text:
    Bobby David STARLING v. STATE of Arkansas
    CR 89-213
    786 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered March 26, 1990

      George H. Stephens II, for appellant.

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

In this criminal appeal, the appellant challenges his conviction for first degree murder of his wife and second degree battery of his wife’s friend, Georgia Estlinbaum. He was convicted by a jury and received a life sentence for first degree murder plus six years on the battery charge. On appeal, he raises four points of error, none of which have merit.

The facts are basically uncontested. Appellant and his wife were experiencing marital problems, and on July 5,1988, his wife and daughter, Christina, left the marital home. Appellant had a neighbor deliver a letter to his wife hoping she would either return home or meet with him to discuss their problems. She refused. On July 8, 1988, appellant confronted his wife in a local grocery store. After a heated conversation, appellant ran out of the store to his car, got a gun and shot his wife, who by this time was outside the store. He first shot her in the head, but after she was down, he shot her several times more, killing her. Appellant then turned to Georgia Estlinbaum, who was sitting in her car, and shot several times into her vehicle. Ms. Estlinbaum was wounded but not fatally.

Appellant first argues that the trial court erred in allowing Christina to testify concerning the physical nature of the arguments that took place in the marital home and the death threats made by appellant towards his wife prior to the shooting.

The state argues forcefully that the appellant failed to preserve his objections to Christina’s testimony for appellate review. While we believe there may be considerable merit to the state’s arguments, we need not burden this decision by sorting through the parties’ lengthy discussion of the state’s position on this point because Christina’s testimony clearly was admissible under A.R.E. Rule 404(b).

The state was required to prove the appellant killed his wife with the premeditated and deliberate purpose of doing so. Ark. Code Ann. § 5-10-102(a)(2) (1987). Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986). The proof of threats made by the defendant prior to the time a homicide occurred is admissible as showing motive. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981); see also Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975) (where threats, even though uncommunicated to the victim, were held admissible to show ill will and motive).

Here, Christina testified that prior to the shooting on July 8, 1988, the appellant had utilized physical force against his wife, and as recent as July 5,1988, appellant not only threatened to kill the victim with a gun, he also beat her. Such evidence clearly tended to show appellant’s motive, intent or plan to kill his wife. Because that evidence was admissible under Rule 404(b), appellant fails to show any abuse of the trial court’s discretion on this point. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Appellant’s second point of error concerned a question the state posed to Christina about a prior guardianship proceeding involving her. The prosecutor asked Christina whether the appellant’s counsel had tried to assist her in the proceeding. Appellant objected to the question, the trial court sustained it, and Christina never answered the question. Nonetheless, appel- . lant moved to strike the question from the record, and the trial court refused the request. Appellant complains on appeal that the trial court erred in failing to strike the state’s question. He offers no citation of authority to support his argument and in no way demonstrates how he was prejudiced by the trial court’s ruling. The trial court agreed the state’s question was irrelevant, and we fail to see how appellant was prejudiced by leaving the question in the record. Prejudice is not presumed, and the appellant has demonstrated none. Holbird v. State, 299 Ark. 551, 775 S.W.2d 893 (1989).

The third point concerns the trial court’s denial of appellant’s motion for directed verdict on the second degree battery charge. Appellant contends the state’s evidence was insufficient to prove Ms. Estlinbaum sustained a serious physical injury. Although the state counters by saying the evidence strongly supports the verdict reached, it first argues that the appellant waived this issue below and therefore it is not preserved in this appeal. We agree.

In a jury trial, the defendant’s failure to move for a directed verdict at the conclusion of evidence presented by the prosecution and at the close of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A.R.Cr.P. Rule 36.21 (b); Houston v. State, 298 Ark. 7, 771 S.W.2d 16 (1989). Here, while appellant moved for a directed verdict on the battery charge at the close of the state’s case, he failed to renew such motion at the close of his case.

Finally, appellant contends that the trial court erred in not allowing him to introduce evidence of the infidelity of his wife. Appellant argues such evidence would have shown he was acting under extreme emotional disturbance at the time he shot his wife and would have entitled him to a jury instruction on the lesser included offense of manslaughter. See Ark. Code Ann. § 5-10-104(a) (1) (1987). The problem with appellant’s argument is that while he claims evidence existed reflecting that on prior occasions he had accused his wife of “running around,” he never stated when these incidents of “running around” occurred, nor did he mention the name of any paramour.

In sum, appellant failed to explain to the trial court how his evidence, reflecting he had accused his wife of adultery, would show he killed her when he was under the influence of extreme emotional disturbance for which there was reasonable cause — the elements which would entitle him to be convicted of manslaughter under § 5-10-104(a)(l) rather than first degree murder. Because the appellant failed to show the relevancy of the evidence he proposed to introduce, we believe the trial court did not abuse its discretion by excluding such evidence. On this point, we further note that Georgia Estlinbaum testified without objection that the appellant had made accusations to his wife about her seeing other men. Thus, even if the “running around” evidence was admissible, as appellant proposes, that evidence was merely cumulative and the exclusion of it, even if erroneous, was nonprejudicial. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985).

Under Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals, an examination has been made of all other rulings adverse to appellant, and none of them constitute prejudicial error. For the reasons above, we affirm.

Price, J., not participating.


source: Caselaw Access Project

author: Otis H. Turner, Justice.

license: Public Domain

text:
    Edmond W. PARETTE v. STATE of Arkansas
    CR 88-128
    786 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered March 26, 1990
    [Rehearing denied April 30, 1990.]

      Fredye Long Eckhart, for appellant.

      Sieve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant raises six points for reversal in this appeal from his conviction on a charge of possession of marijuana with intent to deliver. His arguments are unpersuasive, and we affirm the judgment.

Edmond (Ned) Parette, the appellant, and his wife, Elizabeth (Liz) Parette, lived together with their infant child in a single-family residence in Fayetteville, Arkansas, until November, 1985, when the appellant moved out. He filed a suit for divorce in May, 1986.

Mrs. Parette remained in the residence until September, 1986, when she surrendered the house and key to the appellant. (The appellant’s father was the owner of the house.) The house remained unoccupied, although both husband and wife had left various items of personal property inside.

Sometime during the fall of 1986, Liz Parette had a chance

meeting with a high school acquaintance, Harry Perry, a police officer for the city of Springdale, Arkansas. She testified that she told the officer that she believed her former husband was involved in “dope.”

In October, 1986, Liz Parette, wishing to obtain some of her possessions from the house, met with her former neighbor, Ann Hannah, and, with her assistance, entered the house through a utility-room window. Once inside, she smelled the odor of marijuana and discovered a large amount of the substance in trash bags stored in a closet, together with scales, plastic bags, and other items, which she identified as the property of Ned Parette.

The two women then took the bags and the other items of personal property to Mrs. Hannah’s house. Mrs. Parette then phoned her friend, Officer Harry Perry. She subsequently gave the marijuana and other items taken from the house to Perry, who delivered all of the property to the Springdale Police Department. In March, 1987, the appellant was arrested and charged with possession of a controlled substance with intent to deliver.

Liz Parette was ultimately granted immunity from prosecu-. tion. At her former husband’s trial, she testified that the appellant had been involved in marijuana trafficking during the course of their marriage. A pretrial motion by the defense to suppress the physical evidence was denied. Following a trial by jury, the appellant was convicted and sentenced to ten years imprisonment and fined $20,000.

The appellant argues six issues for reversal:

I. The state failed to meet its burden of proving the validity of the warrantless search.

II. The appellant’s former wife should not have been permitted to testify against him.

III. The trial court erroneously permitted evidence from a surprise witness after the state admitted a discovery violation.

IV. The trial court prejudicially restricted cross-examination of a material witness.

V. The trial court erroneously excluded the testimony of a defense witness.

VI. The trial court erroneously denied a directed verdict for the appellant.

After a careful review, we hold that the trial was without prejudicial error, and we affirm.

I.

The appellant made a pretrial motion to suppress the evidence taken from the house by Liz Parette and Ann Hannah on the basis that it had been obtained in violation of the Fourth Amendment to the United States Constitution.

Pertinent testimony indicates that the appellant and Liz Parette lived together in the house; that the appellant moved and Liz remained; that Liz then moved but left certain items of personal property in the house, some of which belonged to her estranged husband, some to her, and some to their infant child. Thereafter, the appellant had access to the house, owned by his father, and frequented it on numerous occasions, but neither the appellant nor Mrs. Parette occupied the premises.

