Robert A. Leflar, Comparative Negligence: A Survey for Arkansas Lawyers, 10 Ark. L. Rev. 54 (1955)). Concerned that allowing recovery by a plaintiff whose negligence was more than fifty percent of the total fault, the legislature amended the statute to limit recovery to those instances where “the negligence of the person injured or killed is of a lesser degree than the negligence of any person, firm or corporation causing such damages.” Ark. Stat. Ann. § 27-1730.1 (cited in Walton, supra).

In 1962 in Walton, supra, we interpreted this act to mean that the negligence of all tortfeasors should be aggregated, and that the plaintiff should be denied recovery only when his own negligence was fifty percent or higher. Writing for the court, Justice George Rose Smith stated: “We are not convinced that the legislature meant to go any farther than to deny a recovery to a plaintiff whose own negligence was at least fifty percent of the cause of the damage.” Id. Justice Smith then warned that to go farther would “be almost a return to the common law doctrine of contributory negligence.” Id.

This principle has been the bedrock of our interpretation of the law of comparative fault, and in the case of Riddell & McGraw v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972), we reemphasized that the basic purpose of the comparative fault statute was to distribute the total damages among those who cause them. We then stated: “Furthermore, the legislature did not mean to go any farther than to deny recovery to a plaintiff only when his negligence was at least fifty percent of the cause of the alleged injuries or damages.” Id.

Murray Guard admits, and the majority agrees, that under the principles of Walton, supra, and Riddell, supra, that the plaintiff should be able to recover from KPMG and Murray Guard on the basis of their combined assessment of fault, by jury verdict, as fifty-three percent. Flowever, the majority reasons that in 1975, the legislature overturned these cases by an amendment limiting the comparison of fault. According to the majority, twenty-five years ago, the law was changed. As a result of the 1975 amendment, according to the majority, “Thus, the statute in its current form no longer provides for a comparison of fault among all those responsible for the harm.”

First, to address the conclusion that the 1975 statute had overturned the principles of comparative fault articulated in Walton, supra, and Riddell, supra, without anyone noticing, I have carefully reviewed the 1975 statute to see how such sweeping changes were accomplished without alerting anyone as to the effect of such changes. The statute reads as follows:

16-64-122. Comparative fault.
(a) In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
(b) (1) If the fault chargeable to a party claiming damages is of a lesser degree than the fault chargeable to the party or parties from whom the claiming party seeks to recover damages, then the claiming party is entitled to recover the amount of his damages after they have been diminished in proportion to the degree of his own fault.
(2) If the fault chargeable to a party claiming damages is equal to or greater in degree than any fault chargeable to the party or parties from whom the claiming parly seeks to recover damages, then the claiming party is not entitled to recover such damages.

Id.

I can find no language specifically providing that a comparison of fault among all those responsible for the harm has been repealed. Indeed, the plain words of the present statute suggest that “liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.” Id.

The earlier statute, which we interpreted in Walton, supra, and Riddell, supra, provides that recovery shall be allowed “where the negligence of persons injured or killed is of a lesser degree than the negligence of any person, firm or corporation causing such damage.” Ark. Stat. Ann. § 27-1730.1.

Thus, according to the majority, the legislature overturned the principles of comparative fault by drawing a distinction between the phrase, “the negligence of any person, firm or corporation causing the damage,” id., and the phrase, “the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.” Ark. Code Ann. § 16-64-122. Just how this change of phrase was intended to overturn the principles of comparative fault eludes me, but at least I have the comfort of observing that it has eluded everyone else for twenty-five years.

The fine distinction upon which the majority opinion rests is that because KPMG was not a defendant in the plaintiff’s action against Murray Guard, KPMG’s fault of twenty-one percent cannot be aggregated with Murray Guard’s fault of thirty-two percent for the purpose of determining whether NationsBank shall be allowed any recovery for the negligence of the other parties to the litigation.

