author: Donald L. Corbin, Justice. Donald L. Corbin, Justice.

text:
    Jack Harold JONES, Jr. v. STATE of Arkansas
    CR 98-1091
    8 S.W.3d 482
    Supreme Court of Arkansas
    Opinion delivered January 6, 2000
    [Supplemental opinion on denial of rehearing issued February 10, 2000 ]

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Mark Pryor, Att’y Gen., by: Teena L. Watkins, Ass’t Att’y Gen. and Darnisa Evans Johnson, Sr. Ass’t Att’y Gen., for appellee.

       SMITH, J., not participating.

   Donald L. Corbin, Justice.

Appellant Jack Harold Jones Jr. was convicted in the White County Circuit Court of the capital murder and rape of Mary Phillips and the attempted capital murder of Lacy Phillips. Jones was sentenced to death by lethal injection, life imprisonment, and thirty years’ imprisonment, respectively, for the crimes. This court affirmed the convictions and sentences in Jones v. State, 329 Ark. 62, 947 S.W.2d 339, cert, denied, 522 U.S. 1002 (1997). Jones filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The trial court denied the petition. On appeal, Jones raises four points for reversal, three involving the submission of various aggravating circumstances and one pertaining to the admission of expert testimony. Our jurisdiction of this appeal is pursuant to Rule 37 and Ark. Sup. Ct. R. 1-2 (a) (8). We affirm.

The facts surrounding these crimes were set out in great detail in this court’s previous decision, and we see no need to repeat them here. Suffice it to say that on June 6, 1995, thirty-four-year-old Mary Phillips and her eleven-year-old daughter Lacy were at an accounting office in Bald Knob, where Mary worked as a bookkeeper. Jones entered the business and robbed them at gunpoint. Jones then anally raped and murdered Mary and severely beat and strangled Lacy, leaving her for dead. Lacy lost consciousness for a period of time. She later awakened when police, apparently believing she was dead, were taking photographs of her. The police found Mary’s body nude from the waist down, with a cord from a nearby coffee pot wrapped around her neck. Additionally, she had sustained blunt-force head injuries, as well as bruises on her arms and back.

Before discussing the points raised on appeal, we note that to prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999). This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. at 99, 3 S.W.3d at 325. Petitioner must also show that the deficient performance prejudiced the defense; this requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. On appeal, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. We have repeatedly held that we will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. See, e.g., Norman v. State, 339 Ark. 54, 2 S.W.3d 771 (1999) (per curiam); State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).

I. Aggravating Circumstance of Especially Cruel or Depraved Manner

For his first point for reversal, Jones argues that trial counsel was ineffective for fading to object to the submission of the aggravating circumstance that the capital murder was committed in an especially cruel or depraved manner. He asserts that the evidence was insufficient to support such a finding. He also argues that despite trial counsel’s failure to object, appellate counsel was ineffective for not pursuing the issue on appeal. See Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996). Jones concedes that neither argument was raised in his Rule 37 petition. He nevertheless asserts that this point is not procedurally barred pursuant to this court’s holding in Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

In Johnson, the appellant raised an issue on appeal that he had not raised in his Rule 37 petition. Moreover, the issue was not argued during the postconviction hearing, nor did the trial court rule on it. Because the appellant had received the death penalty, however, this court determined that it was possible to reach the issue on appeal. This court explained:

This is an appeal from the trial court’s denial of the Rule 37 petition, and our general rule is that specific allegations of ineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992). However, in death penalty cases we will consider errors argued for the first time on appeal where prejudice is conclusively shown by the record and this court would unquestionably require the trial court to grant relief under Rule 37. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982). In Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), we said an error may be argued for the first time on appeal in a death case only when it is “of such magnitude that it would require us to take note of an error which involved a fundamental deprivation of the right to a fair trial.” Id. at 192, 617 S.W.2d at 376.

Id. at 137, 900 S.W.2d at 951 (emphasis added). Accordingly, in death cases, this court may address issues raised for the first time on appeal from a denial of a Rule 37 petition, where prejudice is conclusively shown by the record. Such prejudice is shown only when there is an error of such magnitude that it deprived the defendant of the fundamental right to a fair trial. Conversely, where prejudice is not conclusively shown, the issue is procedurally barred and we may not reach the merits. After reviewing the record in this case, we conclude that it does not conclusively show that Jones was prejudiced by the submission of this aggravating circumstance to the jury.

Arkansas Code Annotated § 5-4-604(8)(A) (Repl. 1997) provides for the aggravating circumstance that the “capital murder was committed in an especially cruel or depraved manner.” Section 5-4-604(8) defines the relevant terms as follows:

(B) For purposes of this subdivision (8), a capital murder is committed in an especially cruel manner when, as part of a course of conduct intended to inflict mental anguish, serious physical abuse, or torture upon the victim prior to the victim’s death, mental anguish, serious physical abuse, or torture is inflicted. “Mental anguish” is defined as the victim’s uncertainty as to his ultimate fate. “Serious physical abuse” is defined as physical abuse that creates a substantial risk of death or that causes protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. “Torture” is defined as the infliction of extreme physical pain for a prolonged period of time prior to the victim’s death.
(C) For purposes of this subdivision (8), a capital murder is committed in an especially depraved manner when the person relishes the murder, evidencing debasement or perversion, or shows an indifference to the suffering of the victim and evidences a sense of pleasure in committing the murder[.\ [Emphasis added.]

This court has consistently held that whenever there is evidence of an aggravating or mitigating circumstance, however slight, the matter should be submitted to the jury for consideration. See Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982 (1996); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). Once the jury has found that an aggravating circumstance exists beyond a reasonable doubt, this court may affirm only if the State has presented substantial evidence in support of each element therein. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). To make this determination, we review the sufficiency of the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt. Kemp, 324 Ark. 178, 919 S.W.2d 943.

Here, the evidence showed that Jones held Mary and her eleven-year-old daughter Lacy at gunpoint and took them to a back room. He told them to lie down on the floor, with Lacy on top of her mother. While they were on the floor, Jones took the money out of the business’s cash register and asked if there was any more. Jones then tied up Mary with stereo-speaker wire and put her in a closet. Next, he tied Lacy to a chair in the bathroom. Jones left Lacy for some time and then returned to her. The intervening time is apparendy when Jones raped and murdered Mary.

The medical examiner testified that Mary died as a result of a combination of strangulation and blunt-force head wounds. He testified that the application of force to the neck was in all likelihood relatively prolonged, taking approximately four minutes. Additionally, the evidence indicated that Mary had a number of wounds that appeared defensive in nature and consistent with some type of struggle taking place. The evidence also indicated that the blunt-force injuries to Mary’s head likely occurred prior to the time she was strangled, due to the amount of blood around the brain, and that it was possible that she could have sustained consciousness throughout much of her injuries.

From these facts, there was substantial evidence that Jones committed the murder in an especially cruel manner. As she was bound with speaker wire, Mary was bludgeoned, anally raped, and strangled, while her young daughter sat, bound to a chair, in an adjoining room. Clearly, Mary was the victim of serious physical abuse. There was also substantial evidence that Mary suffered mental anguish at the hands of her killer, not only as the victim of the ordeal, but also as the mother of the next likely recipient of the same fate. Accordingly, the record does not show conclusively that trial counsel performed deficiently in failing to object to the submission of this aggravating circumstance to the jury. Nor does the record conclusively show that appellate counsel performed deficiently by not pursuing the issue on appeal. Indeed, from this record, it is not apparent that Jones was deprived of any right, much less the fundamental right to a fair trial.

II. Aggravating Circumstance of Avoiding or Preventing Arrest

For his second point for reversal, Jones argues that both trial and appellate counsel were ineffective for failing to object to the State’s use of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing arrest. Jones again concedes that this issue was not raised in his Rule 37 petition. The order, however, reflects a ruling on this issue. Specifically, the trial court found that the submission of this aggravating circumstance was proper, and that appellate counsel’s failure to argue otherwise did not meet the test of ineffective assistance of counsel. Accordingly, we will address the merits of this argument.

Jones relies primarily on this court’s holding in Kemp, 324 Ark. 178, 919 S.W.2d 943, that although a consequence of every murder is the elimination of the victim as a potential witness, the motive is not necessarily to avoid arrest. From the record in this case, however, it is clear that there was sufficient evidence to support the jury’s conclusion that Jones murdered Mary Phillips for the purpose of avoiding arrest for aggravated robbery. According to Lacy Phillips, Jones came to her mother’s business twice on the date of the murder. The first time, Jones asked to borrow a book. Mary gave him the book. Later, Jones returned and informed Mary that she had given him the wrong book. When Mary went to get the other book, Jones pulled out a gun and said “I’m sorry I’m going to have to do this, but I’m going to have to rob you.” After Jones had restrained both victims, he opened up the cash register and took all the money. Lacy indicated that she was able to get a good look at Jones. She remembered that Jones had black hair, tattoos on his arms, and a teardrop-shaped tattoo on his face. Lacy was able to describe her assailant to the police. She also clearly identified Jones at trial.