The appellant’s motion to suppress raised two issues to be resolved by the trial court: first, whether the appellant had standing to challenge the seizure of the evidence; and second, whether the two women were acting as private citizens or as agents of the police due to Liz Parette’s relationship with Officer Perry and her earlier conversation with him concerning a belief that appellant was involved with “dope.”

It is well settled that one must have standing in order to complain of an alleged illegal search and seizure. Rakas v. Illinois, 439 U.S. 128 (1978); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). There was no showing that the appellant owned or leased the house or maintained or had a right to maintain control of the premises; thus, the trial court was correct in holding that the appellant lacked standing to complain. Also, the appellant acknowledges that the search and seizure restraints found under the provisions of both the state and federal Constitutions operate as restraints upon the government and its agents rather than upon private individuals. Smith v. State, 267 Ark. 1138, 594 S.W.2d 251 (Ark. App. 1980). Only when it is established that the private individual acted at the direction of a law enforcement agency or officer can he or she be considered an arm of the government. Houston v. State, 299 Ark. 7, 771 S. W.2d 16 (1989). This question was properly before the trial court, who was able to evaluate the evidence and to resolve any conflicts which might have existed. Atchison v. State, 298 Ark. 344, 767 S. W.2d 312(1989). We find that the trial court’s decision was not against a preponderance of the evidence.

II.

The appellant next argues that his ex-wife should not have been permitted to testify against him.

In advancing this argument, the appellant relies upon a series of legislative enactments, decisions of this court, and promulgations of procedural rules by this court under its constitutionally-granted powers.

Act 14 of 1943, previously codified as Ark. Stat. Ann. §§ 43-2019 — 2020, prohibited the introduction by the opposing party of any testimony by one spouse against the other in a criminal case. In 1975, the legislature established rules of evidence by legislative act. Rule 504 changed the prior rule to prohibit the testimony of one spouse against the other only with respect to confidential communications. On October 13, 1986, this court held that the act changing the rule was invalid and then adopted the Rules of Evidence (including Rule 504) by per curiam order. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

The appellant’s argument is controlled by our holding in Smith v. State, 291 Ark. 163, 722 S.W.2d 853 (1987). There we specifically held that where the change in law between the commission of the crime and the trial did not make any fact admissible to prove the crime which fact would not have been admissible at the time of the commission, but only made testimony admissible which would not have been previously admissible, it is an evidentiary matter, not one of substantive law, and as such, is within the court’s rule-making authority. See Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).

The trial court properly allowed Liz Parette to testify against her former husband.

III.

The appellant contends that reversal is required due to the admission of testimonial and physical evidence of a surprise witness after the state admitted a discovery violation.

In response to discovery requests by the appellant, the state listed as a witness an employee of the United Parcel Service who had taken the appellant’s fingerprints, apparently as a part of an application for employment. The listed witness was going to be used only for the purpose of establishing that the prints on the card were the prints of the appellant. During the course of trial, the state found that the listed witness was unavailable and so elected to call a deputy sheriff who could identify the appellant’s fingerprints on the card made at the time of the arrest. Neither the listed witness nor the substituted witness were to be called for the purpose of comparing the record or “card” prints with the prints lifted from the bags of marijuana — that evidence was provided by a listed expert. When informed of the substitute witness, counsel for the appellant objected. Although the objection was overruled, the court gave counsel for the appellant thirty minutes to confer with the witness outside the courtroom prior to his testifying.

The witness — whether listed or substituted is immaterial under these circumstances — was called only for the limited purpose of laying a foundation for the testimony of the fingerprint expert. Though counsel for the appellant argues prejudice, there was nothing before the trial court or this court on appeal to indicate how the substitution might have been prejudicial. The appellant’s attorney asserts that he was prepared to “gut” the listed witness but does not elaborate. The ingenuity necessary to “gut” a witness called only for the limited purpose of identifying a fingerprint card would be useful knowledge and should have been explained.

Even if this substitution of witnesses amounted to a discovery violation, so long as no real prejudice to the appellant ensued, reversal is not warranted. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988).

IV.

The appellant next argues that the trial court committed prejudicial error in restricting the appellant’s cross-examination of Officer Perry.

During this cross-examination, the appellant’s attorney asked the witness if he had taken an oath to uphold the law. Perry answered affirmatively. Counsel then inquired whether, at any time during his employment with the Ouachita County Sheriff’s Office, he had violated the law. The state objected, and the defense proffered that Perry had constructed and set off a “bomb” in a tree on the University of Arkansas campus during a gay rights march. This act resulted in a reprimand and termination of employment by the sheriff’s office. The state countered that the evidence had nothing to do with truthfulness or veracity as required by Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The court sustained the state’s objection.

Arkansas Rules of Evidence Rule 608 (b) provides that specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning his character for truthfulness.

We have interpreted this rule and limited its application to instances where the inquiry on cross-examination concerns misconduct “clearly probative of truthfulness or untruthfulness.” Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). We do not view the inquiry as relating to misconduct clearly probative of untruthfulness as argued by the appellant. The record indicates that the witness’s misconduct resulted in a charge of discharging fireworks within the city. The appellant attempts to make a conceptual leap backward from this petty misdemeanor, not itself relating in any way to truthfulness or untruthfulness, to the policeman’s oath and then forward to the standard established in Rhodes. There is simply no analogy between the Rhodes situation and that ruled upon the court in this case. We decline to permit the appellant to bootstrap, by reverse analogy, this situation to Rhodes, and we refuse to hold that the trial court abused the discretion granted to him under the rule.

The appellant also contends that the evidence was admissible under A.R.E. Rules 404 and 405. Rule 404 provides that character evidence of a witness is not admissible to prove that he acted in conformity therewith on a particular occasion, except as provided for in Rules 607, 608 and 609, none of which applied here. Except to the extent discussed above, Rule 405 obviously refers only to the character of the accused as an essential element of the charge and has no application to this cross-examination directed to the character of a witness.

V.

It is next contended that the trial court erred in excluding the testimony of a witness for the defense.

Kerry Burke, a witness called for the defense, was asked by appellant’s attorney whether Liz Parette had changed since he first met her at college. The state objected, and the court sustained the objection “unless you [counsel for the appellant] attempt to qualify him as an expert.” Counsel responded that he could not meet the requirement and continued his interrogation of the witness. During the subsequent questioning, witness Burke testified that Liz Parette had on one occasion become emotionally upset, that she “was not herself,” and that she stated that she would “find a way to get” the appellant.

The record seems clear that the appellant accomplished his intended purpose with this witness and the testimony was in fact introduced. In any event, there appears no prejudice. See Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987).

VI.

As his last point for reversal, the appellant contends there was no sufficient evidence to sustain the verdict.

The appellant presents three sub-arguments in advancing this issue: first, that Liz Parette and the appellant were in joint possession of the house and the appellant was, at the very worst, only in constructive possession of the marijuana; second, that Liz Parette was an accomplice and the evidence corroborating her testimony was not sufficient under the requirements of Ark. Code Ann. § 16-89-111(e) (1987); and third, the chain of custody of the contraband was. defective, rendering the admission as evidence reversible error.

Only one of the three sub-arguments was raised at the trial level. The appellant moved for a directed verdict on the constructive possession issue, both at close of the state’s case and when the defense rested; therefore, that issue is properly preserved and is the only one under this point that will be considered. See ARCP Rule 36.2(b); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989). In order to preserve an issue for appeal, that issue must be stated clearly and specifically. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985). Only the objections raised at the trial level are deemed to be. properly before this court on appeal; all others are considered waived. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Thus, only the constructive possession argument is properly before this court.

If this conviction is to be affirmed, it must be shown that the appellant possessed the marijuana. Constructive possession is a sufficient showing. Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where, however there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband and that the accused knew that it was in fact contraband. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).

There is an abundance of evidence from which a jury could conclude that the appellant exercised control over the contraband and knew where it was. Liz Parette testified that, during their marriage, the appellant received marijuana shipments once every one or two months; that a silver trash bag introduced into evidence was used by the appellant to cover the shipments when they were received; that a canvas bookbag, plastic baggies, and a set of scales that were identified and introduced were found with the marijuana and belonged to the appellant; that the canvas bookbag was obtained at Henderson State University when she and the appellant attended college; that a red bag bearing a Life magazine logo contained the appellant’s contact lens case, a “cocaine chopper” and wooden hashish pipe, all of which belonged to the appellant and were found by her with the marijuana.

