author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    Judy DIFFEE v. STATE of Arkansas
    CR 94-905
    894 S.W.2d 564
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.

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

The appellant, Judy Diffee, was found guilty of first-degree murder in the killing of her mother, Edith Durham, and was sentenced to a forty-year term of imprisonment. She raises the following three points for reversal: (1) that the trial court erred in admitting testimony that she had attacked her former husband in an unrelated incident; (2) that the trial court’s application of Act 535 of 1993 (Arkansas’s new bifurcated sentencing laws) to her trial violated the prohibition against ex post facto laws found in the federal and state constitutions; and (3) that the trial court erred in allowing the State to elicit speculative testimony. Finding merit in her first argument, we reverse and remand.

Facts

Appellant Judy Diffee claims that she discovered the body of her mother, Edith Durham, on a couch in the living room of Ms. Durham’s Little Rock home on the morning of October 16, 1992. Dressed in a nightgown, Ms. Durham had been stabbed in the chest, left arm, and back a total of twenty-two times, and had been struck in the head four times, apparently with an ice pick.

According to the testimony of Melba Combee, Ms. Durham’s niece, she received a phone call from Ms. Diffee at approximately 8:15 a.m., at which time she went to her aunt’s residence, found her on the couch and Ms. Diffee standing at the back door. After Ms. Combee called 911, Sergeant David Adams of the Pulaski County Sheriff’s Office responded to the residence and made contact with Ms. Diffee, who resided in a Morgan-type portable building on the same property, which she gave written consent to search. In the course of searching Ms. Diffee’s residence, Detective Terry Ward of the Pulaski County Sheriff’s Office advised Sergeant Adams to “keep an eye on [Ms. Diffee]” as “she put something in her purse” while she was in her building. Sergeant Adams then followed Ms. Diffee as she walked to a barn on the property, where he observed her take an object from her purse and put it into a box. He stated that, when Ms. Diffee recognized that he had followed her, she exclaimed, “Well, I wouldn’t hurt my mother on purpose.” When Sergeant Adams looked in the box, he observed several trophies, among which was an ice pick. He then placed Ms. Diffee under arrest and transported her to the sheriff’s department.

On January 21, 1993, the Prosecuting Attorney for the Sixth Judicial District filed an information charging Ms. Diffee with first-degree murder. Thereafter, the State filed a motion to admit evidence that Ms. Diffee had assaulted her former husband, Eddie Diffee, with an ice pick in 1989, and at a pre-trial hearing on January 18, 1994, after hearing testimony from Mr. Diffee as well as arguments from counsel, the trial court ruled, over Ms. Diffee’s objection, that Mr. Diffee’s testimony was admissible.

At trial, Dr. Frank Peretti, Associate Medical Examiner for the State Crime Lab, testified that, upon performing the autopsy, he determined that the manner of death was homicide, and that there were twenty-two stab wounds on Ms. Durham’s body which were consistent with being inflicted by an ice pick, none of which were defensive. He further observed four contusions or bruises under Ms. Durham’s scalp, which he also stated could be consistent with being inflicted with an ice pick. Lisa Calhoun, a forensic seronologist with the State Crime Lab, testified that she tested the ice pick for blood with negative results; however, she stated that if the ice pick had been washed or cleaned thoroughly, that would explain the negative test results. This testimony was corroborated by Roger Swope, a crime-scene specialist with the City of Little Rock, who performed luminol testing on the ice pick and also received negative results for blood.

Ms. Diffee’s son, Scott Diffee, testified that he had observed tension and hostility between his mother and grandmother, and, particularly, that he had seen his mother “jump up and knock tables over” and “go straight towards [Ms. Durham] like a football player hitting another football player.” Approximately two weeks before the murder, he stated that he went out to his grandmother’s residence to “calm everyone down” when his mother and grandmother were having an argument. Ms. Diffee’s eldest son, Mark Diffee, testified that he and Scott moved into his grandmother’s residence after her death and stayed there until Ms. Diffee was released on bail and returned to the residence. He stated that, on one occasion, he went back to the residence to get some clothes and a cable box that Scott had asked him to retrieve. While he was removing the box from the television, Ms. Diffee, who did not want him to take it, got on top of him, and hit him a couple of times before saying that, “I’ll do you like I did Granny.” Mark then got his clothes and the cable box and left the residence.

Bonnie England, an acquaintance of Ms. Diffee and Ms. Durham, testified that, on the night before Ms. Durham’s body was discovered, she had spoken with her on the telephone and had heard her arguing with Ms. Diffee over going to get some ice cream, and specifically heard Ms. Diffee say to her mother, “I wished you was dead.” Ms. England further testified that one week prior to the incident, she had observed black and blue spots all over Ms. Durham’s neck, and that Ms. Durham explained to her that her daughter had knocked the breath out of her and had hit her on a goiter on her neck. Witnesses also offered that Ms. Diffee and her mother argued over Ms. Diffee’s prescription drugs, which her mother would keep, as she would try to dispense the correct dosage to her daughter. Additionally, according to Ms. Combee, who was also executor of Ms. Durham’s estate, Ms. Durham planned to change her will so that Ms. Diffee and her two sons would take equal shares in the estate, rather than Ms. Diffee having a life estate in the will’s present form. She further testified that Ms. Durham, whose purse was found in her daughter’s building on the morning the body was discovered, would have never let Ms. Diffee have her purse, and that her car, which she would routinely park in the same spot and which she always kept clean, was found moved and littered.

Ms. Diffee testified in her own behalf, denying any violence toward her former husband or her mother. On cross-examination, she admitted giving Sergeant Adams two different reasons for hiding the ice pick — that she had been in prison and that she was scared, and that she was trying to hide it for one of her sons, implying that one of them may have committed the homicide.

Ms. Diffee’s trial was bifurcated pursuant to Arkansas’s new bifurcated sentencing procedures, and after the jury found her guilty as charged, they heard evidence of Ms. Diffee’s prior convictions as well as victim impact testimony, and recommended that she be sentenced to a forty-year term of imprisonment. The trial court entered judgment against her, and it is from this adverse ruling that Ms. Diffee appeals.

I. Admissibility of prior bad acts under A.R.E. 404(b)

Ms. Diffee argues that the trial court erred in admitting evidence that she had attacked her former husband, Eddie Diffee, and that this testimony should have been ruled inadmissible under Arkansas Rules of Evidence 404, but before we examine the issue on its merits, we must first determine whether Ms. Diffee properly preserved this matter for appeal.

Prior to trial, the State filed a formal motion seeking to admit the testimony of Eddie Diffee under A.R.E. 404, and for the admission of a statement allegedly made by Ms. Diffee to her ex-husband under A.R.E. 801, to which Ms. Diffee objected. (The A.R.E. 801 request is a non-issue, as the statement sought to be admitted under this rule was never presented at trial.) Although the State, in its brief, concedes that Ms. Diffee’s A.R.E. 404(b) objection was preserved for appeal, the dissenting opinion in this case ignores the State’s concession and declares to the contrary.

The dissent points out that Ms. Diffee did not articulate her objection to Eddie Diffee’s testimony under A.R.E. 404(b); rather, she questioned its sufficiency, and, as such, her objection was not specific enough to apprise the trial court of the specific error in question. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). The dissent is correct in part, as Ms. Diffee’s objection was not specific. Yet, the dissent makes little of the fact that the trial court considered and admitted Mr. Diffee’s testimony under this rule in direct response to the State’s formal motion to admit his testimony. Granted, Ms. Diffee’s concern at the pre-trial hearing went to the question of the sufficiency of Eddie Diffee’s testimony; however, the fact still remains and the record reflects that the trial court was well-apprised of the issues of admissibility, as is noted in the court’s response to Ms. Diffee’s objection to the testimony that “[w]e’re talking about whether or not it’s admissible, not whether or not it’s something you cannot or can attack at trial, you know.”

In short, the trial court considered Mr. Diffee’s testimony pursuant to the State’s request to admit it into evidence under A.R.E. 404(b), and wrongfully permitted it at trial. That rule provides in pertinent part as follows:

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

The significant facts surrounding the evidence are these. Eddie Diffee testified that he and Ms. Diffee were married from 1967 until 1991, and that one evening in 1989, he was sleeping on his left shoulder in the front bedroom of their home with his right hand out from underneath the cover, when he swiped and hit something which fell out of Ms. Diffee’s hand and to the floor. According to Mr. Diffee, the object cut three fingers on his hand and stuck him between his sideburn and eye. He further testified that Ms. Diffee screamed and ran through the foyer and living room to the kitchen, where she told him that a man had run through their house. Mr. Diffee then cleaned the blood off his fingers and face and went to work, as he was employed on the midnight shift at Jones Truck Line. The next morning, he came home from work to find Ms. Diffee asleep on the bed and an ice pick laying on the floor on the same side of the bed where he had knocked the object out of her hand the night before.

Ms. Diffee characterizes the alleged attack of her former husband as an “unrelated incident.” In light of the facts before us, we must agree. Granted, evidence which shows a method of operation is independently admissible; however, the evidence in this case does not reach that level.

There are two requirements for introducing evidence of an unrelated prior act to show a method of operation: “(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual.” Frensley v. State, 291 Ark. 268, 274, 724 S.W.2d 165, 169 (1987) (citing Edward J. Imwinkelried, Uncharged Misconduct Evidence, § 3.10 to 3.12 (1984). This case fails both requirements.

