author: Robert H. Dudley, Justice.

text:
    Thomas O. DAVLIN v. STATE of Arkansas
    CR 94-1452
    899 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      William M. Pearson, for appellant.

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

Appellant was previously convicted of rape and sentenced to life imprisonment. We reversed and remanded for a new trial. Davlin v. State, 313 Ark. 218, 853 S.W.2d 882 (1993). Upon retrial, he was again convicted of rape and sentenced to life imprisonment. This time, we affirm.

Appellant’s first assignment is that the trial court erred in refusing to allow evidence of the rape victim’s prior sexual conduct. Appellant filed a pretrial motion pursuant to Ark. Code Ann. § 16-42-101(c), a part of the Rape Shield Statute, in which he alleged that the victim’s prior sexual conduct was relevant for either of two purposes. One was to impeach one of the State’s witnesses, Michael Yarbrough, and the other was to demonstrate that injuries suffered by the victim were inflicted by the victim’s husband before the rape occurred. Appellant alleged that the victim’s husband caused the black eye when he struck her after discovering that she was having an extra-marital affair.

Two witnesses testified at the hearing. The first witness, Ernie Joe Tate, testified that the victim had a black eye the day before the rape occurred. He indicated the victim received the black eye from her husband, but his only knowledge of the incident came from conversations with other people. Tate also thought that the victim was having a sexual affair with Michael Yarbrough during this time. Appellant also testified. He testified that he was living in a trailer with Michael Yarbrough, and he thought Yarbrough and the victim were having a sexual affair, although he never observed them engaging in a sexual relationship. Appellant testified that the victim’s husband struck her because she spent the night at Yarbrough’s trailer and that was the cause of the black eye. Appellant testified that this information came from his overhearing a conversation between the victim’s sister and the victim.

Under the Rape Shield Statute, a trial court has discretion in the admission of evidence of the victim’s prior sexual conduct. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). We will not reverse a trial court’s decision absent an abuse of discretion. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). Here, the trial court ruled that the testimony about the black eye existing before the rape occurred was admissible, but excluded any testimony regarding the existence of a sexual relationship between the victim and Michael Yarbrough. Under this ruling appellant was free to bolster his claim of consent by showing that the victim had a black eye before the rape occurred. However, the reason the victim’s husband supposedly struck the victim was only minimally relevant, and its prejudice substantially outweighed its probative value. Moreover, as noted by the trial court, the evidence about the cause of the argument was entirely hearsay.

Appellant also argues that the evidence was admissible to impeach the credibility of Michael Yarbrough, one of the State’s witnesses. The trial judge allowed appellant to put on testimony of the close relationship between Yarbrough and the victim, but ruled that evidence of a sexual affair between them was not admissible. The ruling was in accordance with the Rape Shield Statute. Appellant failed to show how evidence of the alleged sexual affair would impeach Yarbrough’s credibility. While the credibility of a witness is always in issue, see A.R.E. Rule 608, the testimony must be relevant to a determination of credibility or veracity, and appellant offered no link between evidence of the alleged sexual affair and Yarbrough’s credibility. In summary, the trial court did not abuse its discretion by excluding evidence that the close relationship included a sexual affair.

In his second assignment appellant contends the trial court erred in admitting a photograph of appellant which was taken shortly after his arrest. It depicts appellant sitting down, shirtless, with his hands behind his back. Appellant argues that the admission of this photograph prejudiced him because his hands are shown behind his back and that implies he was handcuffed. We have held that it is not prejudicial, per se, for a jury to witness a defendant in handcuffs. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). The arresting officer testified that the picture accurately depicted appellant immediately after he was arrested. The trial judge did not abuse his considerable discretion in the decision to admit State’s exhibit number ten.

Appellant next contends the trial court erred in admitting a photograph of the victim that contains three small arrows that point to contusions on the victim’s neck and one circle drawn around a bruise on her jaw. These marks were made by a witness at the first trial. Appellant argues that the marks distort the photograph, rendering it inadmissible as prior testimony and hearsay, and that the photograph should have been excluded under the best evidence rule. Appellant did not make the hearsay argument below, and, consequently, we do not consider that argument.

The marks are hardly noticeable and do not distort the photograph. The examining physician gave testimony about the victim’s injuries and discussed the injuries denoted by the marks. Other witnesses testified that the photograph accurately depicted the victim’s injuries after the incident. Even if the small marks constitute prior testimony, appellant offers no authority and does not make a convincing argument that they render the entire photograph inadmissible. See Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994). Appellant also contends that the photograph was inadmissible under the best evidence rule, A.R.E. Rule 1002. The Rule requires an original of a photograph in order to prove its contents, except as otherwise provided in the Rules. Appellant does not assert that the photograph is not the original, merely that it is not in its original form. This fact would not trigger the application of the best evidence rule. Appellant has not shown that the trial court abused its discretion in admitting this photograph.

In his final assignment appellant contends that the trial court erred in allowing the examining physician to testify about the ultimate issue. He also argues that the physician’s testimony was inadmissible because the issue was not beyond the comprehension of the average juror.

Rule 704 of the Arkansas Rules of Evidence provides that “[testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” We have stated that the trend of authority is not to exclude opinion testimony because it amounts to an opinion on the ultimate issue. Long v. State, 284 Ark. 21, 25, 680 S.W.2d 686, 688 (1984). There, we noted that while the. opinion testimony embraced the ultimate issue, it did not mandate a legal conclusion. Id. Under this standard we have held in a child sexual abuse case that the opinion of an expert that a child has been sexually abused is not objectionable on the basis that it is an opinion on the ultimate issue. Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).

In the case at bar, the physician testified about the physical examination of the victim that he conducted immediately after the rape. He testified that the victim had a small bruise in her vaginal area. The prosecutor asked the doctor whether or not the injuries in the vaginal area were the result of forced sex. He responded:

It would, it would be consistent with that. It would .— With the other, the other findings, the seminal fluid, . . . the other things, it would be consistent with that. However, I mean, it would be possible to get the contusion in that area, but it would require a blow with something fairly, fairly small.

While this testimony embraced the ultimate issue of forced sex, it did not mandate a legal conclusion. The testimony did not exclude other causes for the bruising. Thus, it was not inadmissible opinion testimony on the ultimate issue. Further, the testimony was admissible because it aided the jurors in determining the facts in dispute. Expert testimony is admissible if it will aid the trier of fact in understanding the evidence or determining a fact in issue. A.R.E. Rule 702; Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Here, the physician conducted a physical examination of the victim immediatély after the rape, and the results of that exam assisted the jurors in determining whether the victim had been forced to have sexual intercourse.

The sentence in this case is life imprisonment. Accordingly, an examination of the entire record has been made to determine if there were any erroneous rulings adverse to appellant that would cause reversal. Ark. Sup. Ct. R. 4-3(h). There are no such reversible errors.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Paula NORRIS v. John L. BAKKER, D.D.S.
    95-1
    899 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Donald C. Donner and Michael R. Shahati, for appellant.

      Davis, Cox & Wright, PLC, by: Constance G. Clark, and Walter B. Cox, for appellee.
   Tom Glaze, Justice.

On January 21, 1994, appellant Paula Norris filed a complaint against her dentist, appellee John Bakker, alleging that in either late 1989 or early 1990, Bakker examined her breast under the pretense of performing a lymph node examination. Alleging a breach of fiduciary duty, Norris claimed compensatory and punitive damages for invasion of privacy and medical injury. In his answer, Bakker denied examining Norris’ breasts and affirmatively pled the statute of limitations.

On February 9, 1994, Bakker filed a motion for summary judgment along with a supporting affidavit and Norris’ dental chart reflecting that he had last treated Norris on March 17, 1989. Norris responded with an affidavit restating the allegations in her complaint, arid in addition, claimed Bakker intentionally and fraudulently concealed the true purpose of his examination which she did not discover until December 14, 1993.

The trial court determined that the cause of action accrued on March 17, 1989, and there was no evidence of fraudulent concealment by Bakker. Therefore, the trial court granted Bakker’s motion for summary judgment based on the running of both the two year statute of limitations for medical injury and the three year statute of limitations for invasion of privacy. On appeal, Norris argues the trial court erred by failing to find the limitations period for a medical injury had been tolled by fraudulent concealment, and erred by finding her cause of action for invasion of privacy accrued at the time the alleged wrongful act occurred. Because we find no merit to either of Norris’ arguments, we affirm.