Based on the foregoing evidence, the jury could have concluded that Jones murdered Mary for the purpose of avoiding or preventing his arrest for the crime of aggravated robbery. The distinctiveness of Jones’s appearance, including the many tattoos on his face and arms, as well as the fact that Mary had two separate opportunities to observe him, raises an inference that had she lived, Mary could have identified Jones as the man that robbed her and her daughter at gunpoint. See Porter v. State, 321 Ark. 555, 905 S.W.2d 835 (1995), cert. denied, 517 U.S. 1108 (1996) (holding that the jury could have found beyond a reasonable doubt that Porter killed the victim to avoid being arrested for robbery, because of the nature of the victim’s head wound and the fact that he had spoken to Porter outside the restaurant and could have identified him as one of the robbers); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), cert. denied, 513 U.S. 1162 (1995) (holding that the evidence showed beyond a reasonable doubt that the murder was committed for the purpose of avoiding or preventing arrest based on the evidence that the victims could have identified Sanders, because he had previously worked for them and had even been in their home). Accordingly, Rule 37 relief is not warranted on this point.

III. Aggravating Circumstances Inconsistent with a Charge of Premeditated Murder

For his third point for reversal, Jones argues that trial counsel was ineffective for failing to object to the submission of the aggravating circumstances that the capital murder was committed (1) for pecuniary gain and (2) for the purpose of avoiding arrest. He argues that counsel should have objected on the ground that those aggravating circumstances were inconsistent with the charge that he committed the murder with premeditation and deliberation.

In his appeal brief, Jones concedes that he has found no authority to support his argument on this point. This alone is sufficient basis to affirm the judgment. See McGehee, 338 Ark. 152, 992 S.W.2d 110. Nevertheless, he contends that the submission of these aggravating circumstances amounted to a denial of due process. There is no merit to this contention. We agree with the State that the prosecution’s theory of premeditation and deliberation during the guilt phase did not lead to a due-process violation when these aggravating circumstances were sought during the sentencing phase. The record reflects that the defense was made aware of all the aggravating circumstances that the State sought to prove during sentencing. Accordingly, Jones cannot now claim that he was misled by the State’s theory of premeditation and deliberation. We thus affirm the trial court’s denial of Rule 37 relief on this point.

IV Expert Testimony on Hair Analysis

Finally, Jones argues that the trial court erred in denying his petition on the ground that trial counsel was ineffective for failing to object to the State’s introduction of expert testimony on the subject of hair analysis. The testimony in question was from Chantell Beckett, a criminalist with the Arkansas State Crime Laboratory. Beckett testified that she had examined one head hair, one head-hair fragment, and one pubic hair taken from Mary Phillips’s body and compared them to known samples from Jones. She testified that the hairs were “microscopically similar.” Jones contends that her testimony was both irrelevant and incompetent. We affirm because Jones has failed to demonstrate that his defense was prejudiced by this evidence.

Jones candidly concedes that counsel’s failure to object to Beckett’s testimony did not prejudice him during the guilt phase, ostensibly because the jury heard evidence of his confession to police, as well as the testimony of the surviving victim. He contends, however, that had this testimony been excluded, his sentence could have turned out differently. The fact that his sentence could have been different is not the standard. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. Dillard, 338 Ark. 571, 998 S.W.2d 750. Prejudice is shown only when the decision reached would have been different absent the errors. Id. We thus affirm the trial court’s denial of postconviction relief.

Affirmed.

SMITH, J., not participating.

Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

Mark Pryor, Att’y Gen., by: Darnisa Evans Johnson, Senior Ass’t Att’y Gen., and Teena L. Watkins, Ass’t Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING FEBRUARY 10, 2000

Donald L. Corbin, Justice.

Our decision affirming the trial court’s order was delivered on January 6, 2000. Appellant filed a petition for rehearing on January 24, 2000. In the petition, Appellant asserts that we erred as a matter of law by applying the wrong standard for showing prejudice on a claim of ineffective assistance of counsel. Our opinion reflects in part:

Jones candidly concedes that counsel’s failure to object to Beckett’s testimony did not prejudice him during the guilt phase, ostensibly because the jury heard evidence of his confession to police, as well as the testimony of the surviving victim. He contends, however, that had this testimony been excluded, his sentence could have turned out differently. The fact that his sentence could have been different is not the standard. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced his defense. Dillard, 338 Ark. 571, 998 S.W.2d 750. Prejudice is shown only when the decision reached would have been different absent the errors. Id.

See Jones v. State, 340 Ark. 1, 10, 8 S.W.3d 482 (2000). Appellant asserts that the test under Strickland v. Washington, 466 U.S. 668 (1984), is not that the outcome would have been different, but that there is a reasonable probability that the outcome would have been different. Appellant is correct in his recitation of the standard established in Strickland. His argument, however, misses the point of our holding.

Our decision affirming the trial court’s denial of relief under Ark. R. Crim. P. 37 was not based on the degree to which Appellant failed to show that the outcome of his case would have been different. Rather, we affirmed because Appellant did not even use the word “would” in his argument to this court. He merely argued that “[i]n this case the proceeding could have turned out differentlyf.]” His argument was thus nothing more than a contention that the result might possibly have been different. This is insufficient under Strickland, as the Court observed that “not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” 466 U.S. at 693.

Accordingly, we deny rehearing of this case. We issue this supplemental opinion for the purpose of clarifying for future cases that the standard for showing prejudice on an ineffective-assistance-of-counsel claim is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

SMITH, J., not participating.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Darrell HAIRE v. STATE of Arkansas
    CR 98-1438
    8 S.W.3d 468
    Supreme Court of Arkansas
    Opinion delivered January 6, 2000

      James Law Firm, by: William Owen James, Jr., Kimberly D. Webb, and Steven R. McNeely, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Darrell Haire appeals his judgment of conviction for capital murder and attempted aggravated robbery. He was sentenced to life imprisonment without parole and fifty years, with the fifty years to run consecutively with the life term. His grounds for appeal are: (1) insufficient evidence when the hearsay statements of Brodrick Jones are excluded; (2) error by the trial court in admitting evidence of prior bad acts; and (3) a discovery violation by the State in failing to disclose a leniency agreement with a State witness. We hold that none of these issues has merit, and we affirm.

The evidence at trial disclosed the following scenario. On February 11, 1996, Haire and Brodrick Jones were together in a white car and pulled into a Texaco Service Station on Highway 10 west of Little Rock. At the time, the Texaco employee, Janice Johnson, was at the station alone and outside by the gas pumps picking up the trash. She asked the passenger in the car whether he wanted gas. The passenger, whom Johnson identified as Brodrick Jones, said “no” but asked if there was food in the store which was part of the service station complex. Jones followed Johnson into the store, and he asked to buy beer, which Johnson refused to sell him because it was Sunday. She also told him that the Subway outlet “right down the street” had “better food.” Jones persisted about buying beer. Johnson testified: “And I kept saying, no. And he had his hands in his pocket, it’s like a pouch in his coat, and I started getting nervous.”

Johnson then told Jones that she would check with the manager in the back. She knew the manager was not on the premises, but she came back and told Jones that the manager said beer could not be sold. She added that there was a surveillance camera and “you’re not going to get out of here without getting on the camera.” The driver, whom Johnson identified as Haire, then came inside and asked what was taking so long. Jones answered “[Tjhere’s nothing here for us. Let’s go.” Jones walked over to Haire and whispered something. Then they left. This occurred at about 1:15 p.m,

At approximately 11:33 p.m. on that same evening, Moses Waiters received a telephone call from Letitia Rummel, with whom he shared an apartment in Little Rock and whom he was engaged to marry. Rummel worked at the Subway store at the Riverdale Shopping Center on Cantrell Road. Rummel told Waiters that a man named Brodrick wanted to speak to him. Waiters knew Brodrick by the name of Sean and testified that Jones asked him “to set up a robbery of the store for him.” Waiters begged off saying that there was not enough money and Rummel was asthmatic and might get hurt. Jones then asked about free sandwiches, and Waiters agreed to talk to Rummel. When he did so, he told her to push the robbery button and call the police. Waiters testified that Jones kept saying “we,” and he asked Rummel if anyone else was there. At that point, she described another man coming through the door. Immediately after that, she responded that there was “a guy standing there with a gun to my head.” Next, Waiters heard a struggle for the telephone, and the telephone was hung up. Waiters called 911 about what had happened. At 11:56 p.m. that same night, homicide detective Steve Moore of the Little Rock Police Department found Rummel, who had been killed by a single gunshot wound to the head.

Cynthia Polk, the ex-wife of Jones, testified at trial that between midnight on February 11, 1996, and one o’clock the morning of February 12, 1996, Jones and Haire came to her house in Little Rock in a white car. Polk stated that Jones told her that Haire had shot somebody. Haire did not deny the allegation. When Polk asked what they got, Haire answered: “We didn’t even get a cookie.” When asked why he shot the woman, Haire said: “I don’t know.” Haire left after about five minutes. Jones spent the night at Polk’s house. Polk told the jury that she had been convicted of burglary and theft by receiving and her parole had been revoked due to a positive drug test. She further admitted that she had two additional charges currently pending against her. She testified that the prosecutor had not attempted to sway her testimony.