There is also substantial evidence from which the jury could find that the appellant had easy access to and frequented the house where the contraband was found on a number of occasions. The appellant’s father owned the house, and the next door neighbor testified that she saw the appellant at the house quite often after Liz Parette moved out. This same neighbor once tried to go in the house when she saw the appellant cleaning inside. The appellant refused her admission, saying that the house was “a pit.”

Suffice it to say the evidence in support of the verdict is substantial, if not overwhelming.

Affirmed.

Price, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Rosanne COX v. Ralph BARD, M.D.
    89-324
    786 S.W.2d 570
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Killough, Ford & Hunter, by: S. Kyles Hunter, for appellant.

      Mitchell, Williams, Selig& Tucker, by: T. Scott Clevenger,
      for appellee.
   Jack Holt, Jr., Chief Justice.

The issue presented by this appeal is whether the requirement for commencement of a medical malpractice action pursuant to Ark. Code Ann. § 16-114-204(a) (1987) is satisfied by a sheriff serving the doctor with notice of intent to sue. We hold that it is not and affirm.

On February 3, 1987, the appellee, Ralph Bard, M.D., operated on the appellant, Rosanne Cox, to treat her refractory peptic ulcer disease. Dr. Bard continued to treat her post-opera tively until May 1988.

On January 31, 1989, Cox caused the St. Francis County Sheriff to serve Dr. Bard at his office during business hours with notice that she intended to sue him for medical malpractice. On April 5,1989, Cox filed suit against Bard in circuit court, alleging that he was negligent in treating her. She prayed for $1,000,000 in damages. Bard filed a motion to dismiss, alleging that Cox had not complied with the Arkansas Medical Malpractice Act [Ark. Code Ann. §§ 16-114-201 to -209 (1987)].

The trial court took the motion under advisement and later dismissed Cox’s complaint with prejudice on the basis that Cox had failed to comply with the notice requirement of section 16-114-204(a). We agree with the trial court.

Section 16-114-204(a) provides:

No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed. [Emphasis added.]

The object of this code provision is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and, consequently, the cost of malpractice insurance. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). See also Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11 (1989).

Cox asserts that the legislature’s use of “certified or registered mail” should be construed as directory and not restrictive of other means of service and that her form of service was “better” than certified or registered mail.

Recently, this court made it clear that a plaintiff must strictly comply with the method of service prescribed by section 16-114-204(a). Ofili, supra. In Ofili, the appellant sued appellee for medical injury, from which she took a voluntary non-suit. Seven and one-half months after the first filing, she filed a new complaint, which was subsequently dismissed by the trial court with prejudice because notice had not been sent by either certified or registered mail.

On appeal, appellant contended that the trial court erred in granting appellee’s motion for summary judgment as a result of her lack of literal compliance with section 16-114-204(a). In affirming the trial court, we stated, “Ofili’s assertion that her affirmative acts and letters equate to service by certified or registered mail is not borne out by statute, case law, or good logic.” The same may be said of this case.

Although we noted the object of this code provision in Gay, supra, it is apparent that part of the legislature’s purpose in restricting the method of service of notice of intent to sue to certified or registered mail was to avoid precisely the situation that occurred in this case. Obviously, the legislature intended that notice be sent in a nonconfrontational manner, thereby permitting the medical practitioner or provider to analyze the nature of the claim, and if responsible, to accept responsibility without public proclaim or announcement and to avoid coercion in settlement of claims by threat of publication. Instead of merely sending notice by the non-confrontational manner envisioned by the legislature, Cox had the sheriff of St. Francis County serve Dr. Bard at his office during business hours. This indicates that intimidation, not resolution, was Cox’s motive.

Cox’s disregard of the purpose of the Arkansas Medical Malpractice Act is further illustrated by her failure to comply with section 16-114-205, which provides that an affirmative pleading in a medical malpractice action “shall not specify the amount of damages claimed but shall, instead, contain a general allegation of damage . . . .” In her complaint, Cox prayed for $1,000,000 in damages.

Affirmed.


text:
    Richard T. ROBERTS v. STATE of Arkansas
    CR 89-229
    786 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from a denial of post-conviction relief pursuant to A.R.Cr.P. Rule 37. For reversal, the appellant, Richard Roberts, alleges ineffective assistance of his appointed counsel on the basis of a violation of his right to a speedy trial.

We find no merit in Roberts’s contention and affirm.

On August 17, 1985, Roberts was arrested for the crime of robbery, and he was charged by felony information on October 22, 1985, with that offense. The trial court accepted his guilty plea on December 22, 1986, and suspended imposition of sentence for five years conditioned upon compliance with written rules of conduct, a $150 fine, court costs, and restitution of $50.

A petition for revocation of Roberts’s probation was filed on December 8, 1988, on the basis that Roberts had violated the terms of his suspended sentence by committing a robbery on July 22, 1988.

On January 30,1989, Roberts filed a declaration of waiver of rights and a statement of guilt with agreement of punishment in regard to the petition for revocation and was sentenced to serve two years at the Arkansas Department of Correction.

On August 18, 1989, Roberts filed a Rule 37 petition and requested that his original sentence be vacated on the basis of the ineffective assistance of his appointed counsel. The trial court entered an order on September 1,1989, that denied relief without a hearing.

On appeal, Roberts contends that his appointed counsel did not inform him of his right to a speedy trial and that he thereby suffered prejudice to his fifth, sixth, and fourteenth amendment rights.

Roberts notes that more than twelve months elapsed between the time of his arrest on August 17,1985, and the time of his plea on December 22, 1986. Accordingly, he argues that his counsel should have advised him that he was entitled to have the charge dismissed, which would constitute an absolute bar to further prosecution of the charge. Roberts cites A.R.Cr.P. Rules 28.2(a), 28.1(c), and 30.1(a) in support of his argument.

Rule 28.2(a) provides as follows:

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

Rule 28.1(c) provides as follows:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Rule 30.1(a) provides as follows:

Subject to the provisions of subsection (b) hereof, a defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution for the offense charged and for any other offense required to be joined with that offense.

Roberts evidently overlooks the relevant date contained in Rule 28.1(c) that determines the applicability of the twelve month time period within which a criminal defendant must be brought to trial. The effective date is October 1, 1987.

In Kain v. State, 296 Ark. 123, 752 S.W.2d 265 (1988), we held that the present Rule 28.1(c) expressly provides that it applies to defendants charged after October 1,1987, and that an earlier provision that defendants were to be tried within eighteen months, rather than the present twelve month period, applied to defendants charged prior to that date.

In this case, Roberts was arrested on August 17, 1985, and charges were filed on October 22,1985. Pursuant to Rule 28.2(a), the time for trial began running from the date of Roberts’s arrest, which occurred prior to October 1, 1987. Consequently, the eighteen month time period applies and is dispositive of the issue in this case.

The period between August 17, 1985, and December 22, 1986, the date Roberts entered his plea on the first robbery charge, is sixteen months and five days. As a result, Roberts entered his guilty plea within the required eighteen month time period.

Roberts also cites Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984), as support to his position. In Hall, we held that the evidence was clear and convincing that the defendant did not receive effective assistance of counsel and, as a result, suffered prejudice where it was shown that the defendant was entitled to have the prosecution barred, that he had not knowingly and intelligently waived his right to a speedy trial, and his counsel at the time of the plea offered no testimony of trial strategy or other reason for his failure to assert the defendant’s right to a speedy trial.

However, that case was decided on the basis of A.R.Cr.P. Rule 28.1(b), which provides:

Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Hall v. State, supra, is inapplicable because Roberts was not incarcerated in prison in this state pursuant to conviction of another offense and was not entitled to have the prosecution barred.

Affirmed.

Price, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Christopher ROBINSON v. Dennis C. SUTTERFIELD, Municipal Judge
    89-327
    786 S.W.2d 572
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Michael R. Davis, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Robert H. Dudley, Justice.

Appellant, a sixteen-year-old youngster, seeks a writ of prohibition to prevent a municipal court from hearing a charge of driving while under the influence which was filed against him. He contends the charge can only be heard in juvenile court. We hold the municipal court has jurisdiction to hear the case and, accordingly, decline to issue the writ.