Summary judgment is a remedy that should only be granted when there are no genuine issues of material fact to litigate and when the case can be decided as a matter of law. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994). The burden of showing there is no remaining genuine issue of material fact and entitlement to judgment as a matter of law is upon the movant for summary judgment. Any doubt and all inferences must be resolved against the moving party. Mt. Olive Water Assoc. v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). Once the moving party makes a prima facie showing of entitlement, however, the responding party must meet proof with proof in order to demonstrate a genuine issue of material fact remains. Id. The response and supporting material must set forth specific facts showing there is a genuine issue for trial. Hampton, 318 Ark. 771, 887 S.W.2d 535.

First, Norris claims Bakker’s act was something so furtively planned and secretly executed as to keep her cause of action concealed from her because she lacked the essential medical knowledge to realize that such touching was not a necessary part of a lymph node examination. Because of the doctor-patient relationship, Norris argues Bakker had an imperative duty to inform her that he had inflicted a medical injury on her. For support, Norris cites Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934), where this court held that a physician who negligently left a roll of gauze in a patient’s abdomen after surgery had an imperative duty to disclose this fact to her, and the physician’s failure to inform the patient was a continuing act of negligence. In Burton, this court held the physician’s failure to inform the patient tolled the statute of limitations until he either removed the object, or the patient learned or should have learned of its presence.

Since Burton was decided, the legislature enacted Ark. Code Ann. §§ 16-114-201 — 209 (1987 and Supp. 1993), which govern causes of action for medical injuries. Pursuant to § 16-114-203(a), all actions for medical injury shall be commenced within two years after the cause of action accrues. Under § 16-114-203(b), the date of accrual is the date of the wrongful act complained of and no other time, unless otherwise excepted under the statute. Here, the medical injury claimed by Norris is not one that is otherwise excepted. To support his motion for summary judgment, Bakker presented undisputed evidence that the alleged wrongful act could not have occurred later than March 17, 1989, the date of Norris’ last visit to Bakker’s office and over four years before she filed her complaint in 1994.

This court has held that where the affirmative acts of concealment by the person charged with fraud prevent the discovery of that person’s representations, the statute of limitations will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. Wilson v. General Electric Capital Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992). Here, Bakker did nothing to prevent Norris from discovering the falsity of his reputed representation that touching her breasts was necessary to a lymph node examination. As this court has stated:

No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.

Id. at 87 (citations omitted). See also Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994). In the present case, Norris failed to show how Bakker prevented her from learning that his representation was false.

Further in her affidavit, Norris merely restated that it was her opinion that fraudulent concealment occurred. Ark. R. Civ. P. 56(e) provides that when a motion for summary judgment is made and supported by affidavits and other documents, the adverse party may not rest upon mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Lubin v. Crittenden Hospital Assoc., 295 Ark. 429, 748 S.W.2d 663 (1988). Norris failed to meet proof with proof, and set forth specific facts by which Bakker caused his act or its purpose to be concealed.

Next, Norris contends, like with her medical injury claim, Bakker invaded her privacy by intrusion on December 14, 1993, when she learned that his touching was inappropriate. Because her injury was one to the psyche, Norris argues she did not suffer injury until she realized her privacy had been invaded, thus, Ark. Code Ann. § 16-56-105 (1987), the three year statute of limitations for invasion of privacy, had not expired when she filed her complaint.

Once again, in the absence of concealment of the wrong, the statutory period begins to run when the wrongful act occurs, not when it is discovered. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994). Because Norris failed to show an affirmative act of concealment by Bakker, Norris’ cause of action advanced under either a medical injury or invasion of privacy theory accrued on March 17, 1989, her last treatment date.

The trial court was correct in granting summary judgment for the reasons discussed. Therefore, we affirm.

Roaf, J., not participating.

      We do not determine whether a cause of action for invasion of privacy by intrusion exists under the facts of this case.


author: Donald L. Corbin, Justice.

text:
    Norman WILLIAMS v. Loyde HUDSON, M.D.
    94-1465
    898 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Carney & Cooper Law Firm P.A., by: Mark F. Cooper, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: J. Michael Cogbill, for appellee.
   Donald L. Corbin, Justice.

Appellant, Norman Williams, appeals an order of the Marion County Circuit Court refusing to reconsider its previous order granting summary judgment to appellee, Loyde Hudson, M.D., on appellant’s claim for medical malpractice arising from a surgery to repair appellant’s hiatal hernia. In its previous order, the trial court applied our decisions in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), and Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994), and ruled appellant’s claim was barred by the two-year statute of limitations on medical malpractice claims, Ark. Code Ann. § 16-114-203 (Supp. 1993). The Arkansas Court of Appeals certified this case to us for statutory interpretation. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3), (d)(1).

Because the timely filing of a notice of appeal is essential to our jurisdiction, LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980), we first consider appellee’s assertion that appellant’s notice of appeal was not timely filed. The order granting appellee’s motion for summary judgment was entered July 7, 1994. On July 12, 1994, appellant filed a motion to reconsider the granting of summary judgment. This motion also requested a new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure on the grounds that the decision by the trial court was clearly contrary to the preponderance of the evidence and contrary to the law. On August 8, 1994, appellant amended his motion for reconsideration and new trial to include a claim that appellee was either estopped from relying on the statute of limitations or had waived the defense by waiting too long to pursue it.

The trial court entered an order on September 6, 1994, denying appellant’s motion for reconsideration of the summary judgment and new trial. Appellant then filed a notice of appeal from the September 6 order on September 15, 1994. We note that the notice of appeal did not mention the July 7 order granting summary judgment. However, this court has previously held that a notice of appeal from an order denying a motion for new trial was not defective in failing to refer to the original judgment, since an order denying a motion for new trial is final and brings up for review any preceding order involving the merits. DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982); see Ark. R. App. P. 2(b).

Appellee contends that, pursuant to Rule 4(c) of the Rules of Appellate Procedure, the motion for reconsideration and new trial was deemed denied on August 11, 1994, thirty days from the filing of the original motion. Therefore, appellee argues, for the notice of appeal to have been filed timely, it must have been filed by September 10, 1994, or within thirty days of the “deemed denied” date, August 11, 1994. This court has held that a trial court loses jurisdiction if a motion for new trial is not decided within thirty days from its filing pursuant to Rule 4(c), which provides that if a trial court neither grants nor denies a new trial motion within thirty days of its filing, the motion is deemed denied as of the thirtieth day. Arkansas State Hwy. Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992).

In his reply brief, appellant contends, in effect, that the filing of the amended motion for reconsideration and new trial on August 8 commenced a new thirty-day period from which the amended motion would be deemed denied for purposes of Rule 4(c). Thus, according to appellant, if the trial court had not ruled on the amended motion, it would have been deemed denied on September 7, thirty days from August 8, 1994. However, appellant points out that the trial court indeed entered an order denying the amended motion on September 6, 1994. Thus, appellant contends he had until October 6, 1994, thirty days from September 6, in which to file his notice of appeal. As he filed the notice of appeal on September 15, appellant contends it was timely filed.

Appellant cites no authority, and we are unaware of any, supporting his argument that an amendment to a posttrial motion begins anew the running of the Rule 4(c) thirty-day period for the filing of a notice of appeal. To the contrary, the better rule, though not expressly stated in the Rules of Appellate Procedure, is one similar to the rule on relation back of amended pleadings found at ARCP Rule 15(c), which provides that an amended pleading relates back to the date of the original pleading upon specified conditions not relevant here. See ARCP Rule 15(c). For these purposes, we hold that a posttrial motion permitted by Rule 4(b) may be timely amended, but that the amendment will relate back to the date the original posttrial motion was filed and will not extend the time for filing the notice of appeal as provided in Rule 4(c). To hold otherwise would be to allow an appellant to prolong and extend indefinitely the time for filing an appeal simply by filing numerous posttrial motions and amendments. This court has previously disapproved, though not prohibited, the filing of numerous posttrial motions. See Widmer v. State, 243 Ark. 952, 422 S.W.2d 881 (1968).

