author: Robert H. Dudley, Justice.

text:
    John BROWN, Jr. v. STATE of Arkansas Reginald Early & Tina Jimerson v. STATE of Arkansas
    CR 93-189
    869 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994
    [Rehearing denied February 14, 1994.]

      Robert N. Jeffrey, for appellant John Brown.

      William M. Howard, for appellants Reginald Early and Tina Jimerson.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Myrtle Holmes was found murdered on September 22, 1988. The evidence at the scene showed that she had been beaten and stabbed while inside her home and that her body was then placed in the trunk of her car. A year and one-half later, on March 16, 1991, the State charged Charlie Vaughn, and appellants John Brown, Jr. and Reginald Early, with capital murder in three separate informations. A little over a week later, on March 25, 1991, Charlie Vaughn pleaded guilty to murder in the first degree and was sentenced to life in prison. Vaughn’s guilty plea implicated appellants Brown and Early and also implicated appellant Tina Jimerson. On March 27, 1991, appellant Tina Jimerson was charged as an accomplice in a separate information. On July 12, 1991, the State moved to consolidate the cases since all three would require proof of the same facts. On July 19, 1991, separate defendant Tina Jimerson objected to consolidation, and, at the same time, moved for a severance. In an order dated July 17, and entered on July 23, 1991, the trial court ordered the cases consolidated for trial purposes. A jury trial ended in a mistrial. The informations were amended to charge appellants with first degree murder and aggravated robbery. A jury returned verdicts of guilty for all three appellants on both charges and sentenced each to life in prison on both of the charges. Appellants Early and Jimerson, together, have filed an appeal, and appellant Brown has filed a separate appeal. We have consolidated the appeals and address all assignments of error in this one opinion. There is no reversible error, and we affirm the three judgments of conviction on both charges.

We first address appellant Brown’s points of appeal. He initially argues that the trial court erred in denying his motion for a directed verdict on the ground that accomplice Vaughn’s testimony was not corroborated. Even though independent evidence indicated that appellant Brown was near the victim’s home in Fordyce about the time of the murder and also showed that, immediately after the murder, he had blood on his clothes, and even though another witness testified that she overheard appellant Brown tell what he had done to the victim, we do not reach the argument because appellant did not raise lack of corroboration as a ground for a directed verdict, and he cannot raise it for the first time on appeal. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). The record shows that at the close of the State’s case he moved for a directed verdict without specifying a ground, and, at the close of all the evidence, he moved for a directed verdict on the grounds that “there was no physical evidence . . . tying [appellant Brown] to this alleged crime and there was no witness placing him at the scene.” Appellant Brown did not make an argument about accomplice corroboration, did not ask the trial court to declare Vaughn an accomplice, and did not ask the trial court to charge the jury about the necessity of accomplice corroboration. See AMI Crim. 401 and 402.

Appellant Brown’s second argument is that the trial court erred in not granting his motion to dismiss because of prosecutorial delay in filing charges. The argument is without merit both procedurally and substantively. Procedurally, the trial court ordered that all pre-trial motions be filed by June 26, 1992, in order that hearings, if necessary, could be held before the scheduled trial date. Even though this motion to dismiss was clearly a matter that would require proof, it was not filed until the second day of trial, and the trial court correctly ruled that it was not timely filed. See Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). Substantively, the limited proof on the matter showed that the investigation of the crime was ongoing until the information was filed in March 1990, and prejudice to appellant was not established. See Bennett v. State, 302 Ark. 179, 789 S.W.2d 436, cert. denied, 498 U.S. 851 (1990). In sum, appellant Brown’s assignments of error are without merit.

Appellant Tina Jimerson’s first point is that the trial court erred in refusing to sever her trial from that of the other appellants. The record shows that on July 19, 1991, she objected to the consolidation and, at the same time, moved for a severance. The trial court ordered the cases consolidated. The trial court signed the order of consolidation on July 17, and it was entered on July 23, 1991, but appellant Jimerson never again raised the issue.

Appellant Jimerson cannot now challenge the denial of her pretrial motion for severance. Rule 22.1 (b) of the Arkansas Rules of Criminal Procedure provides that “[i]f a defendant’s pretrial motion for severance was overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.” Appellant Jimerson failed to renew the motion at the trial in August 1992 and, under the rule, waived any right to a severance. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).

Next, appellants Jimerson and Early together argue that the trial court erred in allowing the testimony of a witness named Michael Early. The facts surrounding the argument are as follows. The prosecuting attorney listed Michael Early as a witness for the State and five days before trial gave appellants a copy of a statement made by Early. At the trial the prosecutor asked Early about matters that were not contained in the statement. Appellants argue that they were misled by the prosecutor’s actions and, as a result, were not prepared for the witness’s testimony. Therefore, appellants assert the trial court erred in refusing to exclude any testimony about any subject not included in the statement. The argument is wholly without merit.

Rule 17.1 (a) of the Arkansas Rules of Criminal Procedure, in the part material to these cases, requires the prosecutor to disclose the names and addresses of the State’s witnesses. The prosecutor supplied this information. The next requirement is set out by Ark. Code Ann. § 16-89-115 (1987), which provides that after a witness called by the State has testified on direct examination, the court shall, on motion of the defendant, order the State to produce any relevant statement of the witness in its possession. Here, appellants are asking that the prosecutor be required to supply the written statements before the trial. They cite no authority for the argument, and there is none.

Appellants Jimerson and Early next contend that the evidence introduced at trial is insufficient to sustain their convictions. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). However, in determining the sufficiency of the evidence, this court need only look at that evidence most favorable to appellee and consider only that testimony which supports the verdict. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993).

Here, there is substantial evidence of both crimes. Charlie Vaughn pleaded guilty to the murder, and at the time of his plea, testified that the three appellants “wanted to do a robbery.” He said appellant Jimerson drove the foursome to the victim’s home where appellant Brown entered through a window and let appellants Early and Vaughn inside. Jimerson remained in the car. Vaughn further testified that they looked for and found money which they took. He stated that appellant Brown beat the victim, an elderly woman, with pots and pans and then raped her. He said he and appellant Brown then raped her, and appellant Brown slit her throat. Vaughn testified that he and Brown then took the body and placed it in the trunk of the victim’s car. In addition, Darrell Jenkins testified that appellant Early told him that he had killed the victim by hitting her with pots and pans and stabbing her. Michael Early’s testimony placed appellant Early near the scene close to the time the crime was committed. The testimony of three other witnesses, Taura Bryant, Lee Parsons, and Kenny Parsons, placed the three appellants together on the night of the crime, with appellant Jimerson driving the group. . Without question, the foregoing constitutes substantial evidence of the crimes for which appellants were convicted.

In their final point, appellants Jimerson and Early contend that the trial court erred in allowing Donald Smith to testify about hairs found in the victim’s hand. At trial, appellants objected to the witness’s testimony because of his lack of experience. The trial court ruled: “I think it’s a proper objection and I don’t know, but I think you will have to lay a foundation and show what his experience has been in the area or where his statistics come from.” The prosecutor continued questioning the witness without further objection. In short, the appellant’s objection was sustained. The prosecutor then laid a foundation apparently found acceptable by appellants because they did not further object. Since appellants received the relief that they requested, they have no basis upon which to raise the issue on appeal. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). In addition, when a question is repeated, and there is no objection, the matter is waived. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).

Pursuant to Rule 4-3 (h) of the Rules of the Supreme Court and Court of Appeals, an examination has been made of all other rulings adverse to appellants, and there is no reversible error contained in those rulings.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Albert LANGLEY v. STATE of Arkansas
    CR 93-908
    868 S.W.2d 81
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted on three counts of rape for having sexual intercourse with three girls, whose ages were nine, eight, and six. The judgment of conviction fixes appellant’s punishment at three consecutive life sentences. We affirm.

Appellant’s first point of appeal is that the trial court erred on all three counts by refusing to give one of his proffered instructions. The proffered instruction begins: “Albert Langley is charged with the offense of carnal abuse in the third degree.” Since appellant was charged with rape, not carnal abuse, the trial court correctly refused to give the instruction. In addition, camal abuse is not a lesser included offense of rape, Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992), and the trial court correctly charged the jury on the lesser included offense of sexual abuse.