Petitioner first asked the municipal court to dismiss the charge because, he argued, the municipal court had no jurisdiction. The municipal court denied the motion. Petitioner then sought a writ of prohibition in circuit court. The circuit court declined to issue the writ. Petitioner now seeks to “appeal.” The circuit court’s order is not an appealable order. However, to decide this important issue, we treat the “appeal” as a petition for a writ of prohibition filed in this court. We have so proceeded in other similar cases. Lowe v. State, 290 Ark. 403, 720 S.W.2d 293 (1986), and Norton v. State, 273 Ark. 289, 618 S.W.2d 164 (1981).

The Juvenile Code of 1989, Ark. Code Ann. § 9-27-301 to -368 (Supp. 1989), provides that the juvenile court shall have exclusive original jurisdiction of proceedings in which a juvenile is alleged to be delinquent. Ark. Code Ann. § 9-27-306(a)(l) (Supp. 1989). A delinquent juvenile is defined by the code as “any juvenile ten (10) years or older who has committed an act other than a traffic offense or game and fish violation, which, if such act had been committed by an adult, would subject such adult to prosecution . . . .” (Emphasis added.) Ark. Code Ann. § 9-27-303(11) (Supp. 1989). Thus, traffic offenses are excluded from the jurisdiction of the juvenile court, and generally are within the jurisdiction of municipal courts.

The issue then is whether the offense of driving while under the influence of intoxicants is a “traffic offense.” The appellant contends that it is not since the offense is not one codified under Title 27 of the Arkansas Code Annotated. We do not consider that fact persuasive. Title 27 is entitled “Transportation” and nowhere represents that it contains an exclusive listing of traffic offenses. In fact, in his brief, appellant argues only that the “majority” of traffic offenses are listed there. Further, while the manner in which the statute is codified may be an indication of the nature of the crime, it is not necessarily determinative, especially when common sense dictates otherwise.

The term “traffic offense” refers to a violation of a law regulating the operation of a vehicle upon a roadway. The offense “driving while under the influence of intoxicants” is a violation of a law regulating the operation of a vehicle upon a roadway. Thus, “driving while under the influence” is a traffic offense.

By case and by rule we have referred to the term “traffic offense” as including the offense of driving while intoxicated. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985), and A.R.Cr.P. Rule 4.1(a)(ii)(C). Other states have similarly referred to the term “traffic offense” as including driving while intoxicated. In Re Petition of Williams, 111 Wash. 2d 353, 759 P.2d 436 (1988); Dover v. State, 725 S.W.2d 915 (Mo. App. 1987); State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987); State v. Yanez, 381 N.W.2d 470 (Minn. App. 1986); Mottern v. State, 466 N.E.2d 488 (Ind. App. 1984); State v. Bartholmew, 411 So.2d 1182 (La. App. 1982).

In a case comparable to the one now before us, the Supreme Court of North Dakota held, as we now do, that driving while under the influence was a “traffic offense” as described by statute, and that juvenile court did not have jurisdiction. The Juvenile Code provision there was the same as ours. In Interest of B.L., 301 N.W.2d 387 (N.D. 1981). At first blush the case of State v. Leonard, 336 N.W.2d 271 (Minn. 1983), may seem contra, but, in fact, it is in accord because the statute involved in that case provided that “major traffic offenses” were to be dealt with in juvenile court. The court held that “ ‘major traffic offenses’ (which include D WI) must be dealt with in juvenile court. . . In summation, many courts have referred to the offense of driving while under the influence of intoxicants as a traffic offense, and two have expressly so held.

Accordingly, we hold that the offense of driving while under the influence of intoxicants is a “traffic offense,” and that under our Juvenile Code the municipal court has jurisdiction to hear such cases. The writ is accordingly denied.


text:
    Larry WOODSON v. STATE of Arkansas
    CR 90-25
    786 S.W.2d 120
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Val P. Price, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

At trial, the court ruled that the State could use appellant’s prior conviction to prove the first element of the crime (that appellant was a felon), and then allowed the State to use the same prior conviction to enhance appellant’s punishment as an habitual offender. Appellant argues that the ruling erroneously allows “double-counting” and is contra to Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989).

The ruling does not allow double-counting of one offense so that the proscription against double jeopardy is violated. The appellant was convicted of only one offense, not two. The punishment for that one offense was then enhanced under the habitual offender statute. Ark. Code Ann. § 5-4-501 (1987). Such does not constitute a prohibited form of double-counting.

The case of Johnson v. State, supra, does not offer appellant any relief as that case involves the firearm-enhancement statute, Ark. Code Ann. § 5-4-505 (1987), which expressly provides that no penalty shall be enhanced for employing a firearm to commit the offense when the offense itself involves the use of a firearm. The habitual offender statute at issue in this case does not contain a similar provision.

Appellant next argues that the trial court erred in counting his prior felonies by counting one conviction for burglary and theft and a second one for forgery. He contends both should have counted as only one conviction. The trial court counted correctly.

Ark. Code Ann. § 5-4-501 provides in pertinent part:

5-4-501. Habitual offenders — Sentencing for felony.
(c) For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.

The statute could not be worded more clearly. Under its terms, it is only necessary to examine the judgment of conviction in order to determine what felony was the object of the burglary. Beyond that, no proof from either party is necessary. Here, an examination of the judgments of conviction establish that forgery was a separate conviction and was not the object of the burglary.

For his final point of appeal appellant argues that sentencing under the habitual offender statute is optional, not mandatory. Again, the argument has no merit. His argument is based upon the wording of Ark. Code Ann. § 5-4-501 (a) (1987), which uses the term “may” instead of “shall.” We recently rejected this argument in Hart v. State, 301 Ark. 200, 207, 783 S.W.2d 40, 44 (1990):

Finally, Hart claims that the jury should have been instructed it could sentence him to five to forty years in prison rather than the twenty to forty years set out in the habitual offender statute. . . . His argument is based on the wording of the statute, which is that a person convicted of four or more felonies may be sentenced to an extended term of imprisonment. Hart claims that use of the word “may” indicates the jury is permitted to sentence him to twenty to- forty years, but is not required to.
The sensible meaning of the statute is that the jury may sentence the offender to any term of years between twenty and forty.

Affirmed.


author: Steele Hays, Justice.

text:
    Cecil Wayne LOCKLEY and Mary Jane Lockley (Carter) v. B. Michael EASLEY
    89-323
    786 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Killough, Ford & Hunter, by: Robert M. Ford, for appellant.

      Easley & Hicky, for appellee.
   Steele Hays, Justice.

Appellants Cecil Lockley and Mary Jane Carter divorced in 1981. Mrs. Carter has remarried. In May 1988 Mrs. Carter consulted attorney Michael Easley in connection with an arrearage in moneys due her under a property settlement with Mr. Lockley providing for child support, alimony and payments for her interest in unspecified personal property. Mr. Lockley had paid nothing to Mrs. Carter except child support since 1983 and the arrearage exceeded $20,000. Mrs. Carter was unable to pay a fee or costs and she and Mr. Easley verbally agreed on a contingent fee of one-third of any amount collected.

When Mr. Easley petitioned for an order to show cause, Mr. Lockley obtained counsel and two cash settlement offers were forthcoming, the first for $4,000 and the second for $6,000. Both offers were rejected.

While the case was in that posture Mrs. Carter contacted Mr. Easley to instruct him to dismiss the petition to show cause. He advised her against dismissing the petition but followed her instructions and on September 19, 1988, the petition was dismissed. Mr. Easley billed Mrs. Carter for $297.50 for services rendered based on his estimate of time invested. The statement was not paid until some months later after suit was filed in small claims court.

After the petition was dismissed Mr. Easley learned that Mr. Lockley had paid Mrs. Carter $6,000 and that on September 30, 1988, Mrs. Carter and Mr. Lockley had signed an agreement in the office of Mr. Lockley’s attorney releasing Mr. Lockley of all sums due Mrs. Carter under the property settlement agreement.

Mr. Easley then petitioned the court for judgment and an attorneys lien against Mr. Lockley and Mrs. Carter pursuant to Ark. Code Ann. § § 16-22-301 — 310(1989). During the hearing, counsel for Mr. Lockley moved that the petition be dismissed as to Lockley because no cause of action was stated and because there was no proof of any contractual agreement, express or implied, by which Lockley was indebted to Easley for an attorney’s fee. Mrs. Carter joined in the motion to dismiss.