This brings us to the pivotal question: Was KPMG a party from whom NationsBank claimed damages? The answer is “yes.” In fact, NationsBank had been paid damages by KPMG in a settlement agreement during the course of this controversy. Yet because NationsBank did not name KPMG as a defendant, which it could not do after the settlement, the majority takes the position that “[a]t no time did NationsBank and KPMG claim damages from one another.” That is not accurate. NationsBank settled its claim against KPMG, and KPMG’s negligence should be added to the negligence charged against Murray Guard. To hold otherwise will chill any possibility of settlement of claims between an injured party and joint tortfeasors.

For these reasons, I respectfully dissent, and I am authorized to state that Chief Justice ARNOLD and Justice HANNAH join in this dissent.

Arnold, C.J., and Hannah, J., join.

       After the present litigation was filed, Boatmen’s National Bank of Arkansas purchased Worthen. Boatmen’s, in turn, was purchased by NationsBank, N.A., and Nations-Bank was substituted as the plaintiff in this litigation. Bank of America has since purchased NationsBank.


author: RAY THORNTON, Justice.

text:
    Joe TERRY and David Lee Stocks v. A.D. LOCK, Lock Hospitality, Inc., Greg Entler, John Doe I, John Doe II, and John Doe III
    00-818
    37 S.W.3d 202
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001

      McHenry & McHenry Law Firm, by: Donna McHenry, Robert McHenry, & Connie L. Grace, for appellants.

      Grady & Adkisson, P.A., by: William C. Adkisson, for appellees.
   RAY THORNTON, Justice.

On February 1, 1999, appellants, Joe Terry and David Stocks, were preparing the Best Western motel in Conway for renovation. The motel was owned by appellee, Lock Hospitality Inc., a corporation wholly owned by appellee, A.D. Lock and his wife. The appellants were removing the ceiling tiles in room 118, with Mr. Lock also present in the room. As the ceiling tiles were removed, a cardboard box was noticed near the heating and air supply vent where it had been concealed. Appellant Terry climbed a ladder to reach the box, opened it, and handed it to appellant Stocks. The box was filled with old, dry and dusty currency in varying denominations. Mr. Lock took the box and its contents to his office. Later in the day, appellants contacted the Conway Police Department and informed them of the discovery. The investigating officer contacted Mr. Lock, and the money was counted. The face value of the currency was determined to be $38,310.00.

Appellants filed a complaint in Faulkner County Chancery Court, asserting that the currency “being old and fragile is unique and has numismatic or antique value and may have a market value in excess of the totality of its denominations as collector’s funds.” Appellants sought a temporary restraining order and an injunction, directing appellees to refrain from spending or otherwise depositing the found money and to pay all of the money to either appellants or into the registry of the court. Appellants’ complaint also urged that under the “clean-up doctrine,” the chancery court had authority to decide a number of charges sounding in tort. Appellants also sought an order finding that appellees were holding the money in trust for appellants.

On the day the complaint was filed, the chancery court entered a temporary restraining order requiring appellees to deposit the found money with the registry of the court. On February 9, 1999, Mr. Lock and Lock Hospitality, Inc., filed their answer. Appellees raised the defenses of estoppel, laches, failure of consideration, and fraud in their answer. Eventually, all of the named appellees other than Mr. Lock and Lock Hospitality, Inc., were dismissed from the case.

On appeal, appellants now contend that the chancery court did not have subject-matter jurisdiction to hear and resolve the issues that they had asked the chancellor to resolve. We find no merit in this- argument and conclude that the chancery court had jurisdiction under the clean-up doctrine to resolve the merits of the matters relating to ownership of the money.

The remaining issue for our review is whether the chancellor was clearly erroneous in characterizing the found money as “mislaid” property and consequently that the interest of Lock Hospitality, Inc., as the owner of the premises, is superior to the interest of appellants as finders of the money. We conclude that the chancellor was not clearly erroneous in finding that the money was mislaid property, and we affirm.