Appellant’s next two points challenge the sufficiency of the evidence for the convictions for the rape of the eight-year-old and the six-year-old. The State established that appellant had all three of the children in his home on a number of occasions. The nine-year-old testified that on various occasions appellant had intercourse with her, her eight-year-old sister, and her six-year-old sister. She testified that appellant had intercourse with all three of the girls with the use of his penis, with a vibrator, and with a dildo. The nine-year-old girl drew a picture of the vibrator and the dildo. The police searched appellant’s residence and found a vibrator and a dildo beside his bed. The State introduced these items as evidence. The nine-year-old identified the exhibits as the ones used by appellant. The trial court ruled that the eight-year-old and the six-year-old children were not competent to testify. A medical doctor testified that all three girls had vaginal orifices that were abnormally large, and, in addition, that the eight-year-old had redness of the vaginal mucosa, and the six-year-old had a healing laceration on the wall of the vaginal opening. He testified that his medical findings were consistent with sexual abuse.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). The direct and circumstantial evidence is sufficient to sustain both of the convictions.

Pursuant to Rule 4-3 (h) of the Rules of the Supreme Court and Court of Appeals, an examination has been made of all other rulings adverse to appellant, and there is no reversible error contained in those rulings.

Affirmed.


author: Steele Hays, Justice.

text:
    Alice ELLIS v. John ELLIS, Administrator of the Estate of Peter Ellis, Deceased, and Union Pacific Railroad
    93-616
    868 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Virginia Atkinson, by: Roy Finch, for appellant.

      Maxie G. Kizer, P.A., for appellee.
   Steele Hays, Justice.

Alice Ellis appeals from an order of the probate court rejecting her claim that settlement proceeds of a personal injury to her late husband were marital property. The probate court held the funds belonged to his estate, to be distributed pursuant to probate law. That ruling was correct.

Peter Ellis sustained personal injuries while employed by the Union Pacific Railroad. While settlement negotiations were underway Ellis died from unrelated causes, survived by Alice Ellis, the appellant. The matter was eventually settled for $50,000 and the funds were interpled in the probate proceeding.

Mrs. Ellis filed a motion alleging that none of the proceeds were attributable to permanent injury or future medical expenses and, having been acquired during the marriage, were marital property rather than an asset of the estate. That motion was denied and the proceeds were declared to be a part of the estate of Peter Ellis.

On appeal Mrs. Ellis urges us to hold that settlement proceeds from a personal injury incurred by one spouse during the marriage are marital property. Mrs. Ellis concedes there is no precedent for her theory, but argues that since no part of the proceeds were allocated to permanent disability or future medical expense, the proceeds come within the meaning of “marital property” as defined by Ark. Code Ann. § 9-12-315 (1987) and should be distributed accordingly. She insists it was error for the probate court to hold that § 9-12-315 applies only in the event of a divorce.

Probate cases are reviewed de novo on the record. However, the decision of the probate court will not be reversed unless it is clearly erroneous. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).

The answer to the argument now asserted lies, of course, in the statute itself. The statute provides that for “the purpose of this section,” marital property shall be distributed one-half to each party at “the time a divorce decree is entered.” (Emphasis supplied.) Nothing in the statute suggests the legislature intended this provision to have any effect except with respect to divorce.

Mrs. Ellis suggests the law should not afford a surviving spouse a lesser interest in property acquired during marriage when the terminating event is death rather than divorce. But that may or may not be true. While the distributive share under probate law may not vary, the same cannot be said of the law of divorce, as the statute specifically empowers the chancellor to alter the distribution of marital property as the equities dictate.

Mrs. Ellis cites Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985), as touching on the question presented by this appeal. Mrs. Woods went to New Mexico to establish residency for purposes of a divorce action. The court of New Mexico asserted jurisdiction over the marriage, but not over the person of the defendant, a resident of Arkansas. Mrs. Woods later brought an action in Arkansas for alimony and a division of property. Citing Wood v. Wood, 54 Ark. 172, 15 S.W. 459 (1891), we held that a subsequent action for alimony and property would lie, observing that the General Assembly had created a new form of property in 1979 as defined in § 9-12-315 and enforceable independently of divorce. That holding recognizes an independent action for marital property between former spouses, but beyond that, it has little relevance to this case, as the underlying cause was still divorce and not distribution by reason of death. That opinion in no way implies that spousal rights in “marital property” are intended to have viability other than in divorce proceedings.

Mrs. Ellis also cites several other decisions, Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991), Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984) and Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W.2d 57 (1922), as authority for the rule that personal property can be held by the entirety and pass to a surviving spouse by operation of law. True enough, but those cases involve facts and properties of a different sort. Mrs. Ellis’s claim is distinguishable in that it is governed entirely by statute. Indeed, except for statute there would be no proceeds. At common law even the claim of Peter Ellis abated at his death. Miller v. Nuckolls, 76 Ark. 485, 89 S.W. 88 (1905). It is only by statute that such claims exist at all after the death of the injured party or, for that matter, the death of the tortfeasor. Id. It follows that those same statutes prescribe the terms and conditions of survival. Ark. Code Ann. § 16-62-101 (1987) addresses the survival of actions for injuries to the person or property of an individual where death is not the result of the wrongful act [See § 16-62-102 (1987)] and vests the surviving cause of action in an executor or administrator. The statute contemplates that any recovery thereunder belongs to the estate of the deceased.

In Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984), we stated the heirs of a decedent had no standing to bring a lawsuit for damage to a truck belonging to the decedent after the decedent’s death from unrelated causes. Since the heirs had no standing to bring the action, they cannot benefit directly from a recovery for such an action. Further, survival claims “seek compensation for injuries sustained by the decedent himself prior to death, and any recovery is for the benefit of the estate.” First Commercial Bank, N.A., Little Rock v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

Section 16-62-101 provides that the executor or administrator shall bring the action and there is no provision which excludes any recovery from the assets of the estate. Thus, these statutes clearly provide that any recovery pursuant to § lb-62-101 belongs to the estate of the deceased. Similarly, any recovery from a settlement for an action which the executor or administrator would be required to bring is for the benefit of the deceased’s estate. Since Mrs. Ellis could not bring the personal injury action, her claim to the proceeds of the settlement is by way of the estate.

For the reasons stated the order is affirmed.


author: Tom Glaze, Justice.

text:
    Donald Barry PENNINGTON v. Betty Bryant PENNINGTON
    93-595
    868 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      The Perroni Law Firm, by: Rita S. Looney and Samuel A. Perroni, for appellant.

      Wilson, Engstrom, Corum, Dudley & Coulter, by: Stephen Engs'trom, for appellee Harvest Foods.

      Kaplan, Brewer & Maxey, by: Philip E. Kaplan, for appellee Betty Pennington.
   Tom Glaze, Justice.

This case, a chancery court appeal, was precipitated by an earlier circuit court case filed by Harvest Foods, Inc. against Don Pennington. In that case, Harvest Foods alleged that Pennington, Harvest Foods’ CEO, and others collusively schemed to increase the price of Harvest Foods’ products and that they wrongfully diverted part of those increased prices into an account held in the name of Capitol City Marketing, a company controlled by Pennington.

. During discovery in the circuit court litigation, Harvest Foods deposed Pennington’s former wife, Betty, who refused to respond or release any document which would divulge information covered by a protective order which had previously been entered in the Penningtons’ divorce action. Harvest Foods filed a motion to compel Betty to produce all financial information it had requested in deposition, and the circuit judge granted Harvest Foods’ motion. The judge, however, held his order compelling production in abeyance until Harvest Foods first asked the chancery court to release this same information under its earlier protective order. Accordingly, Harvest Foods intervened in the Penningtons’ divorce action and requested the chancellor to rescind his protective order, which the judge did over Don’s objection.

Don subsequently brought this appeal from the chancery judge’s order, rescinding the protective order entered in the Penningtons’ divorce case, and argues the chancellor’s ruling violates Don’s Fifth Amendment privilege. The parties agree that, while this matter was pending on appeal, no stay of the chancellor’s order was requested or granted and that Harvest Foods now has possession of the information it had requested of Betty Pennington.

Harvest Foods first argues that this appeal is moot because the information it sought has been released and because Harvest Foods now has that information, there is nothing left to litigate. We must agree.

This court has held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Arkansas Intercollegiate Conference v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992). There are exceptions to the doctrine of mootness, see Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), but none of those exceptions require us to decide this case. See also Arkansas Intercollegiate Conference, 309 at 174, 828 S.W.2d at 831.

Although Don Pennington argues the court’s decision in this appeal could have a legal effect on his case against Harvest Foods now pending in circuit court, we point out that at least part of the argument made by Pennington in this appeal is only applicable to the chancery court matter, and the manner in which it procedurally arose in that court after having been referred by the circuit court judge. In addition, we simply are unable to predict the exact issues that may arise in the parties’ pending : circuit court litigation or how that court might rule on those matters. Accordingly, we affirm this case on appeal because of mootness.