In summary, appellee is correct in his assertion that the notice of appeal filed in this case on September 15, 1994, was not timely. The motion for reconsideration and new trial was deemed denied on August 11, 1994, thirty days after it was originally filed. The deadline for filing the notice of appeal was thirty days thereafter, or by September 10, 1994. Because the notice of appeal filed on September 15, 1994, was untimely, it leaves this court without jurisdiction to address the merits of this case and we must dismiss the appeal. Eddings v. Lippe, 304 Ark. 309, 802 S.W.2d 139 (1991).

Dismissed.


author: Robert L. Brown, Justice.

text:
    Robert CORTESE v. ATLANTIC RICHFIELD
    95-59
    898 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Hicks Law Firm, by: George R. Wise, Jr. and Edward O. Moody, P.A., for appellant.

      Wright, Lindsey & Jennings, by: N.M. Norton, Jr, Edwin L. Lowther, Jr., and Charles L. Schlumberger, for appellee AT&T, Okonite, and Square D.

      Meeks & Carter, P.A., by: William Russell Meeks, III, for appellee Westinghouse Elec.

      Bridges, Young, Matthews & Drake PLC, by: Michael J. Dennis, for appellees Graybar Electric and Ericsson, Inc.

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellee Phelps Dodge Corp.

      McGlinchey, Stafford Lang, by: Carolyn B. Witherspoon, for appellee Keathley-Patterson.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Marcella J. Taylor, for appellee USX Corporation.

      Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellee Carol Wire & Cable.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Tim A. Cheatham, for appellee American Insulated Wire.
   Robert L. Brown, Justice.

Appellant Robert Córtese appeals an order of dismissal and summary judgment. Córtese originally sued approximately 34 defendants in an asbestos products liability case. The trial court granted summary judgment to several defendants on the basis that the three-year statute of limitations had expired. The record on appeal, however, does not reflect the disposition of this action against three defendants. Accordingly, we dismiss the appeal pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure.

This is the second time that this matter has been before us on appeal. See Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994) (Cortese I). In Córtese I, we dismissed the appeal for failure to show what action had been taken against some 20 of the defendants sued in this matter. We concluded that the order was not a final judgment for purposes of Rule 54(b).

Following our decision in Córtese I, a corrected order of non-suit was entered dismissing 17 additional defendants. Despite the new order, the record before us still does not reflect final action with respect to defendants American Electrical Cable, Tennessee Valley Electric Supply Co., and Treadway Electric Co., Inc. It is true that the Amended Notice of Appeal and Designation of Record filed by Córtese on June 24, 1993, designates orders of dismissal and summary judgment concerning these three defendants to be included in the record. But the record filed in this case does not contain those orders.

We have said many times, and specifically in Córtese I, that the fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. See, e.g., General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994); Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). Further, it is the duty of Córtese to produce a record on appeal showing that the jurisdictional requirements of Rule 54(b) have been met. That was not done in this case for a second time.

Appeal dismissed.

Glaze, J., not participating.


text:
    STATE of Arkansas v. Rebecca BICKERSTAFF
    CR 94-1141
    899 S.W.2d 68
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995
    [Rehearing denied July 3, 1995.]

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellant.

      Bowden Law Firm, by: David O. Bowden, for appellee.

      Roaf, J„ not participating.

   Robert L. Brown, Justice.

On May 30, 1993, the appellee, Rebecca Bickerstaff, was cited by Arkansas Game and Fish Wildlife Officer James Hartness for fishing without a license, an offense prohibited under Game and Fish Commission Regulation 3.02. She entered a plea of not guilty in the Municipal Court for the City of Sheridan, but following trial, the judge found her guilty and fined her $50 and assessed costs of $72.25. She appealed to Grant County Circuit Court, but before trial, she moved to have the citation against her dismissed because Officer Hartness had not been elected by the Game and Fish Commission in direct contravention of Amendment 35 of the Arkansas Constitution. The circuit court agreed that a vote by the Commission as a body was required for the employment of Officer Hartness and that that had not transpired. The court held that the employment of personnel such as Officer Hartness was not delegable by the Commission, and it dismissed the charges on appeal as violative of the Arkansas Constitution.

The State of Arkansas now appeals the dismissal under Arkansas Rule of Criminal Procedure 36.10. We dismiss for lack of subject matter jurisdiction.

Neither party raised the issue of subject matter jurisdiction, but we are obliged to do so on our own. State v. Gray, 319 Ark. 356, 891 S.W.2d 376 (1995); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). The precise question before us is whether the State has the authority to appeal from a dismissal of the offense involved, which is a violation of Game and Fish Commission Regulation 3.02. We have made it clear in the past that appeals by the State are authorized in only the narrowest of instances. State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993); State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). The reason is simple. The State has considerable resources to appeal a dismissal or acquittal, which places the defendant at a pronounced disadvantage.

A threshold question in an appeal by the State is whether the requirement under Rule 36.10(b) of the Arkansas Rules of Criminal Procedure has been met. Rule 36.10(b) reads:

(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.

Clearly, the rule refers to an appeal by the State following either a misdemeanor or felony prosecution. Just as clearly, neither is involved in the case before us. What is involved is a violation of Game and Fish Regulation 3.02 for fishing without a license. A violation of that regulation carries with it, in the way of a penalty, a fine of between $50 and $1,000.

Under state law, a “violation” is a separate category of offense from a misdemeanor and a felony and is defined as an offense that carries with it a fine or forfeiture or civil penalty. See Ark. Code Ann. § 5-1-108 (Repl. 1993). In the instant case, we are concerned not with a statutory violation but with one established by agency regulation. In any event, a violation is not a misdemeanor or a felony, and those are the only two categories of prosecution which can generate an appeal by the State.

Because there is no basis for the State to prosecute this appeal under Rule 36.10, we must dismiss for lack of jurisdiction. State v. Mazur, supra; State v. Edwards, supra.

Appeal dismissed.

Roaf, J., not participating.

      We are aware that there is a state statute which provides that fishing without a fishing license is a “misdemeanor.” See Ark. Code Ann. § 15-42-101 (Repl. 1994). Appellee Bickerstaff was not charged under this statute, however, but under Game and Fish Regulation 3.02. Moreover, section 8 of Amendment 35 of the Arkansas Constitution expressly endows the Game and Fish Commission with the authority to “fix penalties for violations.” See State, ex rel. Wright v. Casey, 225 Ark. 149, 279 S.W.2d 819 (1955).


author: Andree Layton Roaf, Justice.

text:
    Johnny A. RUCKER v. STATE of Arkansas
    CR 94-445
    899 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Janice Williams Wheeler and Benny M. Tucker, Public Defenders for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, As.st. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Johnny Rucker was tried and convicted of capital murder and was sentenced to life imprisonment without parole. Appellant raises ten points for reversal. We find no merit to any of these points and affirm.

The body of Cindi Smith was found by her father in her mobile home in Arkadelphia about 10:00 a.m. on February 10, 1993. Appellant, a crack cocaine user, was living with her at the time of her death. The victim’s body was found on its side on the floor with a .22 caliber pistol resting on her left hand. She had been shot in the back of the head. The victim’s car was missing, and the Arkadelphia police had been receiving reports that morning that someone was attempting to cash checks on the victim’s bank account at various local businesses. Based on this information, the Arkadelphia police put out a “be on the lookout” (BOLO) message, which described the vehicle and gave its license plate number, and stated that Johnny Rucker was probably the driver and had been passing forged checks in Arkadelphia, and that the owner of the vehicle had been found dead.

The city marshall in Gurdon heard the message and stopped appellant about 1:00 p.m. and held him at gunpoint until another Gurdon officer arrived. The officers handcuffed appellant, read him his rights, told him he was under arrest for passing forged checks and placed him in the police car. A Clark County officer arrived shortly and questioned appellant about the checks. Appellant admitted he had been cashing checks on Cindi Smith’s account and that he had been using the money to buy drugs. Arkadelphia police then arrived and searched the car, finding .22 shells, and Cindi Smith’s purse and blank checks. Appellant was taken to Arkadelphia where he gave two statements implicating himself in the murder. He claimed in one version that the victim was shot during a struggle over her gun. After the officers questioned this version, he then claimed that he shot her in the back of the head from about 6 feet away, because he did not want her to stop him from leaving in her car to obtain more drugs. He claimed to have been high on crack cocaine when the shooting occurred.