The jury found Haire guilty of capital murder and attempted aggravated robbery, and he was sentenced accordingly. Following entry of the judgment and commitment order, Haire moved for a new trial on the basis that after the trial the prosecutor had dropped the two charges against Polk, which were felon in possession of a firearm and cocaine possession. According to Haire’s motion, had the jury known that by testifying Polk was avoiding a mandatory prison sentence, it would have discounted her testimony. The motion was deemed denied because the trial court did not rule on it within thirty days. The trial court, however, subsequently denied the motion in writing and stated that both the State and defense counsel had inquired about the charges pending against Polk at trial and that nolle prossing those charges posttrial did not entitle Haire to a new trial.

I. Hearsay Testimony

Haire first contends on appeal that the trial court erred in denying his motion in limine to exclude Waiters’s testimony concerning Jones’s statements made to him. This was inadmissible hearsay, according to Haire, and without this testimony, he claims that the evidence for conviction was insufficient. We conclude that the testimony was properly allowed and that no error was committed by the trial court.

The crux of Haire’s hearsay argument is that there was no independent evidence of a conspiracy other than Jones’s statements to Waiters, which Waiters related to the jury at trial. Haire accurately points out that statements by a co-conspirator in furtherance of a conspiracy are not hearsay. See Ark. R. Evid. 801(d) (2) (v). He argues, however, that a conspiracy cannot be proved solely by the hearsay statements sought to be excluded. Rather, he contends, the State must prove the conspiracy by independent evidence.

The trial court admitted Jones’s statements to Waiters for two reasons. He found them to be statements of a co-conspirator which are admissible under Rule 801(d) (2) (v) but also statements which fell within the hearsay exception for a declarant’s existing state of mind. See Ark. R. Evid. 803(3). The trial court was correct on both counts. The State met its burden of proving a conspiracy by Jones’s statements to Waiters which were corroborated by independent evidence, including the testimony of Cynthia Polk and Janice Johnson. See Bourjaily v. United States, 483 U.S. 171 (1987); Ark. R. Evid. 104(a). When asked by Cynthia Polk what Haire and Jones “got” from the Subway outlet, Haire answered: “ We didn’t even get a cookie.” Moreover, Janice Johnson testified that at the Texaco station Jones persisted in asking for beer, and he was fidgety with his hands in the pouch of his coat which made her nervous. She told him that the manager was in the back and that she could not sell the beer because the security cameras were everywhere and they would pick up the transaction. When Haire came into the store, the two men whispered and left. The jury could have reasonably inferred from this rendition of the events that the two men were exploring the possibility of robbing the Texaco station.

In addition, Jones’s statements to Waiters were unquestionably probative of his existing state of mind which the State contended was an intent to commit robbery. The statements, therefore, fell within the hearsay exception set out under Rule 803(3).

II. Prior Bad Act

Haire next claims that it was error for the trial court to admit the testimony of Janice Johnson, which, he maintains, was for the purpose of proving a prior bad act by Haire in contravention of Ark. R. Evid. 404(b). He also cites us to Ark. R. Evid. 403, but he does not develop the Rule 403 argument on appeal. Nor did he do so before the trial court. We will not consider an argument that has not been properly developed. See Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

Turning then to his Rule 404(b) argument, Haire admits that an exception to bad character evidence exists to prove the motive, plan, and intent of the perpetrator. He contends, however, that those prior acts must exhibit the same or a strikingly similar methodology, which is one so unique that only one person could have perpetrated both the prior act and the present crime. We disagree. Haire has cited the test for proving modus operandi. That test is different from the proof required for a Rule 404(b) exception such as intent. See Diffee v. State, 391 Ark. 669, 894 S.W.2d 564 (1995) (both modus operandi and proof of intent as an exception under Rule 404(b) were examined and discussed). Simply stated, proof of modus operandi is not the same as proof of a Rule 404(b) exception to other bad acts. The two evidentiary concepts are different.

The test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). The decision to admit evidence under a Rule 404(b) exception is discretionary with the trial court. Bragg v. State, supra.

The intent to commit a crime is a state of mind that is not ordinarily capable of proof by direct evidence, and so it must be inferred from circumstances. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). As has already been discussed in this opinion, the actions of Jones and Haire at the Texaco station could reasonably have been construed by the jury as evidence of surveillance with intent to rob, especially when the men’s actions are coupled with what transpired at the Subway store only minutes later. We conclude that there was no abuse of discretion in admitting this circumstantial evidence of intent to rob. See Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996).

III. Failure to Disclose a Prior Agreement

For his final point, Haire contends that the prosecutor dropped the charges against Cynthia Polk two weeks after her testimony at his trial, thus evidencing a prior agreement of leniency for testimony. He directs our attention to Giglio v. United States, 405 U.S. 150 (1972), where the Court held that any agreement of leniency for testimony must be disclosed to the defense prior to trial. Otherwise, the defendant’s due process rights are violated.

In the instant case, there was no proof that such an agreement was made by the prosecutor with Polk. She testified that there was no agreement, and nothing was offered by Haire to counter that. The mere fact, standing alone, that the charges were dropped after the trial does not establish a Giglio violation. See, e.g., United States v. Ramirez, 608 F.2d 1261 (9th Cir. 1979) (fact that witness for government pled guilty to lesser offense three days after trial not enough to establish a prior agreement). Furthermore, as the trial court noted, the fact that Polk had charges pending against her at the time of her testimony was explored by both the State and the defense in questions before the jury. Haire has failed to exhibit reversible error on this point.

IV. Rule 4-3 (h)

The record has been examined for other reversible error pursuant to Ark. Sup. Ct. R. 4-3 (h), and none has been found.

Affirmed.

Smith, J„ not participating.


author: ANNABELLE Clinton Imber, Justice. Ray Thornton, Justice,

text:
    Trent HARMON v. STATE of Arkansas
    CR 98-1354
    8 S.W.3d 472
    Supreme Court of Arkansas
    Opinion delivered January 6, 2000
    [Petition for rehearing denied February 10, 2000.  ]

      Bowden & Kendel, by: David O. Bowden; William H. Craig; and David R. Cannon, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.

       CORBIN, J., not participating.

   ANNABELLE Clinton Imber, Justice.

Appellant Trent Harmon, Jr., appeals the judgment of the Pulaski County Circuit Court convicting him of battery in the first degree and sentencing him to ten years’ imprisonment. This case was certified to us from the Arkansas Court of Appeals because it presents issues involving constitutional interpretation. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(3). Mr. Harmon raises five points for reversal. We find no error and affirm.

I. Sufficiency of the Evidence

For his first point for reversal, Mr. Harmon argues that there was insufficient evidence to support a conviction of battery in the first degree. Particularly, he asserts that the evidence was insufficient to demonstrate (1) that he had any involvement in the crime; (2) that he caused a serious physical injury; or (3) that he acted with the requisite mental state. Mr. Harmon was charged with violating Ark. Code Ann. § 5-13-201 (3)(Repl. 1997), which provides that a person commits battery in the first degree if: “He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life[.]”

The test for determining sufficient proof is whether there is substantial evidence, direct or circumstantial, to support the verdict Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). On appeal, we review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support it. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict .Johnson, supra. We do not weigh the evidence presented at trial, as that is a matter for the factfinder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1997). Where, as here, the trial is before the bench, the trial judge sits as factfinder. See Gray v. State, 311 Ark. 209, 843 S.W.2d 315 (1992); State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991).

The evidence showed that on October 27, 1996, Kevin Anglin was beaten by several individuals in the parking lot of the Discovery Club in Little Rock. Mr. Anglin testified that he had no actual memory of the beating, but that the last thing he remembered seeing were the faces of Mr. Harmon and Mr. Benjamin Brown. At trial, Mr. Anglin identified Mr. Harmon for the record. Mr. Anglin testified that as a result of the beating he suffered “very, very acute” injuries and was placed in the intensive care unit for three days. Mr. Anglin testified that he suffered injuries to the left side of his face, for which he underwent plastic surgery to repair. Mr. Anglin stated further that since the beating, he suffered a loss of his senses of taste and smell and a loss of memory. Finally, Mr. Anglin indicated that as of the time of trial some sixteen months after the incident, he had no sense of taste or smell and that he continued to suffer a loss of memory.

Mr. Ali Kaan Aydulun testified that he witnessed Mr. Anglin being beaten that night at the Discovery Club. He stated that he and his friend were walking in the parking lot when they encountered Mr. Brown, standing in the lot cussing. Mr. Aydulun and his friend were about to say something to Mr. Brown, when Mr. Anglin advised them to leave Mr. Brown alone because he was drunk. Mr. Aydulun stated that he and his friend began to walk away, and that when he turned around, he saw Mr. Brown and several other persons attack Mr. Anglin. Mr. Aydulun stated that Mr. Anglin had done nothing to provoke the fight. According to Mr. Aydulun, six or seven assailants punched and pushed on Mr. Anglin and eventually pulled him to the ground and started kicking him in the ribs, legs, face and the back of the head. Mr. Aydulun made an in-court identification of Mr. Harmon as one of the assailants. He had previously identified Mr. Harmon in a photo-lineup. Mr. Aydulun testified that Mr. Harmon kicked Mr. Anglin in the face. He explained that Mr. Harmon’s foot missed Mr. Anglin the first time, but that on the second attempt Mr. Harmon backed up one step and ran at Mr. Anglin’s head like a field-goal kicker runs toward a football.