       In oral argument, Pennington also suggested that a public interest exists in receiving guidance concerning what a trial court should do in deciding when to enter a protective order and on what basis that order may be rescinded. Again, we see the issue posed as one which is largely peculiar to the facts as they were developed below, and while the issue may be of great interest to Mr. Pennington and of some interest to a few others, we fail to see how the case involves the public interest as this court has required in its prior cases; nor do we view the issue as one involving a significant legal principle.


author: Donald L. Corbin, Justice.

text:
    Edward KINNEY v. STATE of Arkansas
    CR 93-762
    868 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Edward Kinney, was convicted by a Saline Circuit Court jury for the murder and rape of a seven-month-old child. Appellant was sentenced to life imprisonment for first degree murder and forty years imprisonment for rape, the sentences to run consecutively. It is from these judgments of conviction that appellant appeals. Appellant relies on three points for reversal. Appellant argues the trial court erred in (1) allowing pictures of another child’s injured penis to be shown to the jury, (2) allowing the state medical examiner to testify regarding possible causes of death, and (3) denying appellant’s motion for directed verdict alleging insufficiency of the evidence to sustain the first degree murder conviction. We find no merit and affirm the judgments of conviction.

“[W]e have determined that preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors.” Smith v. State, 310 Ark. 247, 250, 837 S.W.2d 279, 281 (1992). Thus, we consider the challenge to sufficiency of the evidence first.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). On appeal, the evidence is reviewed in the light most favorable to appellee. Id. The conviction will be sustained if the evidence is of sufficient force and character to compel reasonable minds to reach a conclusion and must pass beyond suspicion and conjecture. Id.

The crime of first degree murder is defined in Ark. Code Ann. § 5-10-102(a)(3) (Supp. 1993):

(a) A person commits murder in the first degree if:
(3) He knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed.

The evidence, as viewed in the light most favorable to appellee, reveals that the victim, a seven-month-old boy, died on May 11, 1992, due to suffocation after being in the care of appellant. An investigator presented, without objection, a signed statement of appellant taken June 23, 1992:

The day [the child] died I was mad at [my wife] and also mad at him for crying and screaming. I put him on my chest and held him there to muffle his crying for around 3 to 5 min[utes]. I did this too long and too hard. He stopped wiggling for a pretty good while; so I put him in his crib and noticed he was a little pale. I went back in a little while later and noticed he was yellow so I started CPR. After doing this for a while I grabbed him up and went to Karla’s, where she dialed 911.1 feel that I unintentionally caused the death of [the child].

The mother testified that she was the last person, other than appellant, to handle the child the night before he died and did not remember any abnormalities to the child’s genitals. A neighbor testified that she was the child’s babysitter and saw the child nearly every day. She testified that she saw the child the day before he died, on Sunday, May 10,1992. She testified she had known appellant since he had moved in with the child’s mother in February. She stated that the next day, May 11, 1992, at about 8:20 in the morning she heard the child screaming next door for two or three minutes. At about 8:50 appellant came to her home, slung the door open, and threw the child at her saying he could not breathe. She attempted to perform CPR and called 911.

The maternal grandmother testified that she kept and bathed the child the Sunday before he died. She noticed no rash or abnormality in the genital area. The only noticeable problem to the grandmother was that the baby was congested for which the family had been giving him cough symp. An emergency medical technician testified that after they retrieved the child from the neighbor’s home he was transported to Saline Memorial Hospital.

The child was pronounced dead at the hospital. The evidence reflects that contusions and bruises were first noticed on the child’s penis at the hospital by one of the emergency medical technicians. This was confirmed by Dr. Archer, the emergency room physician, who stated that none of the emergency procedures would have caused injuries to the genital area. The physician who performed the autopsy, Dr. S turner, testified that the injuries to the child’s penis were less than 24 hours old and were consistent with a bite. This was corroborated by the testimony of Drs. Froede and Martindale. A forensic odontologist, Dr. Campbell, used a demonstrative picture of another child over appellant’s objection and testified that the child’s injuries were human bites.

One witness, a dentist, opined the injuries were not human bite marks. This dentist testified he had never reviewed a case for the state crime lab which involved bite marks to the genital area. The evidence further reveals that appellant made a statement to investigators that about two months before the child’s death he had masturbated the child out of curiosity to see if the child’s penis would become erect. Appellant denied causing any injuries to the child’s penis.

Dr. Sturner, who performed the autopsy, testified that the cause of death was uncertain but did express an opinion as to the possible cause of death, traumatic compression asphyxia (suffocation). Dr. Froede corroborated this testimony by opining to a reasonable degree of medical certainty that the cause of death was asphyxia due to compression of the chest.

The foregoing evidence is substantial evidence and supports the jury’s verdict. The trial court did not err in denying appellant’s motion for directed verdict on the charge of first degree murder.

Appellant’s second argument for reversal relates to the trial court’s admission into evidence of a photograph of another child’s jpenis which exhibited bite marks. This picture was shown to the jury by Dr. Campbell, a forensic odontologist, to demonstrate bite marks on a penis. The jury was instructed that the pictures were from another case and not the present victim. Appellant claims the picture was irrelevant and was used to inflame the jury. Further, appellant alleges that if there were any relevancy to this picture, it is outweighed by unfair prejudice under Ark. R. Evid. 403.

The trial judge, upon objection from appellant, took a fifteen minute recess to hear in chambers arguments regarding this photograph. Dr. Campbell explained to the judge that he used his previous experience, the photograph in question being one of those cases, to determine the origin of bite marks. The questioned photograph was known to be that of bite marks on an infant’s penis because the perpetrator in that case admitted to doing so. The trial judge admitted the photograph for demonstrative purposes only, and the jury was informed that this photograph was not of the victim.

The admissibility of photographs is a matter within the sound discretion of the trial court, and we do not reverse its rulings unless it abused its discretion. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). “Even inflammatory photographs are admissible if they tend to shed light on an issue, enable a witness to better describe the objects portrayed, or enable the jury to better understand the testimony.” Hickson v. State, 312 Ark. 171, 175, 847 S.W.2d 691, 694 (1993). Interestingly appellant did not object to the admission and showing of several color photographs of the naked victim. The disputed photograph was allowed and explained to be from another case. Given the trial court’s consideration of the photograph and the purposes for which it was used, we cannot say the trial court abused its discretion. Accordingly, we affirm the trial court’s admission of the photograph into evidence.

Lastly appellant argues the State Medical Examiner, Dr. Sturner, should not have been allowed to testify regarding the possible causes of death asserting it was irrelevant, speculative, and without probative value. The autopsy report stated the cause of death was undetermined. However, after exploring and excluding sudden infant death syndrome, chronic infection, congenital defects, and metabolic disease, Dr. Sturner testified to a reasonable degree of medical certainty that the cause of death was consistent with traumatic compression asphyxia. The doctor came to this conclusion after being presented with the facts surrounding the morning of the child’s death as admitted by appellant and coupling this with the medical findings of the autopsy.

The trial court, in overruling appellant’s objection, stated that the jury could weigh the testimony and that it was probative to the state’s theory. We deem the explanation of possible causes to be, at worst, harmless error. Medicine, like law, is an inexact science, and testimony is not rendered speculative merely because the cause of death could not be stated with mathematical certainty. See American Life Ins. Co. v. Moore, 216 Ark. 44, 223 S.W.2d 1019 (1949). We cannot say the trial court abused its discretion in allowing the doctor to testify as to other possible causes of death.

Pursuant to Ark. R. Sup. Ct. 4-3(h), appellee has made certain that all objections decided adversely to appellant have been abstracted by the parties. We have determined that no issues of prejudicial error exist.

Affirmed.


author: Robert L. Brown, Justice.

text:
    McDONALD’S CORPORATION v. Marlin HAWKINS and Marvine Hawkins, His Wife
    93-641
    868 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Boswell, Tucker & Brewster, by: Dennis J. Davis, for appellant.

      Mark Cambiano, for appellee.
   Robert L. Brown, Justice.

The appellant, McDonald’s Corporation, appeals from a default judgment entered in favor of the appellees, Marlin Hawkins and Marvine Hawkins, his wife. The Hawkinses have declined to file a responsive brief. One issue is raised on appeal — whether a motion to set aside a default judgment is deemed denied within 30 days of filing under Ark. R. App. R 4(c). Because the chancellor apparently decided this issue in McDonald’s favor, we dismiss the appeal.

On August 9, 1992, the Hawkinses sold certain land in Conway County to McDonald’s. The parties also agreed to a restrictive covenant whereby the Hawkinses would not use adjoining land for restaurant purposes except for a “sit down restaurant connected with a hotel or motel” for a period of 20 years.

Thereafter, the Hawkinses filed a petition to abrogate the restrictive covenant as void against public policy. On November 4, 1992, a summons and petition were mailed to McDonald’s. The return receipt stated that the petition and summons were received and signed for by an appropriate representative of that corporation on November 6, 1992. The summons apparently warned McDonald’s, an out-of-state corporation, that it had 20 days to respond instead of 30 days. McDonald’s did not respond.