Appellant first submits that there was insufficient corroborating evidence to support a conviction based on his confession. Appellant moved for a directed verdict at the close of the state’s case, stating, “the defense moves for a directed verdict on the grounds of the insufficient evidence and a lack of corroboration of the defendant’s statements sufficient to prove this charge as alleged in the information.” (Emphasis added.) Appellant made a renewal of his directed verdict motion at the close of all the evidence.

The requirement of corroboration is statutory. Ark. Code Ann. § 16-89-lll(d) (1987) provides:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed. (Emphasis added.)

In order for the state to comply with this statute, it is only necessary to show that the crime has been committed, and not any further connection between the crime and the defendant. Harte v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).

Appellant argues that the testimony of the state’s medical examiners established that the gunshot wound was a contact wound, which was inconsistent with appellant’s statement that he shot the victim from a distance of six feet, and also left open the possibility that the victim committed suicide. However, both pathologists who testified stated that, in their opinion, the shooting was homicide and not suicide, based on the location of the entry wound and the path the bullet made through the head. This testimony constituted substantial evidence to corroborate the defendant’s confession that the death was the result of criminal activity and not suicide.

Rucker next argues that the trial court erred in allowing the state to amend the information on May 13, 1993, to add an alternative charge. Rucker was originally charged by information on February 11, 1993, with capital felony murder, on the basis that the victim was killed in the furtherance of the commission of a felony, pursuant to Ark. Stat. Ann. § 5-10-101 (Repl. 1993). The information was amended to add as an alternative, the charge of premeditated and deliberated murder, pursuant to § 5-10-101. The trial was held on September 27, 1993. Rucker argues that the rule permitting alternative charges for the same offense, Ark. Stat. Ann. § 16-85-404(a) (1987), is in conflict with § 16-85-407(b), which prohibits an amendment to an indictment which changes the nature or degree of the crime charged.

This argument is without merit as this court has held that such a change involved in the alternative charge does not change the nature of the crime charged, as prohibited by § 16-85-407(b). Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994); Smith v. State, 310 Ark. 247, 827 S.W.2d 279 (1992).

Rucker argues that the trial court erred in not rearraigning him on the alternative charge. However, he failed to properly object, or to obtain a ruling from the trial court on this issue and we do not address this argument. Johnson v. State, 303 Ark. 313, 796 S.W.2d 342 (1990).

Appellant next submits that the trial court erred in denying his motion to suppress the items found in the victim’s car and his confession on the basis that they were the fruits of an illegal arrest. He argues that the stop and search were in fact pretextual and that based on this court’s holding in Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), the BOLO message issued by the Arkadelphia police did not contain an instruction to make an arrest as required by Friend, and the Gurdon officers lacked the requisite trustworthy information necessary to constitute probable or reasonable cause without an instruction to arrest from officers actually possessing the information. However, in Friend, Arkansas State Police arrested the defendant based on a message received from Sevier County officers which requested ‘[a]ttempt to locate, stop and hold for homicide investigation, Michael Friend . . . .’ (Emphasis added.) No further information regarding the homicide was provided in this message. This court held that the Sevier County officials did not instruct the arresting officers to arrest appellant, but merely to stop and hold him for questioning in a homicide investigation. Although we do not have a verbatim statement of the Arkadelphia officers’ radio message, the testimony indicates that the BOLO message gave a description of the car, the license plate number and the fact that Johnny Rucker was probably the driver, that he was passing forged checks in Arkadelphia, and that the owner of the vehicle he was driving had been found dead in her home. Unlike the message in Friend, which merely stated that the suspect should be held for investigation, the BOLO message aired by the Arkadelphia police contained sufficient information to enable the Gurdon officers and the Clark County officers to make the arrest in this instance.

The appellant argues that the court erred in finding that he made a voluntary confession; he claims to have been high on cocaine when he talked to the officers, and that his confession was not freely and voluntarily given under the circumstances. For a review of the voluntariness of confessions, we make an independant determination based on the totality of the circumstances and reverse the trial court only if clearly erroneous. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994).

Appellant submits that the combination of his cocaine intoxication and low IQ would be sufficient to render the waiver and the resulting confession involuntary. The factors to consider when there is a claim of alcohol or drug intoxication are set out in McDougald v. State, 295 Ark. 276, 746 S.W.2d 340 (1988). When such a claim is advanced, the level of a defendant’s comprehension is a factual matter to be resolved by the trial court. Anderson v. State, 311 Ark. 332, 842 S.W.2d 855 (1992). In this case, the trial court heard defense witnesses’ testimony (other inmates) who claimed that appellant was under the influence of cocaine at various times during and after his interrogation, and also heard testimony from the officers who had interrogated the appellant; the officers’ testimony supported the trial court’s finding that appellant was not under the influence of drugs, and the trial court obviously resolved the conflict in testimony in favor of the state. The defendant’s claim of mental impairment is also without merit; a psychologist’s report indicated that Rucker was 25 years old, had graduated from Sparkman High School, and that at the time of the commission of the offense did not suffer from mental illness or lack the capacity to appreciate the criminality of his conduct.

Appellant also asserts the court erred in not allowing testimony of two men who had been in the Arkadelphia jail when he was interrogated and gave his confession. Both were allowed to testify at the suppression hearing on the issue of Rucker’s alleged impairment as it pertained to the voluntariness of his statement. The prospective witnesses first observed appellant several hours after his interrogation commenced. One of these witnesses testified at the suppression hearing that Rucker’s behavior could have been due to stress and lack of sleep as opposed to the effects of drugs. The trial court ruled that their testimony would not be relevant. The question of relevance is within the sound discretion of the trial court. Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987).

However, we have also addressed this issue in a number of cases and have found that the purpose of the Denno hearing (Ark. Code Ann. § 16-89-107 (1987)) is to prevent a jury from hearing a confession before the court determines whether it has been voluntarily given and not to restrict evidence after the court has made the determination of voluntariness. Kagebein v. State, 254 Ark. 904, 496 S.W.2d 435 (1973). The defendant still has the constitutional right to have his case heard on the merits by a jury, including the weight and credibility the jury might give to the voluntariness of the confession. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972). Here, the testimony of the two fellow prisoners would have been only cumulative, as there was other evidence presented, including the defendant’s statements, that he was using drugs before and after the commission of the crime. Thus, the defendant has failed to show prejudice, and even if the exclusion of the testimony was error, it was harmless error in this instance.

Rucker next argues that the trial court erred in failing to order a psychiatric evaluation by the state hospital, that the psychologist’s report actually performed was not certified, and that a hearing should have been held on this matter. The latter two points were not raised below. Arguments not raised at trial or which change the grounds of an objection made below will not be addressed on appeal. Smith v. State, 310 Ark 247, 837 S.W.2d 279 (1992); Dixon v. State, 310 Ark 460, 839 S.W.2d 173 (1992). As to the first point, the trial court correctly determined that the evaluation by a local, approved psychologist was a proper alternative and was in compliance with Ark. Code Ann. § 5-2-305 et seq. (Repl. 1993). Further evaluation is discretionary with the trial court, and this argument therefore lacks merit.

Finally, appellant challenges the admission of testimony regarding the source of the money that was in the victim’s bank account, arguing that the probative value of the evidence presented was outweighed by its prejudicial effect pursuant to Ark. R. Evid. 403. The appellant makes no convincing arguments concerning the prejudicial effect of the testimony and we find no abuse of discretion in admitting it.

Throughout his arguments, appellant asserts violation of his constitutional rights pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments. However, he presents merely conclusory allegations without supporting authority, and we decline to consider these arguments. See Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).

The record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h) for other procedural error and no such error has been found.

The jury’s verdict and sentence are affirmed.


text:
    Mark SWANEY v. Vincent B. TILFORD, as President and Custodian of Records, Arkansas Development Finance Authority
    94-1323
    898 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Robert C. Harder, for appellant.

      Winston Bryant, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant, Mark Swaney, as a citizen of Arkansas, brought action in the Washington County Circuit Court against the Arkansas Development Finance Authority (ADFA) to compel production of the auditor’s working papers prepared in connection with ADFA audits for the years 1985-1993, pursuant to the Arkansas Freedom of Information Act, Act 93 of 1967 (Act).