The chancellor heard testimony from all parties, took the case under advisement, and later issued a memorandum opinion denying the motions to dismiss and awarding a judgment for $2,000 against Carter and Lockley based on the contingent fee agreement. On appeal Mrs. Carter and Mr. Lockley contend that the chancellor erred, first, by not sustaining their motions to dismiss and, second, by awarding a judgment pursuant to the contingent fee agreement. We find no merit in either point.

Appellants argue that because the petition to show cause had been dismissed and Mr. Easley had been discharged by Mrs. Carter, the oral contingent fee agreement was ended and since Mrs. Carter had ultimately paid the quantum meruit fee of $297.50 she was under no further obligation to Mr. Easley.

Appellants contend the $6,000 offer was rejected, not by Mrs. Carter, but by Mr. Easley. But the import of Mrs. Carter’s testimony is that when Mr. Easley informed her of the offers and told her that he had rejected them, that she had tacitly concurred in that course of action. Under questioning by Mr. Easley, Mrs. Carter testified:

Q: Do I understand that you are now being critical of me for trying to get for you what you came in and asked me to get for you?
A: No sir.
Q: Do I understand that you told me when I was asking you questions the first time that you did not want the $6,000.00, that you wanted more?
A: No sir, I didn’t say that. You said I declined it and I said okay, just like that right there.
Q: And you did not disagree with that action, did you?
A: No I didn’t.

The gist of appellants’ argument is that the $6,000 payment to Mrs. Carter was not linked to the release of her claims under the property settlement agreement, that the two incidents occurred independently. Appellants point out that the petition was dismissed on September 19, whereas the payment and release did not occur until some ten days to two weeks later. Mrs. Carter testified that she decided to drop the case at the urging of her son and not because of the $6,000. Mr. Lockley’s testimony tended to corroborate hers in that he said he decided “to do what was right” after Mrs. Carter’s petition was dismissed. The inference we are asked to draw is that these two circumstances — the payment of the $6,000 and the full release of all obligations on Mr. Lockley under the property settlement — were merely coincidental.

But whether there was an explicit agreement between Mr. Lockley and Mrs. Carter need not concern us. The circumstances are entirely sufficient for the chancellor to conclude, as he did, that there was a correlation between the $6,000 payment and the release from which it can be assumed that there was an implicit understanding between the parties. That is the direct implication of the chancellor’s findings and we cannot say those findings were clearly against the preponderance of the evidence. ARCP Rule 52. Mr. Lockley had paid nothing toward alimony or personal property for some five years until Mrs. Carter sought legal counsel, at which point he offered $4,000 and then $6,000. Additionally, Mr. Lockley wrote the word “Settlement” on the face of the $6,000 check — a clear indication the payment was not merely gratuitous.

Turning to the remaining point the argument is that Mrs. Carter is the only person from whom Michael Easley could claim a contingent fee and that when her case was dismissed the only fee allowable was one of quantum meruit. Further, since Easley had sued in small claims court and Mrs. Carter had paid $297.50, the amount sued for, that too was no longer owing. But the chancellor found that Easley had submitted the statement for $297.50 in good faith and before he discovered the facts concerning the payment and settlement, and concluded that his rights under the contractual agreement with Mrs. Carter could not be thereby defeated. We believe that was correct and appellants have not cited authority requiring a different result.

Appellants rely on Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), for the contention that, having been discharged by Mrs. Carter, appellee is not entitled to a contingent fee against either appellant. In Goodman this court limited an attorney who had been discharged by the client to a quantum meruit fee. But subsequent to that decision Act 293 of 1989 became the law [Ark. Code Ann. §§ 16-22-301 through 307 (1989)]. Act 293 expressly declares the holding of the Goodman case to be inconsistent with the legislative intent behind the Attorneys Lien Law. The act explicitly provides that attorneys may rely on their contractual rights with clients and are entitled to obtain a lien for services based on such agreements. The Attorneys Lien Law also provides that, under appropriate circumstances, the lien may be enforced not only against the client but against anyone, including another attorney, who knowingly settles with an opposing litigant without the consent of the attorney. Being remedial legislation, Act 293 is not confined to prospective operation. Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962); State ex rel. Wm. L. Moose, Attorney General v. Kansas City & Memphis Railway & Bridge Co., 117 Ark. 606, 174 S.W. 248 (1914). In Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982), the Court of Appeals was confronted with the same question. In 1979 the legislature adopted Act 215 which permitted the payment of lump sum attorney’s fees in Workers Compensation cases, rather than being paid in small weekly amounts over the duration of the claim. Alcoa challenged the application of the act as it affected fees earned and awarded prior to the effective date of the act. The Court of Appeals rejected Alcoa’s argument that statutes must be construed as having a prospective operation, unless a contrary intent is expressly declared or necessarily implied from the language used, neither of which was true of Act 215. The opinion in Alcoa notes that remedial legislation is not limited to prospective operation:

In construing remedial legislation, the courts do so with appropriate regard to the spirit which prompted its enactment, the mischief sought to be abolished and the remedy proposed. Skelton v. B.C. Land Company, 260 Ark. 122, 539 S.W.2d 411 (1976). It is also an established rule that remedial legislation shall be liberally construed. Chicago Mill & Lumber Company v. Smith, 228 Ark. 876, 310 S.W.2d 803 (1958), and Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977).

We regard that reasoning as sound. It applied with equal force to Act 293.

Pursuant to appellee’s request for a fee as provided in § 16-22-308 (1989), a fee of $750.00 is hereby ordered.

Affirmed.

Turner, J., not participating.

       The chancellor gave Mrs. Carter credit for payment of $297.50 against the judgment.


text:
    Jim PLEDGER, Director, Dep’t of Finance & Admin. v. THE GRAPEVINE, INC., d/b/a V.I.P. Club, et al.
    89-317
    786 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      John H. Theis, Philip Raia, Robert L. Jones, Rick Pruett, Cora L. Gentry, David B. Kaufman, Malcolm P. Bobo, and Beth B. Carson, by: William E. Keadle, for appellant.

      Murphy and Carlisle, by: Marshall N. Carlisle, for appellee.
   Steele Hays, Justice.

The Commissioner of Revenues has appealed from an adverse decision in this tax protest case. The only question on review is whether the chancellor properly interpreted a provision of the gross receipts tax statute.

The appellees are Arkansas corporations engaged in operating private clubs which sell alcoholic beverages for on-premises consumption by their members. The appellant, Commissioner of Revenues, conducted audits of the records of appellees resulting in assessments of gross receipts tax, penalties, and interest, part of which were accepted and part disputed.

The appellees challenged that portion of the assessments on the charges for membership dues paid to them by members of the clubs. They argued that under Ark. Code Ann. § 26-52-301(5) (1987) of the gross receipts taxing statute, such membership dues are not taxable. The assessments were upheld at administrative hearings, but on appeal to the chancery court the chancellor entered judgment reversing and dismissing the assessments imposed under the disputed provision. From that judgment, appellant brings this appeal.

Two statutes were considered by the chancellor in making his determination, both originally from the same act, Act 386 of 1941. The taxing provision in question is Ark. Code Ann. § 26-52-301(5) (1987) which provides:

§ 26-52-301. Tax levied.

There is levied an excise tax of three percent (3 %) upon the gross proceeds or gross receipts derived from all sales to any person of the following:
(5) Tickets or admissions to places of amusement; to athletic, entertainment, or recreational events; or fees for the privilege of having access to or the use of amusement, entertainment, athletic, or recreational facilities including free or complimentary passes and tickets, admissions, dues, or fees, with such free or complimentary passes, tickets, dues, or fees being declared to have a value equivalent to the sale price of tickets, passes, admissions, fees, or dues of like kind or character.

The other provision is Ark. Code Ann. § 26-52-103(a)(3)(D) (1987), which defines words used in the act, and which the appellant contends must be read with the previous statute:

§ 26-52-103. Definitions.
(a) The following words and phrases, except where the context clearly indicates a different meaning when used in this act, shall have the following meanings:
* * * *
(D) “Sale” shall include also the sale, giving away, exchanging, or other disposition of admission, dues, or fees to clubs, to places of amusement, recreational or athletic events, or for the privilege of having access to or the use of amusement, athletic, or entertainment facilities.