On December 17, 1992, which was 41 days after McDonald’s was served by mail, the Hawkinses submitted a default judgment voiding the restrictive covenant which the chancellor signed. On January 15, 1993, McDonald’s filed a motion to set aside the default judgment and contended that it had a “meritorious defense” to the petition in that service upon it was defective in warning that the response time was 20 days rather than 30 days. On March 4, 1993, the chancellor heard McDonald’s motion. At that hearing, the chancellor raised the question of whether the motion was deemed denied under Ark. R. App. R 4(c) because it had not been heard within 30 days from its filing. He requested briefs from the parties.

On April 12, 1993, the chancellor issued his letter opinion finding that: (1) the motion to set aside the default judgment was filed, within 90 days from the judgment; (2) the summons designating the 20-day response period was not so defective as to render the service void; (3) the erroneous response period rendered the service merely voidable; and (4) McDonald’s presented no justification for its delay in answering to warrant a setting aside of the judgment. The chancellor concluded that the default judgment should stand, and an order was entered denying the motion.

We first observe that the issue McDonald’s raises on appeal appears to have been decided in its favor. McDonald’s contends that its motion to set aside the default judgment is not a Rule 59 motion deemed denied 30 days from filing under Ark. R. App. P. 4(c), but rather a Rule 60 motion which can be filed within 90 days from judgment. The chancellor appears to have found exactly that in his letter opinion:

In reading both ARCP 55 and ARCP 60 with your excellent briefs I have concluded ARCP 60(b) grants 90 days within which to set aside a judgment for excusable neglect, among other reasons.

The chancellor then proceeded to address the merits of the motion.

This issue is, therefore, moot. Moreover, McDonald’s is not an aggrieved party with standing to raise the issue on appeal. Insurance from CNA v. Keene Corp, 310 Ark. 605, 839 S.W.2d 199 (1992). This court does not issue advisory opinions and declines to do so under the circumstances of this case. See Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993); Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); General Publishing Co. v. Erxleben, 283 Ark. 136, 671 S.W.2d 182 (1984); Beard v. Beard, 207 Ark. 863, 183 S.W.2d 44 (1944). We, accordingly, refrain from addressing the issue of whether the motion to set aside the default judgment was deemed denied 30 days from filing.

There is one further point. Ordinarily, this court reviews chancery cases de novo. See, e.g., City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993); Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993); Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993); Guaranty Nat’l Ins. v. Denver Roller, Inc., 313 Ark. 128, 854 S.W.2d 312 (1993). Yet, when there is no party that has been disadvantaged by an adverse ruling, there is no justiciable issue, and the appellate court has no jurisdictional basis upon which to entertain the appeal. That is exactly what confronts us in this case. McDonald’s prevailed before the chancellor on the sole point raised in this appeal and has no standing to prosecute the matter further at the appellate level.

The appeal, therefore, is dismissed.

Hays and Glaze, JJ., not participating.


author: Per Curiam.

text:
    James ASHMORE v. PACCAR, INC., d/b/a Kenworth Truck Company, Kenworth of Arkansas, Inc., John Doe #1, John Doe #2
    93-619
    868 S.W.2d 80
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Maxie G. Kizer, P.A., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   Per Curiam.

James Ashmore appeals from a summary judgment in favor of the appellee, Paccar, Inc. We must dismiss the appeal because not all of the claims against all of the parties have been resolved and there has been no certification pursuant to Ark. R. Civ. P. 54(b) that there is no need for delay in deciding the case with respect to the parties now before us.

Ashmore alleged he was injured when the hood latch of a Kenworth truck on which he was working malfunctioned and fell on him. He filed a product liability suit against Paccar, Inc., the truck manufacturer; Kenworth of Arkansas, the Arkansas corporation which sold the track to Bryant Tracking Company; Ash-more’s employer; and John Doe #1 and #2, unidentified defendants who may have improperly repaired the vehicle.

Paccar, Inc., answered on January 13, 1992, denying liability. Kenworth of Arkansas answered on February 26, 1992, denying liability. Travelers Insurance Company intervened on March 10, 1992, seeking recovery of workers compensation benefits paid Ashmore. Intervention was granted on April 3, 1992. Paccar, Inc., moved for summary judgment on July 7, 1992. The motion was granted April 26, 1993.

As provided in Ark. R. Civ. P. 54(b) when multiple parties are involved:

. . . the court may direct the entry of a final judgment as to one or more but fewer than all of the ... parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction any order or other form of decision, however designated, which adjudicates ... the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The failure to comply with Rule 54(b) presents a jurisdictional issue in this Court which we will raise on our own and, absent compliance with the Rule, we dismiss the appeal for lack of a final order. Parks v. Hillhaven Nursing Home, 309 Ark. 373, 829 S.W.2d 419 (1992); Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990); King v. Little Rock School Dist., 296 Ark. 522, 758 S.W.2d 708 (1988).

Appeal dismissed.


text:
    Carl PRINCE v. STATE of Arkansas
    CR 93-1020
    868 S.W.2d 77
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994
    [Rehearing denied February 14, 1994.]

      Carl Dwayne Prince, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.

      See per curiam opinion, not designated for publication.

   Per Curiam.

The appellant Carl Prince was convicted of burglary and theft and sentenced to fifty-five years imprisonment. His conviction was affirmed on appeal. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991). The appellant filed a petition for Rule 37 relief in the trial court which was denied. It is from that denial that this appeal is brought.

The appellant’s chief allegation is that he was tried in Crawford County for possession of stolen property and acquitted. He claims that the state used the charge of possession of stolen property to prove the burglary and theft charges for which he was convicted in Sebastian County in violation of his right to be free of double jeopardy.

When the appellant was convicted in 1990, Criminal Procedure Rule 37 was not in effect. See In the Matter of the Abolishment of Rule 37 and Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989) . Criminal Procedure Rule 37 was reinstated on January 1, 1991. In the matter of Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990) . Arkansas Rules of Criminal Procedure Rule 37.2(c) provides that if an appeal was taken of the judgment of conviction, a Rule 37 petition must be filed in the circuit court within sixty days of the date a mandate was issued by the appellate court. The appellant did not file his petition until two years after his case was affirmed on appeal. The appellant concedes that his petition is out of time but claims that his ground for relief would render the conviction absolutely void. When Rule 37 was reinstated the provision which had permitted relief in those instances where a ground was sufficient to void the conviction regardless of the timeliness of the petition was removed from the rule. Therefore claims of such a fundamental nature as to render the judgment void will no longer be heard unless filed within the time limit set forth in Rule 37.

Affirmed.


text:
    Luther MARTIN v. STATE of Arkansas
    CR 93-1314
    868 S.W.2d 466
    Supreme Court of Arkansas
    Opinion delivered January 10, 1994

      Jim Pedigo, for appellant. .
    No response.
   Per Curiam.

Luther Martin, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Jim Pedigo, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Rebecca J. MUNN v. Anthony R. MUNN
    93-459
    868 S.W.2d 478
    Supreme Court of Arkansas
    Opinion delivered January 18, 1994

      J. G. Molleston, for appellant.

      Woodward & Epley, by: David P. Price, for appellee.
   Jack Holt, Jr., Chief Justice.

This case concerns the proper apportionment and utilization of a lump-sum workers’ compensation disability settlement payment for child support, our guidelines for child support enforcement, and the extent of a chancellor’s discretion in refusing to entertain evidence of alleged financial impropriety and irresponsibility on the part of parties in litigation. We find the appellant’s arguments unpersuasive, and we affirm the chancery court’s judgment.

The appellee, Anthony R. Munn, sustained an injury in 1981 which left him disabled. He and the appellant, Rebecca J. Munn, were married in 1983. A child, Kristie Renee Munn, was born of the union in 1984. On November 11, 1991, Mr. and Mrs. Munn entered into a written separation, child custody, and property settlement agreement. Subsequently, on November 20, 1991, the parties were divorced.

Under the terms of the agreement, which was incorporated in the divorce decree, Mr. Munn was required to pay $150 per month in child support. At the time of the divorce, Mr. Munn had no job-related income but received about $580 in monthly Social Security payments and, since 1981, about $700 in monthly workers’ compensation total-disability benefits. The record reveals that the minor daughter, Kristie, received $30 per month from Social Security in separate payments based on Mr. Munn’s total disability from his 1981 work-related injury.

In December 1991, less than a month after the divorce, Mr. Munn received a lump-sum workers’ compensation settlement in the amount of $143,000. The matter had been pending since 1981, prior to the parties’ marriage. According to Mr. Munn’s testimony, he informed his attorney that he wanted to settle the case about five days before the actual settlement was accomplished. He acknowledged that, while he was married, he had told Mrs. Munn that he was not going to settle the workers’ compensation case.