The first requirement is that there be a very high degree of similarity between the charged crime and the prior uncharged act. Professor Imwinkelried describes this first requirement as follows:

The courts have repeatedly held that the degree of similarity required to establish identity based on modus operandi is greater than the degree required to negate innocent intent. The courts have contrasted the two theories by saying that the identity theory requires “a high degree of similarity,” a “strict” degree, a “higher” degree, a “greater” degree, or a “much greater” degree of similarity. The requirement for greater similarity is justified. When the prosecutor is offering the defendant’s similar acts to disprove innocent intent, the doctrine of chances operates so long as the acts are of the same general category. However, when the prosecutor offers acts for the purpose of proving the defendant’s identity, proof of acts of the same category or type is insufficient; in the words of Lord Widgerly, proof of acts in the same generic type is insufficient to support a permissive inference that the acts were performed by the “same” person.

Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3.11 at 23 (1984) (footnotes omitted).

In this case the unrelated and uncharged prior act was that Eddie Diffee, who was Ms. Diffee’s husband at the time, was asleep in their home and while moving his hand from underneath the cover, hit an ice pick and knocked it from her hand. He cut three fingers as he moved his hand from underneath the covers, and the ice pick stuck him between his sideburn and eye. In the charged act, the victim, Ms. Diffee’s mother, was stabbed twenty-two times in the body and struck four times in the head. The weapon was most likely an ice pick. Her body was found on a couch in her residence, which was adjacent to the building in which Ms. Diffee lived.

The two acts were similar because both acts involved an ice pick, both involved Ms. Diffee preparing to attack or attacking a member of her family, and both occurred in or near Ms. Diffee’s residence. It is doubtful that there was a “high degree” of similarity, but even if there were, this case clearly fails the second requirement.

The second requirement for admission as a method of operation is that the methodology be so unique that it independently identifies the accused as the perpetrator. Professor Imwinkelried describes this requirement as follows:

Standing alone, proof of similarity of the two crimes is insufficient to justify admitting the uncharged misconduct to prove the defendant’s identity. Even if the crimes are identical, it just may happen that every safe robber or counterfeiter is familiar with that technique. Before admitting the evidence to prove the defendant’s identity, the judge must conclude that the crimes were committed by “one and the same person.”
The courts and commentators have used various expressions to describe the requirement that the methodology be attributable to only one criminal: The methodology must be “bizarre,” “highly characteristic,” “distinguishing,” “distinctive,” “dramatic(ally) similar,” an “earmark,” “exceptional,” a “fingerprint,” a “handiwork,” “identifying,” “idiosyncratic,” “novel,” “parallel,” “peculiar,” “remarkably similar,” “set apart,” “signature quality,” “singular,” “strikingly similar,” “a veritable trademark,” “uncommon,” “unique,” or “unusual.”

Imwinkelried, supra § 3.12 (1984) at 26 (footnotes omitted).

In this case, Mr. Swope, the crime scene specialist, testified that he had seen several homicides that had involved the use of ice picks. The uncharged act did not involve a stabbing, so there is nothing unique about the locations of the stab wounds or the manner of stabbing. In short, the methodology did not set apart the perpetrator. To be admissible, the method of operation must so set apart the perpetrator that it independently discloses the criminal’s identity. Professor Imwinkelreid states:

There are numerous, excellent hypothetical and actual examples of unique methodology.
The hypothetical examples are more colorful. Professor Alan Polasky of the University of Michigan hypothesized the bandit with the silver crossbow. The British examples are just as histrionic; criminals who repeat a particular humorous limerick or who wear the ceremonial headdress of an Indian chief. More recently, Professors Broun and Meisenholder have given us the example of the robber wearing the medieval knight’s helmet. The point of each hypothetical is to illustrate the required standard of uniqueness.
There are several illustrations drawn from actual cases that are equally good examples of the standard. The courts have admitted evidence of other crimes to establish a one-of-a-kind modus operandi in the following cases: The burglar always left a bathroom scale on the front door of the burgled residence; the drug trafficker sold a type of white heroin rare in the San Antonio area; the killer always shot the victim in the back near the fourth cervical vertebra; the thief used a rare automobile to make his getaway; the forged money orders were identical in amount, payee, and payer and sequential in number; the burglaries were committed after the burglar bypassed the alarm system in a sophisticated, distinctive manner; the bank robber wore rose-tinted wire-framed glasses and a certain color shirt and wig; the caller making the phone threat always mentioned a “Mary D” during the call; and the smugglers used the same ingenious stratagem even though on one occasion the smuggled contraband was drugs but on the other occasion the contraband was a handgun. In these cases, although the crimes may not have been identical in every detail, the crimes were sufficiently similar and the modus sufficiently unique to justify admitting the uncharged misconduct evidence to show identity.

Imwinkelreid, supra § 3.13 at 31 (footnotes admitted).

Frensley is a good example of the proper admission of prior unrelated acts to show the accused’s method of operation. There we held that the prior acts were admissible because:

[T]he methodology uniquely sets apart and identifies appellant as the robber. The similarities include the robbery of Long John Silver’s restaurants, the time of entry, the place of seating, the long stay in the restroom, the knowledge of the layout of the restaurants, the use of a dark colored revolver, the use of tape, the wearing of long jersey work gloves, and the physical appearance of the robber. Both actions were committed in the same unique fashion. Further, the two acts were so unique and uncommon that they became distinctive and identifying. The two acts establish a method of operation. The inference is clear, there were not two different robbers. The evidence was properly admitted.

Frensley, 291 Ark. at 274, 724 S.W. 2d at 169.

In sum, to be admissible, the two related acts must be so distinctive, so unique, and so uncommon that they become identifying, and they must be independently relevant to show a method of operation. The unrelated acts in this case do not reach such a level.

Another theory advanced by the State is that Mr. Diffee’s testimony was properly admitted to show Ms. Diffee’s “intent, plan, and identity” in light of our decision in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). The appellant in Brenk was charged with capital murder in the connection with the death of his wife, Lou Alice Brenk, whose torso was found in a cooler floating in Lake Norfork. The cooler contained cement as well as her torso, which had been severed at the upper thighs and back. At trial, Jackie Brenk, the appellant’s former wife, was permitted to testify that he “had threatened her when they were married, had tried to kill her, and had told her he would kill her, cut her body to pieces, and scatter the pieces from Mammoth Springs, Arkansas, to Louisiana so that no one would ever find her.” In short, Jackie Brenk’s testimony was that Brenk had told her that he would cut her body to pieces and scatter those pieces, and the body of Lou Alice Brenk was so found. Under these circumstances, we held that “[g]iven the similarity of the circumstances of Lou Alice Brenk’s death and the specific threats made by appellant to Jackie Brenk, although several years earlier, these threats were admissible to show appellant’s ‘intent, plan, and identity.’ ” Conversely, little similarity of circumstances exists in this case. While Eddie Diffee testified that some several years previous, he was cut on three fingers of his hand and stuck between his sideburn and eye when he knocked an ice pick from Ms. Diffee’s hand, there was no proof that Ms. Diffee made any specific threats towards her former husband. In fact, she denied being involved in his injury, claiming that it was the result of an attack by a third party.

Although it is apparent that Ms. Diffee may have used an ice pick in an assault on her ex-husband and in stabbing Ms. Durham some twenty-two times in various parts of her body, such use of an ice pick to assault her ex-husband, absent specific threats to him or other evidence of an intent or plan to inflict harm or take his life, simply does not pass muster as permitted evidence under A.R.E. 404(b). The admission of this testimony was prejudicial error for which we must reverse and remand for a new trial.

II. Issues upon retrial

We discuss the other two points of appeal for the guidance of the trial court and counsel on remand, as it is likely that these issues will arise again at a subsequent trial. See Spring Creek v. Sarrett, 319 Ark. 259, 890 S.W.2d 598 (1995).

A. Constitutionality of the bifurcated sentencing proceedings pursuant to Act 535 of 1993

For her second point of error, Ms. Diffee asserts that Arkansas’s bifurcated sentencing procedures in Act 535 of 1993, codified in Ark. Code Ann. §§ 5-4-103 (Repl. 1993) and 16-97-103 (Supp. 1993), under which she was sentenced, are violative of the ex post facto clause in the United States Constitution. We recently put this issue to rest in the case of Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994). In Williams, we specifically held that:

Arkansas’s new bifurcated sentencing laws do not violate the Ex Post Facto Clause because they do not criminalize conduct that was previously non-criminal, do not increase the severity or harshness of the punishment for the offenses [defendant] committed and do not deprive [defendant] of a defense that was available to him at the time he committed the offenses with which he was charged. Statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. Nor is a statute prohibited which changes the rules of evidence after an indictment so as to render admissible against the accused evidence previously held inadmissible. Because the penalty or sentence authorized under the prior and new sentencing statutes remains the same as applied in [defendant’s] situation, we conclude any change was merely procedural and not substantively prejudicial or an ex post facto violation.

(Citations omitted.) Ms. Diffee also asserts that the bifurcated sentencing laws violate Art. 2, § 17 of the Arkansas Constitution, yet, like the appellant in Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991), she has failed to present us with any argument showing us why we should interpret the ex post facto doctrine in the Arkansas Constitution in manner contrary to that of the ex post facto clause of the United States Constitution. Thus, Ms. Diffee’s argument on this point must fail.