Mr. James Patrick Cady also witnessed the attack. He testified that five or six people began hitting and kicking Mr. Anglin and then stomping on his head as he lay on the ground. Mr. Cady selected Mr. Harmon’s photograph out of a photo-lineup as looking like one of the assailants. He stated that when the fight ended and the assailants dispersed, one assailant gave several last kicks to the victim’s head before getting into a car and leaving. He identified Mr. Harmon as looking like the person who inflicted those last blows to the victim’s head. Mr. Cady told police that the assailant had driven away in a White Honda, license plate number YTS 020. Within approximately fifteen minutes of the incident being reported to the police, a Little Rock police officer stopped a White Honda, license plate number YGS 020, on Cantrell Road, not far from the Discovery Club. Mr. Harmon was driving the car, and Mr. Brown was the only passenger.

The State also offered the testimony of Dr. Ali Krisht, which was taken during the previous trial against Mr. Brown. Dr. Krisht, an expert in neurosurgery, testified that he treated Mr. Anglin in the hospital in October 1996. He stated that a CAT scan of Mr. Anglin’s head revealed contusions on the brain surface in more than one area, mostly on the left side. He explained that contusions are small hemorrhages that are usually caused by trauma. He stated that Mr. Anglin was diagnosed with “traumatic brain injury.” Dr. Krisht also stated that a loss of short-term memory, taste and smell can be associated with such an injury, and that those losses can be permanent. Dr. Krisht further noted that during a subsequent visit to the clinic, Mr. Anglin complained that he was having problems with short-term memory and his sense of smell. Viewing this evidence in the light most favorable to the State, we find substantial evidence to support Mr. Harmon’s conviction of battery in the first degree.

Mr. Harmon’s first argument in opposition to this conclusion is an attack on the credibility of two of the State’s witnesses: Mr. Aydulun, who identified Mr. Harmon as one of the assailants who kicked the victim in the head; and Mr. Cady, who reported that a person who looked like Mr. Harmon inflicted the last blows to the victim’s head and drove away in a car that was eventually stopped by the police. The attack on the credibility of these witnesses is premised on certain inconsistencies in their testimony. The defense specifically points out that Mr. Aydulun indicated that some of the assailants, including Mr. Harmon, were wearing baseball caps and cowboy boots, and that a group of them left the scene in a blue Mazda. Whereas, Mr. Cady indicated that Mr. Harmon left the scene in a white Honda and the police officer testified that when he stopped the white Honda, he did not notice Mr. Harmon wearing a baseball cap or cowboy boots and he did not notice any blood on him. Finally, the defense also challenges the credibility of the witnesses by noting that some of the people identified during the" investigation as possible “look-alikes” were merely fillers in the photo-lineup and were not actually involved in the assault.

The matters emphasized by Mr. Harmon bear exclusively upon the credibility of the State’s witnesses. This court, however, does not attempt to weigh the evidence or assess the credibility of witnesses. That lies within the province of the trier of fact. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). We are bound by the fact-finder’s determination on the credibility of witnesses. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Thomas v. State; 266 Ark. 162, 583 S.W.2d 32 (1979). Likewise, we have long held that the trier of fact is free to believe all or part of a witness’s testimony. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Patterson v. State, 326 Ark. 1004, 935 S.W.2d 266 (1996). Moreover, inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness’s testimony is sufficient to sustain a conviction. See Williams v. State, supra; Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997).

Mr. Harmon contends that the purported inconsistencies in the testimony of the State’s witnesses make their identification of him as the perpetrator of the crime “inherently improbable, physically impossible, and so clearly unbelievable that reasonable minds could not differ thereon.” Kitchen v. State, supra. We disagree. We cannot say with assurance that it would have been physically impossible for Mr. Harmon to discard incriminating evidence, such as clothing, between the time he fled the scene and the time the officer stopped the vehicle he was driving. Furthermore, the officer admitted that he was not specifically looking for blood, cowboy boots, or baseball caps when he made the DWI arrest.

The defense fully explored all inconsistencies and weaknesses in its cross-examination of the State’s witnesses. Nevertheless, the trial judge found their identification credible. The accuracy of the eyewitness identifications and any alleged weaknesses were matters of credibility for the trial court to resolve. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Mr. Harmon has presented us with no valid reason to disregard the trial judge’s assessment of the witnesses’s credibility. We therefore hold that substantial evidence linking Mr. Harmon to the crime does exist.

Mr. Harmon next asserts that the State’s evidence was insufficient to establish that he caused a serious physical injury. Ark. Code Ann. § 5-1-102(19) (Repl. 1997) defines “serious physical injury” as: “Physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.”

Mr. Anglin testified that as a result of the injuries sustained in the fight, he spent three days in the hospital’s intensive care unit. He also stated that he suffered a loss of his senses of taste and smell, and a loss of memory as a result of the beating. At trial, some sixteen months after the incident, Mr. Anglin indicated that these symptoms continued to persist. During Mr. Anglin’s hospitalization in October 1996, Dr. Krisht diagnosed Mr. Anglin with “traumatic brain injury.” Dr. Krisht also confirmed that the protracted loss of memory, taste, and smell experienced by Mr. Anglin can be associated with the type of injury he sustained. A photograph showing the severity of the injuries to the left side of Mr. Anglin’s face was also introduced into evidence, and Mr. Anglin testified that he underwent plastic surgery to repair those injuries.

Whether a victim has sustained a serious physical injury is an issue for the jury, or, as in this case, the trial judge sitting as factfinder. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). Likewise, the question whether injuries constitute a temporary or protracted impairment of a function of a bodily member or organ is for the factfinder to decide. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

In this case, the victim’s testimony about the injuries he sustained on October 27, 1996, was corroborated by his doctor’s testimony as well as a photograph of his face after the beating. We cannot say that the factfinder could not reasonably infer from this evidence that Mr. Anglin sustained a serious physical injury as a result of the beating, and particularly that he suffered a protracted impairment of the function of bodily organs or members. We therefore conclude that substantial evidence to support the finding of serious physical injury does exist. This conclusion is consistent with our holding in Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984), where we held that three blows to the head with a fist resulting in fractures to the face and the victim’s hospitalization for five days was sufficient to support a finding of serious physical injury.

Mr. Harmon finally asserts that the evidence was insufficient to establish that he acted with the requisite mental state for battery in the first degree. A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or cause such a result. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1991)(citing Ark. Code Ann. § 5-2-202(l)(1987)). Because of the obvious difficulty in ascertaining the actor’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. Id. The factfinder may draw upon common knowledge and experience to infer the defendant’s intent from the circumstances. Id. The trial court’s conclusion in this case that Mr. Harmon acted with the purpose of causing serious physical injury is supported by Mr. Aydulun’s testimony that Mr. Harmon came at Mr. Anglin’s head like a field-goal kicker approaches a football, and by Mr. Cady’s testimony that Mr. Harmon was the last one to leave the scene, and did so only after delivering several more kicks at Mr. Anglin’s head. This conclusion is consistent with our holding in Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993): “Repeated blows to the head by kicking or ‘stomping’ when [a] man [is] down [exhibit] purposeful action to inflict serious physical injury whether it be risk of death or protracted disfigurement or impairment.” Id.; see also Lum v. State, supra; Bangs v. State, supra; Tarentino v. State, supra; Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979).

Furthermore, there is substantial evidence to support a finding that Mr. Harmon acted “under circumstances manifesting extreme indifference to the value of human life,” pursuant to section 5-13-201(3). The plain meaning of that phrase demonstrates that the circumstances must by necessity be dire and formidable in terms of affecting human life. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). In short, first-degree battery “involves actions which create at least some risk of death which, therefore, evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim.” Id. (citing Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984)). The foregoing evidence demonstrates that Mr. Harmon, along with five or six other assailants, kicked Mr. Anglin in the face and head multiple times while Mr. Anglin was on the ground. This evidence certainly supports the conclusion that Mr. Harmon engaged in life-threatening conduct against the victim.

Moreover, the evidence of life-threatening conduct in this case is distinguishable from the circumstances addressed in Tigue v. State, supra, where we held that immersion of the victim’s hands in hot water causing third-degree burns was not life-threatening conduct. Likewise, Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980), is inapposite because the police officer in that case did not know what caused his injury (a broken jaw and ribs) and “[t]he physician who examined the officer shortly after the incident testified that he had not observed any contusion on the officer’s head, and there was no physical evidence of a severe blow to the back of the head.” Id.

We therefore conclude that there is substantial evidence from which the trial judge, sitting as factfinder, could have reasonably determined that Mr. Harmon acted with the purpose to cause serious physical injury to Mr. Anglin under circumstances manifesting extreme indifference to the value of human life.