In their first point on appeal, appellants argue that the trial court was wholly without subject-matter jurisdiction to adjudicate the issues involved in this case. We have previously stated that parties may not consent to a court’s subject-matter jurisdiction where no such jurisdiction lies, nor may the jurisdiction be waived. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996). A court must determine if it has subject-matter jurisdiction of the case before it. Id. Subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Hamaker v. Strickland, 340 Ark. 593, 99 S.W.3d 210 (2000). In fact, this court has a duty to determine whether or not we have jurisdiction of the subject matter of an appeal. Id. Subject-matter jurisdiction is determined from the pleadings, the complaint, answer, or cross-complaint. Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995). Subject-matter jurisdiction is tested on the pleadings and not the proof. Id.

A court of chancery or equity may obtain jurisdiction over matters not normally within its purview pursuant to the cleanup doctrine, our long-recognized rule that once a chancery court acquires jurisdiction for one purpose, it may decide all other issues. Douthitt, supra. Generally, the clean-up doctrine allows the chancery court, having acquired jurisdiction for equitable purposes, to retain all claims in an action and grant all the relief, legal or equitable, to which the parties in the lawsuit are entitled. See Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924); see also Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992).

In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), we noted that:

unless the chancery court has no tenable nexus whatever to the claim in question we will consider the matter of whether the claim should have been heard there to be one of propriety rather than one of subject-matter jurisdiction.

Id.

We have further noted that an error in bringing a suit in equity when there is an adequate remedy at law is waived by failure to move to transfer the cause to the circuit court; where the adequacy of the remedy at law is the only basis for questioning equity jurisdiction the chancellor’s decree is not subject to reversal for failure to transfer the case, unless the chancery court is wholly incompetent to grant the relief sought. Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). Some examples of courts granting relief which they were “wholly without jurisdiction” to grant would be a chancery court trying a criminal case or a chancery court hearing a probate matter. See Dugal Logging. Inc. v. Arkansas Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999).

We have also noted that when the issue is whether the chancery court has jurisdiction because the plaintiff lacks an adequate remedy at law, we will not allow it to be raised for the first time on appeal. Liles, supra. It is only when the court of equity is wholly incompetent to consider the matter before it that we will permit the issue of competency to be raised for the first time on appeal. Finally, we have held that it is a well-settled rule that one who has invoked the assistance of equity cannot later object to equity’s jurisdiction unless the subject matter of the suit is wholly beyond equitable cognizance. Leonards v. E.A. Martin Machinery Co., 321 Ark. 239, 900 S.W.2d 546 (1995).

Keeping in mind the foregoing applicable principles of law, we turn to the case now on review. In this case, appellants filed their complaint in Faulkner County Chancery Court. Looking at the pleadings filed in this case, we conclude that the chancery court properly had subject-matter jurisdiction to address the matter. The appellants’ complaint sought the following equitable remedies: (1) an injunction; (2) specific performance; and (3) the imposition of a constructive trust. Additionally, appellants asserted in their complaint that they were seeking equitable relief. Specifically, their complaint states: “the cash money, referred to herein above, being old and fragile is unique and has numismatic or antique value and may have fair market value in excess of the totality of its denominations as collector’s funds and therefore plaintiffs move for specific performance...[.] ”

From the pleadings, it appears that appellants sought equitable remedies in the chancery court. As a result, when the chancery court addressed these remedies, that court then acquired jurisdiction over the remaining tort claims pursuant to the “clean-up doctrine.” Accordingly, we hold that the trial court was not wholly without subject-matter jurisdiction over this case.

The argument that the court should have transferred the case to circuit court is one of propriety rather than one of subject-matter jurisdiction. Appellants did not request that their case be transferred to circuit court at the trial court level. Because this issue was not raised below we may not consider it now for the first time on appeal. See, Titan Oil & Gas, supra; see also Liles, supra. Accordingly, the trial court is affirmed.