B. Speculative testimony

For her final point of error, Ms. Diffee asserts that the trial court erred by allowing the State to elicit the speculative testimony of Melba Combee, Ms. Diffee’s cousin, as to whether her aunt, Ms. Durham, would have let Ms. Diffee have her purse, which Ms. Combee discovered in Ms. Diffee’s building on the morning the body was found. The testimony in question took place as follows:

COUNSEL FOR STATE: Would she [Ms. Durham] have let Judy [Diffee] have her purse?
WITNESS: Huh-uh. (no).
COUNSEL FOR DIFFEE: Your Honor, I’m going to object to that question. I think it’s hearsay and she’s asking the witness to speculate.
THE COURT: Hearsay? Overruled.
COUNSEL FOR DIFFEE: She’s asking the witness to speculate.
THE COURT: I don’t think it’s hearsay at all. Overruled.

Arkansas Rule of Evidence 701 prohibits the admission of speculative testimony. It states as follows:

Opinion testimony by lay witnesses. — If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Stated another way, evidence is “speculative” where it is not helpful to a clear understanding of the testimony or to a determination of a fact in issue. We disagree that Ms. Combee’s testimony regarding whether Ms. Durham would have let Ms. Diffee have her purse was speculative, as her opinion was based on a lifetime of observation. Ms. Combee was age 62 and Ms. Durham’s niece, and had been around her aunt all her life, observing that she kept her car keys in her purse and guarded it carefully, not wanting anyone to know how much money she had. Thus, it was her opinion that Ms. Durham would not have let Ms. Diffee have her purse. Such lay testimony was “rationally based on the perception of the witness,” as A.R.E. 701 requires, and its admission was not in error.

Reversed and remanded.

Glaze, Corbin and Brown, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority court does a good job setting out case law analysis in its discussion of A.R.E. Rule 404. In fact, it does a much better job than Ms. Diffee did at trial. The hearing on the admissibility of Mr. Diffee’s testimony under A.R.E. Rules 404 and 801 was actually requested by the state. After hearing Mr. Diffee’s pretrial testimony, the only objection Ms. Diffee interposed to admitting Mr. Diffee’s testimony into evidence was that Mr. Diffee was unclear on whether Ms. Diffee attacked him with an ice pick. The following colloquy is all that I can find in the record concerning the admissibility of Mr. Diffee’s testimony:

STATE: That’s all I have on this motion, Your Honor.
THE COURT: Okay. I think clearly the attack is — there’s no problem with that.
DEFENSE COUNSEL: Your Honor, we have — I think there’s a big problem with the attack.
THE COURT: Oh, you do. What?
DEFENSE COUNSEL: Yes, Your Honor. This gentleman says someone stabbed him. He doesn’t know what stabbed — he’s cut, he’s bleeding.
THE COURT: Oh, I think there’s sufficient evidence there that, you know, —
DEFENSE COUNSEL: He comes back the next day and finds something on the floor under the bed.
THE COURT: He didn’t find something. He found an ice pick.
DEFENSE COUNSEL: And says it’s an ice pick. He just brings this to our attention a week or so ago.
THE COURT: Well, certainly, you can argue that. We’re talking about whether or not it’s admissible, not whether or not it’s something you cannot or can attack at trial, you know. Certainly, I think it’s admissible, sure.
Is this lady denying she attacked her mother?
DEFENSE COUNSEL: Denying she attacked who?
THE COURT: Well, that she committed the crime in this case?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: Well, I think it’s admissible then. Yeah.

As can be seen from the above, defense counsel’s expressed concern went to the sufficiency of Mr. Diffee’s testimony. The court’s response was that counsel could “argue that,” but the court said, “We’re talking about whether or not it’s admissible.”

Defense counsel never stated any reason why Mr. Diffee’s testimony was inadmissible. This court has repeatedly held that an objection must be specific enough to apprise the trial court of the specific error in question. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Again, Ms. Diffee’s concern at the pretrial hearing went to the sufficiency of Mr. Diffee’s testimony, and it is also well settled that a party cannot change grounds for an argument on appeal. Id.

Finally, the majority opinion attempts to justify reaching the merits on the foregoing point by saying the state conceded that Ms. Diffee preserved an A.R.E. 404(b) objection. Obviously, the state is unable to concede a fact that did not, and does not, exist. To reiterate, Ms. Diffee made no Rule 404(b) objection; instead she argued only the insufficiency, not inadmissibility, of the evidence.

I pointed out above that the state’s pretrial motion raised initial questions concerning the admissibility of Mr. Diffee’s testimony under A.R.E. Rules 404(b) and 801, but Ms. Diffee gave no reason to the trial judge why that testimony should be excluded under either one of those rules. For whatever reason, this court now ignores its longstanding rule requiring a party to apprise the trial court of the specific error it would make if it were to admit questioned evidence. This court’s failure to follow this settled rule of review results in its reversing this case based upon an error and reason the defense never raised or mentioned to the trial judge.

For the foregoing reasons, I respectfully dissent.

Corbin, J., joins this dissent.

Robert L. Brown, Justice,

dissenting. This is not a case where the State sought to bring in a prior bad act committed by Judy Diffee in an unrelated incident against a third party. It is a case where the appellant had attacked another family member under similar circumstances which included location, condition of the victim, and the weapon used — an ice pick. This encounter, as related by Eddie Diffee, may not shed light on Judy Diffee’s specific intent to kill her mother as discussed in the seminal case on Rule 404(b), Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), but it most assuredly sheds light on her identity and her planning as the perpetrator. In short, this testimony was relevant to this case under Rule 404(b), and the trial court correctly admitted it.

The analogous facts in Edith Durham’s murder and the Eddie Diffee attack are these. Regarding the murder of Edith Durham in 1992, (1) the victim was a close relative of Judy Diffee — her mother; (2) Judy Diffee lived on the same property as her mother in a detached portable building; (3) the victim was found on the couch in her nightgown; (4) the victim had been stabbed in her left arm, chest, back and head; and (5) the weapon used was, apparently, an ice pick. According to Eddie Diffee, in 1989 the facts of his attack were: (1) he was the husband of Judy Diffee; (2) they lived in the same home; (3) he was asleep in the front bedroom of his home at the time; (4) he was stabbed on his hand and head; and (5) an ice pick was found laying by the bed where the stabbing took place.

The majority debunks the similarities in the two incidents and discusses, primarily, modus operandi for crimes against unknown third parties. But the opinion cites no authority in support of its conclusion that the attack on Eddie Diffee, a former family member, was not evidence of identity or plan. Ironically, the only case the majority does adduce on identity and plan is Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), which involved family members and supports the State’s position.

The majority attempts to distinguish Brenk v. State, supra, from the present case to no avail. In Brenk, the testimony in question was that of a former wife who said that Brenk once threatened to kill her and cut her body into pieces and scatter them. The crime for which Brenk was being tried was the murder of a subsequent wife and the placing of her torso in an ice chest which was found floating in a lake. This court held on appeal that the former wife’s testimony was “similar” enough to the crime perpetrated to warrant admissibility as evidence of plan or identity under Ark. R. Evid. 404(b).

In considering modus operandi, we typically are considering conduct in an unrelated incident against a third party. See, e.g., Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993); Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The test used by this court, as the majority correctly points out, is uniqueness of the methodology employed and striking similarity. But where former family members of the perpetrator are involved, we have looked only to the similarity between the threats and attacks to determine admissibility. See Brenk v. State, supra. The reasoning for this is obvious. Where threats or attacks have been carried out against other family members, that fact renders the evidence more pertinent in a murder trial involving another family member. And more reliable.

The trial judge’s ruling does not constitute a clear abuse of discretion which is the test for reversing a judge on an evidentiary decision. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991); White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). But in addition, under the theory of this case, henceforth a malefactor may systematically murder members of his or her family in their home over a period of years using the same weapon and under the same general circumstances, and those prior crimes may not be used to establish identity or plan. What could be more probative than such past conduct? I personally believe that the circumstances surrounding the Durham murder and the Eddie Diffee attack are strikingly similar. But they most definitely are sufficiently analogous for admissibility under the Brenk rationale, when family members are involved.

I respectfully dissent.

Corbin, J., joins.


source: Caselaw Access Project

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

license: Public Domain

text:
    John Thompson CAULKINS v. Terry CRABTREE, Circuit Judge
    CR 94-153
    894 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995

      Godo, Dossey, & Reeves, by: Samuel M. Reeves, for petitioner.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for respondent.
   David Newbern, Justice.

This is an original action seeking a writ of prohibition to preclude a trial John Thompson Caulkins, the petitioner, contends would be in violation of his right to a speedy trial as provided in Ark. R. Crim P. 28.1(c). We grant the writ because the trial did not take place within the prescribed one year period. The one year period began when Mr. Caulkins waived extradition from Texas on November 7, 1992. He should have been tried no later than November 7, 1993. We disagree with the Trial Court’s conclusion that the State demonstrated two periods of time to be excluded from the 421 days between November 7, 1992, and the trial which was scheduled for January 3, 1994.

Mr. Caulkins was charged in Benton County with delivery of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (Repl. 1993). He was arrested in Texas on November 2, 1992, and as noted above, he waived extradition on November 7, 1992. The one year time for the purposes of Rule 28.1(c) began to run on the latter date. White v. State, 310 Ark. 200, 833 S.W.2d 771 (1992). The January 3, 1994, trial date exceeded the one year period by 56 days.