The ADFA had provided appellant with copies of the audits and other information specified in his FOI requests, but denied having actual or constructive possession of the requested auditor’s working papers. The matter was submitted to the court on stipulated facts and briefs of the parties. The court found the working papers of private auditors hired by the state are public records, but the Act does not require a state agency to obtain records from a private entity. Appellant appeals from the Order dismissing his complaint. We reverse.

On April 27, 1994 Swaney requested by fax that the ADFA provide him with audits for 1985-1993, auditor’s working papers for the audits, and certain other information, by May 3, 1994. The ADFA responded by telephone on April 29, 1994 stating that the audits would be provided but that the auditing firm, Deloitte Touche, would not release its working papers without a subpoena.

On May 4, 1994 the agency also responded in writing, stating that it did not have access to the working papers and that the auditor considered the papers confidential and would release them only if subpoenaed. The parties also later stipulated that ADFA had requested the working papers from the Deloitte Touche firm and its request was refused.

Appellant’s sole point on appeal is that the trial court erred in ruling that the ADFA is not obligated to obtain the working papers from Deloitte Touche. He relies on the legislative intent of FOIA § 25-19-102, that “public business be performed in an open and public manner,” and it be possible for citizens “to learn and report fully the activities of their public officials.”

This Court has held that the Act “was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.” Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968).

In City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), access was sought to legal memoranda and work product generated by a lawsuit involving the city of Fayetteville. The city had hired a private law firm with public funds, and resisted the FOI request on the grounds that the documents were not “public records” as contemplated by the Act, and that the records were not in the city’s possession, but were in the custody of the private law firm. We found the documents were public records and that possession of documents subject to disclosure under the act was not determinative, stating:

The specially retained attorneys were th & functional equivalent of the regular city attorney. The City cannot avoid the FOIA requirements by substituting a private attorney for the city attorney. To condone such logic would arguably enable public officials to shield from disclosure sensitive or controversial material by hiring an outside attorney instead of using its regular city attorney. The FOIA requirements cannot be circumvented by delegation of regular duties to one specifically retained to perform the same task as the regular employee or official, (emphasis added).

The audits which are the subject of this appeal are mandated by statute. Ark. Code Ann. § 15-5-210, Annual Report, reads:

(a) On or before January 31 in each year the authority shall make an annual report of its activities for the proceeding calendar year to the Governor of the state and to the general Assembly.
(b) The report shall contain an audit of the preceding calendar year, prepared by a firm of nationally recognized certified public accountants.

By requiring the audits to be performed by a private auditing firm and not the state auditor, the state has elected to employ a private firm to perform a task normally carried out by state employees or officials, as the city did in Edmark. The audit working papers of the Legislative Joint Auditing Committee are considered public records subject to the Act. Legislative Joint Auditing Comm. v. Woosley, 291 Ark 89, 722 S.W.2d 581 (1987).

However, the question presented in this appeal is not answered by the holding in Edmark. The parties do not dispute that the private auditor’s working papers are public records or that they are subject to public inspection under the Act, the very issues which were in contention in Edmark. Here the only issue is who is to be responsible for obtaining production of the records from Deloitte Touche, the public agency (ADFA), or the private individual seeking disclosure of the records.

The FOIA is silent with regard to the lengths an agency must go to provide access to public records not within its control. Ark. Code Ann. § 25-19-105 provides in part

(a) . . . all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.
(d) Reasonable access to public records and reasonable comforts and facilities for the full exercise of the right to inspect and copy those records shall not be denied to any citizen.
(e) If a public record is in other use or storage and therefore not available at the time a citizen asks to examine it, the custodian shall certify this fact in writing to the applicant and set a day and hour within three (3) working days at which time the record will be available for the exercise of the right given by this chapter, (emphasis added).

It is undisputed that the ADFA is not in possession of the records requested by the appellant. However, the statute clearly provides that a citizen have reasonable access to public records. The term “custodian of the records” has not been defined by statute or case law in Arkansas. The trial court found that the private entity in this case was the custodian of the records and should therefore be subject to the Act.

Nevertheless, the legislative intent of the Act supports the proposition that the agency must provide reasonable access to the requesting citizen, where it is undisputed that the records requested are “public records” pursuant to the Act.

Appellee argues that it does not have constructive possession or administrative control over the files of Deloitte Touche, has in fact never seen the requested records, and that it cannot produce records it does not possess or have in its control. These factors are initially relevant to the determination of whether a document will be considered a public record, which was of course the predominate issue in Edmark, supra. Once that issue is conceded, the statutory scheme and the legislative intent of the Act mandates that the burden be placed on the appropriate state agency to make arrangements for reasonable access to the records in its office or the office of the private custodian. Appellee does not contend that it is otherwise not the appropriate governmental entity to which the FOI request should have been directed, nor was that issue developed or argued below.

We hold that where the records in question are established as “public records” pursuant to Ark. Code Ann. § 25-19-103 (1) and not otherwise exempted from disclosure, the appropriate governmental agency, in this case the ADFA, shall have the responsibility to provide reasonable access for examination and copying of such public records which are in existence at the time of the request, as provided by Ark. Code Ann. § 25-19-105. This matter is reversed and remanded for further proceedings consistent with this opinion.


author: Per Curiam.

text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    898 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      A. Wayne Davis and Al Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Per Curiam.

In September of 1991, Ivan Floyd Pipkin, appellant, was charged in Stone County Circuit Court with possession of marijuana with intent to deliver. He was tried and convicted in October of 1993. On November 15, 1993, appellant’s attorney, A. Wayne Davis, filed a timely notice of appeal, and on May 17, 1994, the transcript was filed in this court.

On June 24, 1994, Davis requested a seven-day clerk’s extension for the filing of his brief, and the clerk granted the extension. His brief was then due on July 5, 1994. On October 27, 1994, the clerk of this court notified Davis that his brief was overdue and asked him to file the brief immediately. Davis refused to respond.

On November 21, 1994, this court ordered Davis to appear and show cause why he should not be held in contempt for failure to file Pipkin’s brief. Pipkin v. State, 319 Ark. 762-A, 887 S.W.2d 309 (1994). Davis pleaded not guilty. This court appointed a Master to make findings of fact. The Master conducted a hearing and found no fact that would go to a meritorious defense. This court found Davis in contempt of court and fixed sentence. Pipkin v. State, 319 Ark. 237, 238, 892 S.W.2d 240, 241 (1995).

On February 13, 1995, this court appointed A1 Schay as additional counsel to assist Davis in the preparation of Pip-kin’s direct appeal. Mr. Schay has now filed a brief for Pipkin, but that brief states that Pipkin no longer wishes to pursue his direct appeal filed by Davis because he has completed his imprisonment and is on parole and because the direct appeal could lead to a retrial, which he does not want. Mr. Schay’s brief is accordingly limited to a post-conviction argument that asks us to void the conviction because of ineffective assistance by Davis.

On March 31, 1995, Davis tendered Pipkin’s brief on direct appeal. It was not filed by the clerk of the court because it does not comply with Rule 4-2 of the Rules of the Supreme Court. Mr. Davis still has not corrected the deficiencies in the contents of the brief. On April 4, 1995, Davis filed a motion to file a belated brief.

On May 23, 1995, appellant Pipkin filed a motion to dismiss that part of his direct appeal that is included in Davis’s brief, which was tendered but not filed. The court today grants Pip-kin’s motion to dismiss that part of the appeal. The court will now proceed with only that part of the appeal argued in the brief filed by Mr. Schay. A copy of this opinion is being forwarded to the Supreme Court Committee on Professional Conduct.

Glaze, J., not participating.


text:
    Allen SMITH v. STATE of Arkansas
    CA CR 94-687
    898 S.W.2d 468
    Supreme Court of Arkansas
    Opinion delivered May 30, 1995

      Etoch Law Firm, by: Louis A. Etoch, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant was convicted of two counts of aggravated assault and sentenced to six years imprisonment. He appealed. The Court of Appeals dismissed the appeal because no effective notice of appeal was filed. Smith v. State, 49 Ark. App. 73, 896 S.W.2d 450 (1995). Appellant’s attorney subsequently filed a motion styled “Motion For A Belated Appeal” and has stated it was his error that resulted in the failure to give an effective notice of appeal. He asks that, because of his error, we grant a belated appeal.