In their second point on appeal, appellants contend that the trial court’s finding that the property involved in. this case was “mislaid” property was erroneous. Specifically, the trial court found “that the money in question was intentionally placed where it was found” and that when “money is mislaid, the finders would acquire no rights.” The trial court then concluded that “Lock Flospitality, Inc., as the owner of the premises is entitled to possession.” Appellants argue that the found property was not “mislaid property” but instead was “lost property,” “abandoned property,” or “treasure trove” and that the trial court’s finding that the money was “mislaid property” is clearly erroneous. We disagree.

The standards governing our review of a chancery court decision are well established. We review chancery cases de novo on the record, and we do not reverse unless we determine that the chancery court’s findings of fact were clearly erroneous. Newberry v. Scruggs, 336 Ark. 570, 986 S.W.2d 853 (1999).

We have not previously analyzed the various distinctions between different kinds of found property but those distinctions have been made in the common law, and have been analyzed in decisions from other jurisdictions. The Supreme Court of Iowa has explained that “under the common law, there are four categories of found property: (1) abandoned property, (2) lost property, (3) mislaid property, and (4) treasure trove.” Benjamin v. Linder Aviation, Inc., 534 N.W.2d 400 (Iowa 1995); see also Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948). “The rights of a finder of property depend on how the found property is classified.” Benjamin, supra. The character of the property should be determined by evaluating all the facts and circumstances present in the particular case. See Schley v. Couch, 284 S.W.2d 333 (Tex. 1955).

We next consider the classification of found property described in Benjamin, supra.

A. Abandoned property

Property is said to be “abandoned” when it is thrown away, or its possession is voluntarily forsaken by the owner, in which case it will become the property of the first occupant; or when it is involuntarily lost or left without the hope and expectation of again acquiring it, and then it becomes the property of the finder, subject to the superior claim of the owner. Eads v. Brazelton, 22 Ark. 499 (1861); see also Crosston v. Lion Oil & Refining Co., 169 Ark. 561, 275 S.W. 899 (1925).

B. Lost property

“Lost property” is property which the owner has involuntarily parted with through neglect, carelessness, or inadvertence, that is, property which the owner has unwittingly suffered to pass out of his possession, and of whose whereabouts he has no knowledge. Property is deemed lost when it is unintentionally separated from the dominion of its owner. Popularly, property is lost when the owner does not know, and cannot ascertain, where it is, the essential test of lost property is whether the owner parted with the possession of the property intentionally, casually or involuntarily; only in the latter contingency may it be lost property. Property is not “lost” unless the owner parts with it involuntarily and unintentionally, and does not, at any time thereafter, know where to find it. A loss is always involuntary; there can be no intent to part with the ownership of lost property.

1 Am. Jur.2d Abandoned, Lost, Etc., Property § 4 (1994); see also Benjamin, supra; Rizt v. Selma United Methodist Church, 467 N.W.2d 266 (Iowa 1991); Jackson, supra.

The finder of lost property does not acquire absolute ownership, but acquires such property interest or right as will enable him to keep it against all the world but the rightful owner. This rule is not affected by the place of finding, as the finder of lost property has a right to possession of the article superior to that of the owner or occupant of the premises where it is found.

1 Am. Jur.2d Abandoned, Lost, Etc., Property § 18 (1994); see also Rizt, supra.

C. Mislaid property

“Mislaid property” is that which is intentionally put into a certain place and later forgotten. The place where money or property claimed as lost is found is an important factor in the determination of the question of whether it was lost or only mislaid. But where articles are accidentally dropped in any public place, public thoroughfare, or street, they are lost in the legal sense. In short, property will not be considered to have been lost unless the circumstances are such that, considering the place where, and the conditions under which, it is found, there is an inference that it was left there unintentionally.