Appellant argues that the definition of a “sale,” as provided in § 26-52-103, must be read in conjunction with the levying section of § 26-52-301(5), so as to include the phrase “sale of. . . dues or fees to clubs . . .” in the latter, and alternatively, that a literal reading of the latter statute would lead to absurd consequences.

The trial court relied on Heath v. El Dorado Golf and Country Club, 254 Ark. 664, 528 S.W.2d 394 (1975), which addressed the same issue and found it controlling in this case. In Heath, the issue involved the taxation of the country club’s membership dues under the same provision we are now considering. The Heath court found that membership dues were not included, relying on three bases for its holding.

It first noted that this same statute was considered in an analogous situation in Cheney, Commr. v. Tolliver, 234 Ark. 973, 356 S.W.2d 636 (1962), where the court held the failure to specifically mention the taxable item in question was controlling. That omission was also noted in Heath, i.e., there was no express mention of paid dues, only “complimentary dues.” Heath then noted what it considered the cardinal rule in construing taxing legislation:

It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power. Citing from Jefferson Coop Gin v. Milam, 255 Ark. 479, 500 S.W.2d 932 (1973).

The court noted too, that while the act defines a “sale” as including “dues or fees to clubs,” that term is missing from the tax levying section, that this absence was noted in Tolliver, and had the legislature intended to impose the tax on club membership or dues, it could easily have done so during the numerous legislative sessions since the deficiency was first noted in Tolliver.

The trial court also responded to appellant’s argument that there is a distinction between country clubs and private clubs. One of the Commissioner’s employees had first testified that the state did not tax country clubs’ membership dues, pursuant to the holding in Heath, but did tax private clubs like the appellees, upon the advice of their legal department that in a country club one buys a membership, which entails voting rights and that memberships were transferable. However, the appellees introduced evidence of the private clubs’ by-laws which gave each member voting rights and some voice in the clubs’ operations.

Because of the “detailed voting rights and rights of control over [the clubs] operation” the trial court could find no legitimate distinction between country clubs and the private clubs in this case. The trial court acknowledged the Commissioner’s contention that the members in the private clubs may not exercise their rights or participate in membership activities, but saw that as irrelevant and determined that the rights that were subject to exercise by the members was a better yardstick for comparison.

We agree with the chancellor’s opinion and find further support for our holding by noting the same point made in Heath, that the legislature has still chosen to take no action on the failure to include taxes on “dues or fees for clubs,” in the levying section of 26-52-301(5). Since that point was made in Heath, the legislature has met several times and has made no move to alter that provision. The legislature has in fact amended other portions of that same act, yet nothing was changed under the section in question. See Merchants Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929); Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S.W.2d 631 (1929); Terral v. Terral, 212 Ark. 221, 205 S.W.2d 198 (1947); Lumberman’s Mutual Cas. Co. v. Moses, 224 Ark. 67, 271 S.W.2d 780 (1954); Shivers v. Moon Distributers, 223 Ark. 371, 265 S.W.2d 947 (1954).

Appellant also argues that the interpretation given by Heath and the court below leads to an unreasonable reading of the statute, for it is argued, if read literally, the statute would tax complimentary dues, but not dues which are paid. However, § 26-52-301(5) has omitted not only paid dues (as opposed to paid fees) from its levying section, nor is that the question before us. Rather, we are considering dues or fees for membership in clubs.

The statute enumerates several activities for which fees and tickets are sold, but does not include in that enumeration clubs or memberships to clubs, whether by admission, tickets, passes, dues or fees. Given the cardinal rule in construing taxing statutes, cited in Heath, and the fundamental construction principal that the express designation of one thing may properly be construed to mean the exclusion of another, Chem-Ash Inc. v. Arkansas Power & Light, 296 Ark. 83, 751 S.W.2d 353 (1988), and the legislature’s subsequent inaction, we conclude that this category was not intended to be included in the levying section. That being so, the contention as to paid, versus complimentary dues for club memberships is moot.

Affirmed.


author: David Newbern, Justice. Jack Holt, Jr., Chief Justice,

text:
    INTERNATIONAL PAPER COMPANY v. Porter TUBERVILLE
    89-192
    786 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990
    [Rehearing denied May 7, 1990.]

      Bramblett & Pratt, by: James M. Pratt, Jr., for petitioner.

      Denver L. Thornton, for respondent.

      Davidson, Horne & Hollingsworth, by: Allan W. Horne and Mark H. Allison, for amicus curiae American Insurance Association.

      Robinson, Staley & Marshall, by: Stephen P. Carter, for amicus curiae Arkansas Retail Merchants Association.

      Walter A. Murray, for amicus curiae Arkansas Self-Insured’s Association.
   David Newbern, Justice.

In 1982, the respondent, Porter Tuberville, requested an increase in a permanent disability award he received in 1973 from the Arkansas Workers’ Compensation Commission (commission). The commission denied the increase. This case has been before the Court of Appeals three times. Each time the court has reversed the commission. Tuberville v. International Paper Co., 28 Ark. App. 196, 771 S.W.2d 805 (1989); Tuberville v. International Paper Co., No. CA 87-134 (op. del. November 4, 1987) (not designated for publication); Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986).

We granted review of the most recent decision because the petitioner, International Paper Company (IP), claims the court of appeals misapplied Ark. Code Ann. § 11-9-713 (1987). It is contended that the court of appeals should not have reversed the commission’s determination that Tuberville’s increased disability was due to the aging process rather than changes in his physical condition resulting from his prior injury.

Section 11-9-713 (a) governs the reopening of workers’ compensation claims and provides as follows:

Except where a joint petition settlement has been approved, the commission may review any compensation order, award, or decision. This may be done at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award, upon [the] commission’s own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate. Upon the review the commission may make an order or award terminating, continuing, decreasing, or increasing for the future the compensation previously awarded, subject to the maximum limits provided for in this chapter.

The question presented to the appellate court reviewing the commission’s decision is not whether the evidence would support findings contrary to those made by the Commission, but whether the evidence supports the findings made by the Commission. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W.2d 304 (1968). Even if the Commission’s decision is against the preponderance of the evidence, we will not reverse where its decision is supported by substantial evidence. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980).

When a worker’s primary inj ur y is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct. Home Insurance Co. v. Logan, 255 Ark. 1036, 505 S.W.2d 25 (1974).

In this case, Tuberville injured his back on two occasions, October 24, 1969, and October 22, 1970, while working for IP. Dr. Harold Chakales, Tuberville’s physician, rated Tuberville’s anatomical impairment at 25 percent to the body as a whole. The Commission awarded permanent partial disability benefits of 55 percent in 1972. Tuberville did not return to work. In 1984, Dr. Chakales increased Tuberville’s anatomical impairment rating to 40 percent to the body as a whole, and Tuberville requested an increase in his disability award from the Commission.

Dr. Chakales’ deposition formed the basis for the commission’s decision denying the request. Pertinent parts of the doctor’s testimony bearing upon his most recent examination of Tuberville follow:

Q Tell me what stenosis is?
A Narrowing or constriction of the spinal column. And I performed a lumbar myelogram, which also showed evidence of the spinal stenosis and suggestion of recurrent disc at L4-5 and L5-S1.
Q Was this a new condition?
A I think this is a progression of the preexisting condition.
Q Tell us, then, what you did.
A Well, I sent him home and told him to think about it, whether or not he wanted to have any surgery. If he was hurting a lot and he wished to, we would schedule him for a decompression laminectomy because of the spinal stenosis. What happened is, that over a period of time as he got older, the fact that he had had the previous surgery with the normal progression of aging process, there is actually a shrinking of the spinal cord, causing more pressure on the spinal cord and the nerve. This will cause a spinal stenosis.
* * * *
Q The location of the 198 2 surgery is the same location of the surgery back in ’71?
A Correct.
Q Exactly the same place?
A Correct.
Q The problems he had back in ’71, we know were job related.
A Yes, sir.
Q Did he give you any history of a particular incident that would cause the condition you found in him when you did this recent surgery?
A No.
Q What would be your opinion as to what would put him in that situation?
A General, gradual process of aging, I would say.
Q Someone in Mr. Tuberville’s condition, having had the injury he had back in 1970 and having had the removal of the disc back in ’71 would be a real candidate to wake up in the shape he was in in ’82?
A Correct.
Q And that would be because, as you say, the aging process?
A Correct.
* * * *
A I assume what happened between ’77 until ’82, that he has stabilized and he had probably learned to cope with his problem, but then something triggered off and he started getting more acute.
Q Do you have any idea what would trigger it?
A Mother Nature — you know, aging.