Under authority of Ark. R. Crim. P. Rule 36.9, we grant belated appeals because of attorneys’ errors, but those are granted before the case has been submitted to an appellate court. See, e.g., Krein v. State, 318 Ark. 172, 883 S.W.2d 481 (1994). This case, however, has already been taken under submission and decided, and a signed opinion by the Court of Appeals has been handed down. See Ark. Sup. Ct. R. 5-2(a).

This same month we decided this identical issue in an unrelated case. See Pannell v. State, 320 Ark. 390, 897 S.W.2d 552 (1995). There, we stated:

After the signed opinion was handed down in this case, the petitioner could have timely filed a petition for rehearing, but a petition for rehearing is limited to calling attention to specific errors of law or fact which the opinion is thought to contain. Ark. Sup. Ct. R. 2-3(g). A rehearing does not encompass a set of new facts, new briefs, and new arguments. Yet, that is precisely what would occur if we granted a motion for a belated appeal after an appellate opinion was handed down. If we were to allow such a practice there would be much less finality to appellate opinions.

Accordingly, the petition for belated appeal is denied. There still may be available to appellant a remedy under Rule 37 of the Arkansas Rules of Criminal Procedure, and neither this per curiam order nor the per curiam order in Pannell v. State, supra, denies an appellant that remedy.


author: Jack Holt, Jr., Chief Justice.

text:
    J.B. HUNT TRANSPORT, INC. v. Arbert “Della” DOSS and Robert DOSS
    94-1123
    899 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995
    Rehearing denied July 3, 1995.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce E. Munson and Julia L. Busfield, for appellant.

      Boyett, Morgan, Millar & Killough, P.A., by: Comer Boyett, Jr., for appellee Arbert “Della” Doss.

      Kent Pray for appellee Robert Doss.
   Jack Holt, Jr., Chief Justice.

This is a tort case. The appellant, J.B. Hunt Transport, Inc., raises five points for reversal of a judgment in favor of appellees Arbert “Della” Doss and Robert Doss: (1) the trial court erred in excluding the testimony of J.B. Hunt’s accident-reconstruction expert; (2) there was no substantial evidence to support the jury’s verdict that appellee Robert Doss was acting within the course and scope of employment; (3) the trial court erred in denying J.B. Hunt’s motion for a directed verdict on the issue of punitive damages and/or failing to set aside such an award; (4) the trial court erred in denying J.B. Hunt’s motion for a new trial based upon the error in the assessment of punitive and compensatory damages; (5) the trial court erred as a matter of law in dismissing J.B. Hunt’s third-party complaint against Robert Doss and in denying J.B. Hunt’s claim for indemnity. We cannot say that the trial court committed reversible error.

Facts

On October 1, 1990, shortly after 7:00 p.m., appellee Robert Doss was driving a tractor-trailer owned by appellant J.B. Hunt Transport, Inc., when he collided with an automobile driven by his former wife, appellee Arbert “Della” Doss. Mrs. Doss filed suit against J.B. Hunt Transport on May 8, 1992, alleging that Mr. Doss was an employee “acting within the scope of his employment at all times pertinent to this complaint” and requesting both compensatory and punitive damages. Mrs. Doss did not sue Mr. Doss.

J.B. Hunt denied the allegations contained in Mrs. Doss’s complaint and subsequently, on January 8, 1993, filed a third-party complaint against Mr. Doss, stating that Mrs. Doss’s “damages, if any, are attributable to conduct and actions of Robert Doss which were outside the scope of his employment in that, at the time of the accident, Mr. Doss was engaged in a personal endeavor solely for his own benefit and not for the benefit of his employer.” Further, J.B. Hunt contended that Mr. Doss had “acted intentionally to inflict damage and injuries on the Plaintiff and therefore was outside the scope of his employment.” J.B. Hunt sought, in the event it should be adjudged liable to Mrs. Doss, to be awarded indemnification and contribution from and judgment against Mr. Doss. Moreover, J.B. Hunt asserted that Mr. Doss, acting alone or in conspiracy with Mrs. Doss, made false statements to his employer, law enforcement officers, and others regarding the accident.

The matter was tried before a jury in Woodruff County Circuit Court on October 19 and 20, 1993. The trial court denied J.B. Hunt’s motions for directed verdicts on the issues of scope of employment and punitive damages. Upon interrogatories, the jury awarded Mrs. Doss $170,000 in compensatory damages and $100,000 in punitive damages. In an order filed on March 23, 1994, the trial court denied J.B. Hunt’s motion for indemnification and contribution from Mr. Doss and dismissed its third-party complaint against Mr. Doss with prejudice.

J.B. Hunt then filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, arguing that the verdict should be set aside as there was no substantial evidence to support a verdict that Robert Doss was acting in the scope of his employment. In addition, J.B. Hunt argued that the award of punitive damages should be set aside as contrary to the law and facts and as a violation of due process. In the alternative, J.B. Hunt sought a new trial because the jury’s verdict was clearly against the preponderance of the evidence and there was an error in the assessment of damages. The trial court denied the motion, and this appeal followed.

I. Accident reconstruction expert

In its first point for reversal, J.B. Hunt argues that the trial court erred in excluding testimony of Steve Jackson, the defense’s accident reconstruction expert. After the jury had been seated, a recess was called and a hearing was held regarding Mrs. Doss’s motion in limine to prohibit introduction of the testimony of Mr. Jackson. The defense proffered the testimony of Mr. Jackson, who stated that he had examined photographs taken of the vehicles and the accident site that appeared to be inconsistent with statements of Mr. and Mrs. Doss that Mrs. Doss’s vehicle was stopped at a stop sign when it was struck.

According to Mr. Jackson, the photographs indicated that

the impact was clearly on the shoulder in the intersection rather than in proximity to the stop sign, and that indicated by debris and tire marks where the impact occurred. And those tire marks have a particular characteristic that actually show that there was an impact.

On cross-examination, counsel for Mrs. Doss questioned Mr. Jackson about the reliability of the investigating officer’s report:

Q Now, if a State Police Officer investigated the accident this night and recorded his data while it was fresh on his mind, wouldn’t you agree that he would be a better judge how the accident occurred and the points of impact rather than looking at photographs over a year later?
A Well, if it were a simple matter of doing that, he would, yes.
Q What specifically could you offer by looking at those photographs that a State Trooper could not offer who was there at the scene of the accident and was familiar with the intersection and investigated that particular wreck on that night as compared with the investigation of another person who was not there?
A Well, first of all, I don’t know if he’s investigated other accidents at that intersection. I take your word for it that he has if you want it put on the record that he has.
Secondly, I don’t know the process that he used to document — I don’t know where he started his documentation measurements, and since there was no conflict in the statement of either driver as to where it happened, I don’t know that he had had a whole lot of reason to have a real detailed documentation of the scene.

In questioning by the court, Mr. Jackson noted that the investigating officer

didn’t indicate that he found any debris, nor did he document any debris on the highway. . . . Also, there was no documentation of the kind of scrub marks, the kind of tire-scrubbing that you’d find in an impact area.
What he [the State Trooper] says was that his investigation revealed that it happened at the stop sign, and that the tire marks began at the stop sign and went on to the west, but the photographs don’t show that to be the case, and that’s our disagreement problem there.

(Emphasis added.)

At the conclusion of Mr. Jackson’s proffered testimony, the trial court declared that

at this time, I’m going to direct Mr. Jackson not to testify about the point of impact. The reliance on photographs as to where all the debris lay seems to me possibly misplaced, certainly not conclusive, unless the trooper says that — and I assume the trooper uses the same kind of — Mr. Jackson has taught there, and the trooper uses the same kind of ground evidence to determine point of impact. I always hear about the debris and where it falls, and if Trooper Hudson testifies that it occurred at the stop sign as an eyewitness, I’m going to prohibit Mr. Jackson from testifying it occurred someplace different. On the other hand, if Mr. Hudson does not know where it occurred or doesn’t testify, is silent on that, he can go into that. But at this point, now, at least on the assumption Mr. Hudson is going to say, as he, I think, implied to me, that it occurred at the stop sign, I’m going to prohibit him, based upon the photographs, deciding it occurred someplace else since the photographs may or may not be inclusive.

(Emphasis added.) The trial court went on, however, to allow Mr. Jackson to testify concerning tire marks on Mrs. Doss’s car.