Upon receiving the lump sum settlement, Mr. Munn purchased a Dodge Stealth sports car for $26,150. He bought the house he had rented for the previous five years for about $50,000. Mr. Munn also paid $10,000 for a certificate of deposit to be used for his daughter’s college education. He spent $34,600 acquiring Wal-Mart stock and the remaining $23,000 on various items.

In July 1992, following Mr. Munn’s filing of a petition for regularizing visitation, Mrs. Munn filed.her response and a petition for increase of child support, contending that there had been substantial changes in the circumstances affecting her former husband’s ability to pay child support — chiefly regarding the amount of the workers’ compensation lump-sum settlement and the. prior “material misrepresentation” on Mr. Munn’s part concerning the likelihood of a settlement.

A hearing was held before the Columbia Chancery Court on December 2, 1992. In a letter opinion filed on December 30, 1992, the chancellor noted that Mr. Munn had stated that his Wal-Mart investment did not result in a substantial increase in his income. “However,” the judge wrote:

he can elect to invest that amount in securities or other forms which would result in a regular income to him. If that investment provided a 7% return he would increase his monthly income from $609.00 to $813.00. That monthly income would require child support in the amount of $200.00 per month pursuant to the Domestic Relations Chart. He presently pays $150.00 and Social Security pays $30.00 per month. Therefore, the monthly child support payment of defendant should be increased to $170.00 per month.

That figure was recorded in the court’s order, which was entered on January 27, 1993. This appeal followed.

I. Stewardship capacity

For her first point for reversal, Mrs. Munn contends that the chancellor should have taken into consideration evidence of the respective capacities for responsible stewardship of the $143,000 lump-sum settlement payment that her former husband received after the divorce. This issue was not preserved for appellate review.

At the hearing, Mrs. Munn’s attorney endeavored to elicit testimony from her with respect to Mr. Munn’s problems with handling financial matters. Mrs. Munn stated that her former husband would “take checks out of the middle of my checkbook,” prompting counsel for Mr. Munn to raise a relevancy objection. Before the court ruled on the matter, Mrs. Munn’s attorney made the following response:

Well, Your Honor, child support is about how much of one person’s money the Court is going to allow another person to administer, and that’s why I’m asking these questions to give the Court evidence on who might be the best person to be allowed to administer the money that’s available to the family.

No attempt was made, beyond this rather general statement of purpose, to proffer any testimony on the subject. The trial court then sustained the objection, and Mrs. Munn acquiesced in the ruling, repeating the court’s admonition to her not to answer the question about the checkbook: “Oh, don’t answer it. Oh, excuse me.”

An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. Jackson v. Farm and Commercial Properties, 284 Ark. 130, 680 S.W.2d 105 (1984). Further, acquiescence renders any error harmless. Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).

In any event, the question of fiscal responsibility had no actual bearing on the subject matter of the hearing: whether an increase in child support was warranted. The lump-sum payment was made in settlement of a workers’ compensation claim that predated the parties’ marriage by three years. The question of which person exercised the greater money-management skills during the course of a troubled marital relationship was simply irrelevant to the issue of changed circumstances.

II. Settlement apportionment

In her second argument for reversal, Mrs. Munn urges that the chancellor abused his discretion in failing to apportion fifty percent of the lump-sum settlement as child support under Ark. Code Ann. § 11-9-110(d) (Supp. 1993) or, alternatively, in failing to apportion for periodic payments thirteen percent of the settlement amount, a figure drawn from the Per Curiam order, In Re Guidelines for Child Support Enforcement, 305 Ark. 613 (1991). Neither contention has merit.

A. Ark. Code Ann. § 11-9-110(d)

Under the circumstances of the present case, Ark. Code Ann. §11-9-110 is inapplicable. That statute provides in relevant part:

(a) The right to compensation shall not be assignable and shall not be subject to garnishment, attachment, levy, execution, or any other legal process except for child support obligations.
(c) On or after August 1, 1987, the commission shall forward monthly a computer tape, listing the name, address, and social security number, if available, on all persons for which the commission has established a file during the preceding month, to the Arkansas Child Support Enforcement Unit of the Division of Economic and Medical Services of the Department of Human Services. The computer tape shall also include the name of the workers’ compensation carrier and the name of the employer. The same information shall be provided to individuals who apply for the information with the commission on an individual employee to an individual certifying that they have an interest in the child support obligations of the employee on whom the information is requested.
(d) Amounts withheld from weekly compensation benefits for child support obligations shall not exceed twenty-five percent (25%) of the benefit amount. Amounts withheld from a lump sum settlement on a joint petition for child support obligations shall not exceed fifty percent (50%) of the settlement amount.
(g) For purposes of this section, “child support obligations” is defined as only those support obligations which are contained in a decree or order of the chancery court or county court which provides for the payment of money for the support and care of any child or children.

The definition of “child support obligations” in subsection (g) encompasses the $150 monthly child support payments required of Mr. Munn by the divorce decree in the present case. Section 11-9-110(d) allows up to fifty percent of a workers’ compensation lump-sum settlement to be withheld for child support obligations. However, the language in subsection (a) pertaining to the garnishment of benefits and “other legal process” necessarily implies a continuing court-decreed obligation as set forth in subsection (g), a failure of the obligated party to make regular payments, and an established right on the part of the entitled party to a withholding of the amount specified in a decree or order of the chancery or county court.

Subsection (c) provides a means for any party seeking enforcement of a child support obligation to receive information from the Workers’ Compensation Commission about an obligated employee. The individual requesting the information must certify to the commission “an interest in the child support obligations of the employee on whom the information is requested.” The information supplied is limited to the name, address, and Social Security number of the obligated employee, along with the names of the employer and the workers’ compensation carrier, and may be used in an application to a court for enforcement through legal process.

The record indicates that, at the time of the divorce, Mr. Munn was receiving workers’ compensation benefits in the amount of $163 per week. This, and other, income he received was used as the basis of the requirement in the divorce decree that Mr. Munn “pay the sum of $150.00 per month as reasonable child support.” It appears that he made regular monthly support payments and was not delinquent. The parties’ use of Mr. Munn’s workers’ compensation benefits in setting child support payments was entirely in keeping with the standards established by this court in the per curiam order, In Re Guidelines for Child Support Enforcement, supra.

Mrs. Munn, on the other hand, neither requested information on her husband under § 11-9-110(c) nor applied to any court, prior to the settlement, for the withholding of an amount for child support from Mr. Munn’s $700 monthly benefits under § 11-9-110(d). Having knowledge of her husband’s outstanding workers’ compensation claim, she failed to reserve in the decree any interest in any future settlement that Mr. Munn might make. Consequently, Mrs. Munn has no right now to ask the court to decide how the settlement money should be spent by her former spouse.

Because the provisions of the divorce decree were in effect and Mr. Munn had not shown any recalcitrance in complying with the child support requirement, the sanctions of § 11-9-110(d) were inappropriate. To read the statute as Mrs. Munn suggests would result in an anticipatory application clearly not intended by the legislature. The chancellor therefore did not err in failing to impose the penalty provided by subsection (d).

B. Guidelines for Child Support Enforcement

Urging an application of our May 13, 1991 Per Curiam, In Re Guidelines for Child Support Enforcement, supra, to the present circumstances, Mrs. Munn argues in the alternative that the chancery court abused its discretion in failing to utilize thirteen percent of the lump-sum settlement as a basis for reassessing child support. The Per Curiam on which she relies stated that when the payor’s income exceeds the amount shown on the extended child support chart, the court should disregard the chart and, where one dependent is involved, use the figure of thirteen percent of the payor’s monthly or weekly income (including Workers’ Compensation payments) to establish the amount of support.

The extent to which Mr. Munn’s income or earning capacity might have been affected as a result of his settlement was certainly relevant to the chancery court’s determination of whether a material change in circumstances had occurred which warranted an increase in child support. Here, the chancellor found that changed circumstances indeed required an increase, and he consulted the child support chart to obtain the appropriate figure. Of course, use of the chart and the criteria employed for deviating from it is not obligatory; reference to the chart, however, is mandatory. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

The chancellor calculated the amount of increased support on the basis of that portion of the lump-sum settlement represented by the Wal-Mart stock, applying a hypothetical investment yield and employing the child support chart. In his opinion letter, quoted earlier, the chancery judge rounded upward to $35,000 the $34,600 Mr. Munn had invested in Wal-Mart stock and posited a seven-percent return, thus arriving at a projected increase in monthly income from $609 to $813. Then, referring to the child support chart, the chancellor noted that an increase in support payments from $150 to $200 per month would be required. Because Mr. Munn was making regular payments of $150 monthly, while Social Security was providing $30 monthly, the court found that Mr. Munn’s obligation should be increased to $170 per month to reach the $200 figure set by the chart.