II. Facts Not In Evidence

For his second point for reversal, Mr. Harmon argues that the trial court improperly relied on facts and evidence presented at the co-defendant’s trial, over which the same judge presided. In support of this argument, he relies on the following colloquy, which occurred during the State’s direct examination of the victim:

Q: Are there any — as a result of— as a result of the injuries you received on
Mr. CRAIG: There’s been no testimony of injury. Counsel’s assuming the fact that’s not in evidence.
Q: Well, did you have any injuries on—
A: I was in ICU for three days so, yes, I had very, very acute injuries.
Q: Okay. Let’s talk about your face. What happened? What was wrong with your face as a result of the beating you took on October—
Mr. CRAIG: Your Honor, Counsel is leading. Counsel is assuming facts not in evidence.
THE COURT: Don’t lead your witness and don’t assume facts not in evidence. Now Mr. Craig, you’re going to have to realize, also, that I’ve heard this gentleman testify about this same incident once before so there are some things that I do recall.
Mr. CRAIG: I understand, Your Honor, but that should have no bearing on this trial.
The COURT: I understand. All right, proceed.

We are not persuaded that the trial court did anything improper. As Mr. Harmon acknowledges, there is a presumption that a trial judge will consider only competent evidence, and this presumption is overcome only when there is an indication that the trial judge gave some consideration to the inadmissible evidence. See Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980); Fields v. State, 36 Ark. App. 179, 820 S.W.2d 467 (1991). In Clink-scale, supra, the trial judge repeatedly made remarks about the defendant’s prior, inadmissible convictions, calling him a “perpetual crime wave,” and stating that “it’s one thing to have one offense for stealing ... but the idea since 1970 you have all these....” Thus, there was no question that the trial judge considered the prior convictions during sentencing. Here, there is no indication from the record that the trial was truncated or shortened in any fashion, or that the trial judge considered any evidence other than what was presented to him during Mr. Harmon’s trial. Nor does Mr. Harmon point to any specific evidence that the trial judge considered which prejudiced him. Thus, Mr. Harmon has failed to overcome the presumption that a trial judge will consider only competent evidence. Moreover, the trial judge appeared to acknowledge that he could not consider the testimony he heard at the previous trial.

III. Confrontation of Witnesses

For his third point for reversal, Mr. Harmon argues that the trial court erred in allowing the State to elicit hearsay testimony during cross-examination of a defense witness. He urges that the trial court’s ruling denied him the right to confront the witnesses against him, in violation of the Sixth Amendment to the United States Constitution. The State asserts that no such constitutional objection was made below.

The record reflects that Mr. Harmon called Sergeant Joe Oberle of the Little Rock Police Department to testify about information contained in the officer’s affidavit of probable cause to arrest Mr. Harmon. At one point during the testimony, the prosecutor objected to questions regarding what a particular witness had told the officer on the ground that it was hearsay. Defense counsel responded that the evidence was not offered for the truth of the matter asserted, but, instead, only to show what information the officer relied on in preparing the affidavit. The trial court allowed the evidence for that limited purpose.

On cross-examination, the prosecutor asked the officer about the witnesses described in the affidavit who had identified Mr. Harmon as one of the assailants. Defense counsel objected on the ground that the testimony was hearsay. The prosecutor argued that the testimony was admissible because (1) defense counsel had opened the door to this line of inquiry, and (2) the evidence was not being offered for the truth of the matter asserted. Defense counsel then argued that the evidence was irrelevant. The trial court allowed the evidence. Upon the prosecutor’s conclusion of cross-examination, the following discussion occurred:

Mr. FlNKELSTEIN: Pass the witness.
Mr. CRAIG: It’s difficult to cross-examine hearsay, Your Honor, and I’d ask the Court in the interest of justice—
The COURT: This is your — this is your witness. This is your witness, Mr. Craig. And they’re allowed a wide latitude on cross-examination.
Mr. CRAIG: But Your Honor, that is rank hearsay. Statements of people who are not present, who we cannot cross examine, and it is obviously prejudicial and it is improper.

Mr. Harmon argues that, although defense counsel never specifically referred to the constitutional right to confront the witnesses, it is apparent from the context of the objection that he was making such an argument. Be that as it may, Mr. Harmon has failed to show that he was prejudiced by the evidence because he opened the door to such testimony in the first place. See Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998); Puckett v. State, 328 Ark. 355, 944 S.W.2d 111 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Indeed, the trial court based its ruling in part on the fact that Mr. Harmon “started talking about the report with this witness.” Furthermore, the challenged evidence was admissible for the same reason that the trial court allowed similar evidence during defense counsel’s questioning of the officer. It was not being offered for the truth of the matter asserted, but rather to show other information the officer relied on in preparing the affidavit. This court has repeatedly recognized that matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. See, e.g., Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Bell, supra. Accordingly, we cannot say that the trial court abused its discretion in admitting the evidence.

IV Constitutionality of the Sentencing Guidelines

For his fourth point for reversal, Mr. Harmon argues that the trial court erred in refusing to declare Act 532 of 1993, the Sentencing Guidelines Act, unconstitutional for violating the doctrine of separation of powers. Specifically, Mr. Harmon contends that in passing Act 532, codified as Ark. Code Ann. §§ 16-90-801 to -804 (Supp. 1999), the General Assembly improperly delegated both legislative and judicial power to the Arkansas Sentencing Commission in violation of Article 4 of the Arkansas Constitution. We do not reach the merits of this argument, as Mr. Harmon has failed to show that he was prejudiced by the Act.

It is well settled that before a person can challenge the constitutionality of a statute, he or she must demonstrate that the challenged statute had a prejudicial impact upon him. Nahlen v. State, 330 Ark. 1, 953 S.W.2d 877 (1997); Brooks v State, 328 Ark. 32, 941 S.W.2d 409 (1997). Here, Mr. Harmon cannot show that the Act was applied to him at all. Indeed, he admits that the trial court stated that it would not consider the pre-sentence report, and that it would impose sentence without regard for or reference to the sentencing guidelines. Mr. Harmon also does not dispute that the sentence imposed is within the range permitted by law for a Class B felony. See Ark. Code Ann. § 5-4-401 (a) (3) (Repl. 1997). He contends, however, that the application of the guidelines to his case is obvious in that the sentence imposed by the trial court was the same as that established by the guidelines. The record reflects the trial court’s ruling:

The COURT: I’m going to deny your motion and I’m not going to declare that act unconstitutional. It may well be, but let’s let the other court out there make that decision rather than me. But in addition to that I’m not necessarily going along with the sentencing guidelines in my proposed sentence. I’ve considered the full range and as I understand it the penalty provisions under the sentencing guidelines are recommendations only anyway.
* * *
So it will be the judgment and sentence of the Court that he be taken by the Sheriff, delivered for the purpose of serving his term of ten years in the Arkansas Department of Corrections, which is the same term as the co-defendant in this case got. And I did not follow the sentencing guidelines in that particular case. I departed from the sentencing guidelines, but I think this young man’s sentence should be the same as the co-defendant’s.

(Emphasis added.) It is clear from this ruling that the trial court did not base his decision on the recommended sentence established in the sentencing guidelines; rather Mr. Harmon’s sentence was based upon the trial court’s determination that both co-defendants should receive the same punishment, ten years’ imprisonment. Thus, because Mr. Harmon has failed to demonstrate that Act 532 had a prejudicial impact on him, we do not reach the merits of his constitutional challenge.

V. Cumulative Error

Mr. Harmon lastly argues that the trial court erred in denying his cumulative error objection. He bases this argument on each of the four individual points of error raised on appeal, as well as two additional points: (1) the trial court’s comments that Mr. Harmon’s objections could be addressed on appeal; and (2) the trial judge’s alleged bias against Mr. Harmon evidencing a predisposition to convict. Neither of these additional points were raised below. As such, we will not consider them on appeal. This court has repeatedly held that for a cumulative-error argument to be upheld on appeal, the appellant must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained. See, e.g., Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999); Willis, 334 Ark. 412, 977 S.W.2d 890. Moreover, we have considered the remaining assertions of error and concluded that no reversible error occurred in Mr. Harmon’s trial. This court does not recognize the doctrine of cumulative error where there is no error to accumulate. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).

Affirmed.

Arnold, C.J., Thornton, J., and Special Justice Bud Cummins, dissent.

CORBIN, J., not participating.

Ray Thornton, Justice,

dissenting. To be convicted of the crime of battery in the first degree, one must cause serious physical injury to another by means of a deadly weapon; cause injury which destroys, amputates, or permanently disables another person; or cause serious physical injury to another under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-13-201 (a) (Repl. 1997). Based on our previous decisions interpreting this statute, I cannot agree with the majority that these elements were present in appellant’s conduct in this case, and, therefore, I respectfully dissent.

In Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980), we held that, in order to sustain a conviction of first-degree battery, life-endangering conduct must generally be involved. There must be a severe injury in conjunction with a wanton or purpose&l culpable mental state, and each subsection of the statute described conduct that would produce murder liability if death resulted. Id. Indeed, in Bolden, we reversed a conviction for first-degree battery where the defendant had kicked and beaten a police officer about the head and chest, resulting in a broken jaw, because there was insufficient evidence to show that the injuries were caused by a weapon, rather than by the beating and kicking that the officer sustained. Id.