If Rule 28.1(c) is violated, there is an absolute bar to further prosecution. Tlapek v. State, 305 Ark. 272, 807 S.W.2d 467 (1991). Mr. Caulkins moved to dismiss, contending the January 3, 1994 trial date violated the Rule. The Trial Court denied the motion because he concluded there were two periods of time to be excluded or subtracted from the 421 day period, thus bringing it within the prescribed one year or 365 days.

The first period the Trial Court excluded was time during which the State had declared it would not prosecute the charge. Rule 28.3(f) permits exclusion of “the time between nolle prosequi upon motion of the prosecuting attorney for good cause shown, and the time the charge is later filed for the same offense. ...” Apparently the decision not to proceed against Mr. Caulkins was made June 7, 1993. The docket sheet shows nolle prosequi entered July 2, 1993. The charge was refiled on December 9, 1993. If that period is calculated from June 7 to December 9, 1993, the number of excludable days would be 184. If calculated from July 2 to December 9, 1993, the number would be 159. If either of those numbers of days were subtracted from the 421 day total, the trial would fall within 365 days from the extradition waiver and thus not be in violation of the Rule.

The second period the Trial Court excluded consisted of the 66 days between September 10, 1993, the date a second arrest warrant was issued and November 15, 1993, the date Mr. Caulkins was rearrested in Texas. Rule 28.3(e) permits exclusion of a time when the defendant is absent or unavailable. The Rule provides, in pertinent part, “A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.” The Trial Court stated that even though Mr. Caulkins’ employment was known, he had moved to a new residence and had his telephone disconnected, and the utilities at his new address were not billed in his name.

Neither period was excludable.

After his initial arrest and extradition waiver in November, 1992, Mr. Caulkins was transported to Benton County. He was released on bail November 13, 1992. On January 7, 1993, an information was filed in Benton Circuit Court charging Mr. Caulkins with one count of delivery of a controlled substance.

On January 11, 1993, Mr. Caulkins appeared and entered a plea of not guilty. Four omnibus hearings were scheduled, but each was continued on motion of the State.

Officer Brunell of the Rogers Police Department testified that in January, 1993, an informal meeting was held at the FBI office in Fayetteville. In that meeting, the U.S. Attorney, the Chief of the Rogers Police, the Prosecuting Attorney, and others discussed the possibility of certain cases being prosecuted by the U.S. Attorney’s Office. At the conclusion of the meeting, it was Officer Brunell’s understanding that the charge against Mr. Caulkins would be nolle prosequi and that the U.S. Attorney would pursue a grand jury indictment against him.

In April of 1993, Officer Brunell spoke with the Assistant U.S. Attorney and was told that a federal indictment would not be sought against Caulkins “at that time.” In August, 1993, Officer Brunell learned from the U.S. Attorney’s Office that the Western District of Arkansas was not going to indict Mr. Caulkins on a delivery or distribution charge as those charges would have to originate in Texas. Federal officials in Arkansas could only charge Caulkins with illegal use of a communication facility.

After learning there would be no federal prosecution on a drug delivery charge, the Rogers Police Department and the Benton County Prosecutor decided to resume prosecution. On September 10, 1993, Officer Brunell obtained another arrest warrant and entered it into the ACIC and NCIC Information Center System. On that same day he requested assistance of the Fugitive Division of the Arlington (Texas) Police Department in apprehending Caulkins. When Texas officials agreed to help, Officer Brunell sent them a copy of the second warrant and the booking report from the previous arrest.

Officer Albritten of the Arlington Police Department was in charge of apprehending Caulkins. He testified he received his assignment September 10 and his initial investigation revealed Mr. Caulkins had moved his residence since the time of his first arrest. There was, however, no way to ascertain his new address because he no longer had a telephone and had moved into an “all bills paid” apartment, thus his whereabouts could not be learned from checking utilities records.

Within a few days of discovering that Mr. Caulkins had changed addresses, on September 18, 1993, Officer Albritten testified he telephoned Mr. Caulkins’ last known employer to verify that he was still an employee. Officer Albritten called Mr. Caulkins’ place of employment using an assumed name so as not to reveal his police identity and left his pager number. The page was returned some four hours later by a person Officer Albritten assumed to be Mr. Caulkins. Despite having thus learned on September 18 where Mr. Caulkins was during employment hours, Officer Albritten did not attempt an arrest until November 15, 1993, almost two months later, because he had “priority warrants ahead of Mr. Caulkins.”

Mr. Caulkins waived extradition a second time on November 18, 1993, and was transported back to Benton County. On November 20, 1993, he was charged with delivery of cocaine and released on bond, but the information was not filed until December 9, 1993, with the trial set for January 3, 1994.

A hearing was held on December 29, 1993, with respect to the motion to dismiss. Testimony indicated that Mr. Caulkins had changed his residence in January 1993 and had lived at his new address since that date. Mr. Caulkins testified that at all times he kept his bondsman and his lawyer informed of his whereabouts, even during the nolle prosequi period. He had worked for the same employer for the past seven years and had worked in the same location for the past three years.

When the defendant presents a prima facie case of a violation of his right to a speedy trial, the burden shifts to the State to show that the delay was legally justified or the result of the conduct of the defendant. Meine v. State, 309 Ark. 124, 827 S.W.2d 121 (1992). No doubt Mr. Caulkins presented a prima facie case, thus the burden is on the State to demonstrate some excludable period of time to satisfy Rule 28.1(c).

1. Unavailability

We have no difficulty concluding that the State has failed to show Mr. Caulkins was absent or unavailable during the 66 days from September 10 to November 15, 1993. Even if the State were not to be considered responsible for Officer Albritten’s delay of some 60 plus days in arresting Mr. Caulkins, the actions of the Benton County authorities in seeking Mr. Caulkins’ apprehension subsequent to the nolle prosequi period cannot be described as diligent.

Officer Brunell admitted on cross-examination he was aware that Mr. Caulkins’ mother lived in Rogers and that he had known of his place of employment since the initial arrest in 1992. After the charges were refilled Officer Brunell made no attempt to call Mr. Caulkins’ employer or bondsman to ask his whereabouts. He did call Officer Albritten on September 15, 1993, and was told that Mr. Caulkins had changed his address. He testified he called Officer Albritten again on October 29, 1993, and was told that Officer Albritten had learned Mr. Caulkins’ place of employment. As noted above, Mr. Caulkins’ place of employment was known to Benton County authorities since 1992. There is no evidence that any effort was made to urge that an arrest be effected at Mr. Caulkins’ place of employment.

When Mr. Caulkins was first arrested in 1992, Benton County authorities had gone to Texas to assist Texas authorities in apprehending him. When it came time to arrest him again, they seem to have left the matter in the hands of a busy Texas policeman, making telephone calls to him some six weeks apart. Although he was faced with an apparent speedy trial issue, there is no evidence that the Benton County Prosecutor made any effort to gain the assistance of a court, here or in Texas, or to otherwise assure the arrest was made as soon as possible. There is no indication whatever that Mr. Caulkins was attempting to evade being rearrested. He promptly waived extradition proceedings each time he was arrested.

It is clear that Mr. Caulkins could have been arrested at his place of employment virtually anytime after the charges were refiled. The State has a duty to make a diligent, good faith effort to bring the accused to trial. Meine v. State, supra; Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). We cannot agree that the State has borne its burden of showing that Mr. Caulkins was absent or unavailable from September 10 until November 15, 1993.

2. Nolle prosequi

In Washington v. State, 273 Ark. 82, 617 S.W.2d 3 (1981), we said the State had attempted to use a nolle prosequi to bypass other provisions of Rule 28.3 and thus avoid a dismissal for failure to provide a speedy trial. We held that the nolle prosequi has no such effect “absent a showing of good cause for the period of delay.” With that pronouncement, we published a simultaneous order amending Rule 28.3(f) to install formally the good cause requirement. See also Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994).

The other case in which we dealt with nolle prosequi in the speedy trial context is Carter v. State, 280 Ark. 34, 655 S.W.2d 379 (1983). Ms. Carter was about to be tried for the murder of her husband when her daughter indicated it was she, and not her mother, who committed the crime. The charge was nolle prosequi, and the investigation continued. When it was determined that there was insufficient evidence against the daughter, the charge against Ms. Carter was refiled. The Trial Court denied her motion to dismiss, finding good cause for the nolle prosequi in light of the possibility that someone other than the defendant was guilty of murder.

Obviously, the Washington and Carter cases are at opposite ends of a spectrum. Looking to the Washington case holding and an obiter dictum in the Beasley case, we might be tempted to hold that as long as it is not shown that the State is using nolle prosequi as a device to avoid a speedy trial dismissal, the time during which the charge was nolle prosequi was excludable. That cannot be the law, however, as the burden in this matter is on the State, and we surely cannot say that a defendant’s inability to demonstrate an unacceptable motive on the part of the State constitutes, or is equivalent to, a showing of “good cause” by the State. At the other end, the Carter case presents a case of practical necessity to delay prosecution when the specter of trying the wrong person for murder appears.