Because Mrs. Munn contends that the chancellor erred in setting an inadequate child-support award, it was her duty to present sufficient evidence, argument, and citation of authority to prove her assertion, particularly with reference to her claim regarding thirteen percent of the settlement. Thurston v. Pinkstaff, supra. Mrs. Munn has failed to show that the chancellor abused his discretion in estimating that a seven-percent return on Mr. Munn’s Wal-Mart stock would raise his monthly income from $609 to $813 or in determining, with reference to the child support chart, that the monthly payment should be $200. She has also failed to show that she was entitled to any portion of an award that had been made for a disability suffered prior to her marriage with Mr. Munn.

In addition to the data on the Wal-Mart stock, the chancery court had available for consideration evidence of Mr. Munn’s poor state of health (lupus contracted from a blood transfusion administered during surgery for his work-related injury, chronic back pain, and arthritis) and lack of earning capacity. State of health and earning capacity are factors to be considered in determining the amount of child support. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988).

We noted earlier that, aside from court-ordered support, Mr. Munn has attempted to provide for his daughter’s higher education by setting aside a $10,000 certificate of deposit, which further evidences his continuing commitment to ensure his child’s future security.

For these reasons, we cannot say that the chancellor abused his discretion.

Affirmed.


text:
    Nathaniel THOMAS v. STATE of Arkansas
    CR 93-520
    868 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered January 18, 1994

      Lea Ellen Fowler O’Kelley, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This is an appeal from the criminal convictions of Nathaniel Thomas for capital murder and first-degree murder. Appellant Thomas was charged by felony information on April 7, 1992, with three counts of capital murder for his role in the shooting deaths of Cyrus Lee, Sabrina Earl, and Marcus Johnson at an apartment in Little Rock on February 19, 1992.

He was tried before a jury on December 9 and 10, 1992, in Pulaski County Circuit Court and was found guilty of the capital murder of Cyrus Lee, and the first-degree murders of Sabrina Earl, a pregnant woman, and Marcus Johnson. Thomas received a sentence of life imprisonment without parole for the capital murder and two forty-year sentences for the first-degree murders. The trial court ordered the two forty-year terms to run concurrently together but consecutive to the life term.

On appeal, Thomas raises two points for reversal, one regarding the sufficiency of the evidence and the second concerning the admissibility of custodial statements. Neither argument has merit, and we affirm the judgment of the trial court.

I. Sufficiency of the evidence

In his first argument, Thomas contends that the evidence presented at trial was insufficient to establish that he had committed the crimes with which he was charged. Indeed, the proof at trial consisted primarily of Thomas’s own taped statements, given to police after his apprehension. It is Thomas’s contention that nothing he said to the officers could be considered sufficient evidence that he had acted with the purpose of furthering a homicide.

However, Thomas’s sufficiency argument was not preserved for appeal. He made a motion for a directed verdict at the close of the State’s case and then called his own witnesses. A defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled waives any further reliance upon the former motion. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).

At the conclusion of the case for the defense, Thomas’s attorney introduced a stipulation concerning expert testimony about blood on a jacket and tee-shirt. The State called a rebuttal witness, and, after her appearance, Thomas’s attorney moved for a mistrial on the basis that the State had violated the rule of sequestration of witnesses. The court agreed to consider the motion if it could be shown that the prosecutor had access to information regarding the rebuttal testimony in the police case file.

The State rested its rebuttal, and both the prosecutor and the defense counsel indicated that they were ready for the court to instruct the jury. Following the delivery of instructions, closing arguments were made. The jury then retired to consider its verdict.

At that point, defense counsel developed the objection made earlier in relation to the testimony of the State’s rebuttal witness. A police report was read into the record by Thomas’s attorney as a proffer of the reporting officer’s testimony in an effort to point to other potential suspects.

Only then did the subject of the renewal of the motion for directed verdict arise. The following exchange occurred between the trial judge and the defense counsel:

THE COURT: I think you also wanted to put on the record that you had renewed your motion for directed verdict.
MS. O’KELLEY: Correct, and renew all of our previous motions.

Discussion then immediately returned to the proffered testimony of the police officer. The reference to a motion for directed verdict was rather parenthetical in nature, suggesting an afterthought on the part of court and counsel.

Nothing in the record suggests that an unrecorded renewed motion had been lodged earlier. Instead, it appears that the prompting of the trial court was required to nudge Thomas’s attorney to make a belated renewal of the motion for a directed verdict made at the close of the State’s case-in-chief. But by that time, the jury was well into the course of its deliberations, and it was too late for renewal.

This court has repeatedly and emphatically held that, in order to preserve for appeal the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State’s case and at the close of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).

In Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992), the appellant had moved for a directed verdict at the close of the State’s case but failed to renew the motion at the end of all the evidence as required by Ark. R. Crim. R 36.21(b) — the same as in this case. We held that the rule is strictly construed and that, accordingly, Henry’s argument concerning the sufficiency of the evidence could not be considered. See also Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992).

This case presents a different, somewhat novel, twist. With a suggestion from the trial court, the defense attorney signaled her desire to renew her motion for a directed verdict. Yet the whole case had long since closed, and the jury had long since retired. Thomas contends that such a practice is common in the Second Division of Pulaski County Circuit Court and amounts to “procedural housekeeping.” But a motion for a directed verdict at the close of the case is something more than a matter of mere form: it goes to the substance of the evidence arrayed against the criminal defendant. It is not a technicality subject to “tidying up” in chambers.

This court has had occasion, in Hayes v. State, supra, to address another curious set of circumstances. There, Hayes failed altogether to move for a directed verdict but did move, at the conclusion of a discussion of instructions prior to the jury’s return to the courtroom, for a dismissal for lack of evidence. “Even if we were to equate the dismissal motion with one for a directed verdict,” we declared, “we would not consider it because of failure to make the motion at the conclusion of the prosecutor’s case. ... We observe .. . that the Rule is stated in the conjunctive, clearly requiring the motion to be made in both instances....” 312 Ark. at 352.

The issue of the sufficiency of the evidence has not been properly preserved, and we will not address it.

II. Custodial, statements

For his second point for reversal, Thomas argues that the trial court erred in admitting statements he had made to police officers while in custody. He asserts that the statements, which formed the backbone of the State’s case against him, were obtained by means of false promises made by the police and were therefore involuntary under the totality of the circumstances.

Custodial statements are presumed to be involuntary. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). On appeal, the burden is on the State to show that the confession was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). A statement induced by fear or hope of reward is not voluntary. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). In determining whether a custodial statement is voluntary, this court makes an independent review of the totality of the circumstances and reverses only if the trial court’s findings are clearly against the preponderance of the evidence. Sanders v. State, supra. The totality is subdivided into two main components: the statement of the officer and the vulnerability of the defendant. Id.

Thomas testified at the suppression hearing that he had been in and out of the criminal justice system for more than twenty years and had more than four prior felony convictions. He stated that he had been given immunity for his testimony in a 1977 capital murder trial.

Thomas was pulled over while driving on March 8, 1992, and subsequently arrested on the basis of outstanding warrants on unrelated charges and given his Miranda rights by Little Rock police officer Randy Reaves. The arresting officer, who had known Thomas in connection with other police matters for a period of time, transported him to the police station and inquired if he knew anything about the triple homicide.

Thomas testified that he had been smoking crack cocaine in a glass pipe at the time of his arrest and that, when he and the officer reached the parking lot of the police station, Officer Reaves dropped the crack pipe on the ground and stepped on it, saying that “We ain’t got to worry about that crack pipe. Let’s go on in here, see what we can’t work out after we talk to this detective.” According to Thomas, after Detective Joe Oberle joined them in an interrogation room, Officer Reaves reminded him, after he had spoken vaguely about the killings, that “You have these warrants from Pulaski County, and we have this theft charge, and we are thinking about charging you with this crack.... You can do better.”

Thomas stated that the police offered the names of the three men who were eventually charged along with him, advising him that the law enforcement authorities would help him with his charges if he would tell them what he knew. Thomas claimed that Detective Oberle said that he would have to implicate himself in the murders in order to get the three other men and that the detective could arrange the same sort of immunity deal that Thomas had received in the 1977 murder case. Thomas testified, further, that Detective Oberle “went so far as to tell me that I could say I drove the car” and fed him details of the crime, such as the volume of the music in the apartment at the time of the murders and the specially altered bullets used in the slayings.