Here, as in Bolden, there was no evidence of any weapon having been used against the victim by any of the several people who kicked and beat him. There was no showing that the victim suffered any injury resulting from the use of a weapon. The only evidence of intent to cause serious and permanent injury was one witness’s account that he saw an attacker, whom he later identified as appellant, kick the victim’s head, and, upon missing his head, back up and run, in cowboy boots, at the victim, kicking him in the head. The only evidence of a “weapon” employed was the attacker’s cowboy boots.

The evidence was scant that Harmon was the attacker wearing cowboy boots. Upon apprehension only fifteen minutes after the attack, Harmon was not wearing cowboy boots, nor did his clothing fit the description of the blood-stained garb given by witnesses. Unlike the majority, I cannot agree that the evidence presented was sufficient to sustain a conviction of first-degree battery. I respectfully dissent and would send the matter back to the trial court on the question whether the evidence would support a conviction for a lesser-included offense.

Dissent.

ARNOLD, C.J., and Cummins, S.J., join in this dissent.


author: TOM Glaze, Justice.

text:
    Tommy McINTOSH v. STATE of Arkansas
    CR 99-64
    8 S.W.3d 506
    Opinion delivered January 13, 2000

      Richard E. Holiman, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   TOM Glaze, Justice.

Appellant Tommy McIntosh appealed his conviction of aggravated assault and sentence of nine years to the court of appeals, and raised three points for reversal. The State responded first by filing a motion to dismiss wherein it claimed McIntosh had prematurely filed his motion for new trial on August 28, 1998, or five days before his conviction judgment was entered on September 2, 1998. The State asserted that, because McIntosh’s motion was untimely and ineffective, his time for appeal had not been extended, and therefore his thirty-day period for appeal commenced from September 2, 1998, and ended on October 2, 1998. Because McIntosh waited until October 22, 1998, to file his notice of appeal, the State argued McIntosh’s appeal was late and should be dismissed.

In response to the State’s dismissal motion, McIntosh argued to the court of appeals that he had filed two supplemental motions for new trial after his conviction judgment was entered on September 2. These two motions were filed on September 21, 1998, and September 23, 1998, wherein he essentially re-alleged the same grounds previously contained in his prejudgment motion of August 28, 1998. He stated that his subsequent post-trial motions stood on their own allegations as if his premature August 28 new-trial motion had never existed. As a consequence, McIntosh contended his motions for new trial were timely filed, and they thereby extended his appeal time thirty days from the time his new trial motions were denied by the trial court after a hearing on September 25, 1998. See Ark. R. App. P. — Crim. 2(a)(2) (1998); see also Ark. R. Crim. P. 33.3 (1998). In sum, McIntosh asserted that his appeal time ended on October 26, 1998, so his notice of appeal filed on October 22, 1998, was timely. After considering the State’s motion to dismiss and McIntosh’s response, the court of appeals denied the State’s request without an opinion; however, instead of going forward on the merits in the case, it certified this case to us, asking us to clarify the foregoing issues and confirm whether McIntosh’s notice of appeal was timely, and whether an appellate court has jurisdiction to decide the case on its merits. We accepted certification of the case.

In addressing the procedural matters set out above, the State, citing Davies v. State, 64 Ark. App. 12, 16, 977 S.W.2d 900, 903 (1998), restates its earlier position that when a motion for new trial is filed prior to entry of judgment, it is untimely. It also contends that the fact that supplements or amendments relating back to the original untimely motion have been added after the entry of judgment does not serve to make the original motion timely. Relying on Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996), the State further submits that, when a motion for new trial is untimely, a notice of appeal must be filed within thirty days of the entry of judgment, or it, too, will be untimely.

The Hicks case is significantly distinguishable from the case now before us. There, the defendant Hicks was found guilty, and he filed a motion for new trial, setting out three grounds why his motion should be granted. However, this motion was filed three days prior to the entry of his conviction judgments. Six days after his judgment was filed, Hicks filed what he labeled as an amendment to his earlier motion for new trial, but the amended motion contained two new grounds without mentioning his earlier ones.

In the instant case, McIntosh engaged new counsel who timely filed two new motions wherein he repeated the same grounds contained in his prejudgment motion; he merely added affidavits to support the same and only claims he ever asserted as grounds for a new trial. As McIntosh contends on appeal, while his earlier August 28 new-trial motion may have been void and ineffective, his post-conviction, motions for new trial fully asserted the same and only grounds he wished to have the trial court consider and decide. When the trial court heard and denied McIntosh’s motions on September 25, 1998, McIntosh had thirty additional days from the trial court’s order of denial to file his notice of appeal; he did so on October 22, 1998. See Ark. R. Crim. P. 33.3 and Ark. R. App. P. — Crim. 2(a)(2). We hold McIntosh’s statement of the law is correct, and therefore we rule McIntosh has timely filed his appeal. We now turn to the merits of the three points he offers for reversal.

McIntosh first argues the jury panel was tainted as a result of a biased remark made by a panel member, Hannah Dozier, during voir dire. When asked if the panel member knew defense witnesses Kesha Miller or Robert McIntosh, Dozier volunteered that if the Robert McIntosh was known as “Say,” she was already biased against him. The trial court excused Dozier from further service. The trial court asked if anyone else knew of Robert McIntosh, and two other panel members said that they might know him. The judge asked if that would make a difference believing or disbelieving the witness’s testimony. One of the two panel members, Janaytha Perry, said, “No, sir,” at which point Tommy McIntosh’s counsel added, “To make sure that they understand, this [witness] is Robert McIntosh, Jr. . . . and not ‘Say’ McIntosh, Sr.” Both Perry and the other inquiring member, Marilyn Jones, indicated they understood. The trial court then allowed the two witnesses to be sworn, and the State and defense counsel selected twelve jurors. After the jurors were selected, defense counsel asked for a mistrial, stating Dozier’s earlier remarks had biased the jury panel against the defendant. The trial court disagreed, and denied the request, stating, “The way the record appears now, it appears that it’s been cleared up that they’re [Robert McIntosh, Jr. and Robert ‘Say’ McIntosh, Sr.] not the same person.” The trial court was correct in its ruling.

Trial judges are granted wide latitude of discretion in granting or denying a motion for mistrial, and we will not reverse the trial court’s decision absent an abuse of that discretion or manifest prejudice to the complaining party. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). The rule is also settled that a jury is presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Here, appellant McIntosh failed to show Dozier’s comments had in anyway prejudiced the remaining jury panel, and, in fact, defense counsel clarified any existing misunderstanding that the witness who was to testify was not Robert “Say” McIntosh. Again, it was “Say” McIntosh against whom Dozier had expressed a bias. Thus, we cannot say that the trial court abused its discretion in denying the motion for mistrial.

In his second point, McIntosh contends the trial court erred in denying his mistrial motion when the prosecutor made remarks during opening argument that McIntosh claims violated his Fifth Amendment right not to be compelled to testify against himself. McIntosh’s felony charges resulted from a shooting incident that took place from a second-story balcony of an apartment rented by McIntosh’s girlfriend, Kesha Miller. In opening remarks, the deputy prosecutor stated the following:

They [the victims] both look up, up to the balcony to the second floor, and they see this Defendant with a handgun pointing down onto the ground, but looking straight ahead talking to someone else. And then they’re going to testify there are two to three more shots from this handgun. They watch, and they hear the sounds again. They hear the gunshots. They see the bullets hitting the dirt, and the dirt flying up. They see sparks from one of the bullets hitting a rock. They can feel the vibrations of the bullets in the ground, and they also, they feel a little afraid.
He [the witness] also looks up, and he sees this Defendant standing on the balcony, having a handgun, pointing it down, and he had, shoots two three times. He sees the dirt flying. He hears gunshots. Perhaps the only person there that did not see the gunshots, did not feel any fear at all about what was going on is the Defendant himself, because he wasn’t looking where he was shooting. He wasn’t standing on the ground. He wasn’t feeling the vibrations. (Emphasis added.)

McIntosh’s counsel objected to the prosecutor’s remarks on Fifth Amendment grounds, contending that McIntosh was the only person who could refute the remarks. He also submitted that the prosecutor’s comments were not within the proper scope of opening statement because the comments ventured into speaking of sights, feelings, and emotions of McIntosh. Such arguments have no merit. In making his opening argument, the prosecutor knew the State had three witnesses (the two victims and a third witness) who would identify Tommy McIntosh as the person they saw on the second-story balcony, firing a gun while not looking in the direction that he was pointing the gun. Obviously, the State’s witnesses could fairly testify that, because they saw him shooting his gun from the balcony, Tommy McIntosh did not feel the vibrations on the ground, nor did he feel any fear about what was going on. The prosecutor’s opening remarks were fair inferences from the evidence he intended to, and did, present at trial. Accordingly, McIntosh’s Fifth Amendment right was not violated in these circumstances.