Explaining his rejection of Mr. Jackson’s testimony on the area of impact, the judge stated that

I’m allowing the trooper, assuming the trooper does a proper foundation, that is, where he says the debris landed and that sort of thing, I’m going to let him testify as to where the impact occurred based upon the fact that he was there and had the full range of view of the impact area. My problem with Mr. Jackson doesn ’t have to do with his inability to analyze where the debris is. It’s that whether the photographs are in fact inclusive of the entire area, and that’s what my problem is. It doesn’t have to do with the fact of what he saw. I’m not questioning what he saw. I’m questioning whether he was able to see the entire area. That’s where I’ll leave it.

(Emphasis added.)

It is important to note that the trial court did not exclude Mr. Jackson’s entire testimony. Instead, J.B. Hunt elected not to call its accident reconstruction expert after the trial court had excluded that portion of his testimony concerning the point of impact. The trial court based its limited exclusion on the adequacy of the photographs upon which Mr. Jackson relied — ’’whether the photographs are in fact inclusive of the entire area.”

This court observed, in Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993), that while, as a general rule, attempts to reconstruct accidents by means of expert testimony are viewed with disfavor, we have consistently recognized exceptions when it appears that a particular situation is beyond the jurors’ ability to understand the facts and draw their own conclusions. Whether a particular case should be governed by the general rule or should be treated as an exception is a matter within the trial judge’s discretion. McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1989).

In all evidentiary matters, the trial judge must be afforded broad latitude because he or she alone is in the best position to decide what evidence would aid the jury and what would confuse the issues. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Unless the trial judge is clearly wrong, we will not substitute our judgment for his or hers. Id.

Here, the reconstructionist’s opinion on the point of impact was based in large part on photographs of the scene. The trial court had the benefit of those photographs in determining the admissibility of Mr. Jackson’s testimony. On appeal, however, J.B. Hunt has failed to abstract the photographs in question.

In order for us to determine whether the trial court was clearly wrong in its ruling, we must have a clear understanding of the excluded testimony. As Ark. Sup. Ct. R. 4-2(a)(6) provides:

Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion.

(Emphasis added.) It is essential that the photographs of the accident site be available in the abstract for our examination. As we have pointed out repeatedly, it is a practical impossibility for seven justices to examine the single transcript filed with this court, and we will not do so. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993); Hunter v. Williams, 308 Ark. 276, 823 S.W.2d 894 (1992); Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991); Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986); Shorter University v. Franklin, 75 Ark. 571, 88 S.W. 974 (1905).

Therefore, we cannot consider the merits of J.B. Hunt’s first argument.

II. Course and scope of employment

For its second point for reversal, J.B. Hunt contends that the trial court erred in denying its motions for directed verdict and alternative motions for judgment n.o.v. or new trial on the basis that there was no substantial evidence to support a finding that Robert Doss was acting within the course and scope of his employment at the time of the accident.

Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty and precision, induce the mind to pass beyond suspicion or conjecture. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). We are persuaded that the record offers sufficient evidence that Mr. Doss was acting within the course and scope of his employment when the truck he was driving ran into Mrs. Doss’s car.

The parties stipulated that the truck involved in the accident was owned by J.B. Hunt and that Robert Doss, the operator of the truck, was an employee of J.B. Hunt. Despite the fact that, at the time of the collision, Mr. Doss was on his way to the Fast Lane Truck Stop in McCrory, Arkansas, to “check with a buddy” and had been drinking in violation of company policy, he was nevertheless wearing a J.B. Hunt uniform and was planning to spend the night at the truck stop before embarking on a twelve-hour, 600-mile drive to make a delivery in Alsip, Illinois. He testified that, under company policy, he was allowed “discretion” to pace his driving as he chose, provided that he made his delivery on schedule. According to his testimony, Mr. Doss was attempting to hook up a citizens’ band radio when he looked up and saw his former wife’s car in front of him.

For purposes of respondeat superior, whether an employee is acting within the scope of employment is not necessarily dependent upon the situs of the occurrence but on whether the individual is carrying out the object and purpose of the enterprise, as opposed to acting exclusively in his own interest. Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (1991). In the present case, there was substantial evidence that Mr. Doss was engaged in an employer-approved assignment, the details of the execution of which had been entrusted to his discretion. The question is not whether the evidence would have supported some other conclusion but whether it supports the conclusion reached by the trier of fact. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993).

The trial court did not abuse its discretion in submitting to the jury the question of whether Mr. Doss was acting in the course and scope of his employment at the time of the accident.

III. Punitive damages or set-aside directed verdict

In its third point on appeal, J.B. Hunt asserts that the trial court erred in denying its motion for a directed verdict on the issue of punitive damages and/or in failing to set aside such an excessive award. We will address the question of excessiveness under Point IV.

Punitive damages are justified only when the defendant acts wantonly or with such conscious indifference to the consequences of his acts that malice may be inferred; negligence, however gross, will not support such an award. Missouri Pacific Railroad Co. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988). In Honeycutt v. Walton, 294 Ark. 440, 442, 743 S.W.2d 809, 810 (1988), this court reiterated its long-held position that “malice may be inferred from the operation of a motor vehicle, a potentially lethal machine, by one whose judgment, responses and coordination are impaired by alcohol.”

Mr. Doss failed a breathalyzer test and was reported to have smelled of alcohol. A corporation may be held liable for punitive damages for acts done by its agents or servants acting within the scope of their employment. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992); Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293 (1948).

J.B. Hunt also argues that the amount of punitive damages awarded ($100,000) was excessive and violative of “procedural safeguards” required by the United States Constitution. We hold that the Arkansas general standard for punitive damages, employed in this case, passes constitutional muster because it ensures meaningful and adequate review for the trial court as required by Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991). See Robertson Oil Co. v. Phillips Petroleum Co., 779 Fed. Supp. 994 (W.D. Ark. 1991).

The trial court did not abuse its discretion in submitting to the jury the issue of punitive damages.

IV. Punitive and compensatory damages new trial

' The fourth argument advanced by J.B. Hunt is that the trial court erred in denying its motion for a new trial based upon the error in the assessment of punitive and compensatory damages. This point overlaps a portion of the third in its focus on the asserted excessiveness of the damages.

We are thwarted in our review by J.B. Hunt’s failure to abstract any of Mrs. Doss’s medical bills, amounting to $20,149.08 (Plaintiff’s Exhibit 1) or the oral deposition of Mrs. Doss’s treating physician, Dr. Terry Green, who testified to Mrs. Doss’s 20 percent permanent partial disability rating. Our review on appeal is limited to the record as abstracted, and we will not reach the merits of an issue when the documents in the transcript that are necessary for an understanding of the matter are not abstracted. See Burns v. Carroll, 318 Ark. 302, 885 S.W.2d 16 (1994).

V Dismissal of third-party complaint and denial of indemnity

Finally, J.B. Hunt argues that the trial court erred as a matter of law in dismissing the company’s third-party complaint against Robert Doss and in denying the employer’s claim for indemnity.

J.B. Hunt’s liability was premised on the theory of respondeat superior. A common law cause of action for indemnity against the employee is available to an employer who has been held vicariously liable for the actions of the employee. Transport Insurance Co. v. Manufacturers Casualty Insurance Co., 226 F. Supp. 251 (E.D. Ark. 1964), aff'd sub nom. Pacific National Insurance Co. v. Transport Insurance Co., 341 F.2d 514 (8th Cir. 1965). The liability of the servant is based upon his contract, and he is bound to indemnify the master for damages resulting from his failure to perform the duty that he owes to his master. 53 Am. Jur.2d Master and Servant, § 108.

The trial court issued the following order:

A jury finding for HUNT on its complaint against R. DOSS would have established indeminication (sic) for HUNT.
The jury found that R. DOSS was acting whithin (sic) the scope of his employment with HUNT.
IT IS, THEREFORE CONSIDERED AND ORDERED the (sic) HUNT’S [MjOTION FOR INDEMNIFICATION AND CONTRIBUTION is DENIED. IT IS FURTHER CONSIDERED AND ORDERED that HUNT’S THIRD PARTY COMPLAINT against R. DOSS is DISMISSED with prejudice.

Yet, despite the elliptical phrasing, the trial court did not commit reversible error in denying J.B. Hunt’s motion for indemnification and dismissing the third-party complaint.