Thomas declared that he began telling lies “as a way of getting out of the trouble I was in right then, and so I just took the ball and went running with it.” He acknowledged having made the taped statements but said, “There’s some of the things that I read like my own transcript. There’s some of the things I lied so bad in them that I don’t remember saying them.. . . You know, at that point in time, it didn’t matter, you know, as long as I could get out, and they were promising me that I could get out if I went along with this story.”

In addition, Thomas testified that he had been under the influence of “narcotics” when he made his statements and that he would not otherwise have “had enough nerve to sit in there and involve three honest people, let alone myself, in a triple homicide that I didn’t have, you know, knowledge of whatsoever.”

Officer Reaves testified that he had known Thomas on the street and that Thomas was knowledgable in street activity. After the arrest and Mirandizing, Officer Reaves said, Thomas mentioned three people who were involved in the murders in question and stated that he had been at their house that night, remaining there when they left and after their return.

According to Officer Reaves, Thomas appeared to be “rational and okay” when he spoke with him. He did not appear to be under the influence of intoxicants and was “polite and cooperative.” Thomas’s statements, contained in the record, are in fact notable for their alert responsiveness, coherent narrative order, and articulate cogency.

Officer Reaves denied confiscating a crack pipe or telling Thomas that he would not be charged with a drug offense if he cooperated in the murder investigation. He also testified that no threats or promises were made to Thomas from the time of his arrest until the March 8, 1992 statement was recorded.

Detective Joe Oberle stated, as well, that no threats or promises were made to induce Thomas to give any of his three statements. He, too, said that Thomas did not appear to be impaired by drugs or alcohol during that period.

Several friends of the appellant offered testimony about Thomas’s drug use in general and his vulnerability during the period in question. One witness, who had been incarcerated with Thomas at the time, stated that Thomas was exhausted when he was brought to the cell and that he went to sleep. Both that witness and another person who was also incarcerated with the appellant stated that they saw Thomas smoking cocaine in jail.

Another witness, whose car Thomas had been driving at the time of his arrest, testified that he was called to pick up his car at the site of the arrest. He stated that he saw Thomas in custody and that he saw a police officer with a glass pipe used for smoking cocaine in his hand.

Reviewing the evidence, it is clear that the witnesses were widely divergent in their testimony regarding the circumstances under which Thomas made his statements to the police. When testimony concerning the circumstances surrounding the taking of a confession is conflicting, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). This court will not disturb the trial court’s finding unless it is clearly against the preponderance of the evidence. Id.

It is abundantly clear from an examination of the record that Thomas was intimately familiar with the workings of the criminal justice system and had once before been called as an immunized witness for the prosecution, thereby escaping a criminal charge. We hold that the trial court’s finding that the taped statements should be admitted was not clearly against the preponderance of the evidence.

III. Rule 4-3(h)

The record in this case has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.

       It should be noted that the transcripts of the three taped statements of March 8, 9, and 12, 1992, were not admitted into evidence (the trial court having sustained defense objections). The tapes were played in open court, however, and the proffered transcripts appear in the record at T. 906, T. 909, and T. 913. Both the appellant and the State have abstracted the March 8 statement, in which Thomas placed himself in the parking lot of the apartment complex where the murders occurred at the time they occurred and described the crime scene and the actions of three other men charged in the killings. (The other two statements involved photographic identification and clarification of the earlier narrative.) The State contends that Thomas has failed to provide a complete record from which this court can determine the asserted error. However, not only was the crucial March 8 statement abstracted by both Thomas and the State, but the testimony of Detective Joe Oberle, who conducted the taped interviews, is available in the record and has been abstracted. The tapes have also been appended to the record. Thus, this court has before it an adequate record for consideration of the issue raised on appeal.


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    Cecil REDD v. Melvin SOSSAMON, Ben Frank and Gerald Cook, Individually and as Members of the Saline County Election Commission
    93-673
    868 S.W.2d 466
    Arkansas Supreme Court
    Opinion delivered January 18, 1994
    [Rehearing denied February 28, 1994.]

      John I. Purtle, for appellant.

      Richard A. Garrett, for appellee.
   Robert H. Dudley, Justice.

Appellant Cecil Redd and other members of an unincorporated association of citizens circulated a proposed measure for submission to the voters of Saline County at the November 3, 1992 general election. They labeled the measure an “initiated act,” but its stated purpose was to “repeal Saline County Quorum Court Ordinance #90-22.” The county clerk certified there were sufficient signatures to place the matter on the ballot, but immediately filed suit for declaratory judgment in chancery court as to the sufficiency of the petition. The chancery court ruled that the petition was not sufficient and ordered that the measure not be placed on the ballot because it was an attempt at referendum of a county ordinance, and, pursuant to Amendment 7 and statutes enacted pursuant thereto, was untimely. The referendum petitions were not filed until more than two years after the ordinance 90-22 was enacted. There was no appeal from the ruling of the chancery court, and the county election commission did not place the proposal on the ballot. At the general election, appellant and some others wrote in the proposed ballot title and voted for the repeal measure.

Subsequent to the election, appellant filed a petition for writ of mandamus in circuit court and sought to mandate the election commissioners to count the votes on the matter and to declare whether the “initiated act” had passed or failed. The basis of appellant’s argument is that the action of the chancery court was void and the votes must be counted because Ark. Code Ann. § 14-14-917(d) (1987), in part, provides:

If the board of election commissioners fails or refuses to submit a proposed initiative or referendum ordinance when it is properly petitioned and certified as sufficient, the qualified electors of the county may vote for or against the ordinance or measure by writing or stamping on their ballots the proposed ballot title, followed by the word “FOR” OR “AGAINST,” and a majority of the votes so cast shall be sufficient to adopt or reject the proposed ordinance.

The circuit court ruled that a writ of mandamus would not lie. We affirm.

A writ of mandamus will not be issued to establish a right. Rather, the extraordinary writ is issued only to enforce a right that is already established. Springdale Bd. of Educ. v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987). Before the writ is issued, the petitioner must show a clear, certain, specific, or established legal right, and the absence of any other adequate legal remedy. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). The writ may not be used to determine in advance what the petitioner’s rights are or what the action to be taken shall be. Bunting v. Tedford, 261 Ark. 638, 550 S.W.2d 459 (1977). In this case, petitioner is attempting to establish that the declaratory judgment of the chancery court is void, that the proposed measure was timely submitted and sufficient as an initiated measure, rather than as a referendum, and, after those matters are established, that he is entitled to mandamus. Undoubtedly, he is not attempting to enforce a right that is already clearly established.

Petitioner’s action in this case may be likened to that taken by a school teacher in a case in which the teacher sought a writ of mandamus to order the school district to pay $75.00 owed to him as salary. His petition was predicated upon establishing the $75.00 debt. We held that mandamus would not be granted to compel the district to pay the debt until after the debt was established by judgment. School Dist. No. 3 v. Bodenhamer, 43 Ark. 140 (1884).

We affirm the denial of the extraordinary writ.


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    Gail and William DICKENS v. FARM BUREAU MUTUAL INSURANCE COMPANY of Arkansas
    93-680
    868 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered January 18, 1994

      Joe Cambiano, for appellants.

      Laser, Sharp, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown and Sam Laser, for appellee.
   Steele Hays, Justice.

This is an action between an insurer, Farm Bureau Mutual Insurance Company of Arkansas (appellee) and its insured, William and Gail Dickens (appellants). In February 1991, The Dickenses sustained roof damage to their home as the result of wind and rain. They contacted their insurer Farm Bureau and the company referred them to Carl Parks, d/b/a Ozark Home Improvements. Parks met with the Dickenses and they signed a contract providing for repairs costing $3,500. Farm Bureau issued a check for the stipulated amount (less a deductible of $500) payable to Parks and the Dickenses. Parks endorsed the check to the Dickenses in accordance with their agreement that the contract price would be paid in $1,000 increments as the work progressed.

The Dickenses had issued one check for $1,000, which Parks had cashed. At some point a dispute arose over the installation by Parks of a skylight in a flat roof over the den. The Dickens-es had issued the second check for $1,000 but stopped payment on the check after delivering it to Parks. Parks had not completed the repairs and the Dickenses contacted Farm Bureau. Another repairman worked on the remaining problems and was paid by Farm Bureau and the Dickenses.

Carl Parks filed suit in municipal court against the Dickenses for the $1,000 check. The Dickenses counter-claimed for negligent repair and water damage to their home and the case was removed to circuit court. The Dickenses later filed a cross-complaint against Farm Bureau for the damage attributable to Parks’s work.