Between these two extreme positions we have no cases defining “good cause” in the context of assessing the State’s obligation in connection with Rule 28.3(f) when more than one prospective prosecuting jurisdiction is involved. Looking to cases from other jurisdictions, we find examples such as State v. Pizzuto, 778 P.2d 42 (Wash. App. 1989). There an issue was whether the State of Washington acted “in good faith and with due diligence” when it waived its right to have a defendant extradited in favor of the right of a sister state where the defendant faced more serious charges. It was held that such a waiver did not violate the good faith and diligence obligation in complying with the Washington speedy trial rule. That decision is not very helpful in this case where the second jurisdiction (federal authorities) had not even charged Mr. Caulkins and ultimately did not do so and there is no showing that there was a need for his presence in a place which would have precluded Arkansas proceedings against him.

An Iowa case, State v. Searcy, 470 N.W.2d 46 (Iowa App. 1991), took a very flexible approach to the good cause requirement, stating that “a comparatively weak reason for delay may be sufficient to constitute good cause if the delay is relatively short and it does not prejudice the defendant.” We find that approach appropriate for administration of a rule like Iowa Rule of Criminal Procedure 27(2)(b) which merely states that a defendant must be brought to trial within 90 days of indictment unless the right to a speedy trial has been waived or there is good cause for the delay. We find it less helpful when dealing with a specific exception such as that found in Ark. R. Crim P. 28.3(f) and our consideration of whether there was good cause for the nolle prosequi.

If Benton County officials felt there was some reason not to prosecute due to a pending federal prosecution and learned at a meeting in January, 1993, of the federal officials’ intent to prosecute Mr. Caulkins, we have no idea why the decision not to prosecute in Benton County was put off until June or July 1993 if the intent of the federal officials was the reason for the decision. Nor do we know why that decision was made in June or July after Officer Brunell learned in April that the federal authorities did not intend to proceed “at [that] time.”

Perhaps more important, the State has presented nothing to show that the contemplation of a federal charge by federal officials made it necessary for the State to drop its charge or even that it might have been somehow ill advised for the State to proceed with its charge against Mr. Caulkins. The Trial Court, when overruling the motion to dismiss, mentioned possible conflicts which might arise between federal and state investigators if charges arising from the same conduct were the subject of two investigations. There was no evidence whatever presented with respect to any such prospective conflicts. Nor was anything presented to suggest either State or federal authorities would in any legal or practical sense have been precluded from trying Mr. Caulkins just because the other might also have him charged and subjected him to trial. In short, we cannot agree there was good cause for the Benton County Prosecutor’s decision to decline to prosecute Mr. Caulkins during the 184 or 159 days lost due to that decision.

Writ granted.

Special Chief Justice Diane Mackey joins in this opinion.

Glaze, J., dissents.

Holt, C.J., not participating.

Tom Glaze, Justice,

dissenting. I dissent. Whether Mr. Caulkins was unavailable or whether the state made a diligent, good-faith effort to bring him to trial are dependent upon disputed facts. Caulkins testified he had moved, changed addresses, disconnected his phone and never told Arkansas authorities of these changes, even though he made two appearances in court in Arkansas after his move. Caulkins’ new residence was one with all utility bills paid. While he made the foregoing move and changes without telling Arkansas authorities, Caulkins claimed Texas authorities still could have determined his new address since he moved his telephone to his new residence, albeit only for two weeks. He denied telling the Texas officer who finally arrested him that he (Caulkins) “knew this (arrest) was coming.”

Texas police officer Jerome Albritten testified he tried unsuccessfully to locate Caulkins, but found he had moved giving no forwarding address. He also could not find Caulkins by checking the utilities. Albritten called Caulkins’ place of employment on three occasions and each time Caulkins was “out.” Albritten was led to believe Caulkins had a job outside the company. Caulkins, however, had said that he spent all his time at the factory. The officer tried to get the Grand Prairie Police Department to aid in locating and arresting Caulkins at his business, but that department failed to respond. Albritten voiced concern in confronting and arresting Caulkins at work because of a possible conflict. Nonetheless, he ultimately arrested Caulkins at his place of employment after making the other foregoing efforts to find him.

The trial judge listened to the foregoing and other testimony and concluded the state diligently pursued Caulkins’ whereabouts, yet the majority court, without seeing or hearing these witnesses, concludes otherwise. From the evidence, the trial court could have reasonably concluded Caulkins had avoided the authorities, or, at the minimum, failed to cooperate with them. At best, this court has substituted its judgment and discretion for that exercised by the trial judge. A writ of prohibition is not appropriate to resolve such facts or to make those inferences which necessarily depend upon the truthfulness and demeanor of the witnesses. See Ellison v. Langston, 290 Ark. 238, 718 S.W.2d 446 (1986).

It is important to reiterate, at this juncture, that prohibition is to restrain an inferior tribunal from proceeding on a matter not within its jurisdiction, but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Fletcher v. State, 318 Ark. 298, 884 S.W.2d 623 (1994); Lowery, Administrator v. Steel, Chancellor, 215 Ark. 240, 219 S.W.2d 932 (1949). Our court has steadfastly adhered to the rule that a writ of prohibition cannot be substituted for the normal remedy by appeal. Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

Certainly, Caulkins could raise his speedy trial issue on appeal. In the present case, disputed facts existed and the trial court, having jurisdiction to do so, resolved those disputed matters in the state’s favor. The majority now wrongly substitutes its own findings and will in this case by entering an extraordinary writ which is improper in those circumstances. This court should deny issuing such a special writ.

As a secondary matter, the majority opinion concludes that the state’s reason to nolle prosequi Caulkins was not good cause for delaying pursuit of its case against Caulkins. The trial court pointed out that, when a multi-agency investigation is involved and one agency desires to take the lead, the investigation is difficult to coordinate. Arkansas Officer John Brunell explained that he understood Caulkins’ case would have to be nolle prosequi in order for the United States Attorney’s office to seek a grand jury indictment on drug charges. About five months later, the United States Attorney’s Office concluded it could not seek an indictment for drug violations against Caulkins but only for the illegal use of a communication facility. Obtaining this information, the state promptly recommenced its case against Caulkins.

Although the majority court seems to have no understanding of the problems attendant to having federal, state and local authorities simultaneously involved in pursuing similar charges against one suspect, the trial court certainly was aware of such intricacies. Caulkins obviously offered no objection and largely made himself unavailable, or at least noncommunicative to the authorities in Arkansas.

Based on these facts, I find it hard to believe this court rejects the state’s obvious good-faith nolle prosequi of charges against Caulkins, while the federal agencies investigated Caulkins to determine if they should bring charges. The trial court is right — the majority is wrong. This is yet another reason why a writ of prohibition should not be granted.


author: David Newbern, Justice.

text:
    ESTATE OF Helen H. WOOD, Deceased v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    94-940
    894 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995

      Howard L. Slinkard, P.A., by: William T. Hass, for appellant.

      C. Norton Bray, for appellee.
   David Newbern, Justice.

Act 415 of 1993 permits the

Arkansas Department of Human Services (DHS) to make a claim against a decedent’s estate for medicaid payments made on the decedent’s behalf prior to death. The Act became effective August 15, 1993. Helen H. Wood died October 4, 1993. The Probate Court allowed DHS’s claim against Ms. Wood’s estate for $16,697.02 which represented medicaid nursing home payments made between December 26, 1991, and October 4, 1993. The question before us is whether the award constituted a retroactive application of Act 415. We hold the Act was applied retroactively and that it should not have been so applied. We reverse and remand the judgment.

1. Jurisdiction

Subject matter jurisdiction has not been raised as an issue by the parties, but we have considered it. We hold the Probate Court had jurisdiction to consider the claim. The leading modern case on the subject is Hilburn v. First State Bank of Spring- dale, 259 Ark. 569, 535 S.W.2d 810 (1976). There we held the Probate Court lacked jurisdiction to entertain the claim of a person contesting title to property asserted to be part of the estate by a decedent’s personal representative. We pointed out the limited authority of the Probate Court and noted that the plaintiff was “not an heir, distributee or devisee ... or a beneficiary of, or claimant against, [the] . . . estate. She was a ‘third person,’ i.e., a stranger to the estate. [Emphasis supplied.]”

In the case now before us, it is very clear that DHS is a claimant against the estate. Our Probate Code permits a probate court to adjudicate claims against the estate, Ark. Code Ann. § 28-50-105(a)(4) (Supp. 1993), and the General Assembly has specifically stated that DHS may assert such a claim against the estate by the language of Act 415, codified as Ark. Code Ann. § 20-76-436 (Supp. 1993) which is as follows:

Federal or state benefits in cash or in kind, including, but not limited to, Medicaid, . . . paid by the Department of Human Services ... for services rendered, shall, upon the death of the recipient, constitute a debt to be paid. The Department of Human Services may make a claim against the estate of a deceased recipient for the amount of any benefit distributed or paid, or charges levied, by the Department of Human Services.

The Act merely creates a debt upon the death of the recipient of medicaid payments which may be asserted as a claim against the estate. Unlike the Hilburn case, we are not concerned with an issue of title to property in the estate. Nor are we concerned with the Probate Court lacking jurisdiction because a remedy sought is equitable and thus to be pursued only in a chancery court as in Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994).

Also to be distinguished is our recent case of Arkansas Dep’t of Human Services v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993). There we held that it was proper for the Probate Court to approve a guardian’s settlement of her ward’s tort claim but that the Court exceeded its jurisdiction when it held that a trust created by the settlement was not a medicaid qualifying trust. The point of that decision was that whether or not the trust, which was created by the settlement, was a medicaid qualifying trust was a question ancillary and irrelevant to the propriety of the tort claim settlement with respect to which the Probate Court did have authority.