In his final argument, McIntosh asserts that the trial court erred in denying his request for new trial because extraneous information was brought to the jury’s attention during the deliberations, and undue influence was improperly brought to bear upon a juror. In support of Mcintosh’s motion, his aunt, Leanna Godley, averred that two jurors told her that, “if they did not vote for McIntosh’s conviction, they would be penalized.” Godley also stated that two jurors said that, during deliberations, some other jurors related McIntosh had been previously convicted of drug charges and sentenced, but had been released early. In addition, McIntosh offered testimony of a juror, Tamara Townsend, who asserted she felt threatened by another juror (Dr. Joseph Kueter), and if she had not felt like she would have been “penalized,” she would have voted not guilty. The trial judge called Dr. Kueter as a witness and the doctor denied making such threats, nor did he recall hearing any threats. Townsend further claimed that McIntosh’s earlier conviction was discussed and McIntosh should be given a stronger sentence because he “knows how to beat the system.”

McIntosh’s arguments bearing on juror misconduct are meritless. Regarding juror Townsend’s charge that alleged threats had been made during deliberations that caused her to fear voting in McIntosh’s favor, our law is clear that such juror testimony is impermissible. Rule 606(b) controls and reads as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. (Emphasis added.)

See also Fulmer v. State, 337 Ark. 177, 987 S.W.2d 700 (1999); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).

Concerning McIntosh’s final allegation that juror misconduct resulted from the jurors’ discussion of McIntosh’s earlier drug conviction and commutation of his sentence for same, we fail to see the error or any ensuing prejudice. McIntosh was tried as a habitual offender, thus, his prior conviction and sentence were before the jury. From the testimony taken at trial, it was obvious to the jury that McIntosh was not serving time when the present felony charges were filed, although he earlier had been awarded a fifty-year sentence. The decision whether to grant a new trial is left to the sound discretion of the trial court, and it is not reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). No such abuse of discretion or manifest prejudice was demonstrated in the instant case.

For the reasons set out above, we affirm.

THORNTON, J., not participating.

       While it is not argued, another reason H/cfesdiffers from the McIntosh case is that Rule 33.3 of the Rules of Criminal Procedure and Ark. R. App. P. — Crim. 2(a)(2) and (3)(b) were not in effect when the new-trial motions and notice of appeal were filed in Hicks. Then, Rule 36.22 contained the same language Rule 33.3 later adopted, but in 1995 when Hicks was tried, our criminal procedure and appellate rules did not encompass the “deemed denied” language our Criminal Appellate Rule 2(a) and (3) does now. However, even if it had, the trial court failed to rule on Hicks’s amended new-trial motion of December 20, 1995, and the amended motion would have been denied on January 19, 1996, the same day Hicks filed his notice of appeal. In other words, Hicks’s notice of appeal was a day early.

         Jurors Dr. Kueter and Kessmidge Daniels denied hearing (or making) any threats, although Daniels recalled hearing McIntosh had “tricked the system to get [out], so he needed to serve a longer term.”


author: Donald L. Corbin, Justice.

text:
    Nakia BAKER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    99-526
    8 S.W.3d 499
    Supreme Court of Arkansas
    Opinion delivered January 13, 2000

      Blackmon-Solis & Moak, L.L.R, by: DeeNita Moak, for appellant.

      David K. Overton, for appellees.

      Kathleen O’Connor, Attorney Ad Litem for appellee minors.
   Donald L. Corbin, Justice.

Appellant Nakia Baker appeals the judgment of the Pulaski County Chancery Court terminating her parental rights to her children D.R., age 8, and C.R., age 6. For reversal, Appellant argues that the chancellor erred: (1) in finding that there was sufficient evidence to terminate her parental rights, and (2) by not placing the children with their maternal grandmother. Counsel for Appellant also seeks attorney’s fees on appeal. The payment of such fees presents a significant issue in need of clarification or development of the law; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(5). We affirm.

Facts and Procedural History

Appellant’s minor children were taken into custody by Appellee Arkansas Department of Human Services (“DHS”) on April 29, 1997. An emergency hearing was held on May 7, 1997, and the chancery court found that DHS had probable cause to bring the children into foster care. Evidence was introduced that Appellant had left the children with a friend, but then failed to return and pick them up. There was also evidence that C.R. had reported being sexually abused by Appellant’s ex-boyfriend, who is also the custodial father of Appellant’s two minor daughters. The chancellor ordered Appellant to submit to a psychological evaluation to determine what type of services, if any, she may need. Appellant was also ordered to attend parenting classes, submit to random drug screens, and obtain stable housing and employment.

An adjudication hearing was held on June 23, 1997, and the record reflects that there was testimony by the children involving allegations of sexual abuse. There was also testimony from the children’s foster mother regarding the children’s sexualized behavior, as well as the emotional problems they were experiencing. The chancellor found that the minor children were dependent-neglected and ordered that they remain in the custody of DHS. The court continued her orders from the emergency hearing, and further ordered Appellant to attend outpatient counseling with her children. At the conclusion of the hearing, the court specifically warned Appellant to cooperate with DHS or face losing her children permanently.

In response to the chancellor’s orders, DHS instituted a family preservation case plan for Appellant and her children with the goal established as reunification. A review hearing was held on October 13, 1997, to determine if Appellant was complying with the chancellor’s orders. It was revealed that Appellant had failed to attend outpatient counseling with either child after repeated request by the therapist. Testimony by the DHS caseworker also indicated that Appellant had missed two separate appointments for drug and alcohol assessments. C.R.’s therapist testified that the child was suffering from post-traumatic stress disorder and suffered from a history of sexual abuse, as well as a history of neglect. The therapist also testified that if the goal in the case was reunification, it would be necessary for the primary care giver to participate in therapy sessions.

A second review hearing was held over four months later on March 2, 1998. C.R.’s therapist testified that Appellant had started attending her son’s therapy sessions in January. The therapist also testified that C.R. required incredible structuring and consistency, as well as constant supervision due to his tendencies to inappropriately touch other children.

Appellant testified that she was not currently employed due to health problems. She further testified that since September 1997, she had held four different jobs, the longest one was for a month and a half. Appellant admitted that she had not become involved in C.R.’s therapy until January, but blamed her lack of participation on the fact that she was depressed. She asked the chancellor to give her some more time to prove that she could be a productive parent. The chancellor agreed to Appellant’s request and set the termination hearing for five months later. The chancellor, however, cautioned Appellant that termination of her rights would become the goal if Appellant failed to make any progress in the case.

The termination hearing was subsequently held on August 10 and September 14, 1998. The children’s foster home case manager testified that of the eighteen visitations scheduled, Appellant missed ten of those visits. Furthermore, Appellant frequently failed to notify anyone that she was not showing up for visitation, leaving her children with the expectation that they were going to visit with their mother. Both the case manager and the children’s foster mother testified that after Appellant failed to show up for visitation both children would become upset. D.R. tended to bottle his emotions up, while C.R. would become extremely aggressive, and it would sometimes take days to calm him down. During one of the visits that Appellant attended, she admitted to the case manager that during her previous visit, she had been in a bad mood and had taken some Valium and that people in the car with her had been smoking marijuana.

C.R.’s therapist testified that Appellant had become more involved in the child’s therapy sessions until the middle of May 1998; after that date her attendance declined. The therapist admitted that he saw some improvement in Appellant’s parenting skills, but further explained that such improvement was often short-lived, and he would then see recurrences of the same problems. He also testified regarding examples of situations where Appellant exhibited poor judgment in dealing with C.R., including bringing her fiance and his daughter to a therapy session. Finally, the therapist testified that after a session attended by both Appellant and her fiancé, he discovered a substance he believed to be crack cocaine. Appellant, however, denied that it belonged to her or to her fiancé.

A representative from Suspected Child Abuse and Neglect (“SCAN”) testified regarding her agency’s repeated attempts to offer in-home parenting services to Appellant. As of February 1998, Appellant had only participated in two sessions, even though SCAN had made ten attempts to schedule appointments. The representative also testified that SCAN is only required to make two attempts at arranging parenting classes before a parent is put on an inactive list. Finally, the SCAN representative reported that the house Appellant was residing in had no stove, no refrigerator, and no beds and was in need of major repairs. Appellant testified that she had missed visitation and therapy sessions due to health problems, as well as transportation problems. She blamed her inability to arrange parenting classes on conflicts with her schedule. She also argued that she was unable to avail herself of the parenting classes because SCAN discontinued the program. Appellant admitted, however, that after the SCAN program ended, her DHS caseworker provided her with a referral to Next Step Teen Parenting.

Appellant also alleged that the DHS caseworker failed to return her calls. The DHS caseworker testified, however, that he repeatedly attempted to contact Appellant, but that her phone was usually disconnected and the pager number she provided to him was incorrect. He also testified that he was aware of only two drug screens performed on Appellant, both of which were negative, even though he set up several other appointments for the drug screens and arranged transportation for Appellant. The caseworker concluded his testimony by recommending the termination of Appellant’s parental rights. At the conclusion of the hearing, a report from Bridgeway Hospital was also admitted after C.R., who was five years of age at the time, had tried to hang himself with the belt from his robe. During the four weeks that C.R. was in Bridgeway, Appellant did not visit him at all, even after the staff encouraged her to visit the child.