1 Am. Jur.2d Abandoned, Lost, Etc., Property § 6 (1994); see also Benjamin, supra; Ritz, supra; Jackson, supra.

A finder of mislaid property acquires no ownership rights in it, and, where such property is found upon another’s premises, he has no right to its possession, but is required to turn it over to the owner of the premises. This is true whether the finder is an employee or occupier of the premises on which the mislaid article is found or a customer of the owner or occupant.
The right of possession, as against all except the true owner, is in the owner or occupant of the premises where the property is discovered, for mislaid property is presumed to have been left in the custody of the owner or occupier of the premises upon which it is found. The result is that the proprietor of the premises is entitled to retain possession of the thing, pending a search by him to discover the owner, or during such time as the owner may be considered to be engaged in trying to recover his property. When the owner of premises takes possession of mislaid personal property left by an invitee he becomes a gratuitous bailee by operation of law, with a duty to use ordinary care to return it to the owner.
The finder of mislaid property must turn it over to the owner or occupier of the premises where it is found; it is the latter’s duty to keep mislaid property for the owner, and he must use the care required of a gratuitous bailee for its safekeeping until the true owner calls for it. As against everyone but the true owner, the owner of such premises has the duty to defend his custody and possession of the mislaid property, and he is absolutely liable for a misdelivery.

1 Am. Jur.2d Abandoned, Lost, Etc., Property § 24 (1994); see also Benjamin, supra; Rizt, supra; Schley, supra.

D. Treasure trove

According to the common law, treasure trove is any gold or silver in coin, plate, or bullion, whose owner is unknown, found concealed in the earth or in a house or other private place, but not lying on the ground. Where the common-law treasure trove doctrine has been applied to determine the ownership of a find, property considered as treasure trove has included gold or silver coin, and its paper representatives, buried in the earth or hidden in some other private place, including a mattress, a cabinet sink, and a piano. It is not essential to its character as treasure trove that the thing shall have been hidden in the ground; it is sufficient if it is found concealed in other articles, such as bureaus, safes, or machinery. While, strictly speaking, treasure trove is gold or silver, it has been held to include the paper representatives thereof, especially where found hidden with those precious metals.

1 Am. Jur.2d Abandoned, Lost, Etc., Property § 7 (1994); see also Benjamin, supra; Jackson, supra.

“Treasure trove carries with it the thought of antiquity; to be classed as treasure trove, the treasure must have been hidden or concealed so long as to indicate that the owner is probably dead or unknown.” 1 Am. JUR.2d Abandoned, Lost, Etc., Property § 8 (1994). 'Tide to treasure trove belongs to the finder, against all the world except the true owner.” 1 Am. JUR.2d Abandoned, Lost, Etc., Property § 26 (1994); see also Ritz, supra.

Remaining mindful of the various types of found property and the rights to possession of that property, we turn now to the case before us on review. Appellants were stripping motel rooms at the Best Western Motel, which belongs to Lock Hospitality Inc., on February 1, 1999. Their work, as independent contractors, included removing sheet rock or dry wall, ceiling tiles, and other material to prepare the motel for renovations. While working in room 118, appellants removed some ceiling tiles. Appellants found a cardboard box concealed on top of the heating and air vent that became visible as a result of the removal of the ceding tiles. Appellant Terry described the box as “covered with dust.” Appellant Stocks stated in his affidavit that “the box and its contents appeared to have been located at the site for a very long time.” Mr. Lock testified that in 1988 a beam was replaced in room 118 and the box was not discovered at that time. Upon opening the box, a large amount of old, dusty currency was discovered. Both appellants and Mr. Lock were in the room when the box was discovered. Neither appellants nor appellees claim to have concealed the property in the ceiling. It is apparent that the box was not lost.- The circumstances suggest that it was either abandoned property, mislaid property, or treasure trove. Considering all of the facts as presented, we cannot say that the trial court’s finding that the property was mislaid property was clearly erroneous. Specifically, we hold that the trial court’s findings that “the money in controversy was intentionally placed where it was found for its security, in order to shield it from unwelcome eyes...” and that the “money was mislaid [property]” were not clearly erroneous.