The claim against the estate of Ms. Wood by DHS is just that. Our Constitution grants Probate Courts “exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons ... as is now vested in courts of probate, or may be hereafter prescribed by law.” Ark. Const, art. 7, § 34. As noted above, § 28-50-105(a)(4) gives the Probate Court authority to adjudicate claims against a decedent’s estate, and Act 415 specifically permits the claim now under consideration. There is no lack of subject matter jurisdiction in the Probate Court.

2. Retroactivity

DHS agrees Ms. Wood was entitled to have the payments made on her behalf on the dates they were made. It points out that a medicaid recipient may claim certain real and personal property to be exempt from consideration as an available asset when eligibility for medicaid is determined. The implication is that, while a medicaid recipient may exempt those assets and thus be eligible for medicaid payments during her lifetime, upon the death of the medicaid recipient the items exempted during the life of the recipient are no longer exempt.

According to the estate, the statute created a new right which allows DHS to file a claim against the estate of a benefit recipient. As that right did not exist prior to Act 415, and the Act does not state that it is remedial, the estate submits that it can not be applied retroactively.

DHS responds that Act 415 is remedial in nature because it was enacted to meet the requirements of the Omnibus Budget Reconciliation Act of 1990 and to help put the Arkansas Medicaid plan on a better financial basis. Further, DHS contends Act 415 may be applied retroactively because it does not disturb the vested rights of any person, but only seeks to recover from the Estate of the deceased.

It is presumed that all legislation is intended to apply prospectively only. Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958). Any interpretation of an act must be aimed at determining whether retroactive effect is stated or implied so clearly and unequivocally as to eliminate any doubt. In determining legislative intent, courts observe a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. See Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). A contrary determination will be made where the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication or by terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof. See Arkansas State Highway Comm’n v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964); Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter, supra.

The rule by which statutes are construed to operate prospectively does not, however, ordinarily apply to procedural or remedial legislation. See Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). The strict rule of construction does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962).

Act 415 appears to create a new legal right which allows DHS to file a claim against the estate of a deceased. If this is a new right, or if the statute places a new obligation on recipients, the statute is not remedial. As we see the change in the law, it affected a vested interest in Ms. Wood. Prior to the enactment she had no reason to consider the medicaid payments as anything other than an outright entitlement. After the enactment it was as if she had a loan from DHS to be repaid from the assets of her estate. Although DHS argues that the operative date of the effect of the Act was the date of Ms. Wood’s death, it is clear to us that it affected her property right prior to her death.

As the General Assembly did not state that the Act was to be applied retroactively, the only basis upon which we might approve retroactive application is its “remedial” nature. Despite the laudable legislative intent argued by DHS, the Act is not “remedial” in the sense required to allow its retroactive application. To apply the Act in this instance would not merely recognize a new remedy for a previously existing right on the part of DHS. As noted above, the authority to collect medicaid payments from a decedent’s estate is new, and in Ms. Wood’s case, it had an effect on the nature of the ownership of the DHS payments made on her behalf. We, therefore, reverse and remand the case for entry of an order consistent with this opinion.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    HERCULES INC. v. James C. PLEDGER, Director, Department of Finance & Administration, State of Arkansas
    94-684
    894 S.W.2d 576
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellant.

      Joyce Kinkead, for appellee.
   Tom Glaze, Justice.

Appellant Hercules Inc. is a Delaware corporation doing business in Arkansas, and reports its business income which is subject to the Arkansas Uniform Distribution of Income for Tax Purposes Act (UDITPA) on a calendar year basis. In 1988, appellee Department of Finance & Administration (DF&A) notified Hercules that its 1987 state income tax return was subject to a “desk audit.” On December 7, 1988, Hercules was notified of a proposed deficiency assessment of $346,515 in taxes, $17,326 in penalties, and $14,432 in interest.

Hercules filed a written protest and followed the prescribed administrative procedures outlined in the Arkansas Tax Procedure Act. See Ark. Code Ann. §§ 26-18-101 et seq. (Repl. 1992 & Supp. 1993). On September 8, 1989, the administrative law judge upheld the deficiency assessment. Afterwards, Hercules sought review of the law judge’s decision by the Commissioner of Revenues, but the Commissioner declined to revise the administrative decision. DF&A then sent Hercules an amended final assessment and demand for payment. By letter dated March 2, 1990, Hercules remitted to DF&A a corporate check in the amount of $385,283 in satisfaction of the final assessment on its 1987 corporate return.

While DF&A was auditing and reviewing Hercules’ 1987 return, Hercules was also undergoing audits on its 1985 and 1986 corporate returns. The agency decided Hercules also owed a deficiency on its 1986 return, and, on appeal, the administrative law judge agreed with DF&A once again. This time Hercules sought no further review by the Commissioner. Instead, on November 9, 1990, Hercules sent DF&A a check for $63,837 to satisfy this second deficiency assessment.

On February 26, 1991, Hercules filed its complaint in chancery court raising substantive constitutional issues as to DF&A’s audit and the department’s reclassification of previously nonbusiness income to business income for both the 1986 and 1987 audits. In response, DF&A contested the chancery court’s jurisdiction, claiming Hercules had not paid the deficiencies “under protest” as required by Ark. Code Ann. § 26-18-406(a)(l) (Repl. 1993). Following submission of briefs and stipulation of facts by the parties, the chancellor entered an order on March 1, 1994, dismissing Hercules’ complaint for lack of jurisdiction. Hercules appeals from that order of dismissal.

The Tax Procedure Act of 1979 controls our decision in this case. Specifically, § 26-18-406 provides the exclusive method for obtaining judicial review of a final deficiency determination made by DF&A. Section 26-18-406 reads in part as follows:

(a) Within thirty (30) days of the issuance of the notice and demand for payment of a deficiency in tax established by a final determination of the hearing officer or the director under § 26-18-405, a taxpayer may seek judicial relief from the final determination by either:
(1) Paying under protest the amount of the deficiency, plus penalty and interest determined by the director to be due, and filing a suit to recover that amount within one (1) year from the date of payment under protest; or
(2) (A) Filing with the director a bond in double the amount of the tax deficiency due and by filing suit within thirty (30) days thereafter to stay the effect of the director’s determination.

(Emphasis added). Here, Hercules paid the deficiency amount and filed suit within one year under § 28-18-406(a)(l). On appeal, the paramount issue is whether Hercules “paid under protest” as required by the statute.

Hercules concedes that neither its checks to DF&A for the contested deficiency amounts, nor the letters accompanying the checks contained the words “paid under protest.” Instead, Hercules argues the statutory terms “paying under protest” are ambiguous. Further, Hercules contends the record in this matter clearly establishes that the deficiency assessments were paid “as part of [Hercules’] overall protest,” and that protest of the assessment over the two year period was sufficient to place DF&A on notice that Hercules contested DF&A’s basis for making the challenged assessments.

While there is no dispute that Hercules complied with the notice requirements of § 26-18-404 in order to preserve its right for an administrative review of DF&A’s proposed assessments, we cannot agree with Hercules that that notice complied with and preserved its right to a judicial review under § 26-18-406(a)(1). Section 26-18-404 provides:

(c) Within thirty (30) days after the service of notice of the proposed assessment or action, the taxpayer may file with the director a written protest under oath, signed by himself or his authorized agent, setting forth the taxpayer’s reasons for opposing the proposed assessment.

(Emphasis added). Clearly, the Act requires a particular type of protest in order to initiate the review procedures outlined in §§ 26-18-404 and 26-18-405, which are administrative in nature and involve contesting proposed assessments. Whereas, paying the final assessment under protest is required by § 26-18-406(a)(l) in order to preserve the taxpayer’s right to judicial review.

The basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). The legislative intent is gathered from the plain meaning of the langúage used. Id. In construing any statute, the appellate court will place it beside other statutes relevant to the subject, and give it a meaning and effect derived from the combined whole. Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989).

In enacting § 28-18-406, the General Assembly had in mind at least two reasons for requiring a taxpayer to designate specifically any payment as being under protest when seeking judicial review of a final deficiency assessment. First, § 28-18-406(c) mandates that all taxes and penalties paid under protest are to be held by the director in an escrow account denominated the “Tax Protest Fund Account,” and that refunds are to be made from this account. While we agree with Hercules that the phrase “paying under protest” is not defined by the Act, these terms are not ambiguous or difficult to understand. Protest is commonly understood to mean a formal disapproval or objection issued by a concerned party. Here, under § 28-18-406, it is clear that the protest is intended to place DF&A on notice that the taxpayer’s payment must be deposited into the Protest Fund account. Second, a taxpayer who has protested and pursued an earlier administrative review of a proposed assessment under § 28-18-404 may reasonably decide not to pursue further adjustments of the assessment or judicial review of the final determination. While a payment which is not made under protest is deposited into general revenues and becomes available for immediate use by the state, a payment made under protest only becomes available for the state’s use after the taxpayer fails to file suit within the one year period or after judicial determination that the deficiency assessment was valid. See § 28-18-406(c)(3).