To reverse a decision of the commission, the appellate court must be convinced that fair minded persons, with the same facts before them, could not have reached the conclusion arrived at by the commission. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W.2d 904 (1971).

The commission interpreted Dr. Chakales’ testimony as determining that Tuberville’s change in physical condition was caused by the natural course of aging. The commission wrote:

The real issue in this case is the cause of the claimant’s subsequent problems. If the problems were caused as a natural probable result of the original injury then the claimant has established a causal connection between his change in physical condition and the original injury. However, if the subsequent problems are caused by the natural process of aging, then they are not compensable. In order for a worker’s disability to be compensable there must be a causal connection between the accident and a risk which is reasonably incident to the employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). The process of aging is not a risk reasonably incident to employment; rather, it is an inevitable part of each individual’s life. Therefore, physical problems caused by the natural process of aging are not compensable under the workers’ compensation law of this state. To hold otherwise would literally open the door for any claimant who has ever received an award of workers’ compensation benefits to reopen his case and receive additional benefits based simply upon the process of aging.

In its opinion reversing the commission, the court of appeals wrote:

The rule applicable in this case was stated as follows in Home Insurance Co. v. Logan, 255 Ark. 1036, 505 S.W.2d 25 (1974):
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.
Logan, 255 Ark. at 1037 [505 S.W.2d at 26]. Dr. Chakales’s testimony clearly expresses his opinion that the appellant’s worsened condition resulted from the natural process of aging acting upon the appellant’s prior, compensable injury. Unless the testimony is read wholly out of context, no other conclusion is possible. We hold that fair-minded persons with these facts before them could not conclude that the appellant’s worsened condition was attributable entirely to the natural process of aging, and that the Commission’s finding to that effect is not supported by substantial evidence. [Emphasis in original.]

The question in this case arises in a context different from the usual one in which it must be determined whether there is substantial evidence to support the decision of the Arkansas Workers’ Compensation Commission. We do not have competing statements of witnesses or documents. The only evidence under consideration is the deposition testimony of Dr. Chakales. It was apparent to the court of appeals, as it is apparent to us, that the commission incorrectly interpreted the only evidence before it as showing that the increased impairment to Tuberville was due solely to the aging process. The court of appeals reviewed the testimony and held that fair minded persons could not read it and conclude anything but that it was the industrial injury combined with the aging process which caused the expenses for which compensation is being sought.

The unanimous decision of the court of appeals panel was correct. Dr. Chakales’s testimony cannot be read without noting his specific statement that it was “the fact that he had had the previous surgery with the normal progression of the aging process” which caused the spinal stenosis resulting in surgery and that the condition was riot new but was a progression of the “preexisting condition.”

When the entire deposition of Dr. Chakales is read, it becomes even more apparent that fair minded persons could not conclude he attributed Tuberville’s condition necessitating the surgery to anything other than the previous condition of his back which was the direct result of the injury he suffered years ago.

Throughout his testimony Dr. Chakales spoke of the previous surgery he had done as the result of the injury Tuberville had received. It is impossible to read the testimony and conclude that aging alone was the cause of the current need for compensation. In his cross examination of the doctor, counsel for IP, for good reason, did not ask whether the effect of the aging process of which the doctor spoke would have produced Tuberville’s present condition absent the previous injury and resulting surgery.

In arguing this case, IP has raised the spectre of any previously injured employee being compensated merely because the aging process common to all may cause medical problems. We make no such absurd decision here. We hold that the commission was mistaken because we can find no support for its interpretation of the evidence before it. The only evidence showed clearly that the claim was predicated upon a showing that the increased disability was a natural consequence flowing from the previous injuries.

We affirm the decision of the court of appeals and remand the case for further remand to the commission for orders consistent with this opinion.

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

Jack Holt, Jr., Chief Justice,

dissenting. The majority correctly states that the standard of review in this case is whether the evidence supports the findings made by the Commission, not whether the evidence would support findings contrary to those made by the Commission, Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W.2d 304 (1968), and that even if the decision of the Commission is against the preponderance of the evidence, we will not reverse where its decision is supported by substantial evidence. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980).

Additionally, they acknowledge that in order to reverse a decision of the Commission, the appellate court must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W.2d 904 (1971).

However, after capably reciting these rules, the majority reverses the Commission’s holding in total disregard of the substantial evidence supporting their decision. In effect, the majority substitutes its interpretation of Dr. Chakales’s deposition testimony in place of the Commission’s findings, thereby controverting the applicable standard of review.

The Commission interpreted Dr. Chakales’s testimony as determining that Tuberville’s change in physical condition was caused by the natural course of aging. In analyzing this issue, the Commission stated:

The real issue in this case is the cause of the claimant’s subsequent problems. If the problems were caused as a natural probable result of the original injury then the claimant has established a causal connection between his change in physical condition and the original injury. However, if the subsequent problems are caused by the natural process of aging, then they are not compensable. In order for a worker’s disability to be compensable there must be a causal connection between the accident and a risk which is reasonably incident to the employment. Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). The process of aging is not a risk reasonably incident to employment; rather, it is an inevitable part of each individual’s life. Therefore, physical problems caused by the natural process of aging are not compensable under the workers’ compensation law of this state. To hold otherwise would literally open the door for any claimant who has ever received an award of workers’ compensation benefits to reopen his case and receive additional benefits based simply upon the process of aging.

The majority categorically rejects the Commission’s findings by stating that:

. . . fair-minded persons could not conclude he [Dr. Chakales] attributed Tuberville’s condition necessitating the surgery to anything other than the previous condition of his back which was the direct result of the injury he suffered years ago.
* * * *
It is impossible to read the testimony and conclude that aging alone was the cause of the current need for compensation.

However, the portions of Dr. Chakales’s testimony that the majority includes in its opinion clearly indicate that the Commission had substantial evidence upon which to base its finding that Tuberville’s subsequent problems were caused by the natural process of aging. In the emphasized portions of his testimony, Dr. Chakales affirmatively stated three times that the general, gradual, and natural process of aging was the cause of Tuberville’s change in physical condition:

Q What would be your opinion as to what would put him in that situation?
A General, gradual process of aging, I would say.
Q Someone in Mr. Tuberville’s condition, having had the injury he had back in 1970 and having had the removal of the disc back in ’71, would be a real candidate to wake up in the shape he was in, in ’82?
A Correct.
Q And that would be because, as you say, the aging process?
A Correct.
* * * *
A I assume what had happened between ’71 until ’82, that he had stabilized and he had probably learned to cope with his problem, but then something triggered it off and then he started getting more acute.
Q Do you have any idea what would trigger it?
A Mother Nature — you know, aging.

Thus, it is apparent that the Commission’s decision was based on substantial evidence that supported its position and that Dr. Chakales himself attributed Tuberville’s condition to the aging process, which contradicts the majority’s position that the only cause of Tuberville’s present condition was the previous condition of his back.

The majority also criticizes the appellant, International Paper Company (IP), for not asking Dr. Chakales, upon cross-examination, whether the effect of the aging process of which he spoke would have produced Tuberville’s present condition absent the previous injury and resulting surgery.

The criticism would be better directed at Tuberville, the appellee, and his failure to clearly ascertain the cause of the condition of which he complains because he had the burden of proving a change in physical condition pursuant to Ark. Code Ann. § 11-9-713(a) (1987). In fact, it is upon cross-examination that IP asked:

Q Did he give you any history of a particular incident that would cause the condition you found him in when you did this recent surgery?
A No.

The majority has cited the most pertinent portions of Dr. Chakales’s testimony, which refer to Tuberville’s preexisting condition and the cause for his present condition. Yet, the evidence relied upon by the Commission is substantial, and fair-minded persons could have reached the conclusion arrived at by the Commission. Consequently, the majority has misapplied the standard applicable to a reversal of the Commission’s decision, and the judgment should be reversed.