The matter went to trial on March 2, 1993. At the end of the evidence Farm Bureau moved for a directed verdict on the premise that Parks was an independent contractor and not an agent of Farm Bureau. The issue was taken under advisement and the case was submitted to the jury. It found for Parks against the Dickenses for $1,000, and for the Dickenses against Farm Bureau for $17,500. Farm Bureau moved for judgment notwithstanding the verdict, contending Carl Parks was an independent contractor as a matter of law. The motion was granted. The Dickenses appeal arguing the trial court erred in granting judgment notwithstanding the verdict.

The only issue on appeal is whether the trial court properly found as a matter of law that Carl Parks was an independent contractor and not an agent of Farm Bureau. A recent treatment of the question of agency versus independent contractor is found in Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990). There, we listed the factors affecting master/servant versus independent contractor found in Section 220 of the Restatement (Second) of Agency. They are:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

In Blankenship, supra, we adhered to the position that the right of control is the principal factor in determining whether the relationship is one of agency or independent contractor.

In this case, there is no evidence that Farm Bureau had any control over the details or the manner of Parks’s work on the roof. The Dickenses point to the fact that Farm Bureau opted to repair rather than reroof, but that does not evince control by Farm Bureau over Parks, or even show a relationship with him, rather, it touches on the relationship of Farm Bureau with the Dickens-es. Parks was not hired until after the decision to repair was made.

Parks had his own roofing repair business and had been so employed for a number of years. He used specialized equipment and techniques, and it was stated there were only a handful of such contractors in the state who did the particular work involved. Parks provided all his own tools and employed his own assistants and was paid by the job. Farm Bureau is not in the business of roof repair and both Parks and Farm Bureau testified that Parks was working for the Dickenses, and not for Farm Bureau. Additionally, it was the Dickenses who hired Parks and directed the method by which he would be paid and it was the Dickenses who discharged Parks when they became dissatisfied with his work. We note, too, that the complaint of the Dickenses contained no allegation of a master-servant relationship between Farm Bureau and Parks.

In short, there is an absence of proof that Farm Bureau had any control over the manner in which Parks performed the contract, or any of the details of the work. The only conclusion consistent with the proof is that the right of control was in the Dickenses and the record is devoid of any evidence to the contrary. It follows that the trial court was correct in granting a judgment notwithstanding the verdict.

Affirmed.

Glaze, J., not participating.


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    Bobby G. THOMAS v. STATE of Arkansas
    CR 92-1474
    868 S.W.2d 85
    Arkansas Supreme Court
    Opinion delivered January 18, 1994

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Bobby G. Thomas was charged by information with the first degree murder of Mary Thomas, his wife, and with possession of a firearm by a felon. The jury returned a verdict of guilty of murder and sentenced Thomas as an habitual offender to life imprisonment. We affirm the judgment of conviction.

The single point of error assigned to the trial court concerns the denial of a motion in limine to prevent the use by the prosecution of a prior conviction for rape. The trial court ruled that if Thomas elected to testify in his own behalf the conviction could be used for purposes of impeachment. That ruling was proper.

The testimony established that Bobby Thomas killed his wife in the bedroom of their home on the afternoon of November 30, 1991. Mrs. Thomas died as the result of two gunshot wounds to the head from a 9mm semi-automatic pistol. After-wards Mr. Thomas drove Mrs. Thomas’s three children and a nephew to the home of Mrs. Thomas’s mother. He then returned to his home and reported the homicide to the police. The pistol, three expended cartridges and a box cutter were found in the master bedroom.

Mrs. Thomas’s son and a nephew testified Mrs. Thomas was in the bedroom. Mr. Thomas, they said, entered the bedroom with a gun in the back of his pants and closed the door. They heard three shots and Thomas emerged from the bedroom and ordered the children to get in the car. They could see Mrs. Thomas lying on the bed. She neither moved nor spoke.

Bobby Thomas testified the shots were fired in self-defense. He had told Mrs. Thomas the day before that he wanted a divorce. When he entered the bedroom he told her he had not changed his mind. Mrs. Thomas, he said, had a pistol in her hand. They struggled and the gun went off. Mr. Thomas wrestled the pistol from her. Mrs. Thomas then drew a box cutter and Mr. Thomas shot her. On cross-examination Thomas acknowledged an earlier conviction for the crime of rape.

Thomas contends the introduction of a prior criminal conviction is not allowed during the guilt/innocence phase of a bifurcated trial. He argues that the bifurcation is designed to protect the defendant from prejudice by preventing the jury from considering prior convictions until the defendant is found guilty. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985).

Arkansas Code Ann. § 16-90-205 (1987) and § 5-4-502 (1987) both address the bifurcated procedure for trials involving habitual criminals. Title 16 addresses judgment and sentencing generally, and Title 5 addresses disposition of offenders. Both § 16-90-205 and § 5-4-502 provide that evidence of prior convictions shall not be considered until after the defendant is found guilty. Nevertheless, § 16-90-205 contains a provision which states “nothing in this subdivision shall prohibit cross-examination of a defendant as to previous convictions when the defendant takes the stand in his own defense.” See Coleman v. State, 256 Ark. 665, 509 S.W.2d 824 (1974)(use of prior conviction for impeachment purposes during guilt or innocence phase upheld based upon similar language found in § 16-90-205’s predecessor). However, § 5-4-502 does not contain a corresponding provision. Although § 5-4-502 is the more recent of the provisions, the court has continued to quote § 16-90-205. See Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992); Conley v. State, 305 Ark. 422, 808 S.W.2d 745 (1991), cert. denied 112 S.Ct. 218.

Further, A.R.E. 609 clearly allows the introduction of evidence of a prior conviction for the purpose of attacking the credibility of a witness. We have stated that when a defendant in a criminal case takes the witness stand in his own behalf his credibility becomes an issue. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). In fact, in Griffin, supra, we upheld a trial court’s decision allowing the introduction of prior convictions for impeachment purposes during a bifurcated trial. We concluded that a defendant did not have the right to waive the bifur-

cated trial procedure. Id. In reaching that decision, we said that a previously convicted defendant who testifies in his own defense runs a risk that prior convictions will be exposed to the jury twice, once during cross-examination and again during the sentencing phase of the bifurcated trial procedure. Id.; See also Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988); Taylor v. State, 9 Ark. App. 286, 658 S.W.2d 432 (1983). Thus, the introduction of a prior criminal conviction in order to impeach the defendant during the guilt or innocence phase of a bifurcated trial is not summarily barred.

Bobby Thomas maintains the prejudicial effect of the introduction of the prior conviction outweighed the probative value. It is well established that the trial court has considerable discretion in determining whether the probative value of a prior conviction outweighs its prejudicial effect, and that decision will not be reversed absent abuse. Griffin, supra. Further, the court has recognized that A.R.E. 609 concerns itself with the credibility of a witness who is offering testimony in the current case, and that admissibility must be decided on a case-by-case basis. Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). Thomas cites Sims v. State, 27 Ark. App. 46, 766 S.W.2d 20 (1989) in support of his argument. In Sims, supra, the Court of Appeals outlined the following factors which should be considered: (1) the impeachment value of the prior crime; (2) the date of the conviction and witness’s subsequent history; (3) the similarity between the prior conviction and the crime charged; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue. Thomas insists his prior conviction for rape has very little impeachment value since it occurred in 1971. He submits the current charge and prior conviction are similar under the Sims test since they are both of a heinous nature. Further, he reasons that the prior conviction should have been suppressed due to the importance of his testimony as the only witness.

The argument is without merit. Arkansas Rules of Evidence 609 provides in part:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year . . ., and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to a party or a witness, or (2) . . .
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

Although the prior conviction was in 1971, the defense stipulated that the release date was 1983 and thus within the ten year limit of Rule 609. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982). Further, we have consistently allowed prior convictions to be used for impeachment, even when the convictions are for similar crimes to those charged. Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992). In Griffin, supra, we held there was no abuse of discretion when a defendant charged with burglary was impeached with a prior conviction of burglary. Also, we have allowed prior convictions to be used for impeachment where the defendant’s credibility is a central issue. See Pollard, supra, (no abuse of discretion when a prior conviction was used to impeach a defendant’s testimony which clearly countered the state’s evidence). Indeed, in Gustafson, supra, we said that whenever a defendant takes the witness stand in his own behalf his credibility becomes an issue. Here the trial court weighed the prejudice and concluded the conviction could be used for impeachment, instructing the jury to consider the fact only for that purpose. The ruling was not an abuse of discretion.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the state. There are no other rulings adverse to the appellant which constituted prejudicial error.

Affirmed.

       A basic and fundamental rule when considering the effect of both statutes and constitutional amendment is that repeal by implication is not favored and is not allowed except where there is a repugnancy between the former and later such that both cannot stand together. Henslee v. Madison Guar. Sav. & Loan’s Ass'n, 297 Ark. 183, 760 S.W.2d 842 (1989).