Accordingly, we reject Hercules’ argument that § 28-18-406 is ambiguous, and hold that in order to preserve its right to judicial review under the Act, Hercules was required to provide notice to DF&A that its payments were being made under protest. The chancellor found as a matter of law that Hercules failed to give DF&A any notice that the final deficiency assessments were paid under protest. While chancery decisions are reviewed de novo, we will reverse only if the chancellor’s findings of fact are clearly erroneous. On appeal, Hercules has failed to show that the chancellor was wrong.

Finally, we consider Hercules’ contention that it was not made aware of its procedural remedies because DF&A failed to provide Hercules with a copy of the statement required by the 1989 Taxpayer Bill of Rights. See §§ 26-18-801 etseq. (Repl. 1992 & Supp. 1993). Hercules points out that § 26-18-802 requires DF&A to provide the taxpayer with a statement setting out the procedure by which a taxpayer may judically appeal an adverse agency decision. Hercules points out that it never received DF&A’s handout explaining how a taxpayer must pay a disputed assessment “under protest.” Even if that mattered, the administrative law judge in his decision notified Hercules that it could seek further review under § 26-18-406, which clearly explains a taxpayer may seek judicial relief from the final assessment by paying the deficiency amount “under protest.” In sum, Hercules was not prejudiced by DF&A’s failure to give the same advice as that required under § 26-18-802. A second reason for finding no error in this contention is that § 26-18-802 has no sanctions or penalties provided for when DF&A fails to prepare and distribute taxpayer statements on the various matters provided in the statute.

Hercules makes two additional arguments on appeal, neither of which has merit. First, Hercules contends that, because DF&A threatened to file a certificate of indebtedness against it when DF&A demanded payment of the deficiency amounts, the payments were made involuntarily and in such circumstances, filing written protests are unnecessary under the common law rule. In support, Hercules cites a number of Arkansas cases decided prior to enactment of the 1979 Tax Procedure Act.

The common law rule relied on by Hercules requires payment under compulsion or coercion in order for the taxpayer to obtain a refund of the amount paid, and reads as follows:

Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and can not be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.

Brunson v. Bd. of Directors of Crawford Cty. Levee Dist., 107 Ark. 24, 153 S.W. 828 (1913) (citation omitted). Without determining whether Hercules’ payment was made under sufficient coercion to make it involuntary, we agree with the chancellor that such determination is irrelevant. The issue in this case is not whether the taxes and interest were paid involuntarily but whether the deficiency assessments in question were paid “under protest” as mandated under the plain language of § 26-18-406(a)(l).

Next, Hercules contends the Act is unconstitutional because it fails to provide sufficient post-deprivation procedures. Hercules failed to raise this argument below, but, even if it had raised the issue, Hercules failed to obtain a ruling on it. As we have held many times, the appellate court will not consider an issue for the first time on appeal. Hope Education Ass’n v. Hope Sch. Dist., 310 Ark. 768, 839 S.W.2d 526 (1992). The burden to obtain a ruling on a particular theory is on the party who advanced the theory below, and matters left unresolved at trial are waived and may not be relied upon on appeal. Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993).

For the reasons discussed, we affirm.


author: Robert L. Brown, Justice.

text:
    Farris Eugene CONEY v. STATE of Arkansas
    CR 94-1220
    894 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995

      Joe Kelly Hardin, for appellant.

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

The appellant in this case, Farris Eugene Coney, appeals from a judgment of conviction for attempted murder in the first degree and escape in the second degree. He was sentenced as a habitual offender to 50 years and fined $15,000 on the attempted murder conviction and sentenced to 12 years and fined $10,000 on the escape conviction for a total prison term of 62 years and total fines of $25,000. He contends on appeal that the trial court erred in permitting the State to introduce three photographs of the victim at his trial.

The State presented the following case at trial. During the early morning hours of May 12, 1994, Deana Goforth, according to her testimony, returned to her home on Highway 5 South outside of Mablevale after driving around with the appellant Coney that night and listening to music. She had dropped Coney off at his trailer. She thinks that she then took her son to school around 8:00 a.m., and when she returned, Coney had arrived at her home. Deana Goforth’s daughter, Carla Thornton, who was age 18, was also there. Goforth lay down on her living room couch to take a nap at about 10:00 a.m. Carla Thornton was in the kitchen doing the dishes when she heard a loud noise in the living room. She went in and saw Coney standing over her mother with a hammer in his hand. She saw Coney hit her mother three times with the hammer using both of his hands. The blows caused three compound depressed fractures to Goforth’s skull. Thornton ran out of the house and called the police from a neighbor’s home. Coney was arrested, charged with attempted murder, and placed in the Saline County Jail. On May 19, 1994, Coney escaped from the county jail and was subsequently arrested and charged with escape in the second degree.

At trial, the State sought to introduce five photographs of the victim in the hospital after the beating. Defense counsel objected on grounds of irrelevancy and prejudice. The trial court excluded two of the photographs as duplicative and allowed the introduction of the other three. Coney testified in his defense and stated that he did not remember hitting Goforth with the hammer.

The only point raised on appeal is that the trial court erred in allowing the State to introduce the three photographs of Goforth in the hospital. We affirm but do so on a procedural ground. Rule 4-2(a)(6) of the Rules of the Supreme Court provides in relevant part:

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. (Adopted by Per Curiam Order dated February 1, 1993.)

Rule 4-2(b)(2) of the Rules of the Supreme Court further provides that this court may address the issue of a flagrantly deficient abstract on its own and affirm the judgment for noncompliance with the rule.

The three photographs of Goforth which were admitted into evidence and which are at issue in this appeal were not included as part of Coney’s abstract of the record in his brief. Those photographs were essential for a clear understanding of the objection which forms the basis for this appeal. Because of the failure of Coney to include them, we deem his abstract to be flagrantly deficient and affirm the judgment of conviction. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1994); Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993); see also Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994) (Rule 4-2(a)(6) cited but issue of prejudicial photographs considered due to sentence of life without parole). We have said many times that with only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. See, e.g., Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Britton v. State, 316 Ark. 219, 870 S.W.2d 762 (1994).

Affirmed.


author: Andree Layton Roaf, Justice.

text:
    Vernon K. BRADY v. Danny George BRYANT
    94-366
    894 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995
    [Rehearing denied April 13, 1995.]

      Raymond Harrill, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Donald S. Ryan, for appellee.
   Andree Layton Roaf, Justice.

This is an appeal by the plaintiff from an order reviving a judgment in his favor to reflect a balance of $500.00. Appellant argues that the trial court erred in finding that his attorney had authority to enter a settlement which reduced the original judgment, by failing to apply the law of accord and satisfaction to the settlement agreement, and by failing to award interest on the reduced judgment. Finding these arguments to be without merit, we affirm.

The appellant, Vernon Brady, was awarded judgment on May 3, 1983, against appellee, Danny Bryant, for $11,695.00 compensatory damages and $5,000.00 punitive damages in an action arising out of an automobile accident. On July 19, 1983, Brady’s attorney wrote Bryant’s attorney a letter confirming an agreement to allow Bryant to satisfy the judgment by paying $1,000 in cash and an additional $10,000.00 at the rate of $100.00 per month. The $1,000.00 payment was made'in August 1983, and Bryant made monthly payments totaling $9,300.00 to Brady’s attorney from September 1983 through July 1993. In May 1991, Brady’s second attorney sent Bryant a letter which recited the terms of the agreement and complained of missed payments. In June of 1991, Brady’s attorney wrote Bryant’s attorney advising that Brady had denied agreeing to reduce the judgment but agreed that such settlement had been made after being reminded that Bryant had threatened to file bankruptcy. Brady continued to accept monthly payments until April 1993 when he filed a scire facias to revive the original judgment. Bryant’s attorney responded, admitting to a balance of $700.00 and attaching the letters from Brady’s previous attorneys.

At trial to the judge, Brady denied giving his attorneys authority to reduce the judgment or to waive payment of interest, but admitted to receiving the payments made by Bryant. Brady’s first attorney, who wrote the letter of July 1983 testified that he had written the letter in 1983 outlining the settlement terms and that he generally recalled discussing the settlement with Brady.

The second attorney for Brady was not present to testify and Brady’s trial attorney objected to the 1991 letters as hearsay but the court allowed the letters to be introduced as admissions by a party. At the conclusion of the trial, the court found that the parties had reached an agreement in 1983 on the terms outlined in the 1983 letter, that there was no provision for interest in this agreement, and that Bryant had made payments on the agreement for ten years. The court, in enforcing the settlement agreement, found that Brady had continued to accept payments after his attempt to disavow the settlement in 1991, and entered an order reviving the judgment for the balance due on the agreement of $500.00.

On appeal appellant argues there was insufficient evidence for the trial court to find that his attorney had authority to settle the judgment on his behalf and that employment of an attorney does not carry the implied authority to compromise a client’s claims. He further argues that even if his attorney had authority to settle the agreement, the settlement was in effect an accord and satisfaction, and appellee’s failure to make all payments in a timely fashion constituted a failure of the accord.

Where there are conflicts in testimony, we defer to the judgment of the trial judge as to the credibility of the witnesses because of the superiority of his or her position in making that determination. Meinholz v. Meinholz, 314 Ark. 542, 862 S.W.2d 828 (1993). We will not reverse the court unless it is clearly erroneous. Ark. R. Civ. R 52(a). In reviewing a finding of fact by a trial judge, we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the appellee. Tuthill v. Ark. County Equalization Bd., 303 Ark. 387, 797 S.W.2d 439 (1990). We cannot say that the trial court, in finding that the parties reached an agreement in 1983, was clearly erroneous.