Hays and Turner, JJ., join in this dissent.


author: David Newbern, Justice.

text:
    Mahlon MARTIN, Director of the Department of Finance and Administration, et al. v. COUEY CHRYSLER-PLYMOUTH, INC.
    89-335
    786 S.W.2d 576
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      John Theis, Philip Raia, Robert L. Jones, William Keadle, Cora Gentry, David Kaufman, Malcolm Bobo, and Beth B. Carson, by: Rick L. Pruett, for appellants.

      Johnson & Harrod, by: William E. Johnson, for appellee.
   David Newbern, Justice.

Couey Chrysler-Plymouth, Inc., (Couey) the appellee, brought suit in chancery court challenging a gross receipts tax jeopardy assessment made by the appellants. The appellants, referred to here collectively as the state, are Mahlon Martin, Director of the Arkansas Department of Finance and Administration, Jim Pledger, Commissioner of Revenues, and George Stepps, District Manager of the Office of Field Audit. The state counter-claimed, alleging Couey was liable for a penalty equal to the tax evaded by its customers because of fraudulent sales contracts prepared by Couey. The court granted Couey’s motion for summary judgment, holding that the automobile sales taxes assessed against Couey were not owed. The state filed a notice of appeal. The court entered an order extending indefinitely Couey’s time limit for answering the counterclaim in view of the notice of appeal from the summary judgment order. We must dismiss the appeal for failure to comply with Ark. R. Civ. P. 54(b).

The rule provides, in part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party action,. . . the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims. . . shall not terminate the action as to any of the claims. . . .

We have repeatedly declined to hear appeals where there has been no final order as to all parties or claims in the absence of compliance with the rule. See, e.g., Wylie v. Tull, 295 Ark. 481, 749 S.W.2d 325 (1988); Arkhola Sand and Gravel Co. v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986). We find in the record before us no “express direction for the entry of judgment” based upon “an express determination that there is no just reason for delay.”

Appeal dismissed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Mark Randall STEWART v. STATE of Arkansas
    CR 89-224
    786 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      William R. Simpson, Jr., Public Defender, and Llewellyn J. Marczuk, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Mark Randall Stewart appeals from a conviction of theft. He has raised two points of appeal. He contends the evidence was not sufficient to permit his conviction under Ark. Code Ann. § 5-36-103 because proof that the car he allegedly stole was worth $2500 or more was lacking. He also argues that the court erred in refusing to instruct the jury with respect to a lesser included offense, that is, theft of property worth more than $200 but less than $2500, which carries a lesser sentencing range. We hold that the evidence was sufficient to support the conviction and that it was not error to decline the instruction because there was no rational basis upon which the jury could have concluded the car was worth less than $2500.

Beverly Sears testified that Stewart asked to borrow her car to pick up his son. She asked him how long he would be gone, and he replied he would be back “within an hour or thereabouts.” He did not return the car but was arrested after he was stopped while driving the car some eight days later. No issue is raised as to the evidence sufficient to prove a theft occurred.

1. Value of the car

Ms. Sears testified that the car was a 1986 Thunderbird. When asked on direct examination the value of the car, she said she was not too good at estimating it. She said, “I don’t really have any idea. It’s a three year old car now.” In response to the question, “Could you give us an approximate value?” she responded, “Seven or Eight Thousand Dollars.”

On cross-examination Ms. Sears admitted she “took a guess” as to the value of the car. Then she said, “But I still owe money on it and I know how much I paid for it to begin with.” On re-direct examination she testified that she had paid around $ 14,000 for the car and that it was now (presumably at the time of trial) three years old.

In support of his argument Stewart cites Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), in which we reversed on a different point but concluded by way of an obiter dictum that the evidence was insufficient to show an automobile was worth $2500 or more. There the testimony of the victim was that she had paid $3600 in 1985 for a 1980 Oldsmobile which was stolen in July of 1988. She testified she thought the car was worth its purchase price three years after the purchase, obviously taking no account of depreciation. We cited Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), noting, on the question of remoteness of the date of purchase and the value of evidence of purchase price, that there is a point at which we will hold the testimony of an owner of property does not constitute substantial evidence of its value at the time of the theft. We have no such problem here.

Given Ms. Sears’ testimony with respect to the purchase price, her knowledge of what she owed on her car, the fact that it was three years old, and a photograph introduced showing the car to be in apparently excellent condition, we cannot say there was no substantial evidence of the value of the car.

2. Lesser included offense instruction

Stewart argues the court should have given an instruction on the lesser included offense of theft of property of a value between $200 and $2500. He cites Henson v. State, 283 Ark. 435, 678 S.W.2d 329 (1984), where we held that a defendant charged with aggravated robbery was entitled to an instruction on robbery. The testimony of the victim showed clearly that a robbery had been committed. Other testimony of the victim was that the accused put his hand in his pocket, like he had a weapon there, as he was leaving the scene of the robbery after having been discovered. This court held the jury was entitled to believe part but not all of the testimony of the victim, thus the lesser included offense instruction was necessary.

In the Henson case opinion we recognized another line of cases typified by Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), to the effect that where the evidence is such that there is no rational basis for the giving of a lesser included offense instruction, none need be given. In the Doby case, the question was whether the jury should have been instructed on possession of a controlled substance, a lesser offense included in the offense of possession with intent to deliver. Doby took the stand and denied having any drugs in his possession when he was arrested. The police officer who arrested him testified that Doby admitted possession of large amounts of controlled substances when he was arrested. This court, noting the jury was faced with determining which party was lying, held there was no rational basis for the jury to conclude the officer was lying as to some but not all of his testimony.

In Fladung v. State, 292 Ark. 515, 730 S.W.2d 901 (1987), we again were faced with widely divergent testimony between the accused and the officer who arrested him. Upon being stopped by a state police officer for having a defective headlight, the defendant got out of his car and walked to the police car. He returned to his car ostensibly to get his driver’s license. He was seen reaching under the seat, and he emerged holding a pistol. Fladung testified he feared the pistol would be found if his car were searched, so he got it out and pointed it in the air and was about to explain that it did not work when the officer grabbed for it and it went off. The officer testified that Fladung pointed the pistol at him and pulled the trigger. We held the ambiguity presented by the testimony required an instruction on assault in the first degree as a lesser offense included in aggravated assault.

In the Henson case there was a rational basis for holding that the lesser included offense instruction on robbery should have been given. The victim saw no weapon, and there was a real question whether the actions of the accused were such as to put the victim in fear of being shot when the accused put his hand in his pocket in the course of a robbery. In the Fladung case the same kind of ambiguity was presented by the conflicting testimony as to some, but not all, facts.

Here we find no rational basis for the lesser included offense instruction. We are concerned with the testimony of one witness on one factual issue. To hold there was a rational basis for the instruction sought, we would have to find that the jury could reasonably have concluded that a 1986 Thunderbird, in apparently good condition, which cost $ 14,000 three years earlier could have been worth less than $2500 on the date the crime was committed. While there was some doubt expressed in the testimony of Ms. Sears, there was not the sort of ambiguity caused by divergent testimony with respect to a factual scenario as in the Fladung and Henson cases. Nothing in the record presents a rational basis for a conclusion that the car might have been worth less than $2500.

Affirmed.

Glaze, J., concurring.

Tom Glaze, Justice,

concurring. I concur. Less than one year ago, this court reversed a theft charge based, in part, upon value testimony similar to that presented here. See Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989). In fact, appellant cites the Moore case in support of his argument to reverse.

The majority wishes to discount the value aspect of the Moore case by labeling it obiter dictum, but whatever the majority calls it, I and two other justices dissented in Moore stating the value testimony given there was sufficient to support the defendant’s theft conviction. Glaze, J., dissenting, Id. 299 Ark. at 540, 773 S.W.2d at 839.

I agree with appellant, at least on one point, viz., there is little difference between the value testimony given here and that given in Moore. The majority seems to suggest the photographs introduced here make the difference. In Moore, the victim car owner testified, without objection, that the car she bought in 1985 was, at the time it was stolen less than three years later, in reasonably good condition. Apparently, a picture is not only worth a thousand words, but also a conviction as well.

In my estimation, the Moore decision as it pertains to value testimony, is an aberration and will not prove helpful to defendants in their efforts to overturn theft convictions based on car owner value testimony. While the majority does not overrule Moore, the efficacy of Moore is left in serious doubt. And well it should be.