After taking the matter under advisement, the chancellor issued a letter opinion on October 7, 1998, terminating Appellant’s parental rights pursuant to Ark. Code Ann. § 9-27-341 (Supp. 1997). The court recognized that Appellant had made some efforts to comply with her previous orders, but that such attempts had been inconsistent and none of the orders sought to rehabilitate her were ever completed. The chancellor further stated that Appellant’s failure to visit with the children on a consistent basis had hurt both children, as evidenced by C.R.’s suicide attempt. The chancellor specifically found as follows:

The Court cannot say that Ms. Baker has made a good faith effort to try to rehabilitate herself or that she would suddenly begin following the Court’s orders and actually rehabilitate herself within a reasonable amount of time consistent with both children’s health, safety, and welfare. Both children have serious behavior problems, particularly C.R., which must be dealt with consistendy and daily. Ms. Baker has shown a complete lack of understanding as to her children’s needs and her level of participation.

An order terminating Appellant’s parental rights was then entered on January 12, 1998. This appeal followed.

Standard of Review

Our law is well settled that when the burden of proving a disputed fact in chancery is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. J.T., 329 Ark. 243, 947 S.W.2d 761. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Id.

Termination of Appellant’s Parental Rights

For her first point on appeal, Appellant argues that there was not sufficient evidence to terminate her parental rights. Appellant alleges that the chancery court’s finding that she failed to complete any of the orders aimed at reunification was a blatant misstatement of the history of the case. Appellees DHS and the minor children, through their attorney ad litem, argue that there was clear and convincing evidence to prove that DHS put forth meaningful efforts to rehabilitate the conditions that led to the removal of the children, but that Appellant failed to avail herself of those services. We agree with Appellees.

Section 9-27-341 requires that an order terminating parental rights must be based on clear and convincing evidence. Subsection (b)(2) sets forth the grounds for terminating parental rights, which include in part:

(A) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months, and, despite a meaningful effort by the Department of Human Services to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.

This court has held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J. T., 329 Ark. 243, 947 S.W.2d 761; Anderson, 310 Ark. 633, 839 S.W.2d 196; Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984). Termination of parental rights is an extreme remedy and is in derogation of the natural rights of the parents. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); J.T., 329 Ark. 243, 947 S.W.2d 761; Anderson, 310 Ark. 633, 839 S.W.2d 196. This court recognized in J.T., however, that parental rights should not be allowed to continue to the detriment of the child’s welfare and best interest. To illustrate that the best interest of the child is the primary consideration in these cases, this court in J. T. stated:

While we agree that the rights of natural parents are not to be passed over lightly, these rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. Parental rights will not be enforced to the detriment or destruction of the health and well-being of the child.

Id. at 248, 947 S.W.2d at 763. Subsection (a) of section 9-27-341 sets forth in relevant part the intent behind the law governing termination of parental rights:

The intent of this section is to provide permanency in a juvenile’s life in all instances where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that return to the family home cannot be accomplished in a reasonable period of time.

Here, Appellant’s repeated failure to comply with the chancery court’s orders designed to remedy the problems that warranted removal in the first place is the exact type of situation this statute was designed to remedy. In her attempt to argue that the chancery court misstated the history of this case, Appellant sets forth examples of efforts she made to comply with the court’s orders. What Appellant fails to realize, however, is that her mere attempts constituted nothing more than sporadic compliance at best. Appellant has failed to show any consistent improvements in terms of visitation, employment, or housing. In fact, her pattern of inconsistent visitation continued to harm her children even while they were not in her custody. In Crawford v. Arkansas Dep’t of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997), this court upheld the termination of parental rights in a case where the evidence indicated that the parent failed to maintain reasonable contact with his sons for almost a year while they were in protective custody. Likewise, Appellant has failed to maintain significant contact with her sons over the past year or to remedy the other problems that led to the removal of her children from her home.

Appellant’s attempts to place blame for lack of improvement with DHS is also unpersuasive. Appellant’s testimony regarding her attempts to comply with the chancellor’s orders conflicted with the testimony of therapists and caseworkers. This court has said that we will defer to the chancery court’s evaluation of the credibility of witnesses. Wade, 337 Ark. 353, 990 S.W.2d 509. Here, the chancellor found that the testimony of the therapists and caseworkers was more credible than the testimony of Appellant. A review of the record combined with the deference granted to the chancellor establishes that such a finding was not clearly erroneous.

Appellant also argues that the chancery court did not find that she was an unfit parent, and thus, her rights should not be terminated. Her argument ignores this court’s decision in J.T., 329 Ark. 243, 947 S.W.2d 761, where we held that the court’s finding that the appellant was unable to be the type of parent that her child needed and was unable to learn how to be that parent was a sufficient finding of her unfitness. Testimony throughout the hearings held in this case repeatedly indicated that Appellant’s children needed consistency and supervision above all else. Appellant’s actions, or lack thereof, evidenced the fact that she was unable to provide her children with either consistency or supervision. Again, a review of the record does not indicate that the chancellor erred in finding that Appellant was unable to provide the type of setting that her children required. Based on the foregoing, we affirm the chancellor’s order terminating Appellant’s parental rights.

Denial of Placement with the Maternal Grandmother

For her second point on appeal, Appellant argues that it is standard practice in dependency-neglect proceedings for family members to be considered as placements for children who would otherwise enter or remain in the foster care system or be adopted outside of their biological parent’s families. As the children’s attorney ad litem points out, however, Appellant failed to make any formal motions requesting that the children be placed with her mother. Furthermore, the maternal grandmother never intervened in this action to seek placement of the children with her.

This court held in Anderson, 310 Ark. 633, 839 S.W.2d 196, that when the circumstances reveal a studied indifference to the child, termination must result. Based on that holding, it would be illogical for this court to now hold that the chancery court erred in refusing to place the children with the maternal grandmother when the evidence revealed an indifference to the children’s welfare on her part. The chancellor heard testimony regarding the maternal grandmother’s refusal to accept placement of the children when DHS initially took them into custody. The grandmother attributed her initial refusal to using “tough love” on her daughter so that she would work to get her children back. There was also evidence presented at the hearings, however, that revealed a lack of visitation on the grandmother’s part while the children were in foster care. The DHS case manager testified that while the grandmother agreed to accept placement of the children, she did not appear to really want the responsibility of dealing with the children. Finally, even when the grandmother testified about her willingness to take the children, she focused the situation on her daughter’s needs, not the needs of the children.

In matters involving the welfare of young children, the appellate court gives great weight to the trial judge’s personal observations. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993); M.T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). The chancellor relied on the above-enumerated testimony in declining to place the children with their maternal grandmother. Obviously, the chancellor had the benefit of witnessing first hand the grandmother’s behavior and participation during the pendency of this case; therefore, we cannot say she clearly erred in refusing to place the children with the maternal grandmother.

Payment of Reasonable Attorney’s Fees

For her third point on appeal, Appellant argues that the chancellor erred in denying the motion for attorney’s fees for work performed on this appeal. Appellant’s counsel in the present matter was appointed by the chancellor pursuant to Ark. Code Ann. § 9-27-316 (Repl. 1998), which requires appointment of counsel for indigent parents in termination cases. The order appointing counsel to represent Appellant specifically stated that the appointment was for all stages of the proceedings, through appeal. Counsel filed a motion for attorney’s fees with the chancery court on June 28, 1999. The chancellor refused to pay Appellant for any work performed after the notice of appeal was filed, because she found that her court no longer had jurisdiction over the case.

Appellant argues that requiring counsel to represent an indigent parent pro bono in a termination case amounts to an unconstitutional taking. We agree. This court has held that the services of an attorney are a specie of property subject to Fifth and Fourteenth Amendment protection. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). In Arnold, this court held that the appointment of counsel in criminal cases results in a taking of the appointed counsel’s property for which he must be justly compensated. Id. We recognize that termination cases are civil in nature. The principles that require payment of attorney’s fees for representing an indigent criminal defendant, however, are applicable to termination cases as well. See Phillips v. Arkansas Dep’t. of Human Servs., 64 Ark. App. 201, 980 S.W.2d 276 (1998). It would, therefore, be unconstitutional for the chancellor to appoint counsel to represent Appellant, and then deny that counsel reasonable payment for services rendered.

Counsel for Appellant previously filed a motion with this court to withdraw as counsel on appeal, or in the alternative for attorney’s fees. We denied her motion to withdraw as counsel. We reserved ruling on the motion for attorney’s fees. In accordance with the foregoing opinion, we now request counsel for Appellant to submit an affidavit to this court setting forth the following information: (1) the date of appointment; (2) the court which appointed counsel; (3) the number of hours expended by counsel in research, court appearances, and preparation of pleadings and briefs; (4) counsel’s customary rate of compensation in similar cases; (5) the customary rate of compensation in similar cases of attorney’s in the community; (6) expenses incurred by counsel which are directly attributable to the case; (7) the experience of counsel in the representation of indigent parents; and (8) the relative complexity of the case. This affidavit shall be filed no later than thirty days after the issuance of the mandate.

Affirmed.

Glaze, J., dissents.