We note that other jurisdictions have addressed similar fact situations and have determined that the property at stake was “mislaid” property. The Iowa Supreme Court addressed this issue in Benjamin, supra. In that case, a bank hired Benjamin to perform a routine service inspection on an airplane which it owned. During the inspection, Benjamin removed a panel from the wing.. Id. The screws to the panel were old and rusted, and Benjamin had to use a drill to' remove them. Upon removal of the panel, Benjamin discovered packets of currency totaling $18,000. Both Benjamin and the bank, as the owner of the plane, claimed ownership of the money. Id. The court reviewed the various types of property and determined that the money was “mislaid” property. The court explained that “the place where Benjamin found the money and the manner in which it was hidden are also important.” They further noted that:

the bills were carefully tied and wrapped and then concealed in a location that was accessible only by removing screws and a panel. These circumstances support an inference that the money was placed there intentionally. This inference supports the conclusion that the money was mislaid.

Benjamin, supra. After reaching this conclusion, the court held “because the money discovered by Benjamin was properly found to be mislaid property, it belongs to the owner of the premises where it was found.” Id. The circumstances in Benjamin are similar to those now before us, and we are persuaded that the reasoning of the Iowa court was sound.

The Oregon Supreme Court has also considered a case involving facts similar to the case now on review before this court. In Jackson, supra, Mrs. Jackson, while working as a chamber maid at Arthur Hotel, discovered $800 concealed under the paper lining of a dresser drawer. Id. The court observed that “from the manner in which the bills in the instant case were carefully concealed beneath the paper lining of the drawer, it must be presumed that the concealment was effected intentionally and deliberately. The bills, therefore, cannot be regarded as abandoned property. Id. The court then held:

The natural assumption is that the person who concealed the bills in the case at bar was a guest of the hotel. Their considerable value, and the manner of their concealment, indicate that the person who concealed them did so for purposes of security, and with the intention of reclaiming them. They were, therefore, to be classified not as lost, but as misplaced or forgotten property, and the defendant, as occupier of the premises where they were found, had the right and duty to take them into his possession and to hold them as a gratuitous bailee for the true owner.

Jackson, supra.

The case now before us presents circumstances similar to those upon which Benjamin and Jackson were decided. The trial court found that the original owner of the $38,310.00 acted intentionally in concealing his property. The trial court also recognized that the found property did not have the characteristics of antiquity required for the classification as treasure trove. We cannot say that the trial court’s determination that the box was mislaid property was clearly erroneous. We hold that the trial court did not err when it found that the property in the present case was mislaid property and as such belongs to the owner of the premises in which the money was found. Accordingly, we affirm the trial court.

Affirmed.

       Although not addressed by the parties on appeal, we note that there is a possibility that pursuant to Arkansas’ “Unclaimed Property Act,” Ark. Code Ann. § 18-28-101, et. seq., the State might have asserted an interest in the money in controversy in this case, but did not do so.


author: PER CURIAM.

text:
    ORTHO-NEURO MEDICAL ASSOCIATES v. Tonya M. JEFFERY
    00-1480
    37 S.W.3d 577
    Supreme Court of Arkansas
    Opinion delivered January 25, 2001

      Oscar Stilley, for appellant.
    No response.
   PER CURIAM.

By motion, appellant seeks a rule on the clerk, directing the clerk to accept appellant’s late record. Appellant argues its record was due on December 19, 2000. Appellant transmitted its record to Airborne Express for delivery on December 19th, but it was not delivered to the clerk’s office until December 20, 2000. Appellant attaches to its motion an Airborne Express “shipment tracking report” which reflects “delivery was attempted on December 19, 2000 at 9:42 a.m.” Appellant’s counsel further declares that the failure of Airborne Express to deliver the record was because he was told the clerk’s office was moving on the morning of December 19, 2000. Appellant submits no affidavit which shows the clerk’s office was closed on December 19, and, in fact, the clerk’s office was open on December 19th,. as it is every weekday except certain designated holidays.

Because the record on appeal was not filed within the time prescribed in Ark. R. App. P. 5(a), appellant’s motion for rule on the clerk must be denied. See Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991).

Thornton, J., would grant.