However, appellant’s argument must fail even if the court found that his attorney lacked the authority to settle his claim. Brady’s acceptance of the payments over a ten year period, including the period after his disavowal of the settlement, constituted a ratification of his attorney’s actions. In Arnold v. All American Assurance Company 255 Ark. 275, 496 S.W.2d 861 (1973), this court discussed the concept of ratification, by a reference to Corpus Juris Secumdum:

Ratification is a doctrine of agency, which is well-established in the common law, and it refers to the express or implied adoption and confirmation by one person of an act or contract performed or entered into in his behalf by another without authority.

The court went on to state that “[i]t is well settled in Arkansas law that when the principal has knowledge of the unauthorized acts of his agent, and remains silent, when he should speak, or accepts the benefit of such acts, he cannot thereafter be heard to deny the agency but will be held to have ratified the unauthorized acts.... It has been said that affirmance of an unauthorized transaction may be inferred from a failure to repudiate it, or from receipt or retention of benefits of the transaction with knowledge of the facts. Restatement of the Law, Second Edition, Agency §§ 94, 98, 99; 3 Am. Jur. 2d 560-564, Agency, §§ 175, 176,178.”

Appellant also argues the trial court erred in finding the 1983 agreement would not include interest. Appellant argues that because interest was not mentioned in the agreement, the trial court should have applied Art. 19 § 13(d)(i) of the Arkansas Constitution to supply the missing provision for interest. Art. 19, § 13(d)(i) states:

(d) Miscellaneous
(i) The rate of interest for contracts in which no rate of interest is agreed upon shall be six percent (6%) per annum.

Appellant has cited no authority for this proposition, and a plain reading of the provision reveals no such intent by the authors. The provision allows for an interest rate when no rate has been decided upon. It does not provide for interest when no interest has been provided by the parties.

We have considered the other contentions presented by appellant, and because we find that the trial court was correct in holding that an agreement had been made, we conclude that these arguments lack merit.

Affirmed.


text:
    VOLUNTEER COUNCIL, Arkadelphia Human Development Center, Inc. v. GOVERNMENT BONDING BOARD, State of Arkansas
    94-897
    894 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered March 6, 1995

      William F. Sherman, for appellant.

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

This appeal seeks to reverse a decision of the Governmental Bonding Board which denied the appellant’s claim under the Fidelity Bond Program, Ark. Code Ann. §§ 21-2-701 - 21-2-711 (Supp. 1993) (Act 728 of 1987). We hold there has been no loss on the part of a participating governmental entity and affirm the decision of the Governmental Bonding Board.

Appellant Volunteer Council, Arkadelphia Human Development Center, Inc. (the Volunteer Council) is a non-profit organization formed to benefit the residents and staff of the Arkadelphia Human Development Center (AHDC). Doctor Russ Burbank, the former Superintendent of the AHDC, also served as a member of the Volunteer Council. In 1992, he was charged with theft of funds from the Volunteer Council. Doctor Burbank pled guilty to the theft charges, and, as part of his punishment, he was ordered to pay restitution in the amount of $65,847.98. In actuality, the amount of unaccounted for funds totaled $71,911.11.

The Volunteer Council filed a claim with the Governmental Bonding Board (the Board) seeking $71,911.11. After a hearing, the Board denied the appellant’s claim. In its written order, the Board announced the following conclusions of law: (1) there is no substantial evidence that the Volunteer Council is a state governmental entity as defined in Section 2 of Act 728 of 1987; (2) there is substantial evidence that the conduct of Doctor Burbank in taking the $71,911.11 was tortious and criminal; and (3) there is substantial evidence that Doctor Burbank held the $71,911.11 personally and that such funds were not held by a participating entity of Act 728 of 1987 of any kind. Further, the Board announced the following relevant findings of fact: (1) the Arkadelphia Human Development Center (Center) is a state government entity; (2) the Volunteer Council is a non-profit organization formed to benefit clients and staff of the Center; (3) The Volunteer Council is not an organizational part of the Center; (4) the Volunteer Council is not a state governmental entity; (5) As superintendent of the Center, Doctor Russ Burbank was a member of the Volunteer Council; ... (9) the funds of the Volunteer Council were kept separate from the funds of the Center; and (10) the funds of the Volunteer Council that were taken by Doctor Russ Burbank were held by him personally.

On September 2, 1993, the appellant filed a petition for judicial review in Pulaski County Circuit Court pursuant to the Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (1992). The appellant alleged the Board’s decision was based upon an erroneous interpretation of Act 728, the Board failed to apply the law that a principal is liable for the tortious acts of its employees conducted in the scope of employment, the decision was not supported by substantial evidence in the record, and the decision was arbitrary and characterized by abuse of discretion.

The circuit court affirmed the Board’s decision denying the appellant’s claim. The court found there was substantial evidence that the Volunteer Council is not a state governmental entity as defined in Section 2 of Act 728 and the funds were not held by a participating entity as defined in Act 728. On appeal, the Volunteer Council contends: (1) the state should be held responsible for the losses from conversion of Volunteer Council assets by the state’s agent; (2) the state is liable under Act 728 because the AHDC, through its highest official, “held” the Volunteer Council assets; and (3) the decision of the Government Bonding Board denying the Volunteer Council claim was not supported by substantial evidence.

When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992). To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. On appeal, we give the evidence its strongest probative force in favor of the administrative agency. Ark. Dept. of Human Services v. Simes, 281 Ark. 81, 661 S.W.2d 378 (1983).

The Volunteer Council filed a claim with the Governmental Bonding Board; therefore, the appellant’s only basis for reimbursement from the Board is through the Fidelity Bond Program. Arkansas Code Ann. § 21-2-701, Purpose, provides in part:

It is found and determined that the State of Arkansas and the counties, municipalities, and school districts of the State of Arkansas are expending large sums of money each year for premiums on blanket bonds for officers and employees; . . .

In accordance, Ark. Code Ann. § 21-2-704 provides in part:

(a) There is established a self-insured Fidelity Bond Program for state officials and employees, county officials and employees, municipal officials and employees, and school district officials and employees, as defined in § 21-2-702, to be administered by the Governmental Bonding Board.
(b) The fidelity bond coverage provided by the self-insured Fidelity Bond Program shall cover actual losses sustained by the participating governmental entities as defined in § 21-2-702 through any fraudulent or dishonest act or acts committed by any of the officials or employees, . . .
(d) The fidelity bond coverage provided by the self-insured Fidelity Bond Program shall not cover losses sustained by the participating governmental entities as a result of:
(1) Liability imposed upon or assumed by the participating governmental entities to exonerate or indemnify an official or employee from or against liability incurred by the official or employee in the performance of duties; or
(2) Damages for which the participating governmental entity is legally liable as a result of:
(A) The deprivation or violation of the civil rights of any person by an official or employee; or
(B) The tortious conduct of an official or employee, except conversion of property of other parties held by the participating governmental entity in any capacity, . . .
(e) Fidelity bond coverage shall not cover losses sustained by any party other than the participating governmental entities.

(Emphasis supplied.) In sum, the Fidelity Bond Program is designed to cover losses sustained by participating governmental entities. However, section 21-2-704(d) provides the bond coverage shall not cover losses sustained by the participating governmental entities due to the tortious conduct of an employee except conversion of property of other parties held by the participating governmental entity in any capacity.

It is undisputed that the AHDC is a governmental entity and that Dr. Burbank’s conduct was tortious and criminal. It is also undisputed that the Volunteer Council is a non-profit organization formed to benefit the residents and staff of the AHDC and it is not a governmental entity as contemplated by § 21-2-704. Although the Volunteer Council raises several points on appeal, the appellant is principally contending the converted funds were in fact “held” by a participating governmental entity, AHDC. The appellant relies upon the exception found in section 21-2-704(d)(2)(B) for the “conversion of property of other parties held by the participating governmental entity in any capacity.” The Volunteer Council contends it is the “other party” and the converted funds were “held” by AHDC through its agent, Doctor Burbank.

We hold the Fidelity Bond Program covers only losses sustained by a participating governmental entity. Section 21-2-704(b) provides “[t]he fidelity bond coverage provided by the self-insured Fidelity Bond Program shall cover actual losses sustained by the participating governmental entities . . (Emphasis supplied.) Section 21-2-704(e) provides “Fidelity bond coverage shall not cover losses sustained by any party other than the participating governmental entities.” Further, § 21-2-709(a) provides in part: “If the board determines that the loss is covered under the Fidelity Bond Program, the Insurance Commission shall authorize fidelity bond loss payments from the fund to the participating governmental entity on a timely basis.”

Finally, we note that § 21-2-704(d), which the appellant bases its claim upon, refers to “losses sustained by the participating governmental entities.” Subsection (d) provides the fidelity bond coverage shall not cover losses sustained by the participating governmental entities as a result of tortious conduct except conversion of property of other parties. The subsection does not provide that fidelity bond coverage shall cover losses sustained by the other party. Rather, the exception provides the fidelity bond coverage shall cover losses of the participating governmental entity under such circumstances.

The Volunteer Council is not a governmental entity as contemplated by § 21-2-704. Consequently, the Volunteer Council is not entitled to reimbursement through the self-insured Fidelity Bond Program.

Affirmed.