It was necessary for J.B. Hunt to ask for jury instructions on the elements of the counterclaim. Having failed to proffer the relevant jury instructions, the appellant waived the matter and cannot now take issue with the trial court on this point.

Affirmed.


text:
    Thomas E. MARONEY and Larry E. Parker v. CITY of MALVERN and AS&GC, Inc.
    94-1143
    899 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995

      Baxter, Wallace, Jensen & McCallister, by: Ray Baxter and Karen Virginia Wallace, for appellants.

      Glover, Glover & Roberts, by: David M. Glover and Mark Roberts, for appellees.
   Robert H. Dudley, Justice.

Appellants Maroney and Parker own a forty-acre tract of land that lies east of, and abuts, the Southgate subdivision in Malvern. Appellants’ forty-acre tract is outside the city limits, while the Southgate subdivision is inside the City. Appellants contended below that they were entitled to an injunction allowing them to use a road in the Southgate subdivision to get to their forty-acre tract. The chancellor dismissed appellants’ complaint. We affirm.

.In 1968, James L. Scott developed the Southgate subdivision with the approval of the Malvern Planning Commission. Subsequently, in 1970, Scott developed an addition to Southgate with similar approval. On both occasions the city planning commission authorized Scott to retain ownership of a reserve strip at the end of Southgate Drive. The end of Southgate Drive is at the city limit and abuts appellant’s tract. The reserve strip is two feet wide and crosses the entire fifty feet of the street right of way.

Years ago, before appellants purchased the forty-acre tract and before Southgate subdivision was developed, appellant Thomas E. Maroney used an unimproved road to get to appellants’ forty-acre tract to cut firewood. That unimproved road was located where Southgate Drive is now located. In July or August 1991, appellants started construction of a road on their forty acres. The road is apparently located in the same place as the old unimproved road. Appellants intended for the improved road to connect with Southgate Drive, so that the completed road would extend from inside the City to their forty-acre tract. They could then sell their forty acres as residential lots located just outside the City. However, shortly after appellants improved the road on their land, the City placed a locked gate on the reserve strip at the end of Southgate Drive. The result was that appellants’ improved road stopped at the city limits.

Appellants filed this chancery court action seeking an injunction to prevent the City and James L. Scott, the alleged owner of the reserve strip, from maintaining the gate and from blocking the road. Appellants pleaded that the forty-acre tract was “serviced by a public road known as Southgate Drive,” that it was the only access to their property, and that by erecting the gate the City had violated its own ordinance which provides, “There shall be no reserve strips controlling access to land dedicated or intended to be dedicated to public use.” The City, in effect, filed a general denial. Scott filed a motion to dismiss for failure to state a cause of action, A.R.C.P. Rule 12(b)(6), and additionally pleaded that he had sold the reserve strip to AS&GC, Inc. Subsequently, the complaint against Scott was dismissed with prejudice. The dismissal with prejudice was apparently because Scott had sold the reserve strip to AS&GC, Inc. and not for failure to state a cause of action.

AS&GC, Inc. was allowed to intervene and claim ownership of the reserve strip. It denied that Southgate drive was appellants’ only means of access to their forty acres. It additionally pleaded that it was the owner of the reserve strip and asked that appellants be restrained from trespassing on the strip.

Subsequently, AS&GC pleaded that it had mistakenly alleged ownership of the reserve strip and that it was in fact owned by Scott. Scott moved to set aside the order dismissing with prejudice the complaint against him. The motion was denied. Thus, Scott was not a party to this lawsuit when the final judgment was entered. The City of Malvern filed a counterclaim in which it asked that if appellants were allowed to cross the reserve strip, they be required to construct their road according to the City’s master street plan.

The case proceeded to trial, and the trial court found:

(1) James L. Scott owns title to the reserve strip, and [appellants] should be enjoined from crossing the reserve strip.
(2) [Appellants] “contend they are landlocked,” and county court has exclusive and original subject-matter jurisdiction of the cause of action.

Based upon the above findings, the chancellor entered an order enjoining appellants from crossing the reserve strip and dismissing appellants’ complaint because of lack of jurisdiction.

On appeal, appellants first contend that the chancellor erred in ruling that Scott owned the reserve strip. Initially, we note that appellants’ complaint did not seek to divest Scott of ownership of the reserve strip; it only prayed for an injunction against the maintenance of the gate on the strip. Scott subsequently mistakenly pleaded that he had sold the strip to AS&GC, Inc. and soon thereafter sought to correct the mistake. The initial question then is whether such action constituted an abandonment of the reserve strip by Scott. We think not. Title to real estate is not lost by abandonment unless the abandonment is accompanied by circumstances of estoppel and limitation. Helms v. Vaughn, 250 Ark. 828, 407 S.W.2d 399 (1971); Carmichael v. Arkansas Lumber Co., 105 Ark. 663, 152 S.W.2d 286 (1912). There were no circumstances between Scott and appellants that would give rise to estoppel or limitation. In addition, clear, unequivocal, and decisive evidence is required to establish abandonment of real property. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974). The decisive issue is not whether Scott owned the property because, regardless of whether the reserve strip was owned by Scott, AS&GC, Inc., or someone else, it was not owned by appellants, and they were not entitled to an injunction allowing them to cross someone else’s property.

Appellants next contend that the City, by its code, was prohibited from allowing anyone to own the reserve strip. In 1968, Scott obtained approval of the original plat of the subdivision including the reserve strip. He obtained the approval of the addition in 1970. The city ordinance prohibiting reserve strips was not passed until 1973. Thus, Scott owned the reserve strip before such strips were prohibited. Even so, appellants ask us-to retroactively apply the ordinance prohibiting reserve strips. We decline to so do. A statute or ordinance which interferes with antecedent rights will not be given retrospective application unless the ordinance expresses such intent in unequivocal and inflexible terms. United States v. Security Industr. Bank, 459 U.S. 70 (1982); Gannett River States Publishing Co. v. Arkansas Industr. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990). Moreover, there is a real question about whether an ordinance could ever be applied retroactively so that it took away one’s established property rights, but that is a question we need not answer here.

Appellants next argue that the chancellor erred in dismissing the case on the ground that county court had exclusive subject-matter jurisdiction of this case. The argument is valid, but it does not afford the appellants any relief.

Subject-matter jurisdiction is determined from the pleadings; the complaint, answer, or cross-complaint. Union Pac. R. R. Co. v. State ex rel. Faulkner County, 316 Ark. 609, 873 S.W.2d 805 (1994). Subject-matter jurisdiction “is tested on the pleadings and not the proof.” See e.g., Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 633, 799 S.W.2d 524, 526 (1990). Subject-matter jurisdiction is given to a particular court by the Arkansas Constitution. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987). The chancery court had subject-matter jurisdiction of this case, and in fact, the chancellor exercised subject-matter jurisdiction when he heard the case and decided some of the issues.

Appellants did not file a complaint in which they asked the county court to exercise its power of eminent domain and to open a road for them at their expense. For a landlocked landowner to petition the county court to open a road, he must file a complaint in county court alleging that he has no reasonable means of gaining access to his land, plead that he has tried but is unable to unlock his land, ask the county to use its power of eminent domain to establish a road, ask the county judge to appoint viewers to determine the least inconvenient route to the other landowners, post bond with the county clerk sufficient to pay all damages to the landowner against whom the county will exercise the right of eminent domain, and deposit with the court clerk “all costs and expenses accruing on account of the petition, notice, view, and survey of the private road.” Ark. Code Ann. §§ 27-66-401 to -403 (Repl. 1994). None of this was pleaded. Thus, the chancellor erred in ruling that subject-matter jurisdiction was exclusively in county court.

However, the error does not afford appellánts any relief. Equity cases are tried de novo on appeal, an appellate court resolves all of the issues of law and fact on the record made in the chancery court, and the fact that the chancellor based his decision upon an erroneous conclusion does not preclude an appellate court’s reviewing the entire case de novo and entering such judgment as the chancery court should have entered on the undisputed facts in the record. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). Here, the record clearly shows that appellants’ complaint sought an injunction against maintenance of the gate located on the reserve strip. Appellants did not plead, nor did they prove, that they were entitled to an easement across the reserve strip. Thus, the chancellor correctly declined to issue the injunction against maintenance of the gate and correctly dismissed appellants’ complaint, albeit for the wrong reason.

Affirmed.